Terms of Service

- United States

OUTO.ME

BEFORE YOU USE THE OUTO.ME PLATFORM ("PLATFORM") PLEASE READ THESE TERMS CAREFULLY. BY PROCEEDING WITH THE ENROLLMENT PROCESS WITH OUTO.ME OR   IN ANY WAY USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING STORE LOCATIONS ("YOU" OR "MERCHANT") AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE, YOU MAY NOT USE THE OUTO.ME PLATFORM.

SECTION 18 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 18 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. PER THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 18 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT AND THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT.

  1. Definitions
  2. “Admin Dashboard” is an online website, accessible at https://admin.OUTO.me through which Merchant may and regularly should review and confirm its transactions, fees and charges and account on the Platform.
  3. “Transaction Fee” means the sum total of credit card processing and transaction fees collected from the consumer by OUTO.ME on the OUTO.ME Platform (applicable only for Merchants who have enabled these features). See Section 7 (D) for further details.
  4. “Customer” means the customer who places an order for Merchant products through the OUTO.ME Marketplace.
  5. “Delivery API” means the OUTO.ME application programming interface (API) that allows the Merchant to exchange information with OUTO.ME.
  6. “OUTO.ME Data” shall mean any information that OUTO.ME provides or makes accessible to Merchant through the OUTO.ME Platform, including without limitation Personal Information. 
  7. “OUTO.ME Marketplace” means OUTO.ME’s proprietary online communication platform where Customers can view and search for the menus of Merchants and/or place an order for Merchant Products via the OUTO.ME website or mobile application for delivery to the Customer. This is also referred to herein as the OUTO.ME Platform.
  8. “OUTO.ME Services” means OUTO.ME Marketplace.
  9. “Marketplace Orders” means orders for Merchant Products through the OUTO.ME Marketplace from OUTO.ME customers.
  10. “Merchant” means the business or other entity that has agreed to participate in the OUTO.ME Services.
  11. “Merchant Products” includes all products offered for delivery orders at Merchant Stores.
  12. “Merchant Stores” means the Merchant store or business locations that participate in the OUTO.ME Services.
  13. “Marketplace Term” means the term of the agreement between OUTO.ME and Merchant for the OUTO.ME Marketplace.
  14. “Order Equipment” means and includes any equipment reasonably required by OUTO.ME for Merchant to receive and process Orders, including, without limitation, a smartphone, tablet, or other automated, electronic means of receiving Orders.
  15. “Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law).
  16. “Third Party Platform” means a technology interface, such as a middleware technology platform, other than the online order form and the Delivery API that enables Merchant to request delivery fulfillment and provide information necessary to enable such delivery fulfillment.

2.  The Parties’ Relationship

OUTO.ME provides an online marketplace platform using web-based technology that connects Merchants and customers ("Platform"), as described in these Terms for OUTO.ME Marketplace.  OUTO.ME is not a merchant or delivery service; it is an online connection platform.  Merchant and OUTO.ME agree they are independent businesses whose relationship (the “Business Relationship”) is governed by the enrollment form and these Terms.  The “Effective Date” of these Terms and of the commencement of the Business Relationship shall be the date Merchant submits the enrollment form and, in so doing, agrees to these terms and conditions. Nothing in the Parties' agreements, relationship or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between OUTO.ME and Merchant (or Merchant's employees, representatives or locations), or OUTO.ME and customers.  Except as expressly set forth in these Terms, each Party shall be responsible for its own expenses, profits and losses. 

