OUTPOST TERMS OF SERVICE
LAST UPDATED: AUGUST 28, 2020
Welcome to Outpost! The Infatuation Inc. (together with its successors and assigns, “The Infatuation”, “we”, “us” or “our”) provides our services (described below) and related content to you through our website located at https://www.outpost.market/ (the “Site”) and related technologies (collectively, such technology, the Mobile Services (as defined below) and the Site, the “Services”).
These Terms of Service (“Terms”) govern your access to and use of the Services, so please read them carefully before using the Services. As our business grows and we add new functionality to the Services, we may revise these Terms periodically. If we do, we will post the changes here. Your continued use of the Site after any changes are posted constitutes your acceptance of the new Terms. We reserve the right, at our sole discretion, to change or modify portions of these Terms at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST THE INFATUATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Beyond completing your Purchase and rendering your payment, any additional correspondence and/or ensuing relationship with the Outpost Professional or other third parties found on, through or related to the Services, including communicating via the messaging features enabled through the Service or otherwise with any Outpost Professional that you have reserved services from through the Services, and any other terms or conditions associated with such dealings, are solely between you and the applicable Outpost Professional or other applicable third party you choose to deal with. The Outpost Professional is solely responsible for, and The Infatuation disclaims all liability with respect to, coordinating all details of the Culinary Experience including, but not limited to, the date, time and location where the Culinary Experience will be provided, whether the Outpost Professional will provide you with any supplies and materials and the sourcing, fulfillment, packaging, distribution and shipping of such supplies and materials to you, confirming if you have any special requirements or restrictions such as allergies and/or food restrictions. In turn you are responsible for providing the Outpost Professional with any information that they reasonably request in connection with providing the Culinary Experiences and for identifying for the Outpost Professional any special requirements that you may have. You acknowledge and agree, that The Infatuation will not have any liability or responsibility to you or the Outpost Professional due to your failure to provide requested information or any specific requirements that you have to the Outpost Professional. It is solely your responsibility to notify your Outpost Professional prior to a Culinary Experience of any suspected or known allergies. Prior to consumption of any food or beverage, please be sure to carefully review all product ingredients.
In its capacity as an intermediary between you and the Outpost Professionals, The Infatuation, will not be responsible for, and disclaims all liability with respect to, (i) any wrong information communicated by you or the Outpost Professional regarding the Culinary Experience and your ensuing relationship, (ii) cancellation or modification of a Culinary Experience by either you or the Outpost Professional (subject to the section titled “Cancellations and Refunds” below), or (iii) the behavior of any users (including the Outpost Professionals) while using the Services or during the course of the ensuing relationship between you and the Outpost Professional before, during and after the Culinary Experience. YOU AGREE THAT THE INFATUATION WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS, COST, DAMAGE, OR OTHER LIABILITY OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS, OR AS THE RESULT OF THE PRESENCE OF SUCH PARTIES ON THE SERVICE, AND YOU HEREBY IRREVOCABLY WAIVE ANY CLAIMS AGAINST THE INFATUATION ARISING FROM OR RELATED TO YOUR RELATIONSHIP WITH AN OUTPOST PROFESSIONAL OR OTHER THIRD PARTY.
MODIFICATIONS TO SERVICES & DATA
The Services may change over time as we add more features and functionality. We may modify, suspend or discontinue, temporarily or permanently, the Services (or a part of the Services) from time to time without prior notice to you. Please backup your data as The Infatuation has no responsibility for the deletion or failure to store any data or other content maintained or transmitted by the Services. You agree that The Infatuation will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services. You acknowledge that The Infatuation may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on The Infatuation’s servers on your behalf. You agree that The Infatuation has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You acknowledge that The Infatuation reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that The Infatuation reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
The Services include certain services that are available via a mobile device, including the ability to browse the Services and the Site from a mobile device (the “Mobile Services”). To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply.
CONDITIONS OF USE
AGE: You must be 21 years of age to use the Services, with or without registering.
You must be 21 years of age or older, to order, receive, or consume alcoholic beverages via the Services. You further represent and warrant that (a) you are not violating, and will not violate, any applicable laws in connection with the delivery of, or consumption of, such food or beverages, and (b) that you will not provide any alcoholic beverages to any individuals who are younger than 21 years of age.
You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Services. The following are examples of the kind of content and/or use that is illegal or prohibited by The Infatuation. The Infatuation reserves the right to investigate and take appropriate legal action against anyone who, in The Infatuation’s sole discretion, violates this provision, including without limitation, removing the offending content from the Services, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Services to:
a) email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of The Infatuation, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose The Infatuation or its users to any harm or liability of any type;
b) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; or
c) violate any applicable local, state, national or international law, or any regulations having the force of law;
d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e) solicit personal information from anyone under the age of 18;
f) harvest or collect email addresses or other contact information of other users from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
g) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
h) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
i) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services.
FEES, PAYMENTS, REFUNDS
The Site is provided free of charge, but each user of the Services hereby agrees to pay any fees associated with a Culinary Experience in advance. By reserving the services of an Outpost Professional in connection with a Culinary Experience, you agree that your credit card may be charged for the full amount of applicable fees prior to the Culinary Experience. The fees for each Culinary Experience will be set forth on the Site. By submitting a Purchase you agree to pay the fees that are set forth on the Site with respect to such Culinary Experience.
