Terms Of Service

TERMS OF SERVICE FOR

“SAVE MY TABLE”

 

 

ATTENTION! CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE CLICKING “SUBMIT”.   BY CLICKING “SUBMIT” YOU/CUSTOMER ACKNOWLEDGE AND AGREE TO THE TERMS OF THE AGREEMENT (AS DEFINED BELOW).

 

A.             THE PARTIES: 

 

The “Terms of Service” set forth in this document constitute a binding agreement (“Agreement”) between You (as defined below) and Dining Ventures, LLC (“Company”) in connection with the Service (as defined below).  For the purposes of this Agreement, “You” (and derivations thereof including “Your”) means (i) the individual agreeing to the terms of this Agreement by clicking on “Submit”; (ii) the restaurant, company or other entity for whom the individual in (i) immediately above is acting as a designated agent, and (iii) each of Your Authorized Users (as defined below).  The individual in (i) (above) represents and warrants that he/she is authorized to enter into this Agreement on his/her own behalf and on behalf of the restaurant, company or other entity for whom he/she is acting as designated agent.  

 

B.             THE SERVICE:

 

This Agreement pertains to Your use of the Service.  The “Service” means the website with the URL www.savemytable.com (“Website”) and all associated services, products and materials including, but not limited to, software, hardware, equipment, technology, data, graphics, music, video and other elements contained within and used in order to support the Website.

 

C.             LICENSE:

 

1.                You acknowledge and agree that Company owns all rights, title and interest in and to the Service, including but not limited to any intellectual property rights that may subsist in the Service, in all media, throughout the world and in perpetuity. 

 

2.                Subject to payment of License Fees (as described in Section D, below), Your rights in and to the Service are in the form of a limited, non assignable, non-exclusive, revocable license only and such license is granted solely to the extent expressly set forth herein. The license granted herein is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by Company.  Your license does not include and expressly prohibits You from exploiting the Service in any manner that is competitive with Company.  Moreover, Your license expressly prohibits you from copying, reproducing, distributing, republishing, displaying, modifying, creating derivative works of, reverse engineering, decompiling or otherwise attempting to extract the source code of or associated with the Service. For purposes of clarity and not by way of limitation, You shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Service available to any unauthorized user, including but not limited to, by “mirroring” or “framing” any part of the Service, or by creating Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies.

 

3.                All rights not expressly granted to You in the Service are expressly reserved by Company in all media, throughout the world and in perpetuity. 

 

4.                You shall not remove, edit, alter or otherwise modify any proprietary rights notices such as copyright and service mark notices contained within the Service. 

 

D.             LICENSE FEES:

 

                1.                Following any free trial period granted to You by Company, You will be required to pay monthly license fees (“License Fees”) for use of the Service.  The specific License Fees you are required to pay depend on the Service level you select (i.e. Basic, Premium or Ultimate) (collectively “Service Levels”).   In addition to the foregoing, Company may in its sole discretion provide you with a discount on License Fees for Your agreement to pay License Fees upfront on an annual basis. 

 

                2.                On a prospective basis and at any time upon ten (10) days prior written notice, Company reserves the right to change Your License Fees and/or modify Service Levels (“Change of License Fee Notice Period”).  In addition to any other right of termination you may have under the express terms of this Agreement, you shall have the right to terminate this Agreement upon written notice to Company during the Change of License Fee Notice Period in the event Your License Fees increase.  Failure to notify Company that you wish to terminate the Agreement during the Change of License Fee Notice Period as a result of Your License Fees increasing shall be deemed your agreement to any such change in Your License Fees.

 

                3.                You acknowledge and understand that in the event of any conflict between terms set forth in this Agreement as they pertain to the License Fees and Service Levels and any information associated with the foregoing contained elsewhere on the Website, the terms in this Agreement shall control.

 

E.             NO ENDORSEMENT, TRADEMARKS/SERVICE MARKS:

 

1.                You will not in any way express or imply that any opinions contained in communications made by You that are associated with or connected with the Service are sponsored by, endorsed by and/or affiliated with Company. 

 

2.                Any and all trademarks and service marks contained within and/or associated with the Service including, but not limited to “Save My Table,” “Save My Table Minder,” and logos associated with each of the foregoing are, as between You and Company, owned exclusively by Company (“Company Marks”).  You are not permitted to use any Company Marks without prior written authorization from Company, which shall be granted or denied on a case-by-case basis.  In the event any use of Company Marks is granted by Company, any such use by You shall be subject to Company’s trademark usage guidelines and inure to the benefit of Company, together with any and all associated good will.

 

3.                Notwithstanding anything in this Section to the contrary, Company acknowledges and agrees that Your trade name and trademarks and service marks owned and controlled by you are, as between You and Company, owned exclusively by you (“Your Marks”).

