Last Updated: 5/14/2018
Restaurant Terms of Service
These terms and conditions are effective immediately for those creating accounts on or after May 14, 2018.
The following Terms (as defined below) for the restaurant management system offered by Yelp Inc., owner of Yelp Reservations (“Yelp Reservations”) and the website located at www.yelpreservations.com (the “Site,” and collectively, the “Service”) are a legal contract between you, on behalf of the restaurant, bar, or other entity requesting the Service from Yelp Reservations, (“Restaurant” or “you”) and Yelp Reservations, regarding your use of the Service as offered by Yelp Reservations. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICE AND/OR USING THE SITE. By signing up for the Yelp Reservations Service or using the Site or Service for any commercial purpose, you signify your assent to these Terms of Service (the “Terms”). If you do not agree to these Terms, do not use the Service. Yelp Reservations and Restaurant are each hereinafter referred to as a “Party” and collectively as the “Parties”. “Affiliates” means any parent or subsidiary of Yelp Inc.
- Overview and Account Signup
- General. Yelp Reservations allows users of the Site or affiliate websites (“Users”) to make online reservations at participating restaurants through the Service. The Service is intended to replace ‘pen and paper’ reservation book and existing front-of-house restaurant management methods by allowing Users to view the availability of seats at a restaurant or other venue and make reservations without having to call into the restaurant, and allowing Restaurant personnel to manage the venue’s availability, floor, and guestbook via nearly any internet-enabled device (“Service Device”). Should Restaurant request, Yelp Reservations may provide Service Devices to Restaurant in accordance with Section 14.
- Accounts. In order for the Restaurant to use the Service and as part of the signup process, you are required to register to create an account on the Service (“Restaurant Account”). As part of that registration, Restaurant will provide all applicable information requested during the registration process through the management interface on the Service, including but not limited to the Restaurant’s address, operating hours, seating capacity, seating configuration, and any common corporate ownership with other restaurants. By creating a Restaurant Account on the Site, you represent and warrant that: (i) you are of legal age to form a binding contract; (ii) you are an authorized representative of the Restaurant or other entity with the authority to bind such party to these Terms, (iii) all information provided within the application is true; and (iv) you agree to be bound by these Terms on behalf of the Restaurant or its parent entity (as applicable).
- Approval at Yelp Reservations’ Sole Discretion. After the registration process is complete, Yelp Reservations will review the information submitted by Restaurant. Yelp Reservations reserves the right to approve or deny use of the Service for Restaurant (or the applicable parent entity) at its sole discretion. Any continued use of the Service is subject to the Restaurant’s continued compliance with these Terms.
- Additional Features. Yelp Reservations may offer certain optional features and functionalities for Restaurants (“Additional Features”), including the ability for Restaurants to provide targeted offers or deals to Users. The use of any Additional Features may require additional fees and require Restaurant to agree to additional terms and conditions specific to those Additional Features, which will be provided to Restaurant at the time Restaurant elects to utilize those Additional Features through the Service.
- General Restaurant Commitments. In order to gain the maximum benefits as a member of the Yelp Reservations network, Yelp Reservations requires that
Restaurant commit to certain implementation practices throughout the term of Restaurant’s use of the Yelp Reservations service. Restaurant shall:
- use the iPad provided by Yelp, and the Yelp Reservations iPad app, as Customer’s front-of- house management tool;
- ensure the iPad is charged and available for use by trained front-of-house staff;
- provide wifi in the restaurant at all times for connectivity of the Yelp Reservations iPad app with the internet;
- implement the Yelp Reservations 'Reserve Now' button or Date/Time/Party Size widget on Restaurant’s website. The Yelp Reservations button or widget will be the only online reservation provider on Restaurant's website, and if applicable, their Facebook page and mobile app;
- accept online reservations via Yelp's mobile apps and websites; and
- make no distinction between tables that are available for reservation online or via the phone. All tables available for reservation will be available online and via the phone.
- Reservation Policies
- Service Configuration and License. Prior to offering the Service to Users, you must use the management interface in your Restaurant Account to provide basic information for each Restaurant location and configure the dates and times for which reservations will be available. That includes, without limitation, providing the Restaurant location's address, operating hours, seating capacity, seating configuration, and any common corporate ownership with other restaurants. You may also upload photographs and additional information for the Restaurant to be displayed to Users. By providing any information to the Service, you grant Yelp Reservations and its corporate affiliates a nonexclusive license to use, reproduce, distribute, modify, adapt, and publicly display the information you provide and derivatives thereof in connection with the Service and Yelp Reservations’ business, including, without limitation, for marketing, promoting, and redistributing part or all of the Service (and derivative works thereof) and using such information for analytics.
- Acceptance of Reservations. Yelp Reservations offers the Service to facilitate and assist Users in making reservations at participating restaurants, and Users make their reservations based upon the availability of seating at the Restaurant. When a User makes a reservation for an available reservation slot on the Service, that reservation is binding upon Restaurant and may not be cancelled except as provided in Section 2(c) below. All reservations are between the Restaurant and User, and you agree to honor all reservations made through the Service. Restaurant may, in its discretion, choose to “overbook” its seating capacity by accepting multiple reservations for a single reservation slot, but Restaurant acknowledges and agrees that Restaurant is solely responsible and that Yelp Reservations has no responsibility for any overbooking of reservations, whether made through the Service or otherwise.