Unless otherwise specified, prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery; and (b) value added tax and any other tax or duty which (where applicable) must be added to the price payable. You agree to pay for taxes, shipping or carriage of the Products as such costs are specified by us on the Service when you submit your order.
CANCELLATION AND REFUNDS:
If you cancel your participation at a Culinary Experience:
• Up to 72 hours before the scheduled start time of the Culinary Experience (the “Start Time”), you will receive a full refund; and
• Less than 72 hours of the Start Time, you will not receive any refund.
Stripe will hold all pre-paid amounts in escrow up until twenty four hours after the scheduled end-time for the relevant Culinary Experience, at which time the pre-paid amount will be paid out to the Outpost Professional in accordance with this Section. In the event you are dissatisfied with any Services that you actually receive, you may submit a complaint within 24 hours of the scheduled end-time of such Culinary Experience to The Infatuation’s customer service department by emailing The Infatuation at email@example.com. Please include in your email: your name, contact information, the name, date, and time of the Culinary Experience you attended, and a description of your complaint. The Infatuation reserves the right, in its sole discretion, to issue refunds. Notwithstanding, in the event any booked Culinary Experiences are cancelled by the Outpost Professional prior to the scheduled date and time, you will be refunded all amounts prepaid by you in connection with such event.
YOU ACKNOWLEDGE AND AGREE DISSATISFACTION WITH THE TASTE OF ANY MEAL PROVIDED DURING, OR OVERALL ENJOYMENT OF, ANY SERVICES PROVIDED IS NOT, BY ITSELF, SUFFICIENT GROUNDS TO RECEIVE A REFUND.
In order for The Infatuation to keep bringing you our Services, it is imperative that our users understand and agree that we depend on our users complying with the spirit of these Terms. In particular, we require that all of our users and Outpost Professionals make any payments due between them, through our platform. As such, you acknowledge and agree that you will pay all fees due or owed to any Outpost Professional in connection with any Culinary Experience or other services booked or otherwise arranged through our Services and that you will not pay any other user or Outpost Professional directly any fees associated with any such services, or otherwise circumvent the payment process hereunder.
SPECIAL NOTICE FOR INTERNATIONAL USE; EXPORT CONTROLS:
Software (defined below) available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Services, including as it concerns online conduct and acceptable content.
Unless otherwise expressly authorized herein or in the Services, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
INTELLECTUAL PROPERTY RIGHTS
SERVICES CONTENT, SOFTWARE AND TRADEMARKS:
The Services may contain content (“Services Content”) that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by The Infatuation, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Services Content, in whole or in part. Any use of the Services or the Services Content other than as specifically authorized herein is strictly prohibited. If you are eligible to use the Services, you are granted a limited license to access and use the Services and the Services Content and to download or print a copy of the Services Content solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. You are not permitted to use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or the Services Content other than as authorized by these Terms is strictly prohibited and will terminate the license granted here. The technology and software underlying the Services are the property of The Infatuation, our affiliates and our partners (the “Software”). You agree not to reverse engineer, reverse assemble or otherwise attempt to discover any source code version of the Software. If you are blocked by The Infatuation from accessing the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). We reserve all right, title and interest in and to the Software and Services Content, except for the limited rights expressly granted in these Terms.
Any rights not expressly granted herein are reserved by The Infatuation.
The Infatuation names and logos are trademarks and service marks of The Infatuation (collectively the “Infatuation Trademarks”). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to The Infatuation. Nothing in this Terms or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Infatuation Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of Infatuation Trademarks will inure to our exclusive benefit. You may not use any of Infatuation Trademarks without our prior written permission.
THIRD PARTY MATERIAL:
Under no circumstances will The Infatuation be liable in any way for any content or materials of any third parties (including users and Outpost Professionals), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that The Infatuation does not pre-screen content, but that The Infatuation and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, The Infatuation and its designees will have the right to remove any content that violates these Terms or is deemed by The Infatuation, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
USER CONTENT POSTED ON OR THROUGH THE SERVICES:
You are solely responsible for the content and other materials you upload, post on or through the Services or the Site or transmit to or share with other users or recipients (collectively, “User Content”), and you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. You may not post any content that you did not create or that you do not own. By posting User Content you hereby grant and will grant The Infatuation and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicenseable, perpetual, irrevocable license to copy, display, transmit, distribute, store, modify and otherwise use your User Content in connection with the operation, advertising or marketing of the Services, in any form now known or later developed.
We welcome your comments, questions, suggestions and feedback about the Site or the Services (“Submissions”)! But be aware that any comments or suggestions you make to The Infatuation are non-confidential and become the property of The Infatuation, which will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that The Infatuation may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of The Infatuation, its users and the public. You understand that the technical processing and transmission of the Services, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
THIRD PARTY LINKS AND CONTENT
The Services may provide, or third parties may provide, links or otherwise direct users to other sites and resources on the Internet. The Infatuation has no control over such sites and resources and The Infatuation is not responsible for and does not endorse such sites and resources. The Infatuation will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through such site or resource. Any dealings you have with third parties found while using the Services are between you and the third party, and you agree that The Infatuation is not liable for any loss or claim that you may have against any such third party.