 

F.                MODIFICATIONS TO AGREEMENT:

 

                Company reserves the right to edit, alter and/or modify License Fees, Service Levels and any other  terms of this Agreement at any time (“Modifications”).  Any Modifications shall be available to you at the URL located at www.savemytable.com/tos/ or in another form of notice permissible hereunder and shall become effective and binding upon you immediately upon being published at the foregoing URL or upon your receipt of such other form of notice.  Your agreement to the terms of this Agreement include Your agreement to accept the terms of any Modifications immediately upon being published at the foregoing URL (or your being provided with any other permissible form of notice hereunder) regardless of whether you have actual or constructive knowledge of such Modifications.  It is your responsibility to regularly refer to the foregoing URL in order to ensure that you are aware of and understand any Modifications posted at the URL.

 

G.                PROVISION OF THE SERVICE BY COMPANY:

 

1.                Company reserves the right to edit, alter and/or modify the Service and/or components/features thereof at anytime without any prior notice.

 

2.                You acknowledge and understand that in connection with operating, maintaining and providing the Service, Company copies, records, backs up, stores, transmits, displays, prints, internally distributes and otherwise uses  (“Data Storage”) Your Data (as defined below) and Your Content.  In partial consideration for the limited license of the Service by Company to You (as set forth herein), you grant a royalty free, perpetual license in all media throughout the world to Company for the use of Your Data and Your Content in connection with Data Storage.  Company has no obligation to engage in Data Storage and you shall not rely upon such Date Storage for Your business purposes. 

 

3.                You acknowledge and understand that Your Data and Your Content are technically processed and transmitted electronically and digitally by Company, its licensees and designated agents, as well as other third parties, through various networks, technologies and other means including, but not limited to, via the Internet (“Distribution Technologies”).  While Company uses reasonable efforts to protect confidential and proprietary data and content distributed through Distribution Technologies, such Distribution Technologies may be accessed by unauthorized parties.  You agree that Company is not responsible for the loss, delay, alteration or interception of any of Your Data orYour Content in the event of access by unauthorized parties or any other event beyond the reasonable control of Company.

 

4.                You acknowledge and understand that the Service may include links such as hyperlinks to other web sites, content and/or resources (“Other Sites”). You further acknowledge and understand that Company may not endorse and does not assume responsibility for any such Other Sites.  As such, You acknowledge and understand that Company is not liable for any loss or damage which may be incurred by you as a result of or in connection with any Other Sites.

 

5.                Company reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all of Your Date or Your Content from the Service at any time.

 

H.            YOUR USE OF SERVICE:

 

1.                You acknowledge and understand that You must have a high-speed Internet connection (e.g. DSL, cable) in order to use the Service.  You are responsible for all costs associated with obtaining and maintaining all equipment, technologies and other services necessary in order to obtain and maintain such high-speed Internet connection.  You further agree that any and all software used by You to access the Service, including, but not limited to, “browser” software shall support a data security protocol compatible with the protocol used by Company. Until notified otherwise by Company, You agree to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by Company and to follow logon procedures for services that support such protocols.

 

2.                Your use of the Service requires you to provide certain information about You to Company (“Information About You”).  Information About You may include (as determined by Company), but is not limited to, Your legal business name, address, email address, and phone number and the name of a primary contact person.  All Information About You must be complete, accurate and current at the time it is provided and in the precise form and manner required by Company, which Company may modify from time to time.  In the event any Information About You becomes obsolete and or changes, You are required to immediately update such Information About You in the precise form and manner then required by Company. 

 

3.                Company shall have the right in its sole discretion to limit the number of authorized users working for You that are permitted to use the Service (“Your Authorized Users”).  Company may assign each of Your Authorized Users with a unique user name and/or password in order to access the Service (“Access ID”).  Each of Your Authorized Users is prohibited under the terms of this license from disclosing and/or sharing his/her Access ID with any other of Your Authorized Users and/or any other person, firm or entity. You shall notify Company immediately upon actual or constructive knowledge of the loss, theft or unauthorized use of any Access ID.

 

4.                Company shall assume and rely upon its assumption that all forms of communication in connection with the Service were made, authorized and affirmed by You and each of Your Authorized Users who made such communication. 

 

5.                You agree to comply with all applicable local, state, federal, and foreign laws, rules, regulations, treaties and conventions, as well as Company policies and procedures, in connection with your use of the Service, including without limitation those related to privacy, electronic communications, and spamming. You are expressly prohibited from using the Service and/or sending any information and/or content out through the Service that is unlawful, harassing, libelous, defamatory, threatening, obscene, pornographic or otherwise inappropriate for viewing by individuals of any age including minors such as adult content.

