User - Terms of Use

You agree to only order items containing alcohol if you are 21 years of age or older.

‍Please read the terms and conditions carefully. The terms and conditions ("Agreement") constitute a legal agreement between you and Closeout, Inc. ("Company").

By accessing or using the website located at www.joincloseout.com ("Website") in any way, downloading, installing or using the Company's mobile application ("Application") or any other software supplied by the Company (collectively, with the Application, the "Software"), accessing or using any information, services, features or resources available or enabled via the Website or Software (each, a "Service" and collectively, the "Services")), clicking on a button or taking similar action to signify your affirmative acceptance of this Agreement, or completing the Closeout account registration process, you hereby represent that: (1) you have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published; (2) you are of legal age in the jurisdiction in which you reside to form a binding contract with Company; and (3) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any company, organization or other legal entity you have named as the user during the Closeout account registration process and to bind that company, organization or entity to the Agreement. The terms "you," "user" and "users" refer to all individuals and other persons who access or use the Website, Software, and/or Services, including, without limitation, any companies, organizations or other legal entities that register accounts or otherwise access or use the Services through their respective employees, agents or representatives. Except as otherwise provided herein, if you do not agree to be bound by the Agreement, you may not access or use the Website, the Services, or the Software.

Subject to Section 12(h) of this Agreement, the Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Website, Software or Services at any time, effective upon posting of an updated version of this Agreement on the Website or Software. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.

The Food Service Providers available through our Services ("Food Service Providers") also operate independently of the Company. The Company will not assess the suitability, legality or ability of any Food Service Provider. The Company is not responsible for the Food Service Providers' food preparation or safety and does not verify their compliance with applicable laws or regulations. The Company has no responsibility or liability for acts by any third-party Food Service Provider other than as stated herein.

 

Any personal information that you provide to Closeout on or through the Products is subject to our Privacy Policy, which is incorporated into these Terms by reference as if set forth fully herein.



1. User Transactions, Warranties and Covenants

‍By using the Services, you expressly represent and warrant that you are legally entitled to enter this Agreement. Your participation in using the Services is for your sole, personal or internal business use. When using the Services, you agree to comply with all applicable laws from your home nation, and the country, state and city in which you are present while using the Services.

By using the Services, you agree that:

(a) You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes.

(b) You will not use the Services to cause nuisance, annoyance or inconvenience.

(c) You will not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any Food Service Provider or user unless the Company has given you permission to do so in writing.

(d) You will not copy or distribute the Software or any content displayed through the Services without prior written permission from the Company.

(e) You will not create or compile, directly or indirectly, any collection, compilation, or other directory from any content displayed through the Services except for your personal, noncommercial use.

(f) The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.

(g) You are aware that when requesting Services, you will receive SMS text messages, and that standard messaging charges will apply.

(h) You will keep secure and confidential your account password or any identification credentials we provide you which allows access to the Services.

(i) You will only use the Services for your own use and will not resell either the Software or Services to a third party.

(j) You will not use the Website or Software in any way that could damage, disable, overburden or impair any Company server, or the networks connected to any Company server.

(k) You will not attempt to gain unauthorized access to any part of the Website and/or to any service, account, resource, computer system and/or network connected to any Company server.

(l) You will not deep-link to the Website or access the Website manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy or monitor any portion of the Website or any content on the Website, unless the Company has given you permission to do so in writing.

(m) You will not copy any content displayed through the Services, including but not limited to Food Service Providers' menu content and reviews, for republication in any format or media.

(n) You will not conduct any systematic retrieval of data or other content from the Website, Software or Services.

(o) You will not try to harm other Users or the Company, the Website, Software or Services in any way whatsoever.


2. Account

‍You are the sole authorized User of any account you create through the Services. You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account by minors. You may not authorize others to use your User status, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify the Company immediately. If you provide any information that is untrue, inaccurate, not current, or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, the Company has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an account or use the Services if you have been previously removed by the Company, or if you have been previously banned from use of the Services.

3. User Content

The Company may provide you with interactive opportunities through the Services, including, by way of example, the ability to post User ratings and reviews (collectively, "User Content"). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit ("Make Available") through the Services. You hereby grant the Company a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with the Company's business and in all forms now known or hereafter invented ("Uses"), without notification to and/or approval by you. You further grant the Company a license to use your username and/or other User profile information, including without limitation your ratings history, to attribute User Content to you in connection with such Uses, without notification or approval by you.

