RESY TECHNOLOGY SERVICE TERMS AND CONDITIONS
These Technology Service Terms are incorporated by reference to an order form signed by and between the Restaurant and Resy as defined and detailed therein (the “Order Form”) and will be dated as of Resy’s signature date on the Order Form (the “Effective Date”). The Order Form combined with these Technology Service Terms may be referred to herein as the “Agreement.” In the event of a conflict between these Technology Service Terms and the Order Form, the Order Form shall control. Last updated 11/17/2020
1. RESY TECHNOLOGY SERVICE Resy Network, Inc. (“Resy”) offers the Resy Technology Service (“RTS” or “Services” or “Resy Services”). It is comprised of five (5) components. Restaurant will have access to RTS with respect to the feature set as set forth on the Order Form. Restaurant’s use of RTS shall be subject to all online terms of service applicable to each product (the “Terms of Service”), which terms are incorporated herein by reference. Access is further defined on the Order Form.
(A) The Resy App
(B) ResyOS
(C) Resy Web Widget
(D) Resy Auth
(E) Resy API
2. SETUP, INSTALLATION, AND MAINTENANCE
- Platform (Floor Plan Only): Video training delivered via email + Twice-weekly training webinar Restaurant hereby grants to Resy a nonexclusive, royalty-free, worldwide license, to use, copy, import, display, reproduce, perform, and distribute (i) any information, data, text, photographs, videos, audio clips, written posts, comments, software, scripts, or graphics provided by Restaurant to Resy; (ii) Restaurant’s trademarks, trade names, business names, logos, descriptions, photographs or other identifiers; and (iii) any other content provided by Restaurant to Resy, in connection with the provision, operation and promotion of the Resy Services and Resy’s Business (and the business of Resy’s successors and business partners), including on Resy’s customer or Restaurant lists or website (“Restaurant Content”). Restaurant shall be responsible for all acts and omissions by any Restaurant Personnel. Should Restaurant, in its sole discretion, find any use of the Restaurant Content by Resy objectionable, Restaurant shall promptly notify Resy of such objectionable use, and Resy shall to the extent reasonably practicable use commercially reasonable efforts to promptly cease using the Restaurant Content in the manner found objectionable by Restaurant.
3. LICENSE GRANT FOR RESY MARKS Subject to these Technology Service Terms, Resy grants Restaurant a limited, revocable, non-exclusive, non-sublicensable, non-transferable right and license to use Resy’s trademarks, logos, and service marks (“Resy Marks”) in the form provided by Resy to Restaurant solely for the purposes of marketing and promoting the availability of Reservations on the Resy Services. Should Resy, in its sole discretion, find any use of the Resy Marks by Restaurant objectionable, Resy shall notify Restaurant of such objectionable use, and Restaurant shall immediately cease using the Resy Marks in the manner found objectionable by Resy.
4. FEES, PAYMENTS, AND DISBURSEMENTS
Each calendar month during the Term, Resy shall invoice Restaurant for all fees due in connection with the services provided hereunder as set forth on the applicable Order Form. All payments shall be made in U.S. Dollars. Resy at its sole election may require Restaurant to provide a credit card for automatic bill payment. In the event that any fees are not received and/or cannot be billed to the Restaurant’s credit card on file, any overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1.5% per month (18% per year). Restaurant will have a 7-day grace period per month to make payment, after which time Resy reserves the right to suspend or terminate the Restaurant’s access to one, any or all parts of RTS.
5. TERM & TERMINATION This Agreement shall commence on the Effective Date and shall continue through the Initial Term stated on the Order Form. After the Initial Term, this Agreement shall automatically renew for additional successive Renewal Terms as specified on the Order Form unless either party notifies the other party of non-renewal as specified on the Order Form. The Initial Term and all subsequent Renewal Terms shall be the “Term”. Notwithstanding anything to the contrary, in the event of any termination the Restaurant will remain liable for (i) any amount due under the Order Form through the effective date of termination, (ii) any termination fees charged pursuant to the Order Form; and (iii) and any amount that may later become due as a result of a chargeback or similar transaction. Sections 6, 7, 8, 9, 10 and 11 shall survive any termination. The Agreement shall be in effect until either party exercises its right to terminate as outlined here: (A) Restaurant’s Right to Terminate Except as set forth in Section 5(B) below, Restaurant may only terminate the Agreement as set forth on the Order Form. (B) Parties’ Mutual Right to Terminate Either party may terminate immediately upon written notice to the other: (a) if the other party materially breaches any warranty, representation, covenant or obligation under this Agreement and fails to cure such breach within ten (10) calendar days following receipt of written notice thereof; (b) if the other party is subject to a dissolution, receivership, liquidation, insolvency, conservatorship, consolidation, cessation of business, voluntary or involuntary bankruptcy. (C) Resy’s Right to Terminate
(1) Resy may terminate this Agreement in the event of non-payment of fees due upon ten (10) days’ notice. (D) Termination for Delayed Setup Resy may terminate this Agreement for Restaurant’s delayed setup as set forth on the Order Form.
