Last Updated: October 15, 2024
THE TERMS CONTAINED IN THESE “TERMS & CONDITIONS,” THE “PRIVACY POLICY,” AND THE “SERVICES AGREEMENT” ARE THE ONLY LEGALLY BINDING TERMS. IN THE EVENT OF A CONFLICT BETWEEN THEM, THE PROVISIONS IN THE SERVICES AGREEMENT WILL PREVAIL.
1. General information.
(A) Terms & Conditions.
THESE TERMS AND CONDITIONS (THESE “TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU, AS A VISITOR OR MEMBER OF THE SITE (“YOU” or “YOUR”) AND RESTAURANTOLOGY (THE “COMPANY”). THESE TERMS EXPLAIN HOW YOU ARE PERMITTED TO ACCESS OR USE THE WEBSITE LOCATED AT THE URL: HTTP://RESTAURANTOLOGY.IO AS WELL AS ALL ASSOCIATED SITES, FORUMS, AND CHANNELS LINKED THERETO BY THE COMPANY, ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE “SITE”). BY ACCESSING OUR SITE, YOU ARE AGREEING TO ALL THESE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SITE, ANY SERVICES AVAILABLE THROUGH THE SITE (“SERVICES”) OR ANY INFORMATION CONTAINED ON THE SITE.
THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY.
(B) Changes.
The Company may make changes to the content and Services offered on the Site at any time. The Company can change, update, or add or remove provisions of these Terms, at any time. Any update to these Terms will take effect on the noted effective date. If you do not agree with any of the updated Terms, you must stop using the Site. Continued visits or use of the Site by you shall be deemed an acceptance of the updated Terms and you will be bound by such terms.
(C) Age.
By using the Site, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and agree to these Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless the Company if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Site at any time or in any manner or submit any information to the Company or the Site.
(D) Privacy policy.
Please review the Company’s Privacy Policy (the “Privacy Policy”), which explains how the Company uses information that it collects and that you submit to the Company. The Privacy Policy is incorporated by reference into these Terms.
2. What you get.
(A) Using the Site and the Services on the Site.
You can simply view the portion of the Site which is open to the general public and not use any of the Services. You need not register with the Company to simply visit and view the Site, in which case, you are considered a “Visitor” with limited access to certain areas of the Site and limited ability to use insights, derivatives, data or data analytics posted and publicly available on the Site, including without limitation, images, blog posts, restaurant industry trend forecasts, and other information readily available on the “Help Center” (collectively, “Datasets”) and certain free Services offered on and through the Site through the “Help Center” or blog posts. However, in order to access Datasets, you must register with the Company for an account. By registering for an account with the Company, whether as an individual or entity, you become a “Member.” The rights, privileges, features, and functionality provided to a Member depend on that Member’s Subscription (as defined in Section 3(A) of these Terms) as more fully explained on the Site. The rights and privileges provided to a Member are personal to the Member and are non-assignable and non-transferable. Any attempt to assign or transfer such rights and privileges is void. As a Visitor or Member, you shall be subject to and expressly agree to be bound by the confidentiality and intellectual property provisions in these Terms.
(B) APIs.
If and only if the Company has active Application Programming Interfaces (“APIs”) and you elect to use APIs, then subject to your compliance with our API documentation (“Documentation”) and these Terms, including, without limitation, your payment of all applicable fees, the Company hereby grants you a limited, revocable, non-transferable, non-exclusive, non-sublicensable license to access and use the API and Documentation for the sole purpose of interfacing your web-based applications (each a “Member Application”) to the Services, solely for your own internal business use, and not for time-sharing, application service provider or service bureau use. You acknowledge and agree that your use of the APIs may be subject to volume and other restrictions imposed by the Company from time to time. The Company may monitor your use of the APIs to ensure quality, improve the Company’s products and services, and verify your compliance with these Terms and the Documentation. Each Member Application must maintain 100% compatibility with the current version of the APIs. If any Member Application implements an outdated version of the APIs, you acknowledge and agree that such Member Applications may not be able to communicate with the Services. You understand that the Company may cease support of old versions of the APIs. You are solely responsible for obtaining all necessary licenses, permissions, and rights to use and interface your Member Applications in the manner contemplated above and you represent and warrant to the Company that you have so secured the necessary licenses, permissions, and rights. The Company reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the APIs or any API or any part thereof with or without notice.