- Reservation Cancellation Policy.
- User Cancellations. Yelp Reservations requires that all User-initiated cancellations of reservations be made at least 30 minutes before the scheduled time of the reservation. The User may cancel the reservation through the Service or by contacting the Restaurant directly. Restaurant agrees to promptly update the Service for any cancellations made directly through the Restaurant and notify Yelp Reservations of any cancellations not made in accordance with this Section 2(c)(i).
- Restaurant Cancellations. The management interface for the Service will allow Restaurant to specify a reservation cancellation policy (“Cancellation Policy”), which will be made available to Users on the Site. Restaurant agrees to abide by the Cancellation Policy for all reservations made on the Service. Any change to Restaurant’s Cancellation Policy will be effective only for reservations made after such change and Restaurant’s prior Cancellation Policy will apply to any preexisting reservations.
- Credit Card Holds and Cancellation Fees. iii. Yelp Reservations itself does not impose a fee on Users for cancellations. Restaurant may require that Users provide a credit card to make a reservation for the Service in accordance with their Cancellation Policy, including for special occasions or for large parties. If a credit card is required to hold a reservation by the Restaurant, Users will be required to provide their credit card information during the reservation process. The User’s credit card information will be stored with Yelp Reservations’ third party credit card processor and will not be made available to either Yelp Reservations or Restaurant. If the User is a “no-show” and fails to cancel their reservation within the required amount of time, Restaurant may use the Service to initiate charging the User a fee if such a fee is explicitly set forth in Restaurant’s Cancellation Policy. Yelp Reservations will facilitate the charge and send the payment to Restaurant, minus an applicable processing fee. Should the User challenge the charge through the User’s issuing bank (a “chargeback”), Yelp Reservations will make a commercially reasonable effort to oppose the chargeback if Yelp Reservations determines, at Yelp Reservations’ sole discretion, opposition is merited. If the User’s issuing bank enforces the chargeback and Yelp Reservations has distributed the charged-back funds to Restaurant, Restaurant agrees to reimburse Yelp Reservations the chargeback amount, plus any associated fees, and that Yelp Reservations may elect to charge the total amount to Restaurant’s credit card on file with Yelp Reservations. In the alternative, Yelp Reservations may, at its sole discretion, offset the chargeback amount against any other amounts owed by Yelp Reservations to Restaurant whether in connection with these Terms or any other services provided by Yelp Reservations to Restaurant.
- Responsibility for User Interactions
- You acknowledge that Yelp Reservations provides a Service that allows Users to make online reservations with Restaurant and is not in any way responsible for any in-person interactions with the User as a result of a reservation or for a User’s dining experience at the Restaurant. You are solely responsible and liable for (i) any communications with Users by Restaurant personnel, whether through the Service or otherwise; (ii) User’s dining experience at the Restaurant; (iii) compliance with any food and beverage related laws, including but not limited to applicable laws and regulations on the provision of alcohol to minors or inebriated parties; and Restaurant agrees to indemnify Yelp Reservations for any claims arising out of or in connection with the foregoing.
- Equipment and Training
- Online Service. Restaurant personnel may access and manage reservations made through the Service on any Service Device by accessing the Restaurant Account for the Restaurant. Restaurant is solely responsible for the installation and purchase of Service Devices needed to access the Service for its personnel unless Yelp Reservations has agreed to provide Service Devices to Restaurant under Section 14 below.
- Required Facilities. Restaurant is solely responsible, at Restaurant’s expense, for providing (i) a suitable location for the installation and operation of the Service Devices, and any other related peripheral equipment and interconnect devices; (ii) any electrical power and any required internet service for Service Devices used by the Restaurant; and (iii) any replacement, service, or repair of the Service Devices. Yelp Reservations is not responsible for any reservations or revenue lost during any malfunction of a Service Device or due to misuse of the Service or Service Devices by Restaurant personnel.
- Training. Yelp Reservations will provide documentation for the use and setup of the Service by Restaurant on the Site at yelp-support.com/Yelp_Reservations. If Restaurant requests additional training, Yelp Reservations may provide such training subject to its availability and payment by Restaurant of Yelp Reservations’ then-current training fees.
Fees and Taxes
- Information Provided with Reservations. The following information, if known to Yelp Reservations, will be made available to Restaurants for reservations made through the Service:
- The User’s name and phone number;
- The User’s email address;
- Any information about the User’s dining preferences that the User has disclosed for the reservation, including, but not limited to food allergies, dietary restrictions, specific seating preferences, or if the reservation is for a special occasion; and
- Information related to a User’s past visits to the Restaurant (or other Restaurants sharing corporate ownership).
