Software Terms and Conditions of Use - License Agreement
THE SOFTWARE IS LICENSED, NOT SOLD. YOUR USE OF THE SOFTWARE (AS SPECIFIED BELOW) IS SUBJECT TO THIS LIMITED WARRANTY AND LICENSE AGREEMENT FOR END USERS AND THE TERMS AND CONDITIONS SET FORTH BELOW (“AGREEMENT”). For purposes of this Agreement “Software” means all software programs and services made available by SpotOn Transact Inc., its parents, its subsidiaries and affiliates (collectively “SpotOn Reserve”) including, but not limited to mobile app, downloadable/ installable apps for personal computers, tablets and mobile devices, and programs and services accessed by means of a browser or other online communication method. Software also includes updates and upgrades as well as accompanying manual(s), packaging and other written files, electronic or on-line materials or documentation, and any and all copies of such software and its materials.
BY INSTALLING, USING OR ACCESSING THE SOFTWARE OR ANY MATERIALS INCLUDED WITH THE SOFTWARE, YOU HEREBY ACCEPT THE TERMS OF THIS AGREEMENT. If you do not agree to the terms of this Agreement, do not install, use or access the Software.
LICENSE – Subject to this Agreement and its terms and conditions, SpotOn Reserve hereby grants you a non-exclusive, non-transferable, non-sub- licensable, limited right and license to use one copy of the Software for your restaurant location on your personal computer or tablets, unless otherwise specified in the Software documentation. Your acquired rights are subject to your compliance with this Agreement. The term of your license under this Agreement shall commence on the date that you install or otherwise use the Software and ends on the earlier date of either your disposal of the Software or SpotOn Reserve’s termination of this Agreement. Your license terminates immediately if you attempt to circumvent any technical protection measures used in connection with the Software, or do not submit payment for use of the Software as agreed. The Software is being licensed to you and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this Agreement should not be construed as a sale of any rights in the Software. All rights not specifically granted under this Agreement are reserved by SpotOn Reserve and its licensors.
TERM – The term of this Agreement is for twelve (12) consecutive months from the Starting Date above. Payment is collected each month, in advance, electronically through ACH or direct charge to a designated credit card. Once this initial term has been reached, this Agreement will Auto renew for 12 months.
OWNERSHIP – SpotOn Reserve retains all right, title and interest to the Software, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, and moral rights whether registered or not and all applications thereof. The Software is protected by applicable laws and treaties throughout the world. Unless expressly authorized by mandatory legislation, the Software may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from SpotOn Reserve. All rights not expressly granted to you herein are reserved by SpotOn Reserve.
WARRANTY – TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. SPOTON RESERVE, SPOTON RESERVE’S LICENSORS AND CHANNEL PARTNERS DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SPOTON RESERVE, SPOTON RESERVE’S LICENSORS AND CHANNEL PARTNERS DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE; THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SOFTWARE WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SOFTWARE OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY SPOTON RESERVE, SPOTON RESERVE’S LICENSORS AND CHANNEL PARTNERS OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS APPLY ONLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
LIMITATION OF LIABILITY – IN NO EVENT WILL SPOTON RESERVE, SPOTON RESERVE’S LICENSORS OR CHANNEL PARTNERS BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, ACCESS, USE OR MALFUNCTION OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, LOST PROFITS OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT SPOTON RESERVE, SPOTON RESERVE’S LICENSORS OR CHANNEL PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR PURPOSES OF THIS SECTION 5, SPOTON RESERVE’S LICENSORS AND CHANNEL PARTNERS ARE THIRD PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THIS AGREEMENT AGAINST YOU. BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THIS LIMITATION OF LIABILITY SHALL NOT BE APPLICABLE SOLELY TO THE EXTENT THAT ANY SPECIFIC PROVISION OF THIS LIMITATION OF LIABILITY IS PROHIBITED BY ANY FEDERAL, STATE, OR MUNICIPAL LAW, WHICH CANNOT BE PREEMPTED. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. IN NO EVENT SHALL SPOTON RESERVE, SPOTON RESERVE’S LICENSORS OR CHANNEL PARTNERS’ LIABILITY FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE ACTUAL PRICE PAID BY YOU FOR USE OF THE SOFTWARE OR FIFTY DOLLARS ($50 USD), WHICHEVER LESS.
