Terms and Conditions

SpotMenusTM Terms and Conditions

Last Updated on June 6, 2020.

These General Terms and Conditions (the “Terms”) are effective immediately for users accessing or using the Service without an Account or those registering Accounts

These Terms govern your access to and use of the SpotMenus products and services, including those offered through our websites, communications (e.g., emails, phone calls, and texts) and mobile applications (collectively, the “Service”). By accessing or using the Service, you are agreeing to these Terms, which form a legally binding contract between you and BrandMuscle Inc., a Delaware corporation with its headquarters in Chicago, Illinois, which is making the Service available to you. Do not access or use the Service if you are unwilling or unable to be bound by the Terms. You represent and warrant that you have all necessary right, power and authority to enter into this agreement and to perform and otherwise discharge all of your obligations hereunder.

DEFINITIONS
1. Parties. “You” and “your” refer to you, as a user of the Service. A “user” is someone who accesses or in any way uses the Service (consumer or restaurant administrator). “We,” “us,” and “our” refer to BrandMuscle, SpotMenus and its subsidiaries and affiliates.
2. “Content” means text, images, photos, audio, video, and all other forms of data or communication. “Your Content” means Content that you submit or transmit to, through, or in connection with the Service, such as menus, and information that you contribute to your user profile or suggest for a business page. “User Content” means Content that users submit or transmit to, through, or in connection with the Service. “Third Party Content” means Content that originates from parties other than BrandMuscle or its users, which is made available in connection with the Service. “Service Content” means all of the Content that is made available in connection with the Service, including Your Content, User Content, SpotMenus Content (as defined below), and Third Party Content.
3. Sites and Accounts. “Consumer Site” means BrandMuscle’s consumer website (SpotMenus.com and related domains) and mobile applications that present menus and related content. “Consumer Account” means the account used to access or use the Consumer Site. “Business Site” means the administrative functions and related capabilities of the SpotMenus platform. “Business Account” means the account used to access or use the SpotMenus administrative web applications for Businesses.

CHANGES TO THE TERMS
We may modify the Terms from time to time. The most current version of the Terms will be located here. You understand and agree that your access to or use of the Service is governed by the Terms effective at the time of your access to or use of the Service. If we make material changes to these Terms, they will be posted on this page with links from the Consumer Site and Business Site. We will also indicate at the top of this page the date that such changes were last made. You should revisit these Terms on a regular basis as revised versions will be binding on you. You understand and agree that your continued access to or use of the Service after the effective date of changes to the Terms represents your acceptance of such

USING THE SERVICE
1. Eligibility. To access or use the Service, you must have the requisite power and authority to enter into these Terms. You may not access or use the Service if we have previously banned you from the Service or closed your Account.
2. Permission to Use the Service. We grant you permission to use the Service subject to these Terms. Your use of the Service is at your own risk, including the risk that you might be exposed to Content that is offensive, indecent, inaccurate, objectionable, incomplete, fails to provide adequate warning about potential risks or hazards, or is otherwise inappropriate.
3. Service Availability. The Service may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability.
4. Communications from BrandMuscle and Others. By accessing or using the Service, you consent to receive communications from BrandMuscle, through the Service, or through any other means such as emails, push notifications, and text messages (including SMS and MMS). These communications may promote BrandMuscle or businesses doing business with BrandMuscle, and may be initiated by BrandMuscle, businesses doing business with BrandMuscle, or other Businesses (eg. restaurants).
5. If you access the Service from a Business Account, you agree to display SpotMenus signage from welcome kit in visible locations for customers to scan, unless otherwise agreed upon with BrandMuscle.

