Last Updated: 3/5/2014

Restaurant Terms and Conditions

These terms and conditions are effective immediately for those creating accounts on or after February 5, 2014. Restaurants that created accounts prior to that date may review the previous terms here.
The following Terms (as defined below) for the restaurant management system offered by SeatMe, LLC and its affiliates (“SeatMe”) and the website located at www.SeatMe.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 SeatMe, (“Restaurant” or “you”) and SeatMe, regarding your use of the Service as offered by SeatMe. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICE AND/OR USING THE SITE. By signing up for the SeatMe Service or using the Site or Service for any commercial purpose, you signify your assent to these Terms and Conditions (the “Terms and Conditions” or “Terms”). If you do not agree to these Terms, do not use the Service. SeatMe and Restaurant are each hereinafter referred to as a “Party” and collectively as the “Parties”. “Affiliates” means any parent or subsidiary of SeatMe, LLC, including Yelp Inc.
  1. Overview and Account Signup
    1. General. SeatMe 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 restaurants’ existing ‘pen and paper’ reservation book by allowing Users to view the availability of seats at a restaurant and make reservations without having to call into the restaurant. Restaurant personnel may access and manage reservations made through the Service on any internet-enabled device (“Service Device”), which may be provided to restaurants in accordance with Section 4(b).
    2. 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).
    3. Approval at SeatMe’s Sole Discretion. After the registration process is complete, SeatMe will review the information submitted by Restaurant. SeatMe 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.
    4. Additional Features. SeatMe 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.
  2. Reservation Policies
    1. Service Configuration and License. Prior to offering the Service to Users, you must use the management interface on your Restaurant Account to provide basic information for the Restaurant and configure the dates and times for which reservations will be available. This shall include, without limitation, providing the Restaurant’s address, operating hours, seating capacity, and 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 on the Service. By providing any information to the Service, you grant SeatMe 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 SeatMe’s (and its successors’) 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 purposes.
    2. Acceptance of Reservations. SeatMe 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 “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 SeatMe has no responsibility for any overbooking of reservations, whether made through the Service or otherwise.
    3. Reservation Cancellation Policy.
      1. User Cancellations. SeatMe requires that all cancellations of reservations by the User be made at least 30 minutes from 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 SeatMe of any cancellations not made in accordance with this Section 2(c)(i).
      2. Restaurant Cancellations. The management interface for the Service will allow Restaurant to configure their cancellation policy (“Cancellation Policy”) for reservations on the Service. Restaurant’s Cancellation Policy will be made available to Users on the Site. Restaurant agrees to abide by and apply the Cancellation Policy for all reservations made on the Service. Any change to Restaurant’s Cancellation Policy shall only be effective for reservations made after such change and Restaurant’s prior Cancellation Policy shall apply to any preexisting reservations.
      3. Credit Card Holds and Cancellation Fees. iii. SeatMe 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 SeatMe’s third party credit card processor and will not be made available to either SeatMe 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. SeatMe 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”), SeatMe will make a commercially reasonable effort to oppose the chargeback if SeatMe determines, at SeatMe’s sole discretion, opposition is merited. If the User’s issuing bank enforces the chargeback and SeatMe has already distributed the charged-back funds to Restaurant, Restaurant agrees to reimburse SeatMe the chargeback amount. In the alternative, SeatMe may, at its sole discretion, offset the chargeback amount against any other amounts owed by SeatMe to Restaurant whether in connection with these Terms or any other services provided by SeatMe to Restaurant.
  3. Responsibility for User Interactions
    1. You acknowledge that SeatMe 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 SeatMe for any claims arising out of or in connection with the foregoing.
  4. Equipment and Training
    1. 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 SeatMe has agreed to loan or provide Service Devices to Restaurant.
    2. Service Devices provided by SeatMe. The following terms within this Section shall apply to the any Service Device(s) loaned from SeatMe to Restaurant (“Loaned Devices”). To the extent that the terms within this Section conflict with any additional terms for the Loaned Devices to Restaurant, those additional terms shall take precedence.
      1. SeatMe shall retain title to the Loaned Devices, and Restaurant shall keep such Loaned Devices free of all security interests, liens and other encumbrances.
      2. Restaurant agrees to use the Loaned Devices only in accordance with instructions prescribed by SeatMe and shall maintain the Loaned Devices at its expense during the term of this Agreement. Restaurant assumes the entire risk of loss, damage, theft, or destruction of the Loaned Devices while they are in the possession of Restaurant and until the Loaned Devices have been returned to SeatMe.
      3. THE LOANED DEVICES ARE PROVIDED "AS IS". SEATME MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE LOANED DEVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
      4. Upon expiration or other termination of this Agreement, Restaurant shall return the Loaned Devices to SeatMe, in their original condition, reasonable wear and tear excepted. In the event the Loaned Devices are not returned in such condition, Restaurant shall reimburse SeatMe for any damages or repair costs upon receipt of SeatMe’s invoice describing any repairs or damage.
    3. Required Facilities. Restaurant shall be 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. SeatMe 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.