TERMINATION – This Agreement will terminate automatically if you fail to comply with its terms and conditions or do not submit timely payment for use of the Software. In such event, you must cease and desist from accessing any service components of the Software.
CANCELLATION – This Agreement may be cancelled at any time with a 30-day written notice.
EQUITABLE REMEDIES – You hereby agree that if the terms of this Agreement are not specifically enforced, SpotOn Reserve will be irreparably damaged, and therefore you agree that SpotOn Reserve shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of any of the terms of this Agreement, in addition to any other available remedies.
INDEMNITY – You agree to indemnify, defend and hold SpotOn Reserve, its partners, affiliates, contractors, officers, directors, employees and agents harmless from and against any and all damages, losses and expenses arising directly or indirectly from: (i) your acts and omissions to act in using the Software pursuant to the terms of the Agreement; or (ii) your breach of this Agreement.
MISCELLANEOUS – This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a written document executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected.
GOVERNING LAW AND DISPUTE RESOLUTION – This Agreement will be governed by the laws of the United States and the State of the Delaware without reference to its choice of law rules. The United Nations Convention for the International Sale of Goods shall not apply.
Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof shall be finally settled at SpotOn Reserve’s discretion (i) at your domicile’s competent courts; or (ii) by arbitration in accordance with the Arbitration Rules of International Chamber of Commerce. The arbitration shall be conducted in Delaware, United States, in the English language. The award shall be final and binding on the parties. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST SPOTON RESERVE AND ITS PARTNERS.
In this Agreement, “SpotOn Reserve” and “we” mean the SpotOn Reserve company that is providing the Services to you, and with whom you are entering into this Agreement. The terms “User” and “you” mean any user of the Services. This Agreement incorporates SpotOn Reserve’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “SpotOn Reserve Policies”).
By accessing or using the Services, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER APPLICABLE TO USERS WHO ARE RESIDENTS OF THE UNITED STATES (INCLUDING ITS POSSESSIONS AND TERRITORIES), AND CANADA.
SpotOn Reserve may update or revise this Agreement (including any SpotOn Reserve Policies) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. Except as otherwise expressly stated by SpotOn Reserve, any use of the Services e.g., the use of the Reservation Services (as defined herein) or Waitlist Services (as defined herein), is subject to the version of this Agreement in effect at the time of use.
Nothing contained within these terms shall supersede or nullify the terms related to using additional SpotOn products.
1. Restaurant Reservations. SpotOn Reserve makes available restaurant reservation services (the “Reservation Services”) and waitlist services (the “Waitlist Services”) through the SpotOn Reserve Sites to User for the purpose of assisting User in securing dining reservations or joining a waitlist at participating third-party restaurants (each, a “Restaurant”). In response to a User’s online request for a Restaurant reservation or to join a waitlist through the SpotOn Reserve Site, SpotOn Reserve contacts the Restaurant’s computerized database of reservations and waitlists, as applicable. The availability of reservations, estimated wait time or place in line on a waitlist is determined at the time of User’s query and based on information provided to SpotOn Reserve by the Restaurant. Once a reservation or waitlist request is made by User through the SpotOn Reserve Site, SpotOn Reserve will provide confirmation of the reservation or waitlist status to User by email or other electronic messages as has been agreed to by User. By using the Reservation Services or Waitlist Services, User agrees to receive reservation and waitlist confirmations, updates, modifications and/or cancellations by email or other electronic messages.
If you are unable to keep your reservation, the Restaurant may indicate that you were a no-show. Upon arriving at the Restaurant, it is the User’s responsibility to notify the host that the User has a reservation. User agrees that all final no-show determinations will be made by the applicable Restaurant in its sole discretion.
If you wish to remove yourself from a waitlist you have joined through the Waitlist Services, you can do so by managing your place in line through the SpotOn Reserve Site or by calling the Restaurant. Failure to appear at the Restaurant in a timely manner may result in the Restaurant bypassing your place on the waitlist for other guests or removing you from the waitlist entirely.