3. Subscription Terms

  1. Subscription and Auto-Renewal. Your subscription to the OUTO.ME Platform includes enrollment into an ongoing/recurring payment plan. Your subscription(s) will automatically renew at the end of the disclosed billing period, unless canceled in accordance with the instructions for cancellation below. Payment will be charged to your chosen payment method at confirmation of purchase and at the start of every new billing period, unless canceled. If switching from a monthly subscription to yearly, you will be charged immediately for the amount of a yearly subscription per property less a prorated amount for any time remaining under the monthly plan. If switching from a yearly plan to monthly, a prorated amount will be credited to your account and monthly subscription dues will charge against this remaining balance. Please note that switching subscription plans during a free trial period will automatically terminate the free trial. We reserve the right to change our pricing. In the event of a price change, we will attempt to notify you thirty (30) days in advance of the change by sending an email to the email address you have registered for your account. If you do not wish to accept a price change, you may cancel your subscription in accordance with the instructions included in that email and below. If you do not cancel your subscription after the price change takes effect and prior to the start of your new subscription period, your subscription will be renewed at the price in effect at the time of the renewal, without any additional action by you, and you authorize us to charge your payment method for these amounts. We will not be able to notify you of any changes in applicable taxes. You are responsible for all third-party Internet access charges and taxes in connection with your use of the OUTO.ME Platform.
  2. Free Trials. Your OUTO.ME Platform subscription(s) may begin with a free trial. Availability of a free trial is not guaranteed and, if one is available, is only available on the specified terms of the free trial to those who have not previously used one. Your first payment will be charged to your chosen payment method immediately following the free trial, unless canceled in accordance with the instructions for cancellation below or if switching subscription plans, in which case you will be charged the corresponding dues immediately. You can cancel your subscription at any time before the end of your free trial. We provide notice of the terms of the free trial at the time you enroll and you may not receive a separate notice that your free trial is about to end or has ended, or that your paid subscription has begun.
  3. Cancellation and Refund Policy. You can cancel your subscription at any time before the end of the current billing period or free trial. Cancellation will take effect at the end of the current billing period or free trial. For more information, including instructions on how to cancel your subscription, see Section 12 (‘Termination’) of this Agreement. We do not refund for partially used billing periods.
  4. Payment Details. We will keep your detailed payment information, such as credit card number and expiration date, on file. You are responsible for keeping your payment details up-to-date by changing the details in your account settings. Where your details change or are due to expire, we may obtain or receive from your payment provider updated payment details including your card number, expiry date and CVV (or equivalent). This enables us to continue to provide you access to the OUTO.ME Platform. You authorize us to continue to charge your card using the updated information. If a payment is not successfully authorized due to expiration, insufficient funds, or otherwise, we may suspend or terminate your subscription. You also agree that we may charge your payment method on file if you decide to restart your subscription.

4.  Marketplace Core Responsibilities

For Merchants that have agreed to participate in the OUTO.ME Marketplace, OUTO.ME and Merchant shall have the following responsibilities during the Marketplace Term:

A. OUTO.ME Core Responsibilities. OUTO.ME will, in a timely manner:

  1. Display Merchant’s logo; a listing of the Merchant’s participating Stores; and a menu of Merchant Products on the OUTO.ME Platform;
  2. Accept Marketplace Orders from Customers;
  3. Forward each Marketplace Order to the relevant Merchant Store; and, where applicable,
  4. Pay the Merchant in accord with the Parties' agreements, deducting applicable Transaction Fees. See Section 7.

  

B. Merchant Core Responsibilities. Merchant will, in a timely manner:

  1. Monitor Merchant’s menu and store information on the OUTO.ME Marketplace, promptly make updates via the Admin Dashboard to reflect the most up-to-date products, pricing and other information or immediately notify OUTO.ME of any errors or changes in writing;
  2. Accept all Marketplace Orders placed by OUTO.ME from Merchant’s then-current menu;
  3. Confirm all Marketplace Orders from OUTO.ME;
  4. Prepare the Merchant Products for each Marketplace Order for swift delivery;
  5. Process Marketplace Orders in the order in which they are received;
  6. Deliver Marketplace Orders in a timely manner to the customer at the location they have designated on the Store property;
  7. Remain available to deliver orders during advertised operating hours on OUTO.ME;
  8. Notify all Merchant store staff members of the relationship with OUTO.ME immediately upon execution of this Agreement;
  9. Provide the same utensils, napkins, and other materials that Merchant would typically provide in a standard take-out or delivery order, subject to Section 14(C)(i); and
  10. On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Admin Dashboard, and promptly communicate to OUTO.ME any inaccuracies.

5. Marketplace Customer Refunds

OUTO.ME shall be responsible for customer support issues relating to the ordering of Merchant Products and issues relating to a Customer’s OUTO.ME account. All other customer issues or complaints will be Merchant’s sole responsibility. If Merchant elects to refund a Customer for any reason, such election shall not obligate OUTO.ME to provide a corresponding reimbursement to Merchant.

6. Order Equipment

With respect to the OUTO.ME Marketplace, Merchant will install any equipment reasonably required by OUTO.ME for Merchant to receive and process Orders (including, without limitation, a smartphone, tablet, or other automated, electronic means of receiving Orders) (“Order Equipment”). If any Order Equipment is provided by OUTO.ME, Merchant will pay OUTO.ME an Order Equipment Fee, as set forth in the enrollment process, in exchange for the right to use the Order Equipment to access the OUTO.ME Platform in order to receive, process, and accept Marketplace Orders.  Any Order Equipment provided by OUTO.ME will become the Merchant’s sole property for purposes related to fulfilling Merchant’s responsibilities under this Agreement. Merchant will inspect all hardware, and shall notify OUTO.ME in writing if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. Merchant will be responsible for any damage to, loss, or ordinary wear and tear of any Order Equipment provided by OUTO.ME.