4. IP Ownership

The Company alone (and its licensor, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Website, the Software and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Website, the Software or the Services, or any intellectual property rights owned by the Company. The Company name, the Company logo, and the product names associated with the Website, the Software and Services are trademarks of the Company or third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Software or the Services.

5. Payment

(a) Menu Prices. You understand that: (a) the prices for menu items displayed through the Services may differ from the prices offered or published by Food Service Providers for the same menu items and/or from prices available at other third-party websites and that such prices may not be the lowest prices at which the menu items are sold; (b) the Company has no obligation to itemize its costs, profits or margins when publishing such prices; and (c) the Company reserves the right to change such prices at any time, at its discretion. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on the Company's income). Payment will be processed by the Company, using the preferred payment method designated in your account.

(b) No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. The Company has no obligation to provide refunds or credits, but may grant them, in each case in Company's sole discretion.

(c) Promotional Offers. The Company, at its sole discretion, may make promotional offers with different features and different rates to any of our Users. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. We encourage you to check back at our Website periodically if you are interested in learning more about how we charge for the Software or Services.

(d) Fees for Mobile Order Services and Software. The company charges a service fee of $0.65 on every order through the app. The company also charges a small order fee of $0.50 on every order with a subtotal under $7.50. The Company may change the fees for our Services as we deem necessary or appropriate for our business.

(e) The Company requires a minimum 10% tip to be paid to waitstaff on orders processed through app.  

6. Third-Party Interactions

‍(a) Third-Party Websites, Applications and Advertisements. The Services may contain links to third-party websites ("Third-Party Websites") and applications ("Third-Party Applications") and advertisements ("Third-Party Advertisements") (collectively, "Third-Party Websites & Advertisements"). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Advertisement, the Company will not warn you that you have left the Company's Website or Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Advertisements are not under the control of the Company. The Company is not responsible for any Third-Party Websites, Third-Party Applications or any Third-Party Advertisements. The Company provides these Third-Party Websites & Advertisements only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. You use all links in Third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

(b) App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from which you received the Application license, e.g., the Apple iPhone or Android app stores ("App Store"). You acknowledge that this Agreement is between you and the Company and not with the App Store. The Company, not the App Store, is solely responsible for the Software and the Services, including the Application and the Services, the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or the Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store's terms and policies) when using the Application. You acknowledge that the App Store (and its subsidiaries) are intended third-party beneficiaries of the Agreement and have the right to enforce them.

7. Transactions Involving Alcohol

‍You may have the option to request alcohol products from Food Service Providers. If you receive your order in the United States, you agree that you will only order alcohol products if you are 21 years of age or older. The Food Service Provider reserves the right to refuse your order if you are not 21 years of older, if you cannot provide a valid government issued ID, if the name on your ID does not match the name on your order, or you are visibly intoxicated.


8. Indemnification

‍You agree to indemnify and hold harmless the Company and its officers, directors, employees, agents and affiliates (each, an "Indemnified Party"), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys' fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Website, Software or Services; (c) your violation of this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Website, Software or Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys' fees incurred by the Indemnified Party. The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website, Software or Services. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Website, Software and/or Services.

9. Disclaimer of Warranties

‍YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE WEBSITE, SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE WEBSITE, SOFTWARE AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE WEBSITE, SOFTWARE AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE WEBSITE, SOFTWARE OR SERVICES, OR THE SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.

THE COMPANY DOES NOT WARRANT THAT THE WEBSITE, SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE WEBSITE, SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE WEBSITE, SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THE COMPANY SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.

10. Internet Delays

‍The Company's Website, Software and Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Except as set forth in the Company's privacy policy or as otherwise required by applicable law, the Company is not responsible for any delays, delivery failures, or other economic damage resulting from such problems.

11. Limitation of Liability

‍(a) Cap on Liability. TO THE FULLEST EXTENT OF LAW THE COMPANY'S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF (a) AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO THE COMPANY IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF THE COMPANY FOR (a) DEATH OR PERSONAL INJURY CAUSED BY THE COMPANY'S NEGLIGENCE OR WILLFUL MISCONDUCT, OR FOR (b) ANY INJURY CAUSED BY THE COMPANY'S FRAUD OR FRAUDULENT MISREPRESENTATION.

(b) Disclaimer of Certain Damages. TO THE FULLEST EXTENT OF LAW THE COMPANY SHALL NOT BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE WEBSITE, SOFTWARE, OR SERVICES INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE WEBSITE, SOFTWARE, OR SERVICES, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY FOOD SERVICE PROVIDER, DASHER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED BY THE SOFTWARE OR SERVICES, EVEN IF THE COMPANY AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE ENTIRE DISCLAIMER OF DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR FOR ANY INJURY CAUSED BY THE COMPANY'S FRAUD OR FRAUDULENT MISREPRESENTATION, SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.