- Information Stored with the Service. The Restaurant may store information about Users on the Service in a similar manner as a ‘pen and paper’ reservation book. For example, information about the User’s dining history, eating or seating preferences, food allergies, or VIP status may be stored on the Service for reference for future visits by the User. Yelp Reservations reserves the right to use such information in an aggregate, non-personally identifiable form to assist Yelp Reservations in understanding general user trends and preferences for the Service. This information may be made available to the Restaurant as well as part of Yelp Reservations’ ongoing efforts to improve the Service and provide additional information about Restaurant’s clientele to Restaurant. Yelp Reservations may also disclose such information to other restaurants in limited circumstances and without identifying Restaurant during such disclosure, for example if the User has identified a food allergy or if the User is a VIP or food critic.
- Use of User Information. Unless prior written approval is received from Yelp Reservations, Restaurant will not: (a) disclose any information that can be used to uniquely identify a User including without limitation names, phone numbers, physical addresses, email addresses, and credit card information (“Personal Information”) obtained from the Service to unaffiliated third parties; or (b) use Personal Information of Users for any purpose other than (i) as needed to fulfill and process the User’s reservation; or (ii) add the User to the Restaurant’s guest database (if applicable). If Restaurant discloses Personal Information to third parties under shared corporate ownership with Restaurant, Restaurant will ensure that such third parties are aware of by the Personal Information use restrictions and confidentiality obligations of these Terms. Restaurant may not use User Information for direct marketing unless the User has expressly opted-in to receive such marketing communications from Restaurant. For avoidance of doubt, the limitation in the preceding sentence will not apply to any Personal Information obtained by Restaurant through other means not involving the Service, including but not limited to a User’s opt-in to Restaurant dining rewards programs operated separately from the Service, or Personal Information collected during the User’s visit at the Restaurant.
- Subscription Fees. Restaurant will pay to Yelp Reservations a monthly subscription fee for use of the Service (“Subscription Fee”) and fees for any other additional services (“Service Fees”, collectively with the Subscription Fee, “Fees”) in accordance Yelp Reservations’ current pricing terms, (“Pricing Terms”). All fees are net of any taxes that Restaurant may be required to pay in its tax jurisdiction(s). Restaurant is required to provide credit card information through its Restaurant Account to which the Fees will be billed. Yelp Reservations reserves the right to change its Pricing Terms at its sole discretion, with such changes being effective upon 15 days after posting on the Site. In the event that the Fees cannot be billed to the Restaurant’s credit card of record on its Restaurant Account, any overdue payments will be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1% per month (12% per year). Yelp Reservations reserves the right to suspend Restaurant’s access to the Service for non-payment of Fees at its sole discretion. This Section will in no way limit any other remedies available to Yelp Reservations under applicable laws.
- Taxes. The Fees for the Services do not include any excise, excise, sales, use, value added or other taxes, personal property or other taxes, assessments, tariffs, fines, penalties or duties that may be required by federal, state, local, provincial or foreign jurisdictions (collectively, "Taxes"). In jurisdictions where Yelp has the legal obligation to collect such Taxes, the amount of such Taxes will be invoiced to Restaurant, and Restaurant will pay such amount unless Restaurant provides Yelp with a valid tax exemption certificate authorized by the appropriate taxing authority. Any taxes which are otherwise imposed on payments to Yelp will be Restaurant's sole responsibility. Restaurant will provide Yelp with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Yelp to establish that such taxes have been paid. Restaurant shall pay promptly and before delinquency all Taxes imposed under current or subsequent law upon sales of taxable goods or services in the performance of these Terms.
- Currency. All payments, prices and other amounts relevant to these Terms are in U.S. Dollars.
Restrictions on Use of the Service
- Ownership of Service and Site. Yelp Reservations will retain and own all intellectual property rights to the Service, including any modifications or improvements to the Service.
- Limited License to Restaurant Materials. Restaurant grants to Yelp Reservations a nonexclusive, royalty-free, worldwide license, to use, sell, offer for sale, copy, import, display, reproduce, perform, distribute, and display, in any medium now known or hereafter developed, the (i) advertisements, messages, notifications, data, information, text, graphics, links, Restaurant’s logo(s) and business name and (ii) all related material and metadata submitted by Restaurant (collectively the “Restaurant Materials”) to Yelp Reservations solely for use in Yelp Reservations’ promotions and advertising related to the Services provided hereunder and to enable Yelp Reservations to process any Restaurant Materials provided to Yelp Reservations for use on the Service. Restaurant retains all right, title, and interest in Restaurant Materials.
- License to Yelp Reservations Marks. Restaurant may market and promote its business or operation through use of the Yelp Reservations name or logo using advertising that has been reviewed and approved in advance by Yelp Reservations and in compliance with Yelp Reservations Trademark Usage Guidelines. However, Restaurant will not advertise any connection with Yelp Reservations, nor use Yelp Reservations’ name, symbols, or other identifying marks or property nor make any representation, either express or implied, as to Yelp Reservations' promotion or endorsement of Restaurant or Restaurant's business, without prior written approval by Yelp Reservations. In any event, Restaurant agrees that it will not include the Yelp Reservations logo in any advertisement, or in close proximity to any advertisement, for any illegal products or services.