    4. Training. SeatMe shall provide documentation for the use and setup of the Service by Restaurant on the Site at help.seatme.com. If Restaurant requests additional training, SeatMe may provide such training subject to its availability and payment by Restaurant of SeatMe’s then-current training fees.
  5. Customer Information
    1. Information Provided with Reservations. The following information, if known to SeatMe, shall be made available to Restaurants for reservations made through the Service:
      1. The User’s name and phone number;
      2. The User’s email address;
      3. 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
      4. Information related to a User’s past visits to the Restaurant (or other Restaurants sharing corporate ownership).
    2. 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. SeatMe reserves the right to use such information in an aggregate, non-personally identifiable form to assist SeatMe in understanding general user trends and preferences for the Service. This information may be made available to the Restaurant as well as part of SeatMe’s ongoing efforts to improve the Service and provide additional information about Restaurant’s clientele to Restaurant. SeatMe 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.
    3. Personal Data. In addition to the Parties’ other obligations of confidentiality under these Terms, the Parties will comply with (i) SeatMe’s privacy policy in effect at the time the Parties receive User information and all Privacy Laws (as defined below) that apply to User data that comes in the possession of the Parties in connection with these Terms, and will ensure that all of Party’s personnel that come in the possession of such User data will handle it in accordance with all such Privacy Laws at all times. “Privacy Law” means any law, regulation or other governmental or administrative order, in any jurisdiction relevant to these Terms, and related to the protection, privacy and security of personal information of natural persons, including and any federal, state, or foreign laws and regulations.
  6. Fees and Taxes
    1. Subscription Fees. Restaurant shall pay to SeatMe 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 SeatMe’s current pricing terms, (“Pricing Terms”). Restaurant is required to provide credit card information through its Restaurant Account to which the Fees will be billed. SeatMe 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 shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1% per month (18% per year). SeatMe reserves the right to suspend Restaurant’s access to the Service for non-payment of Fees at its sole discretion. This Section shall in no way limit any other remedies available to SeatMe under applicable laws.
    2. Taxes. Restaurant shall be responsible for the payment of all taxes, excises, payroll deductions, fees, fines, penalties, or other payments required by federal, state, or municipal law, ordinance, or regulation in relation to Restaurant's performance of its obligations under these Terms. Restaurant shall collect and pay promptly and before delinquency all taxes imposed under current or subsequent law upon sales of taxable goods or services in performance of these Terms.
    3. Currency. All payments, prices and other amounts relevant to these Terms are in U.S. Dollars.
  7. Intellectual Property
    1. Ownership of Service and Site. SeatMe will retain and own all intellectual property rights to the Service, including any modifications or improvements to the Service.
    2. Limited License. Restaurant grants to SeatMe 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 advertisements, messages, notifications, data, information, text, graphics, links, and all related material and metadata submitted by Restaurant (“Restaurant Materials”) to SeatMe solely for use in SeatMe’s promotions and advertising and to enable SeatMe to process any Restaurant Materials provided to SeatMe for use on the Service. Restaurant shall retain all right, title, and interest in Restaurant Materials.
    3. License to SeatMe Marks. Restaurant may market and promote its business or operation through use of the SeatMe name or logo using advertising that has been reviewed and approved in advance by SeatMe and in compliance with SeatMe Trademark Usage Guidelines. However, Restaurant shall not advertise any connection with SeatMe, nor use SeatMe’s name, symbols, or other identifying marks or property nor make any representation, either express or implied, as to SeatMe's promotion or endorsement of Restaurant or Restaurant's business, without prior written approval by SeatMe. In any event, Restaurant agrees that it will not include the SeatMe logo in any advertisement, or in close proximity to any advertisement, for any illegal products or services.
    4. 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.
  8. Restrictions on Use of the Service
    1. 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 SeatMe; (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 SeatMe software. Violation of any of the foregoing may result in immediate termination of these Terms, among other available remedies, at SeatMe’s sole discretion, and may subject Restaurant to state and federal penalties and other legal consequences. SeatMe 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.
    2. Use of User Personal Information. Unless prior written approval is received from SeatMe, Restaurant shall 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 contact list (if applicable). For avoidance of doubt, the limitation in the preceding sentence shall 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.
    3. Compliance with Laws. Restaurant agrees that it will use the Service and in compliance with all applicable local, state, national and international laws, rules and regulations.
  9. Term and Termination
    1. Term. The term of these Terms and Conditions shall begin on the date Restaurant registers for a Restaurant Account on the Site and continue until terminated.
    2. Termination by SeatMe. SeatMe may terminate these Terms for convenience at any time by providing notice to the other Party.
    3. Termination by Restaurant. Restaurant may terminate these Terms for convenience by providing written notice to SeatMe on or before the 15th day of the month in order for the Terms to terminate at the end of that month. If Restaurant provides written notice of termination after the 15th day of the month, then the Terms will terminate at the end of the following month.
    4. 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 such obligation to pay shall survive any termination of these Terms. Upon termination, any licenses provided under these Terms shall terminate and each Party shall immediately remove and cease any use of the icons or other trademarks or logos belonging to the other. Restaurant shall return within 5 business days of the date of termination any equipment provided by SeatMe. Sections 3, 4(b), 5(b), 5(c), 7(a), 7(d), and 8-14 (inclusive) shall survive the termination of these Terms for any reason.
