Last Updated: 9/14/2012
Restaurant Terms and Conditions (Prior to 2/5/2014)
These terms and conditions are for restaurants that created accounts prior to February 5, 2014. View the current terms here
The following Terms (as defined below) for the restaurant reservation service offered by SeatMe, LLC (“SeatMe”) and the website located at www.SeatMe.com (the “Site”, collectively, the “Service”) are a legal contract between you, the applicant (“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”.
- Overview and Account Signup
- 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). By automating the reservation process, restaurants can save time and money by reducing the workload of restaurant personnel while adding the capability to easily access and manage reservations online.
- Accounts. In order for the Restaurant to use the Service and as part of the signup process, you are required to register to establish 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, and seating configuration, and any common corporate ownership with other restaurants. By registering for 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 for 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 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.
- 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.
- Reservation Policies
- 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.
- 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.
- Cancellation Policy.
- 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 only cancel the reservation by contacting the Restaurant directly. Restaurant agrees to promptly update the Service for any cancellations and notify SeatMe of any cancellations not made in accordance with this Section 2(c)(i) through the Service.
- 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.
- Credit Card Holds and Cancellation Fees. Restaurant may require that Users provide a credit card to make a reservation for the Service in accordance with their Reservation 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 charge User a fee if explicitly set forth in Restaurant’s Reservation Policy. SeatMe does not charge Users for cancellations.
- Responsibility for User Interactions
- 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 related to 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 SeatMe has agreed to loan or provide Service Devices to Restaurant.
- Service Devices provided by SeatMe. The following terms within this Section shall apply to the any Service Devices 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.
- SeatMe shall retain title to the Loaned Devices, and Restaurant shall keep such Loaned Devices free of all security interests, liens and other encumbrances.
- 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 it is in the possession of Restaurant and until the Loaned Devices have been returned to SeatMe.
- THE LOANED DEVICES IS 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.
- Upon expiration or other termination of this Agreement, Restaurant shall return the Loaned Devices to SeatMe, in its original condition, reasonable wear and tear excepted. In the event the Loaned Devices is not returned in such condition, Restaurant shall reimburse SeatMe for any damages or repair costs upon receipt of SeatMe's invoice therefor describing any repairs or damage.
- 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.
- 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.
- Customer Information
- Information Provided with Reservations. The following information shall be made available to Restaurants for reservations made through the Service:
- The User’s name and phone number;
- The User’s email address (if provided by the User);
- 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. 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 make 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.
- Fees and Taxes
- 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.
- 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.
- Currency. All payments, prices and other amounts relevant to these Terms are in U.S. Dollars.
- Intellectual Property
- 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.
- 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.
- License to SeatMe Marks. Restaurant may market and promote its business or operation through use of the SeatMe name or logo using advertising which 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.
- 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.
- Restrictions on Use of the Service
- 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 attempt 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, 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.
- 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.
- 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.
- Term and Termination
- Term and Termination for Convenience. 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. Neither party shall be liable to each other for any damages (including consequential damages), expenditures, loss of profits, or prospective profits of any kind or nature sustained or arising out of or alleged to have risen out of such termination.
- Termination for Convenience. Either Party may terminate these Terms for convenience at any time by providing notice to the other Party. Restaurant may terminate these Terms by deleting its Restaurant Account from the Service, which shall constitute notice to SeatMe.
- 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.
- Representations and Warranties
- 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 is a valid and binding obligation of such party; 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.
- 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 is a valid and binding obligation of such party; 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.
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 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) 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. The indemnified party shall have the right to participate in the defense of a claim by Restaurant 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.
- 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.
- 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.
- 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.
- Warranty Disclaimer and Limitation of Liability
- 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.
- 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.
- 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.
- Governing Law. These Terms will be governed by and interpreted in accordance with the laws of the State of California, without reference to conflict of laws principles. The parties shall attempt in good faith to resolve promptly any dispute not resolved in the regular course of business by informal negotiations between senior executives of the Parties. If informal negotiations are unsuccessful, any disputes arising out of these Terms will be resolved by binding arbitration in Santa Francisco, California in accordance with the rules of the American Arbitration Association.