The Infatuation provides a software platform which allows you to obtain certain Culinary Experiences that The Infatuation fulfills using independent Outpost Professionals. The Infatuation is not the employer of any Outpost Professional and Outpost Professionals are not The Infatuation’s agents for any purpose whatsoever. You acknowledge that we do not supervise, direct, or control an Outpost Professional's work or Culinary Services performed in any manner.
By using the Services you agree to release, discharge and hold harmless The Infatuation and its subsidiaries and affiliates (the “Infatuation Entities”) from any and all losses, damages, rights, claims, actions of any kind and injury (including death) arising out of or relating to the Services or any act or omission by any person, including without limitation, any dispute between you and any other person (including the Outpost Professional), regarding your Culinary Experiences and other experiences using the Services, or regarding any content posted on the Site or the Services. If you are a California resident, you waive California Civil Code §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.” This release includes, without limitation, any claim resulting from delay and the criminal acts of others. If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
You agree to indemnify and hold The Infatuation and the Infatuation Entities harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of or relating to your use of the Services, including without limitation, any content posted to or transmitted through the Services, or publicly distributed on the web, your use of the Services, your connection to the Services, your interaction with any Outpost Professional, your request or receipt of the Services, your violation of the Terms or your violation of any rights of another. Each Outpost Professional agrees to indemnify and hold The Infatuation and the Infatuation Entities harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of or relating to the Culinary Experiences, including without limitation, any content posted to or transmitted through the Services, or publicly distributed on the web, your offer or provision of the services required to provide the Culinary Experiences, your interaction with any user of the Services, your violation of the Terms or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such indemnitee.
DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE INFATUATION EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
THE INFATUATION MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. THE INFATUATION DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF OUTPOST PROFESSIONALS. AS BETWEEN YOURSELF AND THE INFATUATION, YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, INCLUDING YOUR ENSUING RELATIONSHIP WITH THE OUTPOST PROFESSIONALS, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
YOU AGREE THAT SOME CULINARY EXPERIENCES MAY CARRY INHERENT RISK, AND BY USING SERVICES AND PARTICIPATING IN SUCH CULINARY EXPERIENCES, YOU CHOOSE TO ASSUME THOSE RISKS VOLUNTARILY. FOR EXAMPLE, SOME SERVICES MAY CARRY RISK OF ILLNESS, BODILY INJURY, DISABILITY, OR DEATH, AND YOU FREELY AND WILLFULLY ASSUME THOSE RISKS BY CHOOSING TO PARTICIPATE IN THOSE CULINARY EXPERIENCES AND RECEIVE THOSE SERVICES. YOU ASSUME FULL RESPONSIBILITY FOR THE CHOICES YOU MAKE BEFORE, DURING AND AFTER YOUR PARTICIPATION IN ANY CULINARY EXPERIENCES OR THE USE OF THE SERVICES. IF YOU BRING A MINOR WITH YOU TO ATTEND ANY CULINARY EXPERIENCE ASSOCIATED WITH THE SERVICES, YOU ARE SOLELY RESPONSIBLE FOR THE SUPERVISION OF THAT MINOR THROUGHOUT THE DURATION OF THE CULINARY EXPERIENCE AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS THE INFATUATION FROM ALL LIABILITIES AND CLAIMS THAT ARISE IN ANY WAY FROM ANY INJURY, DEATH, LOSS OR HARM THAT OCCURS TO THAT MINOR DURING THE CULINARY EXPERIENCE OR IN CONNECTION WITH USE OF SERVICES OR IN ANY WAY RELATED TO THE SERVICES.
ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR YOUR CHILDREN.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE INFATUATION AND THE INFATUATION ENTITIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE INFATUATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL THE INFATUATION’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID THE INFATUATION IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
You agree that The Infatuation, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Services and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if The Infatuation believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Services, may be referred to appropriate law enforcement authorities. The Infatuation may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of this Terms may be effected without prior notice, and acknowledge and agree that The Infatuation may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. Further, you agree that The Infatuation will not be liable to you or any third party for any termination of your access to the Services.
DISPUTE RESOLUTION BY BINDING ARBITRATION: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and The Infatuation, whether arising out of or relating to these Terms (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and The Infatuation are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND THE INFATUATION AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THE INFATUATION AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
The Infatuation is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to The Infatuation should be sent to The Infatuation Inc., Attn: Legal Department, 424 Broadway, 5th Fl., New York, NY 10013 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If The Infatuation and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or The Infatuation may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by The Infatuation or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or The Infatuation is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless The Infatuation and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, The Infatuation agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, The Infatuation will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, The Infatuation will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, The Infatuation will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms to the contrary, The Infatuation agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending The Infatuation written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
You agree that you are solely responsible for your interactions with any other user or Outpost Professional in connection with the Services and The Infatuation will have no liability or responsibility with respect thereto. The Infatuation reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the
The Terms constitute the entire agreement between you and The Infatuation and govern your use of the Services, superseding any prior agreements between you and The Infatuation with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The Terms will be governed by the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and The Infatuation agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York County, New York. The failure of The Infatuation to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms without the prior written consent of The Infatuation, but The Infatuation may assign or transfer these Terms, in whole or in part, without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Services may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Services.
NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, users of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at The Infatuation, Inc., Attn: Legal Department, 424 Broadway, 5th Fl., New York, NY 10013
QUESTIONS? CONCERNS? SUGGESTIONS?
Please contact us email@example.com to report any violations of these Terms or to pose any questions regarding this Terms or the Services.
OUTPOST PROFESSIONAL AGREEMENT
LAST UPDATED: NOVEMBER 13, 2020
BY CLICKING A BOX INDICATING YOUR (“PROFESSIONAL”) ACCEPTANCE OF THIS OUTPOST CULINARY PROFESSIONAL AGREEMENT (THIS “AGREEMENT”) OR BY OTHERWISE USING OR ACCESSING THE PLATFORM (AS DEFINED BELOW) (THE “ACCEPTANCE”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “PROFESSIONAL” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE COMPANY PLATFORM.
This Agreement, by and between Professional and The Infatuation, a Delaware corporation with principal place of business at 424 Broadway, 5th Floor, New York, NY 10013 (“The Infatuation”), is effective as of Acceptance and governs your use of the Platform as a Professional. The Infatuation and Professional are each referred to herein as a “Party” and together, the “Parties”. The Infatuation reserves the right to change or modify portions of this Agreement at any time. If The Infatuation does so, it will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. Company will also notify Professional, either through the Platform user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Platform or changes made for legal reasons may become effective immediately. Professional will have fourteen (14) days from receipt of such notice to terminate this Agreement if it does not agree to these terms. Professional’s continued use of the Company Platform after any such changes or modifications become effective constitutes acceptance of such changes or modifications.
WHEREAS, The Infatuation has developed an online marketplace (the “Platform”) available at https://www.outpost.market/ pursuant to which customers can purchase meal kits, virtual and in-person food and hospitality services and events, such as cooking classes, bartending classes, dinner parties, wine and liquor tastings and pairings, and other similar experiences (collectively, the “Culinary Experiences”) from chefs, bartenders and other food and hospitality professionals.
WHEREAS, Professional desires to make available for purchase certain Culinary Experiences offered by Professional on the Platform (each, a “Professional Culinary Experience”) and The Infatuation desires to facilitate making such Professional Culinary Experiences available for purchase on the Platform.
NOW, THEREFORE, in consideration of the mutual promises below and other good and valuable consideration the sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1.2 Limitations. The following limitations and restrictions will apply to the Platform.
1.2.1 Professional may create username(s) and password(s) (“User Credentials”) for itself and to the extent applicable, any of its employees and contractors (the “Authorized Users”). Professional will be responsible for any actions taken by any third party with access to such User Credentials, and Professional agrees not to disclose such User Credentials to any third parties. Professional will promptly notify The Infatuation if it discovers that its User Credentials have been disclosed or made available to any unauthorized third party.
1.2.2 Except as expressly permitted hereunder Professional will not and will not permit or authorize any third party (including Authorized Users, if applicable) to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the Platform; or (b) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Platform or their related systems, hardware or networks or any content or technology incorporated therein.
1.3 Ownership; Reservation of Rights.
1.3.1 Professional Data and Experience Details.
188.8.131.52 Professional owns the Experience Details and any data collected from Professional and its Authorized Users (if applicable) and managed via the Platform or otherwise provided to The Infatuation ("Professional Data"). Professional acknowledges and agrees that it has sole responsibility and liability for the accuracy, quality, and legality of Experience Details and Professional Data and the means by which such information and data was acquired. The Professional will be responsible for creating its Post(s), which will be subject to review, modification and approval by The Infatuation before it is made publicly available.
184.108.40.206 Professional hereby grants to The Infatuation a non-exclusive, worldwide, royalty-free, fully paid up, sublicenseable, right and license to copy, distribute, display, modify, create derivative works of and use the Experience Details and Professional Data to perform The Infatuation’s obligations under this Agreement, including providing access to the Platform and making available the Professional Culinary Experiences for Purchase.
220.127.116.11 Professional also hereby grants to The Infatuation a non-exclusive, world-wide, royalty-free, fully paid up, perpetual and irrevocable license to copy, anonymize, process and create derivative works of Professional Data, in whole or in part, for the purpose of deriving anonymous statistical and usage data, and data related to the Platform, provided such data cannot be used to identify Professional (“Anonymous Data”) and combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or other sources (when so combined or incorporated, referred to as “Aggregate Data”), for improving The Infatuation’s existing products and services and creating derivatives thereof, developing new products and services and for marketing purposes (e.g., indicating the number of customers using certain services of The Infatuation). For clarity, Anonymous Data is not Professional Data.
18.104.22.168 Professional reserves any and all right, title and interest in and to the Experience Details and Professional Data other than the licenses therein expressly granted to The Infatuation under this Agreement.
1.3.2 Platform Ownership; Reservation of Rights. Professional acknowledges and agrees that, as between the Parties, The Infatuation retains all rights, title and interest in and to the Platform, any data collected from customers, or provided by customers, through Platform (“Customer Data”) and any other materials provided by The Infatuation to Professional, all copies or parts thereof (by whomever produced) and all intellectual property rights therein. The Infatuation hereby reserves any and all, and Professional will acquire no rights, title or interest in and to the Platform, Customer Data and any other materials provided by The Infatuation to Professional or any copies thereof other than the limited licensed rights expressly granted under this Agreement.