3. Usage Guidelines. User agrees to use the Reservation Services or Waitlist Services only to book reservations or join waitlists at Restaurants and then honor those reservations or waitlist requests by arriving at the Restaurants on time and ordering and paying for meals. User further agrees not to book more than one reservation or join more than one waitlist for User’s personal use during any one meal time (e.g., lunch, dinner, etc.). Resale or attempted resale of reservations or waitlist spots is prohibited and is grounds for, among other things, cancellation of your reservations, removal from the waitlist or termination of your access to the Services.
5. Your Account. You are required create an account with SpotOn Reserve through the SpotOn Reserve Site (“Account”) in order to use the Reservation Services or Waitlist Services. When registering for an Account, you must provide true, accurate, current, and complete data about yourself on the SpotOn Reserve registration form (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify SpotOn Reserve of any unauthorized use of your Account or any other breach of security related to your use of the Services.
8. Modifications to Services. SpotOn Reserve reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the SpotOn Reserve Sites, Restaurants, and/or Merchants. SpotOn Reserve shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
9. Intellectual Property Rights and Grant of Rights to User. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “SpotOn Reserve Content”) are provided to User by SpotOn Reserve or its partners or licensors solely to support User’s permitted use of the Services. The SpotOn Reserve Content may be modified from time to time by SpotOn Reserve in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the SpotOn Reserve Content by User shall constitute a material breach of this Agreement. SpotOn Reserve and its partners or licensors retain all rights in the Services and SpotOn Reserve Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of SpotOn Reserve or any third party is granted under this Agreement.
10. Use Restrictions. The Services and SpotOn Reserve Content are offered solely for User’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. SpotOn Reserve expressly reserves all its rights and remedies under applicable laws (including state, federal, and provincial/territorial laws). SpotOn Reserve reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel reservations, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or SpotOn Reserve Content, except as expressly authorized by SpotOn Reserve; (2) take any action that imposes or may impose (in SpotOn Reserve’s sole determination) an unreasonable or a disproportionately large load on the Services or SpotOn Reserve’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or SpotOn Reserve Content to a third party; (5) use any portion of the Services or SpotOn Reserve Content to provide, or incorporate any portion of the Services or SpotOn Reserve Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to SpotOn Reserve); (7) modify any Services or SpotOn Reserve Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or SpotOn Reserve Content; (9) use the Services or SpotOn Reserve Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or SpotOn Reserve Content or access or use the Services or SpotOn Reserve Content for competitive analysis or benchmarking purposes. Although the SpotOn Reserve Sites may be accessible worldwide, not all features or services discussed, referenced, provided or offered through or on the SpotOn Reserve Site are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. SpotOn Reserve reserves the right to limit, in its sole discretion, the provision and quantity of any feature or service to any person or geographic area.
11. United States Government End Users. The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any SpotOn Reserve Site with only those rights set forth therein.
12. Export Control. You may not use, export, or re-export any SpotOn Reserve Site or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
13. Termination. SpotOn Reserve may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, SpotOn Reserve may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any SpotOn Reserve Policies). After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account. You agree that SpotOn Reserve shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which SpotOn Reserve will have no liability whatsoever.
14. Indemnity. You agree to indemnify, hold harmless, and (at SpotOn Reserve’s request) defend SpotOn Reserve, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “SpotOn Reserve Parties”) from and against all claims resulting from (1) your use of the Services, or (2) any breach or alleged breach by you of this Agreement.
15. Liability Limitations. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, IN NO EVENT SHALL THE SPOTON RESERVE PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT (INCLUDING ANY CHANGES THERETO), (2) ANY USE OF THE SPOTON RESERVE SITE, SERVICES, THE SPOTON RESERVE CONTENT, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF ANY OF THE SERVICES), OR (4) YOUR VISIT TO ANY RESTAURANT OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY RESTAURANT OR MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE SPOTON RESERVE SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE SPOTON RESERVE CONTENT. SPOTON RESERVE IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY RESTAURANT FOR WHICH A USER HAS MADE A RESERVATION OR CLAIMED AN OFFER OR PROMOTION.
IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT ENFORCEABLE AT LAW, YOU EXPRESSLY AGREE THAT OUR LIABILITY TO YOU (FOR AY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50).