BUSINESS ACCOUNT CONTENT
1. Responsibility for Your Content. If you access the Service from a Business Account, you are responsible for Content that you upload, and once made available to the Service, it cannot always be withdrawn. You assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, or reliability, and any risks associated with information you disclose. You represent that you own or have the necessary permissions to use and authorize the use of Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by BrandMuscle. You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, service mark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; violates or advocates the violation of any law or regulation; or violates these Terms.
2. Our Right to Use Your Content. We may use Your Content in a number of different ways, including by publicly displaying it, reformatting it, incorporating into other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms (“Other Media”). As such, you hereby irrevocably grant us worldwide, perpetual, non-exclusive, royalty-free, assignable, sub-licensable, transferable rights to use Your Content for any purpose. Please note that you also irrevocably grant the users of the Service and any Other Media the right to access Your Content in connection with their use of the Service and any Other Media. Finally, you irrevocably waive, and cause to be waived, against BrandMuscle and its users any claims and assertions of moral rights or attribution with respect to Your Content. By “use” we mean use, copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content.
3. As between you and BrandMuscle, you own Your Content, subject to our rights to use it as set forth in these Terms. We own the BrandMuscle SpotMenus Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation (including, but not limited to, our selection, coordination, aggregation, and arrangement of User Content and other Service Content), computer code, products, software, usage data and metrics generated by or derived from any activity on the platform (including any compilations of same), and all other elements and components of the Service excluding Your Content, User Content and Third Party Content. We also own the copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights throughout the world associated with the BrandMuscle SpotMenus Content and the Service, which are protected by copyright, trade dress, trademark, and trade secret laws and all other applicable intellectual and proprietary rights and laws. As such, you may not sell, license, copy, publish, modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way use or exploit any of the BrandMuscle SpotMenusTM Content in whole or in part, except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Service and the BrandMuscle SpotMenus Content are retained by us.
REPRESENTATIONS AND WARRANTIES
We are under no obligation to enforce the Terms on your behalf against another user. While we encourage you to let us know if you believe another user has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion.
1. You represent and warrant that:
  1. You have read and understood our Terms & Privacy Policy
2. You also represent and warrant that you will not, and will not assist, encourage, or enable others to use the Service to:
  1. Violate our Terms
  2. Violate any third party’s rights, including any breach of confidentiality, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
  3. Promote a business or other commercial venture or event, or otherwise use the Service for commercial purposes, except in connection with a Business Account in accordance with the Business Terms;
  4. Solicit personal information from minors, or submit or transmit pornography;
  5. Violate any applicable law;
  6. Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Service or Service Content (other than Your Content), except as expressly authorized by BrandMuscle;
  7. Use any robot, spider, Service search/retrieval application, or other automated device, process or means to access, retrieve, copy, scrape, or index any portion of the Service or any Service Content, except as expressly permitted by BrandMuscle;
  8. Reverse engineer any portion of the Service
  9. Remove or modify any copyright, trademark, or other proprietary rights notice that appears on any portion of the Service or on any materials printed or copied from the Service;
  10. Record, process, or mine information about users;
  11. Access, retrieve or index any portion of the Service for purposes of constructing or populating a searchable database;
  12. Reformat or frame any portion of the Service;
  13. Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on BrandMuscle’s technology infrastructure or otherwise make excessive traffic demands of the Service;
  14. Attempt to gain unauthorized access to the Service, Accounts, computer systems or networks connected to the Service through hacking, password mining or any other means;
  15. Use the Service or any Service Content to transmit any computer viruses, worms, defects, Trojan horses, malicious code, spyware, malware or other items of a destructive or harmful nature;
  16. Use any device, software or routine that interferes with the proper working of the Service, or otherwise attempt to interfere with the proper working of the Service;
  17. Use the Service to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Service or Service Content; or
  18. Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of Service Content, or features that enforce limitations on the use of the Service.

ADDITIONAL POLICIES AND TERMS
1. Copyright and Trademark Disputes. You agree to follow our Infringement Policy in notifying us about copyright and trademark disputes concerning User Content. You agree we may forward any notification sent pursuant to our Infringement Policy to the user who submitted the User Content at issue.
2. Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines that we may post on or link to from the Service (the “Additional Terms”). All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.

INDEMNITY
You agree to indemnify, defend, and hold harmless BrandMuscle, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents, contractors and representatives of each of them (collectively, the “BrandMuscle Entities”) from and against any and all third party claims, actions, demands, losses, damages, costs, liabilities and expenses (including but not limited to attorneys’ fees and court costs)  arising out of or relating to: (i) your access to or use of the Service, including Your Content, (ii) your violation of the Terms, (iii) your breach of your representations and warranties provided under these Terms, (iv) any products or services purchased or obtained by you in connection with the Service, (v) your products or services, or the marketing or provision thereof to end users, or (vi) the infringement by you, or any third party using your Account, of any intellectual property or other right of any person or entity. BrandMuscle reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without the prior written consent of BrandMuscle. BrandMuscle will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

DISCLAIMERS AND LIMITATIONS OF LIABILITY
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF THE BRANDMUSCLE ENTITIES TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. BY ACCESSING OR USING THE SERVICE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
1. THE SERVICE AND SERVICE CONTENT ARE MADE AVAILABLE TO YOU ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE BRANDMUSCLE ENTITIES MAY NOT MONITOR, CONTROL, OR VET USER CONTENT OR THIRD PARTY CONTENT. AS SUCH, YOUR USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK. THE BRANDMUSCLE ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, COMPLETENESS, ACCURACY, OR RELIABILITY OF THE SERVICE, ITS SAFETY OR SECURITY, INCLUDING WITHOUT LIMITATION THE SECURITY OF YOUR DATA, OR THE SERVICE CONTENT. ACCORDINGLY, THE BRANDMUSCLE ENTITIES ARE NOT LIABLE TO YOU FOR ANY PERSONAL INJURY, LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICE’S INOPERABILITY, DEPLETION OF BATTERY POWER OR OTHER IMPAIRMENT OF DEVICES USED TO ACCESS THE SERVICE, SERVICE UNAVAILABILITY, SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF ANY CONTENT FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE SERVICE.
2. THE BRANDMUSCLE ENTITIES MAKE NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES OR ADVERTISERS LISTED ON THE SERVICE OR THAT OFFER GOODS OR SERVICES THROUGH THE SERVICE, OR THE SERVICE’S USERS. ACCORDINGLY, THE BRANDMUSCLE ENTITIES ARE NOT LIABLE TO YOU FOR ANY PERSONAL INJURY, LOSS OR DAMAGE THAT MIGHT ARISE FROM ANY SUCH THIRD PARTY’S ACTIONS OR OMISSIONS,
3. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICE, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICE.
4. THE BRANDMUSCLE ENTITIES’ MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SERVICE OR THESE TERMS IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO THE BRANDMUSCLE ENTITIES IN CONNECTION WITH THE SERVICE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) $100.
5. THE BRANDMUSCLE ENTITIES’ LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BRANDMUSCLE ENTITIES WILL NOT BE LIABLE FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF PROFITS OR REVENUE, (iii) BUSINESS INTERRUPTION, (iv) REPUTATIONAL HARM, (v) LOSS OF INFORMATION OR DATA; OR THE WAIVERS AND LIMITATIONS SPECIFIED IN THIS SECTION 7 WILL SURVIVE AND APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