12. Dispute Resolution

‍PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 12 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE "ARBITRATION AGREEMENT".

(a) Scope of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services as a consumer of our Services, to any advertising or marketing communications regarding the Company or the Services, to any products or services sold or distributed through the Services that you received as a consumer of our Services, or to any aspect of your relationship or transactions with Company as a consumer of our Services will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or the Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.

CASES HAVE BEEN FILED AGAINST THE COMPANY—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES.

IF YOU AGREE TO ARBITRATION WITH THE COMPANY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

(b) Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.

(c) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator's decision is final and binding on you and the Company.

(d) Waiver of Jury Trial. YOU AND THE COMPANY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and the Company are instead electing to have claims and disputes resolved by arbitration, except as specified in section 12(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

(e) Waiver of Class or Consolidated Actions. YOU AND THE COMPANY AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor the Company is entitled to arbitration of such claim or dispute.

(g) Survival. This Arbitration Agreement will survive any termination of your relationship with the Company.

(h) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if the Company makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.

13. Termination

‍At its sole discretion, the Company may modify or discontinue the Software or Service, or may modify, suspend or terminate your access to the Software or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Software or the Service, the Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Software or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.

15. No Unlawful or Prohibited Use/Intellectual Property


You are granted a non-exclusive, non-transferable, revocable license to access and use https://www.joincloseout.com/ and the Closeout application, together Software, strictly in accordance with these terms of use. As a condition of your use of the Site, you warrant to Closeout that you will not use the Software for any purpose that is unlawful or prohibited by these Terms. You may not use the Software in any manner which could damage, disable, overburden, or impair the Software or interfere with any other party's use and enjoyment of the Software. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Software.

 

All content included as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Site, is the property of Closeout or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.

 

You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found on the Software. Closeout content is not for resale. Your use of the Software does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use and will make no other use of the content without the express written permission of Closeout and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of Closeout or our licensors except as expressly authorized by these Terms.


16. General

‍(a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, the Company or any third-party provider as a result of this Agreement or use of the Software or Services.

(c) Severability. Except as otherwise provided herein, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

(d) Accessing and Downloading the Application from iTunes. The following applies to any Application accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"):
(f) Notice. Where the Company requires that you provide a phone number, you are responsible for providing the Company with your most current phone number. In the event that the last phone number you provided to the Company is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, the Company's dispatch of the phone number containing such notice will nonetheless constitute effective notice.


(g) Electronic Communications. For contractual purposes, you (1) consent to receive communications from the Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. This subparagraph does not affect your statutory rights.

(h) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

 

17. Rewards Points

Closeout offers rewards points on select in-app purchases, referral programs or other specific promotional programs. These reward points carry zero-dollar value and cannot be exchanged directly for USD. Various promotional items will be listed on the Closeout Rewards page, which can be redeemable by purchasing with your rewards points. The items listed on the rewards page can changed without notice.


18. FastPass
Purchasing a Closeout FastPass allows one patron, when redeemed in the presence of the doorman, to become next in line at specific location. Due to capacity restrictions, a FastPass does not guarantee immediate entry. All FastPasses expire at 4AM local time.  

19. Changes to Terms

Closeout reserves the right, in its sole discretion, to change the Terms under which https://www.joincloseout.com/ is offered. The most current version of the Terms will supersede all previous versions. Closeout encourages you to periodically review the Terms to stay informed of our updates.

20. Contact Information

Closeout welcomes your questions or comments regarding the Terms. Please email us support@joincloseout.com.

Effective June 23, 2021

 
 

Merchant Terms of Use

Welcome to Closeout.

This Closeout Service Agreement (henceforth “Terms of Service”) is a legal agreement between Closeout, Inc. (“Closeout”, “us”, or “we”) and the participating establishment (“Company", “you”, “your”, “Merchant”) who registered on the Closeout Account Page to receive certain order & payment processing, data, technology and analytics services (each a “Service”) and agreed to the Closeout Service Agreement. This Agreement describes the terms and conditions that apply to your use of the Services.

These Terms of Service supersede any previously signed Terms of Service by and between Company and Closeout. These Terms of Service shall continue forward indefinitely until either party chooses to terminate business connections as outlined within this document.