You and SpotOn Reserve understand and agree that the disclaimers, exclusions, and limitations in this Section 15 and in Section 16 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that SpotOn Reserve would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.16. Disclaimer of Warranties. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND SPOTON RESERVE CANNOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES, ALL SPOTON RESERVE CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. SPOTON RESERVE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. SPOTON RESERVE DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT SPOTON RESERVE WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. SPOTON RESERVE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SPOTON RESERVE.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
17. Third-Party Websites, Applications and Services. The Services may contain hypertext links to websites and applications operated by parties other than SpotOn Reserve. Such hypertext links are provided for User’s reference only, and SpotOn Reserve does not control such websites and is not responsible for their content. SpotOn Reserve’s inclusion of any hypertext links to such websites or applications does not imply any endorsement of the material on such websites or applications or any association with their operators. SpotOn Reserve assumes no liability whatsoever for any such third-party websites, applications or any content, features, products, or services made available through such third-party websites or applications. Additionally, Apple Inc., Google, Inc., or Microsoft Corporation will be a third-party beneficiary to this contract if you access the Services using applications developed for Apple iOS, Android, or Microsoft Windows devices, respectively. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third party beneficiary's terms of service, including any license transferability and other usage rules therein.
18. Release. Restaurants and Merchants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you as a result of your (or such recipient’s) interaction with or visit to any Restaurant or Merchant or from any promotion, offer, product or service of any Restaurant or Merchant. Users must resolve all disputes directly with Restaurants. To the maximum extent permitted by applicable law, you hereby release the SpotOn Reserve Parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the SpotOn Reserve Parties pertaining to the subject matter of this Section 18.
19. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
20. Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by SpotOn Reserve.
21. Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
22. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. If you are a resident of the United States (including its possessions and territories) or Canada, you agree that any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the SpotOn Reserve Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state or provincial/territorial arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
In the case of arbitration and where permitted by law, you are thus agreeing to GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
In the case of arbitration and where permitted by law, you and SpotOn Reserve must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR SPOTON RESERVE MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, SpotOn Reserve will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) SpotOn Reserve also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or SpotOn Reserve may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Sacramento County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Sacramento County, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Sacramento County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of SpotOn Reserve Parties (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor SpotOn Reserve shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration (including any claims brought by parties outside the United States or Canada), the dispute shall be exclusively brought in state or federal court located in Sacramento County, California. For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.23. Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California, U.S.A, consistent with the Federal Arbitration Act (to the extent permitted by applicable law), without giving effect to any principles that provide for the application of the law of another jurisdiction. You may also be entitled to certain consumer protection rights under the laws of your local jurisdiction and/or country of residency.
SpotOn Reserve helps restaurants organize waitlists and reservations. This involves sharing personal information with third parties, including restaurants, restaurant groups, and restaurant affiliates, amongst others. In some cases, these third parties may collect personal information directly from you and share it with us.
For more information about the information we share with third parties and the recipients of such information, please refer to the How We Share Your Information section of this Policy. Please note that this Policy does not otherwise cover the use of personal information by third parties or their services, and we do not take responsibility for their privacy practices.
You may have certain rights or choices that relate to your personal information, including choices about how we share your personal information with others. For more information, please refer to the Your Choices and Rights section of this Policy.
Information We Collect and Use
When you use or visit our Services, we collect information directly from you (e.g., when you search for or make an online reservation). In some cases, we also obtain personal information from third parties (e.g., restaurants, business partners, our group companies, or other third parties).
How We Use Your Information
We use your information to provide our Services, and for other purposes described below.
How We Share Your Information
We share your information with restaurants you engage with by making reservations or joining a wait list. We share information to provide and improve our Services, for our own business purposes, and for other purposes as described below.
How We Store and Protect Your Information
We maintain technical, administrative, and physical security measures designed to protect your information. We may retain your information for as long as your account is active and for a period of time thereafter to allow you to re-activate your account without loss of information, and as necessary for purposes described below.
Your Choices and Rights
You have choices about your information. To access and update your information, you can log into your user profile at SpotOnReserve.com.
Links to Other Websites
Our Services may contain links to other websites or services that are not owned or controlled by SpotOn Reserve, including links to websites of restaurants and restaurant affiliates.
Our Services are not directed at or intended for use by children, nor do we knowingly collect information from children under 18 years of age.
Changes to This Policy
We update this Policy from time to time, and changes will be effective when posted (as identified in the Policy).