(C) Password Restricted Areas of the Site.
If you desire to become a Member, you must submit the following information through the account registration page on the Site: name, email address and password. If your account requires payment due to the Subscription you selected on the Site, you may be additionally required to provide payment information which will be collected and stored by the Company’s third-party payment processor, and not the Company. The registration information that you provide is subject to the Privacy Policy. The Company will determine whether or not to approve your proposed account and may approve or reject any account registration in the Company’s sole discretion. If approved, you will be permitted to log in to your account with your email address and password (the “Company Password”). Information submitted during the account creation process will be subject to the Privacy Policy.
(D) Passwords.
You are responsible for maintaining the confidentiality of your Company Password and any password for any applicable Third-party Offerings (as defined in Section 4(A)) (collectively, “Passwords”), and you are responsible for all activities that occur using your Passwords. You agree not to share your Passwords, let others access or use your Passwords or do anything else that might jeopardize the security of your Passwords. You agree to notify the Company if any of your Passwords on the Site is lost, stolen, if you are aware of any unauthorized use of your Passwords on the Site or if you know of any other breach of security in relation to the Site in accordance with Section 7 of these Terms.
(E) Complete Information.
You agree that all the information that you provide when registering for an account and otherwise through the Site is and remains at all times accurate, complete and up to date. You may change, correct or remove any information you submitted from your account at any time by logging into your account directly and making the desired changes.
(F) Teams.
i.If you have become a Member as a result of a team or other group inviting you as part of their organization (the “Organization”) on the Site, the team or group may provision or deprovision your access to the Organization and Services, enable or disable third-party integrations, and manage permissions, retention and export settings, and these choices and instructions may result in the restricted access, use, disclosure, modification or deletion of your subscription. You also agree and consent to the team or group obtaining information regarding your activities on the Site related to the Organization either directly or through us.
ii. AS THE ADMINISTRATOR OR OWNER OF AN ORGANIZATION, YOU AGREE THAT IT IS SOLELY YOUR RESPONSIBILITY TO (1) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM THOSE MEMBERS THAT ARE NECESSARY FOR THE LAWFUL OPERATION OF THE SERVICES; AND (2) RESPOND TO AND RESOLVE ANY DISPUTE WITH ANY OF THOSE MEMBERS RELATING TO OR BASED ON THE SERVICES OR YOUR FAILURE TO FULFILL THESE OBLIGATIONS.
iii. You are responsible for ensuring that each Member you invite only uses his or her credentials and that those credentials comply with Section 2(E) of these Terms and are not shared by multiple Members.
(G) Experimental Features.
If you choose to be an experimental Member on the Site to test new Services and features of the Site (“Experimental Services”), you understand that the Experimental Services and features are not commercial release versions and have not been fully tested. Without limiting any disclaimer of warranty or other limitation stated herein, you agree that the Experimental Services and features are not considered by the Company to be suitable for commercial use, and that they may contain errors affecting their proper operation. BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT USE OF SUCH EXPERIMENTAL SERVICES AND FEATURES MAY CAUSE SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT YOUR USE OF THE SITE IN GENERAL AND ANY SERVICES THAT MAY BE OFFERED THROUGH THE SITE. THE COMPANY SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM YOUR USE OF ANY EXPERIMENTAL SERVICES OR FEATURES. Moreover, you acknowledge that we may modify or discontinue Experimental Services or features at any time and may chose not to release Experimental Services or features as part of a commercial release or, if included in a future release, such commercial release may not contain functionality or operate in a manner similar to the Experimental Service or feature.