- Partial Invalidity. If any provision in these Terms is found or be held to be invalid or unenforceable in any jurisdiction in which these Termsare 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 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.
- Modification and Waiver. No modification, amendment or waiver of any provision of these Terms will be effective unless in writing and signed by the Party to be charged. 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 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.
- 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. 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.
- 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.
- Entire Agreement. These Terms and any additional guidelines linked to within these Terms constitutes 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.
Merchant Offer Terms
These SeatMe Merchant Standard Terms, as modified from time to time (the
“Agreement”), governs a promotional collaboration between SeatMe, LLC
(“SeatMe”) and you, the entity registering for an account on the Merchant
Portal Site (“Merchant”).
Please read the Agreement carefully, as it constitutes a binding legal agreement between Merchant and SeatMe. By clicking “Accept”, submitting your registration form, or by accessing and using the Merchant Portal Site or creating any Voucher offer, you are indicating that you have read and agree to the Agreement on behalf of Merchant, and you represent and warrant that you have the power and authority to bind Merchant to these terms. As used herein, “you” refers to you, an individual user, and to Merchant, on whose behalf you are registering an account.
“Conversion” (and other forms of the word “Convert”) means an
intentional redemption of a Voucher by the applicable User, by
presenting the printed voucher to the issuing Merchant, its designee, or
SeatMe, for payment towards Merchant’s goods and/or services.
Conversions expressly exclude accidental and erroneous redemptions, or
to the extent that the Merchant did not honor all or part of the
“Discount Offers” means any discounted Merchant offer that SeatMe
offers to Users on behalf of Merchant (e.g., the offer to pay $10 for
$20 worth of purchasing power at a Merchant).
“Max Voucher Discount” means the greater of (a) the Voucher Discount
represented by the first Voucher offered to Users and accepted by
Merchant hereunder, and (b) any Voucher Discount subsequently agreed to
and accepted by Merchant.
“Merchant Portal Site” means the access controlled web site operated
and maintained by SeatMe that allows Merchant to log in and configure
its account, as well as retrieve information about the merchant program
“Merchant Revenue Share” means 50% of Conversions of Voucher Net
Revenues for the applicable reporting period. In the case of partial
Conversions (where a User redeems only a portion of the Voucher Nominal
Value), the Merchant Revenue Share will be paid on an amount of
applicable Voucher Net Revenues proportional to the amount of the
Voucher Nominal Value actually redeemed. (e.g., if a User redeems $20
worth of a Voucher with a Voucher Nominal Value of $50 and a Voucher
Cost of $30, then Merchant would receive 50% multiplied by 66.67% – the
proportion of the total Voucher Nominal Value redeemed -- multiplied by
the $30 Voucher Cost, equaling $10.00 payable to the Merchant. If the
User later redeems the remaining balance of the Voucher, Merchant would
receive 50% multiplied by 33.33% of the $30 Voucher Cost, equaling
$5.00. At that point the Merchant would have received $15 in total, or
50% of the Voucher Cost.)
“Party” means SeatMe or Merchant, as applicable (collectively, the
“Dining Events” means offers for featured dining events made available
by Merchant through SeatMe.
“User” means an individual user of the reservation service offered by
“Voucher” means: (i) Dining Experiences; or (ii) Discount Offers.
“Voucher Cost” means the US Dollar price the User paid to purchase the
Voucher (e.g., if the User pays $15 to purchase a Voucher with a nominal
value of $20, the Voucher Cost is $15).
“Voucher Net Revenue” means amounts actually collected by SeatMe in
respect of purchases by Users of Vouchers, less any sales, use and
excise taxes, less any agency commissions, carrier and/or partner fees,
allowances actually made or taken for refunds or returns, fraud, bad
debt, third party transaction processing fees, cash discounts, make
goods, or promotional allowances.
“Voucher Nominal Value” means the US Dollar amount of goods and
services a Voucher can be redeemed for.