General Terms & Core Responsibilities

Closeout offers bar & nightclub patrons the opportunity to order drinks from their phone, and Company the ability to respond to orders and deliver drinks to its patrons. Closeout also offers patrons the ability to purchase FastPasses and Cover Charges to specific partner locations. Services are facilitated by, but not limited to, the processes contained within two main applications (“Software”): one for the patron on their phone, and one for Company that resides on a tablet within a specific location.

Closeout has a web presence at www.joincloseout.com (“Website”) which contains, but is not limited to, the privacy policy and download links.

 

By using any Closeout provided application, Company agrees to participate in the use of Closeout Services.

 

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

 

Closeout Mobile Order Core Responsibilities. Closeout will, in a timely manner:

  1. Display Merchant’s image; a listing of the Merchant Stores; and a menu of Merchant Products on the Closeout Platform;

  2. Accept Marketplace Orders from Customers;

  3. Forward each Marketplace Order to the relevant Merchant Store; and

  4. Pay the Merchant in accord with the Parties' agreements, deduct the applicable Commission Rate, marketing fees (for identifiable orders), and payment processing fees.

 

Merchant Mobile Order Core Responsibilities. Merchant will, in a timely manner:

  1. Ensuring Customer is of legal age to order alcoholic products;

  2. Provide Closeout with the Merchant’s in-store menu, including the price of each item on such menu;

  3. Monitor Merchant’s menu and store information on the Closeout Platform, promptly make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or immediately notify Closeout of any errors or changes in writing;

  4. Prepare the Products for each Order;

  5. Process Orders in the order in which they are received;

  6. Notify Closeout of any changes to the pricing, availability, description, or other characteristics of the Merchant Products;

  7. Notify Closeout of its days and hours of operation, and remain open for business on Closeout the same days and hours of operation as Merchant’s in-store business; notify Closeout of any changes to Merchant’s hours of operations on holidays; and notify Closeout if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation;

  8. Notify all Merchant store staff members of the relationship with Closeout immediately upon execution of this Agreement;

  9. On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to Closeout any inaccuracies; and

  10. If Closeout collects and passes tips from Customers to Merchant, Merchant will distribute such tips in accordance with applicable law, including but not limited to tip pooling laws.

 

Closeout FastPass & Cover Core Responsibilities. Closeout will, in a timely manner:

  1. Display Merchant’s image; a listing of the Merchant Stores; and accurate ticket pricing of Merchant Products on the Closeout Platform;

  2. Accept FastPass & Cover purchases from Customers;

  3. Pay the Merchant in accord with the Parties' agreements, deduct the applicable Commission Rate, marketing fees (for identifiable orders), and payment processing fees.

 

Merchant FastPass & Cover Core Responsibilities.

  1. Ensuring Customer is of legal age to enter establishment;

  2. Provide Closeout accurate pricing of products;

  3. Notify Closeout of its days and hours of operation, and remain open for business on Closeout the same days and hours of operation as Merchant’s in-store business; notify Closeout of any changes to Merchant’s hours of operations on holidays; and notify Closeout if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation;

  4. Notify all Merchant store staff members of the relationship with Closeout immediately upon execution of this Agreement;

  5. Receive all patrons with eligible FastPasses to become next in line following the redemption of such pass in front of your doorman or front of house staff.

  6. Receive all patrons with eligible Closeout Covers following the redemption of such cover in front of your doorman or front of house staff.


Company is prohibited from using any Closeout applications, devices, tools, computer systems, hardware, or products for any illegal or unauthorized purpose.

Company is fully responsible for monitoring and limiting, if necessary, the alcohol consumption of any patron that is provided Services at their bar via Closeout applications.

A breach or violation of any item within these Terms or Service can result in an immediate termination of Company’s continued use of Services through Closeout.

Closeout reserves the right at any time to modify or discontinue its Services (or any part or content thereof) without notice to Company. Closeout shall not be held liable to Company or any third-party for the modification, price change, suspension, or discontinuance of Services.

Company acknowledges and agrees that Closeout provides Services “as is” and “as available” without any warranties, representations, or conditions of any kind, and without any endorsement. Furthermore, Closeout shall have no liability whatsoever arising from or relating to Company’s use of third-party tools.

Any use by Company of optional tools offered through the Software is entirely at Company’s own risk and discretion. Company should ensure they are familiar with and approve of all terms on which tools are provided.
Closeout may offer in the future new Services and/or features through the Software (including, the release of new tools and resources). Such new Services and/or features are subject to these Terms of Service unless otherwise stated as such in a separate document, as mutually agreed upon by both parties.

Company acknowledges and is responsible for possessing valid federal and/or state license(s) to serve alcohol.