How to Contact Us
If you have any questions about this Policy or the way your personal information has been used, please contact us at email@example.com.
I. INFORMATION WE COLLECT AND USE
“Personal information” is data that identifies, relates to, describes, can be used to contact, or could reasonably be linked directly or indirectly to you. For purposes of this Policy, there is no meaningful distinction between the terms “personal information” and “personal data.”
Personal Information We Collect Directly From You. As you visit or use our Services, we collect the following categories of personal information directly from you:
You may choose not to provide some of the personal information described above. Please note, however, that many of our Services require some personal information to operate, so if you choose not to provide the personal information necessary to operate and provide you with a particular Service or feature of that Service, you may not be able to use that Service or feature.
We do not proactively collect sensitive personal information, such as health-related information. However, our Services include text boxes that are designed for you to describe certain details about your dining preferences that you want restaurants to know. Please be aware that information you freely submit in these boxes may reveal to us or to the restaurants or restaurant affiliates with which we or they share information (as detailed in the How We Share Your Information section, below) certain information that may be considered sensitive personal information under applicable law (for example, about any allergies or dietary restrictions). We do not use this information for the purpose of marketing or advertising products to you. Sensitive personal information you voluntarily submit is processed on the basis of your consent, which you may revoke at any time by contacting us at support@SpotOn Reserve.com.
Personal Information Generated By Us. As you use our Services, we generate certain personal information about you, including through automatic data collection and by inferences based on the information we collect about you and your activity. We may automatically collect information about your interactions with the Services or communications you receive (such as email) using certain technologies, such as cookies, web beacons and other technologies (see our Cookies Policy for more details). We generate the following categories of personal information about you:
Personal Information We Obtain from Third Parties. We may also receive certain categories of personal information from third parties, such as restaurants, and other third parties, including individuals who have added you as a guest to their reservation. If you are an existing SpotOn Reserve customer, we will combine this information with information we collect through our Services and use and share it for the purposes described below. The categories of personal information we may obtain from third parties include:
Information from restaurants, including information that certain participating restaurants provide us about diners (for example, if you eat at a hotel restaurant as a hotel guest, restaurants are able to flag that you are a guest at that hotel, or if you eat at a chain of restaurants, those restaurants can flag whether you have a loyalty card or other information about interactions with those restaurants)
II. HOW WE USE YOUR INFORMATION
We use your personal information for the following purposes (“Purposes”), to:
You have choices about your personal information, and in some circumstances, you may have the right to opt-out or object to our uses of your personal information for these Purposes. For more information, or to exercise these or other rights (where available), see the Your Choices and Rights section below
Electronic Communications. Consistent with the above Purposes and as permitted by applicable law, we may communicate with you via electronic messages, including email, text message, or mobile push notification to:
With your consent, where required, we may contact you at the mobile phone number that you provide to us by way of direct dial calls, autodialed and prerecorded message calls, text messages and push notifications in connection with the above Purposes.
Our Role as Data Controller and Data Processor. Under certain SpotOn Reserve programs, restaurants may engage us to provide them with certain processing services related to information owned or controlled by the restaurant. We seek assurances from restaurants that they will process information in accordance with applicable laws, but we are not responsible for any restaurant's use of information (including information used by its affiliates and service providers) for which it is an owner or controller. To learn more about how a restaurant may use such information, you should review its privacy notice.
Processing Bases and Consequences. When we process your personal information, we rely on the following legal bases:
Where we use personal information to meet our legitimate interests, we take steps to ensure that your rights with respect to your personal information are not infringed. You can contact us at firstname.lastname@example.org for more information about the steps we take to ensure these rights are not infringed. You also have the right to object to such processing as described in the Your Choices and Rights section below.
Aggregate Information. We aggregate personal information collected directly from you, information generated about you by us, and information obtained from third parties (with your consent, where required) with personal information collected about other users in order to produce general statistics that cannot be linked to you or any other specific user. Information that has been aggregated and de-identified is no longer considered “personal information” and may be subsequently used for any purpose.
Anonymized Information. We may process information that cannot be linked to you or any other specific user using any means available to us, either because it was collected anonymously or has been subsequently anonymized. Information that is anonymous or has been anonymized is no longer considered “personal information” and may be subsequently used for any purpose.