- Reservation of Rights. Except for the licenses granted in Sections 7(b) and 7(c), neither Party intends to grant, or actually grants any license, covenant not to sue, or any other immunity or right in connection with these Terms under any intellectual property rights of that Party, whether by implication, statute, inducement, estoppel or otherwise, and each Party hereby reserves all of its rights other than the rights explicitly granted in these Terms.
Term and Termination
- Prohibited Actions. As a conditions of Restaurant’s use of the Service, Restaurant represents and warrants that it will not engage in, nor allow any third party under Restaurant’s control to engage in, any activity related to the Service that is unlawful or prohibited, including, but not limited to: (a) use of the Service to transmit or otherwise distribute any Advertisement or content that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as reasonably determined by Yelp Reservations; (b) interfering or attempting to interfere with the proper working of the Service or prevent others from using the Service; (c) using the Service for any fraudulent or unlawful purpose (d) violating intellectual property rights; (e) accessing, tampering, or gaining access to any part of the Service that you are not authorized to access, including information for other Restaurant Accounts on the Service; (f) removing, circumventing, disabling, damaging or otherwise interfering with any security-related features of the Service; or (g) decompiling, disassembling, or otherwise reverse engineering or attempting to reconstruct or discover any source code or underlying ideas or algorithms of the Service or of Yelp Reservations software. Violation of any of the foregoing may result in immediate termination of these Terms, among other available remedies, at Yelp Reservations’ sole discretion, and may subject Restaurant to state and federal penalties and other legal consequences. Yelp Reservations reserves the right, but will have no obligation, to review Restaurant’s use of the Service, including in relation to user complaints or disputes, in order to determine whether a violation of these Terms has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
- Compliance with Laws. Restaurant agrees that it will use the Service in compliance with all applicable local, state, national and international laws, rules and regulations.
Representations and Warranties
- Term. The term of these Terms of Service will begin on the date Restaurant registers for a Restaurant Account on the Site and continue until terminated.
- Termination by Yelp Reservations. Yelp Reservations may terminate these Terms at any time, for any or no reason, by providing notice to the other Party.
- Termination by Restaurant. Restaurant may terminate these Terms on any day of the month by providing thirty (30) days written notice, including email, to Restaurant's account management contact for Yelp. If Restaurant pays monthly, then Yelp will prorate the invoice amount to reflect the partial termination month.
- Effect of Termination. Notwithstanding anything to the contrary, in the event of any termination, Restaurant will remain liable for any amount due under these Terms through the effective date of termination, and any amount that may later become due as a result of a chargeback under section 2(c)(ii), and such obligation to pay will survive any termination of these Terms. Yelp will refund Restaurant any prepaid fees for Services unrendered after the effective date of termination. Upon termination, any licenses provided under these Terms will terminate and each Party will immediately remove and cease any use of the icons or other trademarks or logos belonging to the other. Restaurant will return within 5 business days of the date of termination any equipment provided by Yelp Reservations. Sections 3, 4(b), 5(b), 5(c), 7(a), 7(d), and 8-14 (inclusive) will survive the termination of these Terms for any reason.
Restaurant will defend, indemnify and hold harmless Yelp Reservations and Yelp Reservations’ affiliated and related entities, and all of their agents, officers, directors and employees, from and against any and all claims, actions, losses, damages, liabilities, costs and expenses (including but not limited to attorney fees and costs)(collectively a “Third Party Claim” arising out of or in connection with (i) any breach or alleged breach by Restaurant of these Terms or of the representations and warranties made by Restaurant in these Terms, and (ii) Restaurant and Restaurant’s employees and agents use of the Service and any information obtained through the Service. Yelp Reservations’ right to indemnification is conditioned upon the following: (1) reasonably prompt written notice to the Restaurant of any Third Party Claim for which indemnification is sought, provided that failure by Yelp Reservations to provide such notice will not release Restaurant of its indemnity obligations hereunder, unless Restaurant is materially prejudiced by Yelp Reservations’ failure to give such prompt notice; (2) providing control of the investigation, preparation, defense and settlement thereof to Restaurant; and (3) providing reasonable cooperation at Restaurant’s request and expense, in the defense of the Third Party Claim. Yelp Reservations will have the right to participate in the defense of a Third Party Claim with counsel of Yelp Reservations’ choice at Yelp Reservations’ expense. Restaurant will not, without the express written consent of Yelp Reservations, settle or compromise any Third Party Claim, or consent to the entry of any judgment that imposes any liability or obligation upon Yelp Reservations or admits and wrongdoing on the part of Yelp Reservations.
- Yelp Reservations Warranties. Yelp Reservations represents and warrants to Restaurant that: (i) Yelp Reservations has the right to enter into these Terms and to grant the rights and licenses granted to Restaurant under these Terms; (ii) these Terms are a valid and binding obligation of Yelp Reservations; and (c) it has obtained and will maintain throughout the term of these Terms all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations.