1.3.3 Feedback. Professional may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to The Infatuation with respect to the Platform and related services. Professional hereby grants The Infatuation a royalty-free, fully paid-up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback in whole or in part; and (b) use the Feedback in whole or in part, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback in whole or in part.
2 Professional Culinary Experiences; Professional’s Responsibilities
2.1 Professional’s Responsibilities. Professional will use good faith efforts to develop Professional Culinary Experiences that it wishes to sell on the Platform, which will be subject to The Infatuation’s prior approval before they are publicly posted on the Platform, and provide Experience Details. Once a customer has purchased a Professional Culinary Experience (a “Purchase”), the Professional will be required to confirm the Purchase within 3 days of being notified thereof. Thereafter, Professional will be primarily and solely responsible for all matters related to the Professional Culinary Experience (other than the collection of the Fee) and the relationship with the customer. In connection therewith, Professional shall perform the services required to provide the Professional Culinary Services, including without limitation those activities and functions set forth on Exhibit A attached hereto.
2.2 Accuracy of Posts. Professional will provide true, accurate, current and complete information regarding each Professional Culinary Experience, including, without limitation, in the information it provides for the Posts as well as in its correspondence with customers via the Platform messaging functionality and otherwise.
3 License to Professional Marks, Name, Logo and Likeness. Professional may be required to submit an image for use by the Platform to facilitate identifying Professional with customers. Professional also represents and warrants that Professional owns the copyright of any image or Likeness that Professional provides to The Infatuation. Both Professional and The Infatuation may develop certain promotional and advertising materials related to the Professional Culinary Experiences that feature Professional's name, image, voice, likeness and/or quotes ("Likeness"), if applicable, and/or and Professional's logo, and any other trademark or service mark now or hereafter owned by Professional (the "Professional Marks"), if applicable. As reasonably requested by Infatuation, Professional will consult with The Infatuation in connection with such development of promotional and advertising materials. Professional hereby grants to The Infatuation a limited, non-exclusive, sublicensable, non-transferable, royalty-free license to copy, distribute, display and otherwise use any and all Likeness (if applicable) and Professional Marks (if applicable) during the Term for purposes of making the Professional Culinary Experiences available on the PLatform, marketing, advertising, promoting, selling and otherwise commercializing the Professional Culinary Experiences made available through the Platform and the Platform itself, and/or for other purposes deemed appropriate by The Infatuation in its reasonable discretion, except to the extent expressly prohibited by law; provided that any specific usage and display of the Professional Marks during the Term in connection with content posted, published, displayed or distributed on websites, mobile websites, social media outlets or channels or other publications during the Term may continue to be displayed, distributed and otherwise used on such websites, mobile websites or social media outlets or channels after the Term (i.e., The Infatuation is not required to "take down" any such content solely due to the termination of this Agreement, but will take down the content upon Professional's reasonable request. All use of the Likeness and Professional Marks (as applicable) will conform to any reasonable guidelines Professional may provide to The Infatuation regarding usage and appearance. The Infatuation agrees that The Infatuation's prior or continued use of any of the Professional Marks has inured and continues inure to the sole and exclusive benefit of Professional, and The Infatuation agrees that it will not represent that it has any ownership in, or attempt to sublicense, any Professional Marks.
4. Nature of Relationship; Disclaimers Regarding Professional Culinary Experiences.
4.1 Professional acknowledges and agrees that the Platform is merely a marketplace to connect potential customers with culinary professionals, such as Professional, to provide Culinary Experiences. Professional understand and intends that Professional will provide the services required to perform and provide the Professional Culinary Experiences to customers strictly as an independently-owned and operated business enterprise, and not as an employee, worker, agent, joint venture, partner or franchisee of The Infatuation or any customer for any purpose. The Infatuation does not guarantee any minimum number of Purchases through the Platform.
4.2 The Infatuation and Professional acknowledge and agree that the services required to perform and provide the Culinary Experiences are outside the usual course of The Infatuation’s business and that such services will be performed outside all of the places of The Infatuation’s business.
4.3 The Infatuation is interested only in the results to be achieved by Professional: completion of each Professional Culinary Experience that is Purchased in accordance with the specifications as detailed in the Post and as agreed upon between customer and Professional. Professional is solely responsible for determining the manner and method of performing all Professional Culinary Experiences under this Agreement. The Infatuation will not control or have any right to control the manner or means by which Professional performs the services required to provide the Professional Culinary Experience, including but not limited to the time and place where the Professional Culinary Experience will be provided, the supplies and other materials used by Professional to provide the services, the supplies and other materials provided to, or required of, customers in order to participate in the Professional Culinary Experience, any helpers, assistants, subcontractors or other personnel (if any) used by Professional in providing the services, or the manner in which the services are provided. Professional understands and agrees that Professional's failure to provide a Professional Culinary Experience in accordance with the Post and customer’s specifications detailed by customer through the Platform constitutes a material breach of this Agreement.