6. IDEMNIFICATION
Restaurant shall defend, indemnify, and hold harmless Resy and its affiliates, employees, officers, directors, agents, partners, and content providers, representatives, successors and assigns (“Resy Parties”) from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to: (i) Restaurant’s or Restaurant Personnel’s use or misuse of, or access to, any part of Resy Services; (ii) the Restaurant Content (iii) any act or omission of Restaurant, any Restaurant Personnel, or any third party using Restaurant’s or Restaurant Personnel’s access credentials, account, or identity on Resy’s Business; or (iv) any breach of the Agreement by Restaurant. Resy shall defend, indemnify, and hold harmless Restaurant from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to (1) any breach by Resy of the confidentiality obligations provided for in Section 7 below, or (2) infringement of any third-party intellectual property right by the Services, hosted environment and/or documentation, when used by Restaurant as permitted hereunder and without modification.
7. CONFIDENTIALITY & INTELLECTUAL PROPERTY Resy fully understands and respects the Restaurant’s concerns with regard to confidentiality. In connection with this Agreement, the Restaurant may furnish Resy with certain information relating to Restaurant’s business and affairs that is confidential or proprietary, including procedures and manners of operation, customized software, customer information, and other data identifiable as Restaurant’s, all of which will be held strictly confidential. Each party shall retain all right to, title of, ownership of, and interest in its hardware, software, respective trademarks, service marks, trade names, and all other intellectual property worldwide. Resy grants the Restaurant a non-exclusive, non-transferable right and license to use Resy’s Services for its internal purposes during the Term. The Restaurant agrees that the Restaurant will not: copy or distribute the Resy Services or any software contained therein, or adapt or prepare any derivative work based on the Resy Services or any software contained therein ; make any use of the Resy Services other than as set forth in this Agreement; or permit any third party to do any of the foregoing.
8. REPRESENTATIONS AND WARRANTIES (A) Mutual Representations and Warranties Each party represents and warrants to the other party that: (i) it has the right to enter into the Agreement; and (ii) the Agreement is a valid and binding obligation of such party. (B) Restaurant Warranties Restaurant further represents and warrants that: (i) the party signing the Order Form is an authorized representative of the Restaurant with the authority to bind Restaurant to the Agreement; (ii) Restaurant has obtained and shall maintain throughout the Term all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws and industry best practices; (iii) Restaurant will remain fully responsible for all access to and use of the Resy Services on Restaurant’s (and Restaurant Personnel’) access credentials and accounts, whether or not Restaurant has knowledge of or authorizes such access and use; (iv) neither Restaurant nor Restaurant Personnel will share or provide access to their respective access credentials to any third parties, and Restaurant will use best efforts to protect the secrecy of access credentials; (vi) Restaurant has all necessary right, authorization, and consents to grant to Resy all rights and licenses granted herein, including for any Restaurant Content; (vii) Restaurant has provided and will continue to provide Resy with accurate and complete account and other information, and will inform Resy in writing of any changes or updates to such information during the term of the Agreement; (viii) the use of any Restaurant Content, as contemplated by these Technology Service Terms, will not infringe, misappropriate, or violate any intellectual property, proprietary, or other rights of any third party; and (ix) Restaurant, and all Restaurant Personnel will perform all of each of their obligations, and exercise all of each of their rights, in compliance with all applicable laws.
9. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY (A) DISCLAIMERS THE RESY SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE RESY PARTIES DO NOT WARRANT THAT: (I) THE RESY SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE PROVIDED OR MADE AVAILABLE BY RESY IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THE RESULTS OF USING THE RESY SERVICES WILL MEET RESTAURANT’S REQUIREMENTS; OR (V) THE RESY SERVICES WILL BE UNINTERRUPTED OR THAT ANY INTERRUPTION WILL BE CORRECTED IN A TIMELY MANNER. RESTAURANT’S USE OF THE RESY SERVICES IS SOLELY AT RESTAURANT’S OWN RISK. (B) LIABILITY LIMITATION IN NO EVENT SHALL THE RESY PARTIES BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE RESY SERVICES FOR ANY CLAIM RELATED TO (I) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (III) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE RESY SERVICES OR RESY’S BUSINESS; (IV) 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 RESY SERVICES OR RESY’S BUSINESS; (V) RESTAURANT’S FAILURE TO PROVIDE RESY WITH ACCURATE ACCOUNT OR OTHER INFORMATION; (VI) ANY LIABILITY RESULTING FROM RESTAURANT’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; (VII) RESTAURANT’S FAILURE TO ACCESS THE RESY SERVICES OR RESY’S BUSINESS DUE TO MALFUNCTION(S) IN EQUIPMENT, INFRASTRUCTURE, SYSTEM, OR THE NETWORK USED BY RESTAURANT; OR (VIII) RESTAURANT’S PERFORMANCE OR NON-PERFORMANCE IN CONNECTION WITH THE RESY SERVICES, RESY’S BUSINESS OR ANY RESERVATION, USER, OR ANY CUSTOMER. IN NO EVENT SHALL RESY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED $500.00.