- Restaurant Warranties. Restaurant represents and warrants to Yelp Reservations that: (i) Restaurant has the right to enter into these Terms and to grant the rights and licenses granted to Yelp Reservations under these Terms; (ii) these Terms are a valid and binding obligation of Restaurant; and (c) it has obtained and will maintain throughout the term of these Terms all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations. Further, Restaurant hereby represents and warrants to Yelp Reservations that (i) it will remain fully responsible for all access to and use of the Service and the Restaurant Account through Restaurant’s login name and password, including access to any features the use of which results in monetary charges to Restaurant, whether or not Restaurant has knowledge of or authorizes such access and use; (ii) it will not share or provide access to Restaurant’s login name and password to any third parties, and will use best efforts to protect the secrecy of Restaurant’s login name and password; (iii) it has the right to grant to Yelp Reservations the rights granted herein; and (iv) it has provided and will continue to provide Yelp Reservations with accurate and complete account and other information, and will inform Yelp Reservations in writing of any changes or updates to such information during the term of these Terms.
Warranty Disclaimer and Limitation of Liability
- Confidential Information. “Confidential Information” means any information disclosed by either Party to the other Party under these Terms which relates to Users or to the financial terms or other confidential aspects of the relationship between the Parties under these Terms, and which is identified at the time of initial disclosure as confidential or should reasonably be considered confidential due to its nature and content. Confidential Information excludes information that: (a) through no unauthorized act or failure to act of the receiving Party, is or becomes generally known in the public domain; (b) is or was made known to the receiving Party from a source other than the disclosing Party and that was not under any obligation of confidentiality towards the disclosing Party; or (c) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
- Confidentiality Obligation. The receiving Party will not use or disclose the Confidential Information of the other Party for any purpose except to the extent necessary to perform its obligations under these Terms and to exercise its respective rights and licenses under these Terms, provided, however, that each Party may disclose the terms and conditions of these Terms (i) in confidence to its external auditors, attorneys and advisors; (ii) as required by law, with prior notice to the disclosing party and with confidential treatment or other or other confidentiality protection to the extent available; (iii) as required or advisable in connection with the requirements of a public offering, securities filing, securities exchange rules or other applicable securities laws or regulations; (iv) to the competent courts or arbitration bodies in connection with the enforcement or defense of its rights hereunder under confidentiality protection to the extent available; and (v) to the legal or financial representatives of a third party conducting a due diligence investigation in connection with a financing or the acquisition or disposition of a business or assets relating to these Terms, provided that such disclosure is made pursuant to a confidentiality obligations at least as protective as these Terms. Each Party will take the same measures to protect the Confidential Information of the other Party as it takes with respect to its own Confidential Information of like or similar importance, but in no event less than a reasonable degree of care given the sensitivity and strategic value of such Confidential Information.
- Mandatory Disclosures. Nothing in these Terms will prevent the receiving Party from disclosing Confidential Information to the extent the receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the receiving Party will (a) assert the confidential nature of the Confidential Information to the agency; (b) immediately notify the disclosing Party in writing of the agency’s order or request to disclose; and (c) cooperate fully with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
Yelp Reservations Managed iPad Program
- DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICE AND ANY MATERIALS PROVIDED BY YELP RESERVATIONS IN ACCORDANCE WITH THESE TERMS (INCLUDING ALL CONTENT, SOFTWARE, MATERIALS AND INFORMATION) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YELP RESERVATIONS DISCLAIMS ALL OTHER EXPRESS WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE OR ANY MATERIALS PROVIDED BY YELP RESERVATIONS (1) WILL MEET THE REQUIREMENTS OF THE OTHER PARTY, OR (2) WILL BE UNINTERRUPTED OR THAT ANY INTERRUPTION WILL BE CORRECTED IN A TIMELY MANNER. YELP RESERVATIONS FURTHER DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE AND ANY MATERIALS PROVIDED BY YELP RESERVATIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE.
- LIABILITY LIMITATION. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL YELP RESERVATIONS, ITS AFFILIATES, INCLUDING YELP INC., BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS, EVEN IF YELP RESERVATIONS OR YELP RESERVATIONS’ AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. WITHOUT LIMITING THE FOREGOING, YELP RESERVATIONS AND ITS AFFILIATES WILL NOT BE LIABLE TO RESTAURANT FOR ANY CHANGES WHICH YELP RESERVATIONS MAY MAKE TO THE SERVICES, OR FOR (A) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICE (OR ANY FEATURES WITHIN THE SERVICES); (B) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH RESTAURANT’S USE OF THE SERVICES; (C) RESTAURANT’S FAILURE TO PROVIDE YELP RESERVATIONS WITH ACCURATE ACCOUNT OR OTHER INFORMATION; (D) ANY LIABILITY RESULTING FROM RESTAURANT’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; OR (E) RESTAURANT’S FAILURE TO ACCESS THE SERVICES DUE TO MALFUNCTION(S) IN EQUIPMENT, INFRASTRUCTURE, SYSTEM, OR THE NETWORK USED BY RESTAURANT. EXCEPT FOR AMOUNTS EXPRESSLY DUE AND OWING HEREUNDER, IN NO EVENT WILL YELP RESERVATIONS AND ITS AFFILIATES’ TOTAL LIABILITY TO RESTAURANT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, INDEMNIFICATION OR OTHERWISE) EXCEED THE AMOUNT RECEIVED BY YELP RESERVATIONS FROM RESTAURANT DURING THE ONE YEAR PERIOD PRIOR TO THE EVENT GIVING RISE TO THIS CLAIM.