Voucher Sales. Merchant authorizes SeatMe to offer and sell Vouchers to Users on Merchant’s behalf, directly and through multiple tiers of third party publishers and affiliates. Notwithstanding, SeatMe shall not offer or sell Vouchers with a Voucher Discount greater than the Max Voucher Discount.
- Redeeming Discount Offers. Merchant agrees to honor the terms of
Discount Offers sold by SeatMe as authorized by Merchant allowing Users
holding Discount Offers to redeem all of the Voucher Nominal Value for
Merchant’s products or services identified in the Discount Offer.
- Pricing Parity. Merchant agrees that Discount Offers shall be
redeemable for products and services at the same rate that such products
or services would have been made available to general clientele using
other payment instruments (including cash) under similar circumstances,
subject to any applicable additional terms and conditions set forth in
the applicable Discount Offer. Without limiting the generality of the
foregoing, any sale or promotion pricing generally available to
clientele shall be made available to a User in connection with the
redemption of a Discount Offer in whole or in part.
- Redeeming Dining Experiences. Merchant agrees to honor the terms of
Dining Experiences sold by SeatMe as authorized by Merchant allowing
Users holding Dining Experiences to redeem the Dining Experience in
accordance with the terms of the specific Dining Experience. For
example, Merchant may set specific dates, times, pricing, or
availability for the Dining Experience, and agrees to accept all Dining
Experiences redeemed by Users in accordance with the terms set forth in
the terms for the specific Dining Experience.
- Merchant Affiliations. In the event that Merchant is accepting
Vouchers on behalf of any third party, such as in its capacity as
a parent company, franchisor, merchant aggregator, or other point of
contact for multiple independent businesses or locations at which
a Voucher may be redeemed, Merchant hereby represents, warrants and
covenants that it shall be solely responsible for ensuring that the
Voucher can in fact be redeemed at all such businesses and/or locations.
Ownership and Licenses.
- Trademarks. Merchant agrees that, for the purpose of offering,
advertising, or otherwise marketing or promoting any Voucher related to
Merchant’s products and services (including advertisements for Vouchers
offered for sale prior to the execution of this Agreement) or the SeatMe
services, Merchant hereby grants to SeatMe a nonexclusive, worldwide,
sublicensable through multiple tiers, transferable, royalty free, fully
paid right and license to use Merchant’s trademarks, service marks and
logos (the “Merchant Marks”). SeatMe agrees that SeatMe obtains no
ownership rights in any Merchant Marks as a result of such use, and that
any and all goodwill associated with any such use of the Merchant Marks
inures to the benefit of Merchant.
- Marketing Materials. Merchant shall provide or make available to
SeatMe certain marketing and promotion materials, including without
limitation photography, text, menus, or the like posted on Merchant’s
own website (the “Merchant Materials”). Merchant hereby grants to SeatMe
a nonexclusive, worldwide, sublicensable through multiple tiers,
transferable, royalty free, fully paid right and license to use,
reproduce, modify, and distribute such Merchant Materials and
derivatives thereof for the purpose of offering, advertising, or
otherwise marketing or promoting Vouchers related to Merchant’s products
and services (including any Voucher published, advertised, or offered
for sale by SeatMe prior to the execution of this Agreement). Merchant
hereby authorizes SeatMe to connect to Merchant’s web site via any
automated process or other similar means to retrieve Merchant Materials,
notwithstanding any provision to the contrary set forth in any
- Reservation of Rights. Except as expressly granted herein, no
rights or licenses shall be deemed granted, whether by implication,
estoppel, or otherwise. Any and all reports, web site content, or other
materials provided or made available to Merchant by SeatMe, and any data
generated through operations hereunder, including any intellectual
property rights in any of the foregoing, are the sole property of
SeatMe. As between Merchant and SeatMe, the Merchant Marks and the
Merchant Materials, including any intellectual property rights therein,
remain the sole property of Merchant.
- Reporting, Fees, and Payment.