Company acknowledges that it carries general liability insurance for the established venue. Company acknowledges that it carries liquor liability insurance for the established venue.

 

 

Restricted Activities

 

You may not use the Services to facilitate illegal Transactions or to permit others to use the Services for personal, family or household purposes. In addition, you may not allow, and may not allow others to: (i) access or attempt to access non-public Closeout systems, programs, data, or services; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Services, Documentation, or our website except as expressly permitted by applicable Laws; (iii) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited; (vi) reverse engineer or attempt to reverse engineer the Services except as expressly permitted by Laws; (vii) perform or attempt to perform any actions that would interfere with the normal operation of the Services or affect use of the Services by our other users; or (ix) impose an unreasonable or disproportionately large load on the Service.


Payout Structures
 

Payouts: Closeout collects payments from patrons on behalf of merchant for the gross sales of menu items through the platform, taxes associated with the sales (based on tax rate given to Closeout by Company), and related tips. Closeout also may collect payments from patrons on behalf of merchant for the sale of FastPass and Cover Charges. You will receive daily payouts, unless noted otherwise in writing, for the appropriate amount of collected sales, net of related fees.

 

Payment Processing

 

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

 

Refunds and Disputes

Order Refunds: In the event that Closeout, in its sole reasonable discretion, has to issue a refund or credit on an Customer’s Order, Merchant will bear the full cost of that refund or credit, as applicable, unless the refund or credit is due to the fault of Closeout.

 

Disputes: In the event that a charge from Merchant’s store, processed through the Closeout platform is disputed by customer, the Merchant will bear the full cost of dispute including chargeback fees.

 

Taxes and Other Collected Amounts

 

You have the sole responsibility and liability for: (i) determining what, if any Taxes apply to the sale of your products and services. (ii) reporting and remitting Taxes for your business to the appropriate tax and revenue authorizes. You, the company, have the ability to set a standard tax rate on your products sold through the Software, and these amounts will be routed to you, net of fees.

 

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

 

Merchant agrees that Merchant holds title to the goods or products that Merchant provides through the Platform until the goods are picked up from Merchant, and that title passes from the Merchant to the Customer upon pickup. Merchant agrees that Closeout does not hold title to or acquires any ownership interest in any goods or products that Merchant prepares or provides through the Platform.


‍IP Rights

‍Closeout alone, shall own all right, title and interest, including all related intellectual property rights, in and to the Website, the Software, and the Services. These Terms of Service are not a sale and do not convey to Company any rights of ownership in or related to the Website, the Software, the Services, or any intellectual property rights owned by Closeout. Closeout’s name, logo, and the product names associated with the Website, the Software and Services are trademarks of Closeout or third parties, and no right or license is granted to use them without the prior written consent of Closeout and or the applicable third parties. Company agrees to not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Software or the Services.

‍Indemnification

‍Company agrees to indemnify and hold harmless Closeout and its officers, directors, employees, agents, and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from Company’s (a) User Content; (b) misuse of the Website, Software or Services; (c) violation of this Agreement; or (d) violation of any applicable laws, rules or regulations through or related to the use of the Website, Software or Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the terms in this section, Company agrees to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. Closeout reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Company, in which event Company agrees to fully cooperate with Closeout in asserting any available defenses. This provision does not require Company to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website, Software or Services. Company agrees that the provisions in this section will survive any termination of these Terms of Service, or Company’s access to the Website, Software and/or Services.

Internet Delays

‍Closeout’s Website, Software and Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Except as set forth in Closeout’s privacy policy or as otherwise required by applicable law, Closeout is not responsible for any delays, delivery failures, or other economic damage resulting from such problems.

Limitation of Liability

 

EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID AMOUNTS OWED TO CLOSEOUT BY MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 16 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.


‍Severance of Terms

‍In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion(s) shall be deemed as severed from these Terms of Service. Furthermore, any such determination or amendments of provisions shall not affect the validity and enforceability of any remaining provisions within these Terms of Service.

‍Closing Terms

‍Any obligations and liabilities by either Company or Closeout which are incurred prior to the termination date of these Terms of Service shall survive the termination of this agreement.

These Terms of Service are effective unless and until terminated by either Company or Closeout. Company may terminate these Terms of Service at any time by notifying Closeout that it no longer wishes to provide the Services as offered by Closeout to its patrons. Allow 3 business days for the changes to take full effect.

The failure by either party to exercise or enforce any rights or provisions within these Terms of Service shall not constitute a waiver of such rights or provisions.

 

Effective June 23, 2021