3. Payment.
(A) Subscription Plans.
i. The Company offers different subscription plans (each a “Subscription” and collectively the “Subscriptions”). There are Subscriptions for Members who are individuals, and Subscriptions for Members who are part of an Organization. You, as an administrator for an Organization, may sign up for a Subscription for your team’s Members, employees, contractors or others you choose to invite (each, a “Team Member”). You also have an option to select an enterprise-level Subscription if your team requires more Services and features related to managing Team Members. You have the option to choose from the paid Subscriptions applicable to you or your team by going to your account settings and selecting a Subscription or signing up through the Site. You can review the fees and features of your current Subscription at any time by checking the Site. For the pricing and features that are available in the enterprise plan, please contact: support@restaurantology.io.
ii. You may not sign up for more than one free Subscription or free trial.
iii. Except if you have agreed to otherwise with the Company in writing, you may adjust your Subscription at any time, including adding Team Members or upgrading or downgrading Subscriptions; however, you will not receive a refund for those fees already paid. If you select a Subscription plan that has a base number of Team Members included in it and you increase the numbers of Team Members above that base number, you will be charged on your monthly renewal date for those additional Team Members pro rata based on when they joined in the prior month. You will also be charged for the base Subscription plus these additional Team Members at that renewal date and going forward until you make further adjustments in your Subscription.
iv. If you subscribe to a Subscription that has a base number of Team Members included in it and you remove Team Members from the Subscription during the term of the Subscription, the pricing adjustment, if any, will take effect on that Subscription’s renewal date and you will not be entitled to any refund or credit for any partial month that a Team Member is not on the Subscription.
(B) Fees.
i. You agree to pay all applicable fees related to the Subscription(s) you select, all of which are described on the Site or by the Company. All payments must be made in US Dollars. The Company, without limiting its other rights or remedies, may downgrade your account to a free Subscription, at its discretion, if your payment is thirty (30) or more days late and/or your offered payment method (e.g., credit card) cannot be processed and interest shall accrue on all unpaid amounts until paid as provided in Section 3(D). The Company shall provide ten (10) days’ written notice prior to such downgrade in accordance with these Terms. Access to paid functionality will cease following such downgrade and you could lose access to certain features. The Company does not have any liability for losses resulting from any downgrade. Notwithstanding anything to the contrary herein, the Company reserves the right, in its sole discretion, to limit, restrict, or deny you access to the Site and/or any Services if you breach any term in these Terms and Conditions, or any other agreement with the Company.
ii. By providing a payment method, you expressly authorize the Company and its third-party payment processor to charge the applicable fees on that payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on the Subscription you selected. You agree that the Company may invoice you for any unpaid fees.
iii. When you sign up for a paid Subscription to use the Site and Services, the Company, through its third-party payment processor, will charge your credit card for your first fee on the date that it processes the order for your Subscription (or if you sign-up for a Subscription that includes a free-trial, the Company will charge your credit or debit card for your first Subscription fee upon your transition to a paid Subscription).
iv. IMPORTANT NOTICE: Unless you cancel prior to the expiration of your current Subscription, the Company will automatically renew your Subscription on each monthly or yearly (depending on the Subscription you have chosen) anniversary of the date that it charged your credit card for the first Subscription fee and it will charge your credit card with the applicable renewal Subscription fee and any Taxes (as defined below) that may be imposed on such fee payment. Subscriptions must be canceled prior to the applicable renewal date.
v. You may cancel your Subscription directly through your ”Account” page on the Site; provided that any Subscription fees charged prior to the effective date of cancellation will not be refunded, in whole or in part. Your Subscription will continue to the end of its respective paid period.
vi. The Company may alter the pricing for each Subscription by amending the pricing shown on the Site or providing written notice to you of any pricing changes in accordance with these Terms. The Company can terminate any free Subscription at any time and for any reason, without notice or liability to you. The Company can terminate any paid Subscription for any reason and without liability, by providing notice to you that we intend to terminate your paid Subscription at the end of your then-current Subscription period.
(C) Taxes.
All fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to your use of the Site and Services (collectively, “Taxes”). You are solely responsible for the payment of any such Taxes. In the event the Company is required to pay Taxes on your behalf, the Company shall send you an invoice and you shall promptly reimburse the Company for all amounts paid.
(D) Default.
A “Default” of your obligations under these Terms shall mean your failure to make timely payments of the fees for the Subscription(s) you select; or your failure to perform any other obligations under these Terms (other than paying fees). In the event of a Default by you, the Company may downgrade your Subscription and/or limit, restrict, or prohibit your access to the Site or any of the Services pursuant to Section 3(B)(i). All unpaid fees shall accrue interest at a rate of 10% per annum or the maximum legal interest rate under applicable law until paid. The Company’s remedies for your Default under this Section 3(D) shall not be exclusive, and the Company may pursue any other legal and equitable remedies that it may be entitled to under applicable law.
4. Third-Party Considerations.
(A) Third-Party Offerings.
A “Default” of your obligations under these Terms shall mean your failure to make timely payments of the fees for the Subscription(s) you select; or your failure to perform any other obligations under these Terms (other than paying fees). In the event of a Default by you, the Company may downgrade your Subscription and/or limit, restrict, or prohibit your access to the Site or any of the Services pursuant to Section 3(B)(i). All unpaid fees shall accrue interest at a rate of 10% per annum or the maximum legal interest rate under applicable law until paid. The Company’s remedies for your Default under this Section 3(D) shall not be exclusive, and the Company may pursue any other legal and equitable remedies that it may be entitled to under applicable law.
(B) Links to Third-Party Content or Sites.
The Site may be linked to other third-party content or websites that are not part of the Company sites, including, without limitation, social networking, blogging and similar websites (“Third-Party Content”) through which you are able to log into the Site using your existing account and log-in credentials for such third-party sites, including, without limitation, Facebook, Google, and Twitter (any and all of which of the foregoing listed websites may change from time to time) and websites that provide question-and-answer forum functionality (collectively, “Third-Party Sites”). Certain areas of the Site may allow you to interact and/or conduct transactions with such Third-Party Sites, and, if applicable, allow you to configure your privacy settings in your Third-Party Site account to permit your activities on the Site to be shared with your contacts in your Third-Party Site account and, in certain situations, you may be transferred to a Third-Party Site through a link but it may appear that you are still on the Site. In any case, you acknowledge and agree that the Third-Party Sites may have different privacy policies and terms and conditions and/or member guides and business practices than the Company (“Third-Party Terms”), and you further acknowledge and agree that your use of such Third-Party Sites is governed by the respective Third-Party Site’s Third-Party Terms. You hereby agree to comply with any and all Third-Party Terms. The Company is providing links to the Third-Party Sites to you as a convenience, and the Company does not verify, make any representations or take responsibility for such Third-Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites. Do not provide any personal information, including passwords or other sensitive information to Third-Party Sites you do not know and trust. YOU AGREE THAT THE COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT, DATASETS OR BUSINESS PRACTICES OF ANY THIRD-PARTY OR YOUR SHARING OF PERSONAL OR SENSITIVE INFORMATION WITH SUCH THIRD-PARTY SITES. Any reference on the Site to any product, service, publication, institution, organization of any third-party entity or individual does not constitute or imply the Company’s endorsement or recommendation. The Company shall not be responsible for any disclosure, modification or deletion of your account and profile information or any other information resulting from any such access by the providers of the Third-party Service or from the transmission of such information to such Third-party Service.
5. Unauthorized Activities.
(A) You agree and covenant that your use of the Site and/or Services shall not constitute or result in any of the “Unauthorized Activities,” which shall mean and include, without limitation, the following:
i. Use the Services for any illegal, fraudulent, unethical or inappropriate purposes.
ii. Use any robot, spider, scraper or other automated means to access the Site.
iii. Take any action that imposes an unreasonable or disproportionately large load on the Company’s infrastructure.
iv. Download or copy the Datasets for the purposes of creating a duplicate of the Site or Services or in an attempt to create a competing site or to offer services that compete with the Services.