10. GOVERNING LAW, ARBITRATION CLAUSE & CLASS ACTION WAIVER (A) Governing Law The Agreement, and the transactions contemplated hereby shall be governed by and construed under the law of the State of New York without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. (B) Arbitration Except that either party may seek equitable or similar relief from any court of competent jurisdiction, any dispute, controversy or claim arising out of or in relation to the Agreement, that cannot be settled amicably by the parties, shall be finally settled in accordance with the arbitration rules of JAMS then in force by one or more arbitrators appointed in accordance with said rules. The parties agree that any dispute arising from or relating to the subject matter of the Agreement shall be resolved in New York County, New York. The proceedings shall be in English. The award rendered shall be final and binding on both parties. Judgment on the award may be entered in any court of competent jurisdiction. The prevailing party shall be entitled to recover costs and attorneys’ fees. (C) Class Action Waiver Neither party shall participate in a class action or class-wide arbitration for any claims covered by this Agreement. Restaurant also agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Resy is a party to the proceeding. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then solely the preceding language in this Section 10(c) will be null and void.
(D) Awards (E) Limitation for Bringing Claims Restaurant agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Resy Services or the Agreement must be filed within one (1) year after such claim of action arose or be forever banned. (F) Survival This arbitration agreement will survive the termination of the Agreement.
11. Resy At Home In addition to the RTS described herein, select Restaurants may also participate in Resy At Home, an online ordering platform. Restaurant will provide the information required to maintain the Resy At Home service. Restaurant is responsible for ensuring that this information, including menu and pricing details, is up to date. Resy will use the information provided to populate the options presented to the customer within the Resy At Home experience. Restaurant is solely responsible for the fulfillment of all orders placed through Resy At Home. In calculating and processing the billing for orders placed through Resy At Home, Resy is acting as Restaurant’s billing agent. This includes the calculation and payment processing for sales tax. Restaurant agrees with the tax determination made by Resy and agrees to remit the appropriate sales tax as required by law.
12. MISCELLANEOUS (A) Relationship of the Parties. The parties shall be independent contractors under these the Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or Restaurants for any purpose, and neither party has the authority to bind the other in any respect. (B) Entire Agreement and Severability. These Technology Service Terms, the Order Form, and any Terms and Conditions applicable to the Resy Services are the entire Agreement between Restaurant and Resy with respect to Restaurant’s use of the Resy Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Restaurant and Resy with respect to the Resy Services. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. (C) Force Majeure. Resy shall not be liable for any failure to perform Resy’s obligations hereunder where such failure results from any cause beyond Resy’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. (D) Assignment. The Agreement is personal to Restaurant, and is not assignable, transferable or sublicensable by Restaurant except with Resy’s prior written consent. Resy may assign, transfer or delegate any of Resy’s rights and obligations hereunder without consent. (E) Notices. Unless otherwise specified in these Term of Service, all notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to support@resy.com.
(F) Modifications; Waiver. Resy may modify these Technology Service Terms at any time in its sole discretion by posting the revised terms online. Changes will become effective ten (10) days after they are posted. Your continued use of the Resy Services after any changes take effect will constitute your acceptance of all applicable changes. Except where otherwise explicitly set forth herein, no other change to or consent or waiver under these Technology Service Terms or an applicable Order Form will be effective unless in a mutually agreed upon instrument in writing signed by both parties (a “Resy Amendment Form”). The failure of either party to enforce its rights under these Technology Service Terms or an applicable Order Form at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.
(G) Headings; Interpretation. The section and paragraph headings in these Technology Service Terms are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in these Technology Service Terms shall be read as being followed by “without limitation” where appropriate.
(H) Data Protection Addendum. As part of this Agreement, you agree to the terms of the Two-way DPA available here: http://resy.com/dpa. Under this DPA, the following details apply:
Restaurant as Controller
APPENDIX A — ORDER FORM OTHER FEES 1. Credit Card Processing Fee
Resy will retain 2.9% + $0.30 of any ticket or other transaction amount charged through Resy. Resy will retain (i) 3% of the ticket amount actually collected from users on a per person basis for Platform access; and (2) 2% of the ticket amount actually collected from users on a per person basis for Platform 360 or Platform FS access. Resy will apply the remaining amount, less applicable deductions (“Event Credit”) to services fees owed by Partner for Services hereunder as follows: 100% of the Event Credit will be applied after 3 days following the date of the applicable event. If the amount of the Event Credit exceeds the amount of service fees owed by Partner set forth in the applicable invoice, Resy will disburse the balance to Partner by payment method as directed. 3. Reservation Booking Fee for Premium Reservations Resy will retain (i) 40% of the purchase price of each Premium Reservation for Platform access and (ii) 30% of the purchase price of each Premium Reservation for Platform 360 or Platform FS access. Resy will apply the remaining amount, less applicable deductions (“Reservation Credit”) to service fees owed by Partner for Services hereunder, in the invoice for the calendar month following the month in which the applicable Reservation was purchased. If the amount of the Reservation Credit exceeds the amount of the service fees owed by Partner, Resy will disburse the balance to Partner by payment method as directed. |
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