- Timing. Restaurant will make any claim against Yelp Reservations in connection with these Terms within 12 months of the respective cause of action arising, otherwise the claim will be deemed waived by Restaurant.
These terms are applicable to restaurants who are provided an iPad by Yelp Reservations as part of the Service. In addition to accepting these Terms as part of your enrollment into the Yelp Reservations Service, by using the iPad, you confirm your agreement with the terms and conditions related to the iPad program set forth below:
- iPad Costs and Timing. If Restaurant is eligible to receive an iPad from Yelp Reservations, the iPad device is provided to the Restaurant at no additional cost in order to access the Services. The Restaurant can expect to receive its iPad within 2 to 4 business days after the Restaurant has accepted these Terms. The Restaurant will receive an iPad that is either new (as will be the case in most instances) or a refurbished (in rare cases), but in any case not more than 2 years old. Restaurant shall keep iPads free of all security interests, liens and other encumbrances. Restaurant agrees to use the iPad devices only in accordance with instructions prescribed by Yelp Reservations and shall maintain the iPad devices at its expense during the term of these Terms. Yelp Reservations leases the iPads from a third party, who retains title of the iPad, unless otherwise provided herein.
- Duration. The Restaurant can keep the iPad as long as it is a Yelp Reservations customer under an active subscription under these Terms for the Services, or until Yelp Reservations wants to replace it with another iPad.
- Returning the iPad prior to the Scheduled Term End Date. You can simply return the iPad back to Yelp Reservations in the same condition Yelp Reservations provided it to the Restaurant, less reasonable wear from usage. If there is excessive wear from usage as determined by Apple or the iPad distributor, Yelp Reservations will pass through to you any charges imposed by Apple or the iPad distributor, and you agree to pay Yelp Reservations these additional charges due to poor maintenance of the device, either through the submitted credit card or invoice.
- Multiple iPads. The first iPad is included in regular Yelp Reservations Subscription Fee. For restaurants who want to have more than one iPad, Yelp Reservations will charge an additional “per seat” fee for each additional iPad requested by the Restaurant to enable access to the Services and Yelp Reservations technical support. If the Restaurant cancels its Yelp Reservations subscription, you agree to return those iPad(s) back to Yelp Reservations, or buy them from Yelp Reservations, as further explained below.
- Return of iPad after Termination. Upon termination of these Terms, Yelp Reservations will send you a shipping box to return the iPad to Yelp Reservations with a pre-paid and pre-addressed shipping label, or as otherwise required by Yelp Reservations or its lender. You must ship the iPad to Yelp Reservations to the pre-addressed location within 14 days after the termination of its Yelp Reservations these Terms. The date of shipment is the date that the Restaurant hand over the boxed and pre-addressed iPad to the shipper/carrier designated on the pre-addressed shipping label, as indicated in the carrier's shipping document.
PLEASE NOTE: IF RESTAURANT DOES NOT SHIP THE IPAD TO YELP RESERVATIONS BY THE END OF THE 14TH DAY AFTER THE TERMINATION OF YELP RESERVATIONS RESTAURANT TERMS AND CONDITIONS, RESTAURANT AUTHORIZES YELP RESERVATIONS TO CHARGE $800.00 AGAINST ITS SUBMITTED CREDIT CARD (PLUS ANY REQUIRED SALES TAX, IF APPLICABLE), AND YOU RETAIN POSSESSION AND OWNERSHIP OF THE IPAD ONCE THE CHARGE HAS FINALLY BEEN FINALIZED BY THE RESTAURANT’S CREDIT CARD COMPANY.
- Keeping the iPad. Unless otherwise prohibited by Yelp Reservations, you will be allowed to keep the iPad if and when Yelp Reservations is able to collect $800.00 (plus any requisite sales tax) as authorized by the Restaurant from its credit card for each iPad the Restaurant wants to keep. But please note, Yelp Reservations still retains the right to wipe all of the software on the iPad and reset the iPad to its factory settings. Any content the Restaurant has on the iPad will be lost, so please remember to back up its content to another storage service or device before Yelp Reservations restores the iPad to its factory settings.
- Returning the iPads. You agree to send the iPad(s) to an address that will be provided by your Account Manager. Yelp Reservations will provide the shipping materials and pay for the shipping.