(B) The list of Unauthorized Activities in Section 5(A) provides examples and is not complete or exclusive. The Company reserves the right to (i) terminate access to your account and your ability to use the Site (or use the Services); and (ii) refuse, delete or remove your account with or without cause and with or without notice, for any reason or no reason, or for any action that the Company determines is inappropriate or disruptive to the Site or to any other third-party who accesses the Site and/or Services. The Company may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at the Company’s discretion, the Company will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Site or on the Internet.
(C) Unauthorized use of any Datasets, Services, or Third-Party Content contained on the Site may violate certain laws and regulations. You agree to indemnify and hold the Company and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, losses, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) the Company or any other indemnified party herein suffers in relation to, arising from, or for the purpose an Unauthorized Activity or violation of any applicable law or regulation, or the trademark, copyright, patent, trade secret or other intellectual property rights, proprietary rights, rights of publicity or privacy, contractual obligations, or other similar rights of any third-party.
6. Proprietary rights;
Confidentiality.
(A) Confidentiality.
You agree that as a Member you will have access to the Company’s confidential and proprietary information including, without limitation, any software, datasets, analytics, derivatives, insights, artwork, art techniques, programming techniques, project concepts, planned projects, story concepts, models, drawings, photographs, marketing strategies, designs, project methods, project techniques, data systems, computer processing systems, systems design, algorithms, programming techniques or methods, interface design, operating instructions, trademarks, copyrights, know-how, patents, proprietary assets, and trade secrets provided to you in connection with the Services, (excepting only such information as is already known to the public or publicly available, without breach of these Terms) and including any such information and material relating to any customer, vendor, licensor, licensee, or other party transacting business with either party (the “Confidential Information”). You agree not to release, use or disclose the Confidential Information provided in connection with the Services except with the prior written permission of the Company.
(B) Intellectual Property & Proprietary Rights.
“Restaurantology” (whether in standard character word format, stylized, or otherwise, including in combination with a logo or design), and the Company’s logo(s) are trademarks of the Company in the United States and worldwide. Other trademarks, names, and logos on the Site not belonging to the Company are the property of their respective owners. Unless otherwise specified herein and subject to the limited licenses granted herein and in the Services Agreement, all Confidential Information and information and screens appearing on the Site, including the Services, site design, text, graphics, logos, images, and icons, as well as the arrangement thereof; the APIs and all related documentation; and all Datasets, are the sole and exclusive property of the Company.
YOU SHALL NEVER LICENSE, RESELL, LEASE, TRADE, PROVIDE, OR OTHERWISE GRANT ACCESS TO OR DISCLOSE THE CONFIDENTIAL INFORMATION OR ANY OTHER INTELLECTUAL PROPERTY CURRENTLY OWNED BY THE COMPANY TO ANY THIRD PARTY WITHOUT THE COMPANY’S PRIOR WRITTEN CONSENT, PROVIDED THAT YOU, AT YOUR SOLE COST AND EXPENSE, SHALL PROCURE AND DELIVER TO THE COMPANY A WRITTEN AGREEMENT SIGNED BY SUCH THIRD PARTY AGREEING TO BEING BOUND BY THESE TERMS INCLUDING, WITHOUT LIMITATION, THE NONDISCLOSURE COVENANTS SET FORTH IN THIS SECTION 6. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW OR THESE TERMS, ANY REPRODUCTION, DISTRIBUTION, MODIFICATION, RETRANSMISSION, OR PUBLICATION OF ANY CONFIDENTIAL INFORMATION OF THE COMPANY BY YOU WITHOUT THE EXPRESS WRITTEN CONSENT OF THE COMPANY IS A BREACH OF THESE TERMS. ALL INTELLECTUAL PROPERTY RIGHTS NOT EXPRESSLY GRANTED TO YOU HEREIN ARE RESERVED FOR THE COMPANY.