4.4 The services that Professional provides to a customer pursuant to this Agreement are fully and entirely Professional's responsibility. The Infatuation is not responsible or liable for the actions or inactions of a customer or other third party in relation to the services provided by Professional. Professional understands, therefore, that by using the Platform, Professional will be introduced to third parties in relation to whom The Infatuation has not conducted any background or reference checking, that may be potentially dangerous, and that Professional uses the Platform at his/her own risk. Other than with respect to payment of Fees (see Section 5), the relationship between Professional and any customer is solely between such parties and The Infatuation disclaims any and all responsibility with respect thereto. YOU AGREE THAT THE INFATUATION WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS, COST, DAMAGE, INJURY (INCLUDING BODILY INJURY, DEATH OF ANY PERSON, THEFT OR DAMAGE TO PROPERTY) OR OTHER LIABILITY OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS BETWEEN PROFESSIONAL AND A CUSTOMER, AS THE RESULT OF THE PRESENCE OF SUCH PARTIES ON THE PLATFORM, THE MATCHING OF YOU TO A CUSTOMER OR THE PROVISION OF FOOD, DRINK AND OTHER MATERIALS AND SUPPLIES BETWEEN PROFESSIONAL AND CUSTOMER, AND YOU HEREBY IRREVOCABLY WAIVE ANY CLAIMS AGAINST THE INFATUATION ARISING FROM OR RELATED TO YOUR RELATIONSHIP WITH ANY THIRD PARTY WITH WHOM YOU COME IN CONTACT WITH THROUGH THE PLATFORM (WHETHER DIRECTLY OR INDIRECTLY).
5. Costs and Expenses; Fees; Payment Terms.
5.1 Costs. Professional is solely responsible for any costs or expenses (the “Costs”) incurred by Professional in connection with the operation of Professional’s business and the performance of the services required to provide the Professional Culinary Experiences. Professional shall furnish and maintain, at Professional's own expense, the tools, equipment, supplies, and other materials used to perform the services required to provide the Professional Culinary Experiences. Professional, at Professional's sole discretion, shall determine what equipment, supplies, and materials are necessary to perform such services, and where, when, and at what cost, to purchase or maintain any necessary equipment, supplies, tools, and materials.
5.2 Customer Fees. Customers shall pay in advance for Professional Culinary Experiences through the Platform at the fee set by Professional at the time the applicable Professional Culinary Experience is posted, which shall be inclusive of all Costs, tips and any other fees that Professional wants to charge (collectively, the “Fee”). If Professional and customer agree on additional travel or other expenses beyond those set forth in the Fee identified in the original Post, Professional will notify Infatuation and work with The Infatuation in good faith to process the payment of such additional expenses through the Platform. Any such additional expenses will be considered part of the Fee and subject to this Section 5.
5.3 Platform Fee; Professional Fee. The Parties acknowledge and agree that this Agreement is being entered into in connection with the Company’s beta launch of the Platform, the duration of which will commence as of Acceptance and will continue through the date determined by The Infatuation in its sole discretion (such period, the “Beta Period”). During the Beta Period, The Infatuation shall be entitled to retain eight percent (8%) of the Fees actually received by Professionals from the customers (the “Platform Fee”). The Infatuation will provide the Professional with at least fourteen (14) days’ written notice prior to the end of the Beta Period at which time Professional will be notified of any changes to the Platform Fee. Such written notice will be provided in the form of a revised version of this Agreement that is provided to the Professional in accordance with the preamble hereto. The Infatuation will remit to Professional the difference between the Fee actually received from the customers and the Platform Fee (the “Professional Fee”). Professional is required to notify The Infatuation upon completion of a Professional Culinary Experience through the Platform within twenty-four (24) hours of completion.
5.4 Payment Terms.
5.4.1 The Infatuation will transmit payment of the Professional Fee to Professional via direct deposit. So long as Professional has completed the steps necessary to set up a direct deposit account and provided those details to The Infatuation (via Stripe), The Infatuation will then remit the Professional Fee within seven (7) business days following the day the Professional Culinary Experience was completed. For purposes of this Section 5.4.1, “remit” shall refer to The Infatuation’s initiation of a payment to Professional; provided that The Infatuation has initiated payment to Professional within seven (7) business days following the day the Professional Culinary Experience was completed, The Infatuation shall not be liable if the paid amount is not accessible by Professional within that time frame.
5.4.2 If applicable, The Infatuation will report the payments paid to Professional hereunder by filing the appropriate Form 1099 with the Internal Revenue Service as required by law.
5.4.3 Payment processing services for Professionals are provided by Stripe Inc. (“Stripe”) and are subject to the Stripe Connected Account Agreement, located at https://stripe.com/us/connect-account/legal, which includes the Stripe Terms of Service, located at http://stripe.com/us/legal (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement, Service Professional agrees to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of The Infatuation enabling payment processing services through Stripe, Professional agrees to provide The Infatuation accurate and complete information about Professional and Professional's business, and Professional authorizes The Infatuation to share it and transaction information related to Professional's use of the payment processing services provided by Stripe.
Taxes. All amounts payable by Customer and/or Professional to The Infatuation hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know‑how payments, customs, privilege, excise, sales, use, value‑added and property taxes (collectively "Taxes"). Professional will be solely responsible for payment of any Taxes, except for those taxes based on the income of The Infatuation.
6. Representations, Warranties and Covenants; Disclaimer.
6.1 Mutual Representations. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties and (d) such Party will abide by all applicable laws, rules and regulations.