 

6.                You are not permitted to access the Service by any means other than through the interfaces that are provided by Company.

 

7.                As between Company and You, You shall retain copyright, trademark and any other rights you already hold in content which you submit, post or display on or through the Service (“Your Content”).  By submitting, posting and/or uploading Your Content onto the Service you are granting Company a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to copy, reproduce, publish, publicly perform, publicly display and otherwise distribute Your Content for the purposes of enabling Company to provide and promote the Service.   You agree that this license includes a right for Company to make Your Content available to other companies, organizations or individuals with whom Company has relationships for the provision of syndicated services, and to use Your Content in connection with the provision of those services.  You understand that in performing the required technical steps to provide the Service to users, Company may (i) transmit or distribute Your Content via Distribution Technologies and in various media; and (ii) make such changes to Your Content as are necessary to conform and adapt Your Content to the technical requirements of Distribution Technologies and media. You agree that this license shall permit Company to take these actions. Your Content may not include any content including, but not limited to text, graphics, music, video, source code, object code, software and any other materials unless you either (i) own and control all rights in and to such content and all elements thereof, or (ii)  have obtained all necessary legal releases, licenses and other clearances in order to distribute such content in connection with the Service.

 

8.                From time to time, Company may upgrade, edit, alter and/or modify the Service to improve functionality or meet other business purposes of Company and/or its customers (“Upgrades”).  You agree to accept Upgrades, automatic or otherwise, as a condition of the license granted to you and You shall follow all online or other instructions provided to You by Company in connection with such Upgrades

 

9.                Company reserves the right to limit and or diminish the amount of data stored by you in connection with using the Service.

 

 

I.                REPRESENTATIONS AND WARRANTIES:

 

1.                Each party represents to the other that it has the legal right to enter into this Agreement.

 

2.                You represent and warrant that you own and/or control all rights to Your Data and Your Content such that use of the foregoing materials on and in connection with the Service will not give rise to any claims, costs, charges damages, liens or other liabilities  (“Claims”) to Company and its customers, licensees, sublicensees and assigns including, but not limited to Claims related to infringement of third party copyrights, trademarks, patents and/or claims for false advertising, misrepresentation and/or violation of privacy or publicity rights.

 

3.                You represent and warrant that You and Your Authorized Users will only use the Service as expressly licensed hereunder and that you shall perform routine audits of usage of the Service by Your Authorized Users in order to ensure that Your Authorized Users are not engaging in activities associated with the Service that extend beyond or otherwise violate the license granted herein.

 

4.                You represent and warrant that any and all systems, networks, technologies and equipment used by you (other than Company’s systems, networks, technologies and equipment) (“Your Equipment”) in connection Your use of the Service are free from viruses, worms, Trojans and other “malware.”  You further represent and warrant that Your Equipment does to contain any computer code or instructions that may disrupt, damage or interfere with the Service

 

J.                INDEMNITIES:

 

1.                You will indemnify, defend, and hold harmless Company and its officers, directors, employees, contractors, customers, successors, assigns, and agents (“Company Indemnitees”) against all Claims including, but not limited to Claims for patent infringement, copyright infringement, trademark infringement, misappropriation and false advertising that arise out of, or in connection with a breach or alleged breach of any term or provision of this Agreement including, but not limited to, any representation or warranty.  You will reimburse Company Indemnitees for all losses, costs, and expenses incurred by Company Indemnitees as a result of such Claims, including court costs and actual reasonable outside attorneys’ fees.

2.                Subject to the provisions and limitations of Section K, below, Company will:  (i) indemnify, defend, and hold You harmless for any breach of any representation or warranty made by Company in Section I, above; and (ii) reimburse You for all losses, costs, and expenses incurred by You as a result of such claims, including court costs and actual reasonable outside attorneys’ fees.

3.  The indemnifying party identified in Subsections J (1) and (2) (i.e. Company or You, as the case may be) (“Indemnitor”) will defend or settle, at its expense, any claim against Company Indemnities or You (as the case may be) arising out of a claim set forth in Subsections J (1) and (2) provided that (i) the Indemnitor is promptly notified in writing of such claim and Company Indemnities or You (as the case may be) permits the Indemnitor through counsel of its choice, to answer any legal claim or the charge of infringement and defend the claim or suit, (ii) Company Indemnities or You (as the case may be) furnishes to Indemnitor all relevant information available to Company Indemnitees or You (as the case may be) and reasonably cooperates on such defense. Neither party will admit or settle any claim pertaining to the subject matter of this Agreement without the prior written consent of other party. Company Indemnitees or You (as the case may be) may, at its sole expense, actively participate in any suit or proceeding through its own counsel.