- Tax Info. Merchant is solely responsible for providing and
maintaining accurate address and other contact information as well as
payment information associated with the account. For U.S. taxpayers,
this information includes without limitation a valid U.S. tax
identification number and a fully-completed Form W-9, which may be
filled out through the Merchant Portal Site. For non-U.S. taxpayers,
this information includes without limitation a fully-completed Form W-8
or other applicable form, which may require a valid U.S. tax
identification number, as required by the U.S. tax authorities. Please
note that SeatMe will hold payments until we have tax information on
file. Merchant Revenue Share will continue to accrue, and will be paid
to you once your information has been submitted.
- Fees. In respect of honoring the terms of Vouchers redeemed by
Users, Merchant shall receive the applicable Merchant Revenue Share, as
provided herein (the “Fees”). For the avoidance of doubt, no Fees are
due unless and until the applicable Voucher provisionally purchased by
the User has been redeemed by the Merchant, and then only to the extent
of the redemption (in the case of a partial redemption).
- SeatMe Report. SeatMe will provide to Merchant access to certain
data detailing the calculations for the applicable Merchant Revenue
Share (the “SeatMe Report”). Calculation of Fees is based solely on the
data provided in the SeatMe Report.
- Payment. SeatMe shall pay Fees due hereunder directly to Merchant
within 30 days following the end of each calendar month, provided that
(i) Merchant has submitted appropriate tax documentation, as set forth
in Section 4.a, and (ii) Merchant's earned balance is greater than or
equal to $20USD. Unpaid balances will roll over to the next month.
Merchant also acknowledges that Fees are subject to SeatMe's actual
receipt of payment[, and dependent upon Conversion of the Vouchers.]
Merchant is solely responsible for the collection and remittance of any
and all applicable sales taxes that may be due in respect of Voucher
redemptions. SeatMe reserves the right to remit payment through the
mechanism of its choice, to modify its payment mechanism of choice from
time to time, and to require that Merchant has an account through which
to receive payment, in the event that SeatMe makes payment through
a third party payment processor, such as PayPal or Automated Clearing
House (A.C.H.), and Merchant is solely responsible for the payment of
any applicable fees to such third party providers.
- Merchant Affiliations. This contract is directly between SeatMe and
Merchant. Merchant’s affiliates, franchisees, and other similar business
partners (the “Merchant Entities”) are not parties to this contract, and
shall have no rights or remedies against SeatMe hereunder. Merchant
shall remain solely responsible for a) Users’ ability to redeem Vouchers
in accordance with their terms, including without limitation for the
difference between the Merchant Revenue Share and the Voucher Nominal
Value, and b) any distribution of the applicable Merchant Revenue Share
among such Merchant Entities.
Term and Termination.
- Term. This Agreement shall begin on the Effective Date and continue
until terminated by either Party in accordance with the terms of this
Agreement (the “Term”).
- Termination. SeatMe may terminate with or without cause by written
notice at any time for any reason or no reason, including without
limitation (i) Merchant’s breach of this Agreement; or (ii) Merchant
becoming bankrupt or insolvent. Merchant may terminate this Agreement at
any time by closing the account through the Merchant Portal Site.
- Effect of Termination/Expiration. Upon termination of this
Agreement for any reason, SeatMe shall cease creation and offering for
sale of any new Vouchers, provided that SeatMe may continue to offer and
sell any Vouchers for which SeatMe had published prior to the effective
date of termination (the “Wind Down Right”), and further provided that
any Voucher sold either prior to the effective date or termination or in
accordance with the foregoing Wind Down Right shall be honored by
Merchant in accordance with this Agreement. Any section that by its
nature provides for an ongoing obligation, including without limitation
Sections 2, 5, 7 through 13, and any payment obligations incurred prior
to the date of termination shall survive expiration or termination of
- Terms of the Agreement. SeatMe reserves the right, at its
discretion, to change, modify, add, or remove portions of this Agreement
on a going forward basis at any time by posting the amended terms to the
Merchant Portal Site. Please check these terms periodically for changes.