- Damage to the iPad. If the iPad becomes damaged, such as a cracked screen, you will need to call your Account Manager who can try to resolve the issue with you. If necessary, your Account Manager can arrange to have another iPad preloaded with all of the same Yelp Reservations software expedited to the Restaurant within a target of 2 to 4 business days for $800.00 (plus any requisite sales tax). Your Account Manager will also arrange to have your old iPad sent back to our warehouse. If it turns out the damage or malfunction is covered under a warranty, then Yelp will refund your $800.00 (plus any requisite sales tax collected).
- Stolen or misplaced iPads. If the iPad is stolen or lost, then you are financially responsible for replacing the iPad for $800.00, plus any applicable sales taxes. For a replacement iPad, Yelp Reservations will arrange with the Restaurant to send the Restaurant a preloaded replacement iPad. Yelp Reservations will aim to deliver the iPad to you within 2 to 4 business days, and upon termination of the subscription that relates to that iPad, you must either return the iPad to Yelp Reservations or purchase it as set forth above.
- Pre-loaded software on the iPad. In addition to the Yelp Reservations app used to perform the Yelp Reservations Services, Yelp Reservations uses a special third party mobile device management program (“MDM software”) on the iPad for business purposes as described in greater details below, including but not limited to keeping the software up to date so you don’t have to worry about that, helping keep it secure from prying eyes, and providing Yelp Reservations information on how to improve the Yelp Reservations software. It does this by controlling the device and security settings, managing the applications on the iPad, as well as the ability to access, process, use and store any content, activity and other data on the iPad, as further described below.
Because the MDM software will enable Yelp Reservations to have access to certain information originating from your restaurant’s use of the iPad, as explained below in greater detail, Yelp Reservations wants to make sure you understand what the MDM software will process, collect and store, and how Yelp Reservations will use it. Yelp Reservations has licensed the MDM software from a third party, and they will also have access and use rights to the content originating from the iPad. You agree to make sure that everyone using the iPad is aware of the MDM software and that they explicitly agree to its operation, use, transfer and storing of information and activity on the iPad as a condition of its use by the Users.
- The MDM Software: The MDM software is used for license and policy management, security, change and configuration management, patch management, imaging, inventory resource tracking, and energy management on all iPads. Anti-virus software may also be installed, as well as other content and activity monitoring tools, as necessary, to meet Yelp Reservations’ business, legal, and security requirements, as further set forth herein.
- Notice to Users. The Restaurant will notify all Users that any the Restaurant Content, the Restaurant Personal Data and Usage and Personal Data provided as part of the MDM software will processed and stored by Yelp Reservations and be made available to a third party for processing and storing as part of Yelp Reservations’ use of the MDM software to provide the Yelp Reservations Services.
- Usage and Personal Data. Restaurant agrees that Yelp Reservations may also process and share the Usage and Personal Data with certain third parties to manage the Restaurant’s account, send service-related notifications, bill for purchased Services, enforce compliance with these Terms, facilitate the provisioning of Updates, improve of the MDM software and/or Service, better understand its business needs and comply with its contractual obligations and applicable law. Relationship Data and Usage and Personal Data may also be transferred to Yelp Reservations’ affiliates from time to time solely for the purpose of providing the applicable Yelp Reservations Services for the benefit of the Restaurant.
- Data Transfer. Restaurant agrees that the Restaurant Content, Relationship Data, and Usage and Personal Data collected or received by Yelp Reservations in connection with the download, installation, configuration, maintenance, support and use of the MDM software or Yelp Reservations service may be transferred, stored and processed by Yelp Reservations and its service providers in the United States or any other country in which Yelp Reservations or its affiliates or service providers maintain facilities.
- Non-removal of MDM Software. The Restaurant and its Users are prohibited from removing or disabling the MDM software, unless and until the Restaurant has paid Yelp Reservations the fee to own the iPad.
- Protect Us for its Failure to Obtain Consent from its Users. You agree to defend, indemnify, and hold harmless Yelp Reservations against any claims, losses, fines, or damages arising from or relating to its failure to obtain the express consent to the disclosures and conditions of use from Users. It is really important that the Users understand that their use of the iPad will be monitored, as explained and set forth in this Section 14.
- No liability for Your Content on the iPad and No Warranties. Due to the potentially unstable nature of portable devices, Yelp Reservations cannot be liable for the loss of any content that you or the Users place on the iPad. The Restaurant is responsible for removing all content from the iPad, such as photos, music, contacts, web histories, apps, etc…) as of the date of termination. THE IPADS ARE PROVIDED "AS IS". YELP RESERVATIONS MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE IPAD DEVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Remotely Wiping and Locking the iPad. Yelp Reservations may remotely wipe (erase) all of the content and applications on or after the date of termination of these Terms while it is still in your possession. You agree that the Restaurant will not hold Yelp Reservations responsible for any liability arising from any of the content stored by Users on the iPad which is erased by Yelp Reservations, whether during the term or after the term. Yelp Reservations also may “lock” the iPad (i.e. render it inoperable) at any time for a violation of these Terms, or at the end of the iPad’s applicable subscription term.
Definitions for this Section 14:
“Restaurant Content” means any and all data, applications, files, information or materials accessed, transmitted, uploaded, published or displayed through the software by the Restaurant and the Users. It does not include Relationship Data or Usage and Personal Data.