7. Transactions Processed Through OUTO.ME

If the Merchant has enabled the features which allow OUTO.ME to process transactions, then payment, taxes, title, and fees shall be addressed as follows:

A. Payment: OUTO.ME will pay for Marketplace Orders fulfilled by Merchant two (2) to four (4) business days after the corresponding order’s credit card transaction settlement, subject to change with no less than 10 days notice to Merchants by email or service notification. OUTO.ME shall be entitled to deduct Transaction Fees from such payments. Merchant agrees OUTO.ME may charge the customer fees, including but not limited to a Transaction Fee, where applicable in OUTO.ME's sole discretion.

B. Taxes: Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities.

C. Title: Merchant agrees that Merchant holds title to the goods or products that Merchant provides through the Platform and that title passes from the Merchant to the customer upon delivery to the customer’s location.  Merchant agrees that OUTO.ME does not hold title to nor acquire any ownership interest in any goods or products that Merchant prepares or provides through the Platform.

D. Fees: OUTO.ME will apply the Transaction Fee outlined in the Service Order Agreement to each order which is made through the OUTO.ME Platform.

E. Disputes: Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Admin Dashboard, and to promptly communicate to OUTO.ME in writing any claimed inaccuracies, so that OUTO.ME has the prompt opportunity to address and resolve any issues and so such issues do not persist, which OUTO.ME and Merchant agree is in the best interests of both parties and their commercial relationship.  Merchant agrees to communicate to OUTO.ME any disagreement, non-conformity or any issue with any transaction, fee, charge or order within 60 days of the transaction, fee or order.  Merchant shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Merchant does not communicate a written claim or objection to OUTO.ME regarding such transaction, fee, charge or order within such 60-day period. 

F. Payment Processing. Payment processing services, for Merchants who have activated this feature on the OUTO.ME Marketplace, are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these Terms, Merchant agrees to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of OUTO.ME enabling payment processing services through Stripe, Merchant agrees to provide OUTO.ME accurate and complete information about Merchant’s representative and its business, and Merchant authorizes OUTO.ME to share it and transaction information related to Merchant’s use of the payment processing services provided by Stripe. Stripe has been audited by a PCI-certified auditor and is certified to PCI Service Provider Level 1.

8. Merchant Content and Trademark; Images of Menu Items

  1. During the Marketplace Term, Merchant grants to OUTO.ME a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use and display the Merchant  Content in the provision of providing services to Merchant. As used herein, “Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or on Merchant’s website), trademarks, logos and other materials provided by Merchant to OUTO.ME. To the extent any Merchant Content includes intellectual property owned by a third party, including, but not limited to, trademarks, logos, and copyrighted images, Merchant warrants to OUTO.ME that Merchant has the legal right to provide to OUTO.ME the license detailed in this Section 8(A), and will indemnify and hold harmless OUTO.ME against any claim by any third party related to such Merchant Content.
  2. If choosing to upload images of menu items in the Admin Dashboard, it will remain the sole responsibility of the Merchant to legally obtain and display such images.

9. Confidential Information

  1. The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, OUTO.ME Data is the Confidential Information of OUTO.ME.
  2. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
  3. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 9(D), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
  4. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9(C) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.

10. Data Privacy and Security

Merchant agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner OUTO.ME Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep OUTO.ME Data secure from unauthorized access and maintain the accuracy and integrity of OUTO.ME Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to OUTO.ME Data, Merchant will immediately notify OUTO.ME, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by OUTO.ME. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by OUTO.ME and will be responsible for damages resulting from Merchant’s failure to comply. Merchant will not allow any third party to use the OUTO.ME Platform; copy, modify, rent, lease, sell, distribute, reverse engineer or otherwise attempt to gain access to the source code of the OUTO.ME Platform; damage, destroy or impede the services provided through the OUTO.ME Platform; transmit injurious code; or bypass or breach any security protection on the OUTO.ME Platform.

11. OUTO.ME Intellectual Property

  1. Merchant acknowledges the validity of all OUTO.ME Intellectual Property. Merchant acknowledges that, by participating in the OUTO.ME Platform, it does not acquire any right, title, or interest in or to any OUTO.ME Intellectual Property.
  2. Merchant shall not attempt to register, as a trademark, copyright, domain name, or social media account name, OUTO.ME or anything confusingly similar thereto.
  3. Any use by Merchant of OUTO.ME Intellectual Property shall enure to the benefit of OUTO.ME.
  4. Merchant shall promptly give notice in writing to OUTO.ME of any infringements or suspected or threatened infringements, imitations, illegal use or misuse of the OUTO.ME Intellectual Property which come to Merchant’s attention. OUTO.ME may decide in its absolute discretion whether and what steps should be taken to prevent or terminate such infringements, including the institution of legal proceedings.
  5. Upon termination of the Business Relationship, Merchant will immediately destroy all marketing collateral, and cease and desist from all use of the OUTO.ME Intellectual Property.