UPON THE CANCELLATION OF THE SUBSCRIPTION(S) OR SERVICES OR THE DELETION OF YOUR ACCOUNT WITH THE COMPANY FOR WHATEVER REASON, YOU REMAIN OBLIGATED TO PROTECT THE CONFIDENTIAL INFORMATION OF THE COMPANY AND THIS SECTION 6 SHALL SURVIVE THE TERMINATION OF YOUR ACCESS TO OR USAGE OF THE SITE OR THE SERVICES.
7. Other Important Provisions.
(A) Feedback.
If you voluntarily, or in response to our soliciting of your feedback, send or transmit any communications, comments, questions, suggestions, or related materials to the Company, whether by letter, through electronic communications, by telephone, online or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any Services offered through the Site, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary as to you. You hereby grant to the Company a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute each of your Feedback, or any portion thereof, including any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, trademark-able, copyrightable, or constituting trade secrets or other intellectual property, in any form, medium or distribution method now known or hereafter existing, known or developed, and authorize others to use the Feedback, without any attribution or compensation to you, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that the Company is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
(B) Your Name and Trademarks.
The Company has the right to reference and use your name, trademarks and logos in the context of any comments, reviews, or feedback in connection with the Services and in the Company’s business development and marketing efforts such as advertising, publicity, or other promotional activities, including without limitation, on the Site.
(C) Disclaimer of Warranties.
i. Your use of the Site and Services is at your own risk. Verified Datasets may include inaccuracies or typographical or other errors. The Company has no liability for any errors or omissions in the Datasets.
ii. THE COMPANY, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITE OR SERVICES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED OR PRESENTED ON THE SITE. THE COMPANY DOES NOT WARRANT THAT ANY SUBSCRIPTION WILL CONTINUE TO BE AVAILABLE TO YOU. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, THE SERVICES, AND APIS ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE COMPANY DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
(D) Limitation of Liability.
i. THE COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USE OF THE SITE OR SERVICES. IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF THE COMPANY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE. Without limiting the generality of the foregoing, you agree that the Company is not responsible for any loss arising out of, or in any way connected with: (a) delay or inability to access or use the Site and/or Services; (b) the transmission of any computer virus, however occurring; (c) any information sent or received or not sent or received; (d) any transaction entered into through the Site; (e) any infringement of rights, including intellectual property rights; (f) termination of your access to the Site or Services; or (g) any delays, interruptions, inaccuracies, errors, omissions or cessation of Services.
ii. If, notwithstanding the provisions of this Section 7(D), a court of competent jurisdiction or arbitrator holds the Company liable in respect of any matters arising under or incidental to these Terms, THE COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE, SERVICES, SUBMISSIONS, MATERIALS OR DATASETS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) WILL IN NO EVENT EXCEED THE AMOUNT PAID BY YOU FOR USING THE SITE DURING THE 12 MONTHS PRECEDING YOUR CLAIM, OR, IF NO AMOUNT WAS PAID, SUCH LIABILITY WILL BE LIMITED TO US$1,000. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, SO SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
(E) Indemnity.
You agree to indemnify, defend and hold harmless the Company, and its affiliates, officers, employees, owners, members, managers, and agents from any and all fines, liabilities, damages, losses, expenses, demands, claims, suits or judgments, including attorneys’ fees and expenses, in any way arising from or relating to your breach of these Terms, the Privacy Policy, or the Services Agreement, or any portion thereof or representation herein or therein, or arising from your intentional wrongful actions or inactions.
(F) Local Laws.
The Company controls and operates the Site from its headquarters in the United States of America. If you use the Site outside the United States of America, you are responsible for following both US and applicable local laws.
(G) Dispute Resolution and Arbitration; Class Action Waiver.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS.
YOU AND THE COMPANY EACH AGREE THAT ANY AND ALL DISPUTES REGARDING, RELATING TO, OR ARISING FROM THESE TERMS WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
For the purpose of this dispute resolution provision, the “Company” means the Company and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and the Company regarding any aspect of your relationship with the Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this dispute resolution provision (with the exception of the enforceability of the Class Action Waiver clause described below). “Dispute” is to be given the broadest possible meaning that will be enforced and shall include any claims against other parties relating to services or products provided or billed to you (such as the Company’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against the Company in the same proceeding.
i. Pre-Arbitration Claim Resolution.