“Restaurant Personal Data” means personally identifiable information from or about an individual either provided by the Restaurant or the Restaurant to Yelp Reservations via the MDM, including personal information that the MDM collects during the activation and maintenance of the Restaurant’s account. The Restaurant Personal Data does not include Relationship Data or Usage and Personal Data.
“User” means the Restaurant or any person that uses the iPad, or foreseeably would use the iPad.
- Governing Law and Arbitration.
Any claim, controversy, cause of action or dispute that might arise between Restaurant and Yelp Reservations ("Claim") will be exclusively governed by laws of the United States of America and the State of California consistent with the Federal Arbitration Act without regard to conflict of law provisions or giving effect to any principles that may provide for the application of the laws of another jurisdiction. Restaurant agrees that any subpoena, third-party discovery request, or other third-party process directed to Yelp Reservations must issue from, or be domesticated by, the state or federal courts located within San Francisco County, California.
All Claims must be exclusively and finally resolved and settled by final and binding arbitration administered by and in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) before a single arbitrator who is a member of the AAA. Arbitrations will be held in San Francisco, California, but the Parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitrator will issue a ruling in writing, and will detail all findings of fact and law upon which the ruling was made. The arbitrator will not have the power to commit errors of law or legal reasoning, and the ruling may be vacated or corrected on appeal to a court of competent jurisdiction for such errors. The arbitrator’s ruling will otherwise be final and binding on all parties, and may be entered in any court of competent jurisdiction. NOTWITHSTANDING THE FOREGOING, FOR ANY CLAIM THAT IS NOT SUBJECT TO ARBITRATION, RESTAURANT AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA.
RESTAURANT AND YELP RESERVATIONS AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH RESTAURANT AND YELP RESERVATIONS AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SUBSECTION (iii), AND THIS SUBSECTION (iii) IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
- Partial Invalidity. If any provision in these Terms is found or be held to be invalid or unenforceable in any jurisdiction in which these Terms are being performed, then the meaning of that provision will be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it will be severed from the remainder of these Terms, which will remain in full force and effect. In such event, the parties will negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into these Terms.
- Independent Contractors. The relationship of Yelp Reservations and Restaurant is one of independent contractors, and nothing contained in these Terms will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow Restaurant to create or assume any obligation on behalf of Yelp Reservations for any purpose whatsoever. All financial obligations associated with Restaurant’s business are the sole responsibility of Restaurant. Restaurant will be solely responsible for, and will indemnify and hold Yelp Reservations free and harmless from, any and all claims, damages or lawsuits (including Yelp Reservations’ attorneys’ fees) arising out of the acts of Restaurant, its employees or its agents.
- Modification and Waiver. Yelp Reservations may modify these Terms from time to time. Yelp Reservations will provide notice of any material modifications to the Terms via an email to Restaurant at least 45 days in advance of the modification taking effect. Restaurant’s continued use of the Services after the effective date of the modification constitutes acceptance of the modified terms. No failure or delay by either Party in exercising any right, power, or remedy under these Terms, except as specifically provided herein, will operate as a waiver of any such right, power or remedy.
- Assignment. These Terms may not be assigned by Restaurant without the prior consent Yelp Reservations, which will not be unreasonably withheld or delayed, except that Restaurant may assign these Terms to a successor in connection with a merger, consolidation reorganization, reincorporation, or sale of all or substantially all of such Party’s business related to these Terms, provided that such successor agrees in writing to assume and be bound by all the provisions of the Terms. Yelp Reservations may assign or transfer these Terms for any reason. Any purported transfer, assignment, or delegation without such prior written consent will be null and void. Subject to the foregoing, these Terms will bind and inure to the benefit of each party’s successors and permitted assigns.
- Notices. All notices, demands or consents required or permitted under these Terms will be (i) by email, provided an authorized representative of the other Party confirms receipt of the respective notice, demand or consent, or (ii) in writing and personally delivered or sent by telecopy, telegram or registered or certified mail, return receipt requested, or by a reputable overnight carrier to the address designated by the other Party and will be deemed to have been served when delivered, or if delivery is not accomplished by some fault of the addressee, when tendered. If to Yelp Reservations, such papers must be sent to Legal Department, Yelp Inc., 140 New Montgomery Street, San Francisco, CA 94105. The communications between Restaurant and Yelp Reservations may employ electronic means, such as email or notifications provided by Yelp Reservations on the Restaurant Website. For contractual purposes, Restaurant (i) consents to receive communications from Yelp Reservations in an electronic form, and (ii) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Yelp Reservations provides electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect Restaurant’s statutory rights.
- Force Majeure. Except for Restaurant’s obligations to pay Yelp Reservations hereunder, neither Party will be liable to the other Party for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, epidemics, earthquakes, strikes, civil disturbances, or similar causes.
- Entire Agreement. These Terms and any additional guidelines linked to within these Terms constitute the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement or understandings, whether oral or written with respect to the subject matter hereof.