 

K.                EXCLUSION OF WARRANTIES/LIMITATIONS ON LIABILITY:

 

1.                TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH IN SECTION I, ABOVE, COMPANY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, NON-INFRINGEMENT, SYSTEM INTEGRATION, AND/OR QUIET ENJOYMENT, AND THE SERVICE AND ALL COMPONENTS THEREOF ARE PROVIDED “AS IS”.

 

2.                IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF COMPANY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE LESSER OF (I) THE EQUIVALENT OF 12 MONTHS IN LICENSE FEES APPLICABLE AT THE TIME OF THE EVENT GIVING RISE TO THE CLAIM; OR (II) $10,000 (USD).

 

L.                CONFIDENTIAL INFORMATION: 

 

For purposes of this Agreement, confidential information shall include the terms of this Agreement, and all of Company’s business processes, strategies, trade secrets, business plans and other information disclosed to you in connection with the Service which would reasonably be deemed confidential and/or proprietary (“Confidential Information”). You agree: (a) to keep confidential all Confidential Information disclosed to You; (b) not to use the Confidential Information except to the extent necessary to perform Your obligations and exercise Your rights under this Agreement; and (c) to protect the confidentiality thereof in the same manner as You protect the confidentiality of similar information and data of Your own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis and only provided that such persons agree to be bound by the terms of this Section L and any other relevant terms of this Agreement.  Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of You, or (4) You become aware of from a third party not bound by non-disclosure obligations to Company.

 

M.                SUSPENSION OF SERVICE:

 

Company reserves the right to suspend Your  access to and/or use of the Service (i) for any accounts for which any payment is due but unpaid, in whole or in part, and/or (ii) in the event Company has reason to believe that You are using the Service in a manner that is not in accordance with the license granted herein.

 

N.                TERMINATION:

 

1.                Either party shall have the right to terminate this Agreement without cause upon thirty (30) days prior written notice.

 

2.             This Agreement may be terminated by either party if the other breaches any of its obligations hereunder and such breach is not or cannot be cured by the breaching party within ten (10) days of its receipt of written notice from the non-breaching Party.  The right of either party to terminate in any such case shall be in addition to any other remedies it may have pursuant to the terms of this Agreement.

 

3.                This Agreement may be terminated immediately by a party if the other party (i) is unable to pay its debts when they become due, (ii) makes a general assignment for the benefit of creditors, (iii) has appointed, voluntarily or involuntarily, any trustee or receiver with respect to such party or a substantial part of its property, (iv) files or has filed against it a voluntary or involuntary petition in bankruptcy that is not dismissed within thirty (30) days, or (v) makes any arrangement or otherwise becomes subject to any proceedings under the bankruptcy, insolvency, reorganization or similar laws of the United States or any state.

 

4.                Upon termination for any reason under this Section N, Your license in and to all aspects of the Service shall immediately cease.  Within five (5) days of termination you shall return any and all originals and copies of Company Materials to Company. In the event any Company Materials are in a format which makes it commercially infeasible to return them, such Company Materials shall be destroyed by You and, upon request of Company, You shall promptly deliver a certificate of destruction signed by an officer of You representing and warranting that such Company Materials were commercially infeasible to return and have been destroyed.  Nothing herein shall limit any other rights Company may have in law or equity in the result of a termination under Subsections N (2) or N (3). 

 

5.                All outstanding License Fees shall immediately become due to Company as of the date of termination and License Fees shall not be pro rated for partial months of Service.  Regardless of the basis for termination, You shall not be entitled to any reimbursement of License Fees paid by You in advance. 

 

6.                The following Sections of this Agreement shall survive any termination: D, I, J, K, L and N. 

 

O.                STANDARD TERMS AND CONDITIONS:

 

1.                The terms set forth in this Agreement constitute the whole legal agreement between you and Company and govern your use of the Service.  In the event of a conflict between this Agreement and any other terms set forth on the Website or elsewhere, the terms of this Agreement shall control.

 

2.                You agree that Company may provide you with notices, including those regarding changes to the terms of this Agreement, by email, regular mail, or postings on the Service.

 

3.                Failure of Company to exercise or enforce any legal right or remedy contained in this Agreement does not constitute a waiver of Company’s rights with respect to such legal right or remedy and/or any other legal right or remedy.

 

4.                If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.

 

5.                This Agreement shall be construed under the laws of the State of New York without regard to its conflict of laws provisions. You and Company agree to submit to the exclusive jurisdiction of the courts located within the County of New York, New York to resolve any legal matter arising from this Agreement.  The parties hereby waive any rights they might otherwise have to lack of personal jurisdiction and/or inconvenient forum. Notwithstanding the foregoing, you agree that Company shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.