6.2 Professional’s Representations. Professional represents and warrants that:
6.2.1 it has, and any assistants, helpers, subcontractors or other personnel engaged by Professional have the legal right to provide the services required to provide the Professional Culinary Experiences that are contemplated by this Agreement in the United States; and
6.2.2 will perform services required to provide the Professional Culinary Experiences in accordance with best industry standards for similar services and shall ensure that all assistants, helpers, subcontractors and other personnel used by Professional in relation to the delivery of such services shall do likewise, including the completion of all Professional Culinary Services that are Purchased through the Platform.
6.3 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WARRANTS THAT THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY ARE ERROR-FREE OR THAT OPERATION OF SUCH PARTY’S PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED.
7.1 “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Professional or The Infatuation (in each case, the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party.
7.2 Each Receiving Party will use reasonable measures, in no event less than that degree of care used to protect their own Confidential Information, to protect the secrecy of, avoid disclosure and unauthorized use or reproduction of, and not distribute, sell, license, or otherwise make the Disclosing Party’s Confidential Information available to third parties. Confidential Information may be disclosed to only (a) such employees (if applicable) and agents of the Parties as may need to know such information in the course of their duties; (b) legal or financial advisors of the Parties on a need to know basis; or (c) any competent authorities following a judicial order to do so.
8 Limitation of Liability. EXCEPT TO THE EXTENT THAT LIABILITY ARISES FROM: (I) A BREACH BY EITHER PARTY OF ITS OBLIGATIONS SET FORTH IN SECTION 7 (CONFIDENTIALITY) OR (II) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER (WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY OR OTHERWISE) FOR LOSS OF PROFITS, REVENUE, OR LOSS OR INACCURACY OF DATA, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 Indemnification by The Infatuation. The Infatuation will defend Professional and to the extent Professional is an entity, its officers, directors, agents, and employees (“Professional Parties”) from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party or incurred by the Professional Parties (including reasonable documented and out of pocket attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of any copyright infringement claim or trade secret misappropriation claim that involves, relates to or concerns the Platform (except for claims for which The Infatuation is entitled to indemnification under Section 9.2, in which case The Infatuation will have no obligations with respect to such claim). The Infatuation will have no liability or obligation under this Section 9.1 with respect to any Liability if such Liability is caused in whole or in part by (a) modification of the Platform by any party other than The Infatuation without The Infatuation’s express written consent; (b) the combination, operation, or use of the Platform with other product(s), data or services where the Platform would not by itself be infringing; or (c) unauthorized or improper use of the Platform. If the use of the Platform by Professional has become, or in the Infatuation’s opinion is likely to become, the subject of any claim of infringement, The Infatuation may at its option and expense (i) procure for Professional the right to continue using the Platform as set forth hereunder; (ii) replace or modify the Platform to make it non-infringing so long as the replacement or modified Platform has at least equivalent functionality; (iii) substitute an equivalent for the Platform or (iv) if options (i)-(iii) are not reasonably practicable, terminate this Agreement. This Section 9.1 states The Infatuation’s entire obligation and Professional’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
9.2 Indemnification by Professional. Professional will defend The Infatuation and its officers, directors, agents, employees and affiliates (“Infatuation Parties”) from Liabilities that are payable to any third party or incurred by the Infatuation Parties (including reasonable documented and out of pocket attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of (a) use of the Platform by Professional (or its Authorized Users, if applicable) in violation of this agreement; (b) use of the Experience Details, Professional Data, Professional Marks or Likeness (if applicable) by The Infatuation pursuant to this Agreement; (c) bodily injury, death of any person, theft or damage to real or tangible, personal property resulting from Professional's acts or omissions, which shall include any acts or omissions of any assistants, helpers, subcontractors or other personnel engaged by Professional, (d) any food, beverage or other supplies provided by Professional to the customer; and/or (e) Professional’s breach of any commitment, representation, warranty or agreement made hereunder.
10. Term; Termination. The term of this Agreement begins on the Effective Date and will continue in full force and effect until terminated by either Party (the “Term”). Either Party may terminate this Agreement at any time, for any reason, upon written notice to the other Party or by the Professional removing its service offering from the Platform.
11 Insurance. Professional will maintain, at its own expense, Commercial General Liability Insurance with minimum coverage of $1,000,000 per occurrence and $2,000,00 in the aggregate,. In the case of the foregoing, such policies will be designated as primary and Professional will have the applicable insurance policies specifically endorsed to include The Infatuation as an additional insured, and will provide to The Infatuation a copy of such policies upon request.
12 Relationship of Parties. The relationship of The Infatuation and Professional established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (a) give either Party the power to direct and control the day-to-day activities of the other Party, or (b) constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking. Neither Party nor its agents or employees is the representative of the other Party for any purpose except as expressly set forth in this Agreement, and has no power or authority as agent, employee or in any other capacity to represent, act for, bind, or otherwise create or assume an obligation on behalf of the other Party for any purpose whatsoever. If Professional is a natural person, Professional understands that Professional will not be eligible to participate in any benefit plans offered to The Infatuation’s employees, including, but not limited to, vacation, group medical or life insurance, disability, profit sharing or retirement benefits or any other fringe benefits or benefit plans offered by The Infatuation to its employees. The Infatuation will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including unemployment or disability, or obtaining workers' compensation insurance on Professional's behalf. Professional shall be responsible for, and shall indemnify and hold The Infatuation harmless for any claims, suits, or actions related to this provision, including any such claims brought by Professional or by any third party with respect to any claims for taxes or contributions, including penalties and interest.