III. HOW WE SHARE YOUR INFORMATION
We disclose the personal information we collect (or otherwise generate or obtain) as follows:
In some circumstances, you may have the right to opt-out or object to our sharing of your information with certain third parties. For more information, or to exercise these or other rights, see the Your Choices and Rights section below.
Sharing with Restaurants and Restaurant Affiliates as a controller of your personal information. When you make a request through our Services or through a restaurant, such as a restaurant reservation, joining a restaurant waitlist, making a payment to a restaurant through our Services, purchasing an event ticket, or if you are a guest of the person making the request, we necessarily provide certain categories of your information to the restaurant to facilitate that request. For requests to dine, this information may include your name, profile, time and date of visit, party size, your phone number, your dining preferences, guest information, any special requests, information or comments that you choose to submit (if any), and your email address. Your information is provided to the restaurant, just as it would be if you contacted the restaurant directly. If you provide a mobile phone number in connection with your request, restaurants may send you text messages regarding your request. Some restaurants also require you to provide credit or debit card account information to secure your reservation. When you make a reservation at a restaurant that is part of a restaurant group, we may also share additional information about your dining activity at that restaurant or restaurant group in the past, your dining preferences and/or information that we collect from you and third parties that may be relevant to that reservation.
In addition to providing you with more customized Services, we may receive certain information from participating restaurants from their Point of Sale terminals that we analyze to provide aggregate information to the restaurant about their customers.
We also share with restaurants summary reports of feedback from diners. If you provide comments about a restaurant through our Services, these comments may be shared with or may be accessible by that restaurant, and the restaurant may respond to you. We will not tie your comments with other information that can identify you directly, but a restaurant may be able to tell who you are from your comments, particularly if you give your name in the comments or provide contact information, such as an email address.
Sharing with Restaurants and Restaurant Affiliates as a processor or service provider on their behalf. We act as a processor or service provider for Restaurants and Restaurant Affiliates in certain circumstances as described above (see above for more detail on Our Role as a Data Controller and Data Processor in the section below). In providing these services, we may, at the direction of the restaurant, share certain of your information with the restaurant’s affiliated restaurants (such as affiliated brands), restaurant group and/or restaurants with the same brand or parent-brand (collectively, such restaurant’s “restaurant group”), or other entities associated with the restaurant (such as the parent entity of the restaurant group or affiliated hotels) and/or their service providers (collectively, the associated entities and service providers, the restaurant’s "restaurant affiliates") under SpotOn Reserve’s programs for the following purposes:
For more information, please feel free to contact the restaurants with which you dine or book reservations, or contact us at support@SpotOnReserve.com. To learn more about your choices related to how we share your information with restaurant groups and restaurant affiliates under our programs, please see the Your Choices and Rights section below.
Sharing to Process Payment Information. To use certain Services (such as to make reservations at certain restaurants; to make payments to certain restaurants or to secure reservations; and to purchase tickets to events, or other products or services), we require credit or debit card account information. When you submit your credit or debit card account information through our Services, we share that information with restaurants, third-party payment processors, and other third-party service providers (including, but not limited to, vendors who provide fraud detection services to us and other third parties) to the extent necessary to meet our contractual obligations to you (e.g., to secure your reservation or make a payment to a restaurant where required), to meet our legitimate interests in preventing fraud and other misuse of our platforms, or with your consent where this is required by law. In particular:
Sharing with Other Service Providers. We may share information with third-party vendors, consultants, and other service providers who perform services or functions on our behalf (e.g., hosting or operating our Services, data collection, reporting, ad response measurement, site analytics, data analysis, delivering marketing messages and advertisements, processing credit card payments, and providing fraud detection services). We do not authorize these third parties to use or disclose your information for purposes other than for which it has been provided. We require these third parties to maintain and implement security measures to protect your information from unauthorized access or processing.
IV. HOW WE STORE AND PROTECT YOUR INFORMATION
SpotOn Reserve maintains commercially-reasonable technical, administrative, and physical security measures designed to protect your information from loss, misuse, unauthorized access, disclosure, alteration, and destruction.