ARBITRATION, DISPUTES, AND CHOICE OF LAW
1. If you are a resident of the United States or Canada:
  1. EXCEPT FOR EXCLUDED CLAIMS: ANY CLAIM, CAUSE OF ACTION, REQUEST FOR RELIEF OR DISPUTE THAT MIGHT ARISE BETWEEN YOU AND BRANDMUSCLE (“CLAIMS”) MUST BE RESOLVED BY ARBITRATION ON AN INDIVIDUAL BASIS; YOU AND WE AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN OUR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH YOU AND BRANDMUSCLE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. YOU AND BRANDMUSCLE EXPRESSLY WAIVE THE RIGHT TO TRIAL BY A JURY.
  2. “Excluded Claims” means: (a) Claims brought by you or BrandMuscle that could be brought in small claims court, if permitted by the rules of that court, or (b) Claims related to intellectual property (like copyrights and trademarks), violations of BrandMuscle’s API Terms of Use if any (which, for clarity, are governed by those terms), or a breach of Section 4(d) above (Representations and Warranties). Excluded Claims may be brought in court. Any issues relating to the scope and enforceability of the arbitration provision will be resolved by the arbitrator. If any Claim cannot be arbitrated in accordance with this provision, then only that Claim may be brought in court and all other Claims remain subject to arbitration.
  3. Excluded Claims and Claims that cannot be arbitrated must be brought in court. Illinois law will govern these Terms (to the extent not preempted or inconsistent with federal law), as well as any such Excluded Claim or Claim that cannot be arbitrated, without regard to conflict of law provisions. All Excluded Claims and Claims that cannot be arbitrated are subject to the exclusive jurisdiction in, and the exclusive venue of, the state and federal courts located within Cook County, Illinois and you consent to the personal jurisdiction of these courts for the purpose of litigating any such Claim.
  4. Arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules then in effect. For more information, visit www.adr.org. Arbitration shall be conducted in person in Cook County, Illinois. The arbitrator may award damages to you individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim.
  5. In the event the arbitrator finds the arbitration was frivolous or brought for an improper purpose, you agree to pay all filing, AAA, and arbitrator’s fees and expenses; otherwise you and we agree to split such costs equally. We retain the right to seek an award of attorneys’ fees and expenses in connection with any frivolous arbitration brought by you.
  6. You agree that any subpoena, third-party discovery request, or other third-party process directed to BrandMuscle must issue from, or be domesticated by the state or federal courts located within Cook County, Illinois and you agree to submit to the jurisdiction of each of these courts for any related proceedings.

TERMINATION
1. You may terminate the Terms at any time by closing your Account, or discontinuing any access to or use of the Service. You may also contact us at legal@brandmuscle.com to confirm account cancellation.
2. We may close your Account, suspend your ability to use certain portions of the Service, terminate any license or permission granted to you hereunder, and/or ban you altogether from the Service for any or no reason, and without notice or liability of any kind. Any such action could prevent you from accessing your Account, the Service, Your Content, Service Content, or any other related information.
3. In the event of any termination of these Terms, whether by you or us, Sections 1, and 4-10 of these Terms will continue in full force and effect.

GENERAL TERMS
1. We reserve the right to modify, update, or discontinue the Service at our sole discretion, at any time, for any or no reason, and without notice or liability.
2. Except as otherwise stated in explicitly herein, nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.
3. The Terms (including any provisions incorporated in or linked to herein) contain the entire agreement between you and us regarding the use of the Service, and supersede any prior agreement between you and us on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms.
4. Any failure on BrandMuscle’s part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. The Terms may not be waived, except pursuant to a writing executed by BrandMuscle.
5. If any provision of the Terms is found to be unenforceable or invalid by an arbitrator or court of competent jurisdiction, then only that provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable.
6. The Terms, and any rights or obligations hereunder, are not assignable, transferable or sub licensable by you except with BrandMuscle’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void.
7. You agree that no joint venture, partnership, employment, agency, special or fiduciary relationship exists between you and BrandMuscle as a result of these Terms or your use of the Service.
8. The section titles in the Terms are for convenience only and have no legal or contractual effect.