13 General. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, consistent with the intent of the Parties as of the Effective Date. This Agreement is governed by and construed in accordance with the laws of the State of New York without regard to its rules of conflict of laws. Each of the Parties hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States of America located in New York, New York for any litigation among the Parties hereto arising out of or relating to the Agreement. All notices under or related to this Agreement will be in writing and will reference the Agreement. Notices will be deemed given when: (a) delivered personally (with an email copy); (b) sent by confirmed telecopy or other electronic means; (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid (with an email copy); or (d) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt (with an email copy). All communications will be sent to the addresses set forth in this Agreement or such other addresses designated by the Parties from time to time. Neither Party may assign this Agreement, or sublicense any of the rights granted therein, in whole or in part, without the prior written consent of the non-assigning Party, which consent will not be unreasonably withheld by the non-assigning Party. Notwithstanding the foregoing, The Infatuation may assign this Agreement without such consent to any person or entity controlling, controlled by, or controlled in conjunction with such Party or that acquires all or substantially all of the assets and business to which this Agreement relates of the assigning Party by merger, asset purchase or other change of control transaction. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of the Agreement in violation of the foregoing will be void. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. Upon termination of this Agreement for any reason, all rights granted hereunder and all obligations of each Party will immediately terminate. Notwithstanding the foregoing, those certain sections that by their nature are intended to survive the expiration or termination of this Agreement shall so survive, including, without limitation, Sections 22.214.171.124, 126.96.36.199, 1.3.2, 1.3.3, 3, 4, 6 through 10 (inclusive), 12 and 13
In connection with Professional’s responsibility for providing the Culinary Experiences to customers who have a confirmed Purchase, Professional will:
a) Provide relevant Experience Details, including, but not limited, to:
a. the dates and times, as applicable, during which it will offer its respective Professional Culinary Experiences;
b. the general neighborhood or geographic area where the Professional Culinary Experiences will take place, if applicable;
c. an estimate of the duration of the Professional Culinary Experience;
d. whether Professional or the customer will be responsible for any supplies that will be needed in connection with the Professional Culinary Experience; and
e. the Fees charged in connection with the Professional Culinary Experience (as further described in Section 5 below).
b) Promptly communicate with the applicable customer through the Platform regarding their Purchase and promptly respond to customer’s questions. Any such communications will be in a respectful and professional manner.
c) Coordinate with the customer regarding any specific details of the Professional Culinary Experiences, including whether the customer (or any of their attendees, if applicable) have allergies and/or food restrictions.
d) To the extent Professional has indicated to the customer that it will be providing supplies (including, without limitation, if the Professional Culinary Experience is a meal kit) then Professional is solely responsible for providing such supplies to customer (including any sourcing, fulfillment, packaging, distribution, shipping, etc. involved in providing such supplies). For clarity, The Infatuation will not, and disclaims all responsibility for, the provision of any supplies (including, without limitation, any foodstuffs and/or beverages) to customers.
e) If the Professional Culinary Experience is an in-person event, traveling to the location agreed upon by Professional and applicable customer.
f) If the Professional Culinary Experience is an in-person event, confirming that there are not any applicable national, state or local mandates or orders that prohibit in person gatherings of the size intended to attend such event.
g) If the Professional Culinary Experience is a virtual event, securing technology through which the Culinary Experience can be provided remotely. Such technology must be secure and provide for quality remote interactions so that the customers can see and hear Professional at all times during the Professional Culinary Experience and which also allows customer to interact verbally and visually with the Customer as well.
h) Once a Professional Culinary Experience has been Purchased, Professional is contractually obligated to perform the services required to provide the Professional Culinary Experience to the applicable customer. Professional will use best efforts to be on time and perform the services required to provide the Professional Culinary Experience in accordance with the date, time, geographic location and other specifications set forth in the Post and/or as agreed upon between Professional and the applicable customer. Professional may not cancel the Professional Culinary Experience, except in the case of an unavoidable emergency, in which case, Professional shall notify customer and The Infatuation as soon as practicable and will reschedule the Professional Culinary Experience. Professional may reschedule a Professional Culinary Experience in advance thereof provided that it provides the customer with at least forty-eight (48) hours advance notice; provided that Professional does not reschedule more than two (2) Professional Culinary Experiences in any given month. If Professional is a no-show or cancels without rescheduling in accordance with this paragraph, then The Infatuation is entitled to nonetheless charge Professional for the Platform Fee that the Infatuation would have otherwise been entitled to receive. Repeated cancellations and/or rescheduled experiences on short-notice by Professional may result in termination of this Agreement in accordance with Section 10. If the customer cancels or is a no-show without providing proper notice under the Cancellation and Refund Policy made available at http://www.outpost.market/en/infos/terms, then the customer will nonetheless be charged the full Fee and Professional will be entitled to the Professional Fee actually received from such customer in accordance with Section 5.