When your credit or debit card account information is being transmitted to our Services or through our Services, it will be protected by cryptographic protocols. To be clear, SpotOn Reserve does not itself store your credit or debit card account information, and we do not have direct control over or responsibility for your credit or debit card account information. We use third party payment processors that are the controllers of your credit card information. Our contracts with third parties that receive your credit or debit card account information require them to keep it secure and confidential.
However, we cannot guarantee that transmissions of your credit or debit card account information or your other information will always be secure or that unauthorized third parties will never be able to defeat the security measures taken by SpotOn Reserve or our third-party service providers. Except to the extent that liability cannot be excluded or limited due to applicable law, we assume no liability or responsibility for disclosure of your information due to errors in transmission, unauthorized third-party access, or other causes beyond our control.
You play an important role in keeping your information secure. You should not share your user name, password, or other security information for your SpotOn Reserve account with anyone. If we receive instructions using your user name and password, we will assume you have authorized the instructions. If you have reason to believe that your interaction with us is no longer secure (e.g., if you feel that the security of any account you might have with us has been compromised), please contact us immediately at email@example.com.
Retention. We may retain your personal information for as long as your account is active and for a period of time thereafter to allow you to re-activate your account without loss of information. We may also retain your personal information as necessary to:
VI. YOUR CHOICES AND RIGHTS
Email. If you no longer want to receive marketing and promotional emails from SpotOn Reserve, you may click on the “unsubscribe” link in such emails to opt-out of future marketing email communications. If you have a SpotOn Reserve account, you may also opt-out of marketing emails in your account settings. Please note that even if you opt-out of receiving marketing communications from one or all of our Services, we will still send you service-related communications, such as confirmations of any future reservations you make.
Text Messages. If you no longer want to receive text messages from SpotOn Reserve, reply STOP (or as otherwise instructed) to the text message. Doing so will disable your ability to receive certain dining experience notifications from certain restaurants.
Application Location. As explained in more detail in the Information We Collect and Use section above, we collect information about your location if you enable location services through the settings in your mobile device, or with your consent, as may be required by law. You can change the privacy settings of your device at any time to turn off the sharing of this location information with our Services. If you choose to turn off location services, this could affect certain features of our Services. If you have specific questions about the privacy settings of your device, we suggest you contact the manufacturer of your device or your mobile service provider for help.
Access and Correction of Your Information. If you have created an online account with us and would like to update the information you have provided to us, you can access your account to view and update your information by logging in at SpotOnReserve.com. You may also contact us at firstname.lastname@example.org.
Legal Rights. Where applicable under local law, you may have the following rights regarding your personal information: the right to access personal information we hold, and in some situations, the right to have that personal information corrected or updated, erased, restricted, or delivered to you or a third party in a usable electronic format (the right to data portability). Where applicable, you may also object to how we use your personal information if the legal basis for processing that information is our legitimate interest. Where we are using your personal information on the basis of your consent, and where applicable under local law, you have the right to withdraw that consent at any time.
If you wish to exercise legal rights you may have under applicable law, please submit your request to email@example.com. So that we can better process your request, please provide the email or mobile phone number you use to log into your SpotOn Reserve account. If you do not have a SpotOn Reserve account, please provide the email and/or mobile number you used to make requests.
VII. LINKS TO OTHER WEBSITES
Our Services contain links to other websites or services that are not owned or controlled by SpotOn Reserve, including links to websites of restaurants and restaurant affiliates. This Policy only applies to information collected by our Services. We have no control over these third-party websites, and your use of third party websites and features are subject to privacy policies posted on those websites. We are not responsible or liable for the privacy or business practices of any third-party websites linked to our Services. Your use of third parties' websites linked to our Services is at your own risk, so we encourage you to read the privacy policies of any linked third-party websites when you leave one of our Services.
Our Services are not directed at or intended for use by children. We do not knowingly collect information from, children under 18 years of age. If you become aware that your child or any child under your care has provided us with information without your consent, please contact us at firstname.lastname@example.org.
IX. CHANGES TO THIS POLICY
X. HOW TO CONTACT US
If you have any questions about this Policy or the way in which your personal information has been used, please contact us by email at email@example.com or by postal mail at:
SpotOn Transact, Inc.
c/o Legal Counsel
300 California Street, 4th Floor
San Francisco, CA 94104, U.S.A.