For all Disputes, whether pursued in court or arbitration, you must first give the Company an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Company to the address provided in Section 7(K). That written notification must include (1) your name, (2) your address, (3) a written description of your Dispute, and (4) a description of the specific relief you seek. If the Company does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
ii. Arbitration Procedures.
If this dispute resolution provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution), either you or the Company may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Section 7(F). For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules for Emergency Measures of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Section 7(F) governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration. Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
iii. Arbitration Award.
The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
iv. Venue.
The sole venue for any arbitration is Travis County, Texas, or as otherwise agreed by the parties in writing. In the event that you file a lawsuit or attempt to initiate an arbitration proceeding contrary to this clause, you will be liable for the costs and attorneys’ fees required to contest such filing and transfer the matter to arbitration in accord with this provision.
v. Payment of Arbitration Fees and Costs.
The Company and you will bear all arbitration filing fees and arbitrator’s costs and expenses equally and you are responsible for 50% of such incurred fees, costs and expenses. You are further responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Notwithstanding the foregoing, fees and costs may be awarded to the prevailing party as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with the Company as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
vi. Class Action Waiver.
Except as otherwise provided in this dispute resolution provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and the Company specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the dispute resolution provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other Member of or Visitor to the Site can be a class representative, class Member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
vii. Jury Waiver.
Subject to Section 7(F)(ii), you understand and agree that by agreeing to these Terms you and the Company are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Section 7(F), you and the Company might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided in this Section 7(F), those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
viii. Severability.
If any clause within this Section 7(F) is found to be illegal or unenforceable, that clause will be severed from this Section 7(F), and the remainder of this Section 7(F) will be given full force and effect; provided, however, Section 7(F)(vi) is found to be illegal or unenforceable, this entire dispute resolution provision will be unenforceable and the Dispute will be decided by a court.
ix. Continuation.
This Section 7(F) shall survive the termination of your usage of or access to the Site or Services. Notwithstanding any provision in these Terms to the contrary, the Company agrees that if the Company makes any change to this Section 7(F) (other than a change to the Notice Address as defined in Section 7(K)), you may reject any such change and require the Company to adhere to the language in this dispute resolution provision if a dispute between you and the Company arises.
(H) Governing Laws and Venue.
The laws of the State of Texas, without regard to the choice or conflicts of law provisions, will govern these Terms. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms.
(I) Electronic Communications; Notice.
By using the Site and/or the Services provided on or through the Site, you consent to receiving electronic communications from the Company. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services provided on or through the Site. These electronic communications are part of your relationship with the Company. You agree that any notices, agreements, disclosures or other communications that the Company sends you electronically will satisfy any legal notice requirements, including that such communications be in writing.
(J) Miscellaneous Provisions.
i. Severability; Waiver. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. The Company’s failure to enforce any of these Terms is not a waiver of such Term.
ii. Entire Agreement. These Terms, the Privacy Policy, the Services Agreement (if any), and other documents incorporated herein by reference are the entire agreement between you and the Company and supersede all prior or contemporaneous negotiations, discussions or agreements between you and the Company about the Site, the APIs, and the Services.
iii. Survival. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
iv. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
v. Amendment; Modification. These Terms may be modified or amended by the Company at any time in the Company’s sole discretion. The Company shall reasonably promptly provide you with written notice on the Site or to your email address of any such amendments or modifications. Your continued use of the Site shall constitute your consent to any such changes.
(K) Company Contact.
If you have any questions about these Terms or otherwise need to contact Restaurantology for any reason (including providing notice as required herein), you can reach us by email at support@restaurantology.io or by mail at P.O. BOX 835098 Richardson, TX 75083 (the “Notice Address”).