12. Termination

The term of this Agreement and the license rights granted hereunder will commence upon execution of this Agreement by virtue of completing the enrollment process. The Merchant may terminate this Agreement and the Business Relationship for any reason at any time by completing the cancelation process in the Admin Dashboard. OUTO.ME may terminate this Agreement and the Business Relationship or any promotion under this Agreement for any reason at any time upon written notice. Email shall suffice for written notice. Neither Merchant nor OUTO.ME will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Merchant or OUTO.ME. The payment terms for completed transactions found in Section 6(A) hereof shall survive the termination of this Agreement for any reason.

13. Modifications

OUTO.ME reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. OUTO.ME may, at its sole discretion, remove Merchant Products or Stores from the OUTO.ME Marketplace if OUTO.ME determines that such Merchant Product or Merchant Store could subject OUTO.ME to undue regulatory risk, health and safety risk, or other liability. OUTO.ME also may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be at https://get.OUTO.ME/merchant-terms. We will notify Merchants of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms. If you do not agree to any change to the terms, you must discontinue your use of the Platform.

14. Representations and Warranties; Additional Responsibilities; Warranty Disclaimer

  1. Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.
  2. Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights. 
  3. Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health (including Proposition 65 in California), food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation,  (ii) it has informed OUTO.ME of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) or included them in the description of applicable menu items and it will inform OUTO.ME of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Merchant’s menu items listed on the OUTO.ME Marketplace, (iv) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus on the OUTO.ME Marketplace or request delivery of any age-restricted products through the OUTO.ME Platform without first entering into a separate agreement with OUTO.ME memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold, and (v) it will not disclose any information related to a consumer to a third party (except as required to comply with law or pursuant to a court order).
  4. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUTO.ME HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE OUTO.ME PLATFORM, EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Merchant acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and OUTO.ME shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the OUTO.ME services or Platform. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.

15. Indemnification

Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel (or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in Section 9, Section 10, or Section 14 of this Agreement;  (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property (collectively, “Materials”). In addition, Merchant will defend, indemnify and hold harmless OUTO.ME from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of OUTO.ME. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. OUTO.ME assumes no liability, and shall have no liability, for any infringement claim pursuant to Section 15(iii) above based on Merchant’s access to and/or use of the OUTO.ME Platform following notice of such an infringement claim; any unauthorized modification of the OUTO.ME Platform by Merchant; or Merchant’s combination of the OUTO.ME Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.

16. Limitation of Liability

EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID AMOUNTS OWED TO OUTO.ME BY MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 15 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

17. Insurance

During the term of the Agreement and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be cancelled or materially reduced without thirty (30) days prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under this Agreement.

18. Dispute Resolution

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH OUTO.ME AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 18 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

Any controversy, claim or dispute arising out of or relating to these Terms shall be settled in the following order of preference: (1) By good faith negotiation between representatives of the parties who have authority to fully and finally resolve the dispute; (2) If necessary, by non-binding mediation at a location acceptable to both parties in San Diego County, California using a neutral mediator. In any mediation, the Parties shall equally share the cost of the mediator and otherwise bear their own respective costs; or (3) As a last resort only, by binding arbitration in San Diego County, California. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association, with the following exceptions if in conflict: (a) one arbitrator shall be chosen by the American Arbitration Association; (b) each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (c) arbitration may proceed in the absence of any party if written notice (pursuant to the Arbitrator’s rules and regulations) of the proceeding has been given to such party. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity, provided however, that nothing in this subsection shall be construed as precluding bringing an action for injunctive relief or other equitable relief. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES INAPPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO. Each party will bear its own costs and attorney’s fees arising out of any dispute. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST OUTO.ME OR ANY OUTO.ME OWNER OR EMPLOYEE AS AN INDIVIDUAL ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. 

19. Litigation Class Action Waiver

To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section 18, Merchant agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement will be conducted solely on an individual basis, and Merchant agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Merchant acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Merchant further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.

20. Communications from OUTO.ME

Merchant agrees to accept and receive communications from OUTO.ME including via email, text message, calls, and push notifications to the cellular telephone number Merchant provides to OUTO.ME. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of OUTO.ME or its affiliated companies. Merchant may opt out of such communications in Merchant’s Account Settings or by replying “STOP” from the mobile device receiving such messages.

22. General Provisions

As set forth in the enrollment process between Merchant and OUTO.ME, the enrollment form and these Terms constitute an integrated Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend. This Agreement is governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws principles thereof. Merchant agrees that, except as set forth above in Section 18 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the courts of San Diego, California. Merchant may not assign this Agreement in whole or in part without OUTO.ME’s prior written consent. OUTO.ME may freely assign this Agreement.  This Agreement is binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any third party. All notices, requests, consents and other communications under the Parties' agreements must be in writing, and delivered by overnight courier to the address associated with the Merchant account (or any updated address properly noticed hereunder). OUTO.ME’s address is 262 Blockton Road, Vista, CA 92083. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.

Updated January 9, 2023