  10. Representations and Warranties
    1. SeatMe Warranties. SeatMe represents and warrants to Restaurant that: (i) SeatMe 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 SeatMe; and (c) it has obtained and shall 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.
    2. Restaurant Warranties. Restaurant represents and warrants to SeatMe that: (i) Restaurant has the right to enter into these Terms and to grant the rights and licenses granted to SeatMe under these Terms; (ii) these Terms are a valid and binding obligation of Restaurant; and (c) it has obtained and shall 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 SeatMe 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 SeatMe the rights granted herein; and (iv) it has provided and will continue to provide SeatMe with accurate and complete account and other information, and will inform SeatMe in writing of any changes or updates to such information during the term of these Terms.
  11. Indemnification. Restaurant will defend, indemnify and hold harmless SeatMe and SeatMe’s affiliated and related entities, and all of their agents, officers, directors and employees, against any claims, lawsuits, allegations, assertions and investigations, and any related losses, damages, expenses, and penalties (including attorney fees and costs) arising out of or in connection with any breach or alleged breach by Restaurant of these Terms or of the representations and warranties made by Restaurant in these Terms. SeatMe’s right to indemnification is conditioned upon the following: (1) reasonably prompt written notice to the Restaurant of any claim for which indemnification is sought, provided that failure by SeatMe to provide such notice shall not release Restaurant of its indemnity obligations hereunder, unless Restaurant is prejudiced by SeatMe’s 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 claim. SeatMe shall have the right to participate in the defense of a claim with counsel of SeatMe’s choice at SeatMe’s expense. Restaurant shall not, without the express written consent of SeatMe, settle or compromise any claim, or consent to the entry of any judgment that imposes any liability or obligation upon SeatMe or admits and wrongdoing on the part of SeatMe.
  12. Confidentiality.
    1. 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 known to the receiving Party from a source other than the disclosing Party and without an 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.
    2. 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 this Agreement (i) in confidence to its external auditors, attorneys and advisors; (ii) as required by law, 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 this Agreement, provided that such disclosure is made pursuant to a confidentiality obligations at least as protective as this Agreement. 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.
    3. 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.
  13. Warranty Disclaimer and Limitation of Liability
    1. DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICE AND ANY MATERIALS PROVIDED BY SEATME IN ACCORDANCE WITH THESE TERMS (INCLUDING ALL CONTENT, SOFTWARE, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND SEATME DISCLAIMS ALL OTHER EXPRESS WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE OR ANY MATERIALS PROVIDED BY SEATME (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. SEATME FURTHER DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE AND ANY MATERIALS PROVIDED BY SEATME INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE.
    2. LIABILITY LIMITATION. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL SEATME, ITS AFFILIATES, AND ITS SUBSIDIARIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THESE TERMS, EVEN IF SEATME OR SEATME’S 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, SEATME AND ITS AFFILIATES AND SUBSIDIARIES WILL NOT BE LIABLE TO RESTAURANT FOR ANY CHANGES WHICH SEATME 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 SEATME 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 SEATME AND ITS AFFILIATES AND SUBSIDIARIES’ 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 SEATME FROM RESTAURANT DURING THE ONE YEAR PERIOD PRIOR TO THE EVENT GIVING RISE TO THIS CLAIM.
    3. Timing. Restaurant will make any claim against SeatMe in connection with these Terms within 12 months of the respective cause of action arising, otherwise the claim will be deemed waived by Restaurant.
  14. General
    1. Governing Law and Arbitration.
      1. Any claim, controversy, cause of action or dispute that might arise between Restaurant and SeatMe ("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 SeatMe must issue from, or be domesticated by, the state or federal courts located within San Francisco County, California.
      2. 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, YOU AGREE 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.
      3. RESTAURANT AND SEATME 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 SEATME 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.
    2. 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.
    3. Independent Contractors. The relationship of SeatMe 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 SeatMe 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 SeatMe free and harmless from, any and all claims, damages or lawsuits (including SeatMe’s attorneys’ fees) arising out of the acts of Restaurant, its employees or its agents.
    4. Modification and Waiver. SeatMe may modify these Terms from time to time. SeatMe 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.
    5. Assignment. These Terms may not be assigned by Restaurant without the prior consent SeatMe, which shall 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. SeatMe may assign or transfer these Terms for any reason. Any purported transfer, assignment, or delegation without such prior written consent shall be null and void. Subject to the foregoing, these Terms shall bind and inure to the benefit of each party’s successors and permitted assigns.
    6. 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 SeatMe, such papers must be sent to General Counsel, Yelp Inc., 140 New Montgomery Street, San Francisco, CA 94105. The communications between Restaurant and SeatMe may employ electronic means, such as email or notifications provided by SeatMe on the Restaurant Website. For contractual purposes, Restaurant (i) consents to receive communications from SeatMe in an electronic form, and (ii) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that SeatMe 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.
    7. Force Majeure. Except for Restaurant’s obligations to pay SeatMe 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.
    8. 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.