In the event that such modifications materially alter Merchant’s rights
or obligations, SeatMe will use commercially reasonable efforts to
notify you directly of the change, such as through the use of a pop-up
window in the Merchant Portal Site, or by sending an email to the
address you provide upon registration. Continued use of the Merchant
Portal Site after the changes become effective constitutes a binding
acceptance of such changes. Except as stated elsewhere, such amended
Agreement will automatically be effective upon the earlier of (a)
Merchant’s continued use of the Merchant Portal Site, and/or other
performance hereunder with actual notice of that the Agreement has been
modified, or (b) thirty (30) days after the modified Agreement is
initially made available; provided however, that any dispute that arises
under this Agreement shall be resolved according to the version of the
Agreement that were in place at the time the dispute arose.
- The SeatMe Services. SeatMe reserves the right, at its discretion
and at any time, to change, enhance, limit, or otherwise modify the
Merchant Portal Site, and its other technology, business practices, and
methods or providing, publishing, promoting and distributing Vouchers,
or any other aspect of the SeatMe products and services on a going
forward basis. Merchant’s sole remedy for any dissatisfaction with the
Merchant Portal Site or any SeatMe products and services is termination
of this Agreement.
Representations and Warranties; Indemnity.
- Representations and Warranties. Merchant covenants, represents and
warrants: (i) the Merchant Marks and Merchant Materials do not and will
not infringe or violate any trademark, copyright other intellectual
property right of any third party; (ii) Merchant has obtained valid
authorizations from applicable Merchant Entities to allow SeatMe to
offer and sell Vouchers redeemable for their goods and services; (iii)
Merchant’s execution and performance of this Agreement will not
contravene or result in the breach of any agreement with any third
party; (iv) Merchant is fully capable of performing, and will perform,
the applicable obligations in accordance with this Agreement; (v)
Merchant’s goods and services, and the promotions it offers through or
in connection with any Voucher, comply with all applicable laws and
regulations; and (v) redemption of Vouchers for those Merchant’s goods
and services that the terms of the applicable Voucher allow redemption
for, complies with all applicable laws and regulations (including
without limitations any applicable regulations prohibiting the use of
discount vouchers for the purchase of alcohol, tobacco, or other similar
- Indemnification. Merchant agrees to indemnify, defend, and hold
SeatMe, its affiliated companies, contractors, employees, agents and its
third-party suppliers, licensors, and partners harmless from any claims,
losses, damages, liabilities, including legal fees and expenses, arising
out of (i) Merchant’s or any of the Merchant Entities’ goods or services
(including any goods or services advertised, promoted, or provided in
connection with any Voucher), (ii) any violation of this Agreement
(including any breach of representations, warranties) by Merchant, (iii)
claims from any Merchant Entities related to Vouchers offered hereunder,
or from any User related to the inability to redeem a Voucher in
accordance with this agreement (including through any applicable
Merchant Entity); or (iv) any claims from Users that Merchant failed to
honor the terms of a Voucher sold in accordance with this Agreement
(including as a result of Merchant imposing any additional terms on the
redemption of the Voucher not made clear as a part of the initial
Voucher offer). SeatMe reserves the right, at Merchant’s expense, to
assume the exclusive defense and control of any matter for which
Merchant is required to indemnify SeatMe, and Merchant agrees to
cooperate with SeatMe’s defense of these claims. SeatMe will use
reasonable efforts to provide notice of any such claim, action, or
proceeding upon becoming aware of it.
- WARRANTY DISCLAIMER; LIMITATION OF LIABILITY. SEATME DISCLAIMS ALL
WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SEATME DOES NOT WARRANT THAT PARTICIPATION IN ANY VOUCHER PROGRAM
HEREUNDER WILL GENERATE FEES. THE PARTIES AGREE AND ACKNOWLEDGE THAT
SEATME SHALL NOT BE LIABLE TO MERCHANT FOR ANY INDIRECT, CONSEQUENTIAL,
SPECIAL, OR PUNITIVE DAMAGES, AND IN NO CASE SHALL SEATME’S LIABILITY TO
MERCHANT ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF
FEES PAYABLE TO MERCHANT UNDER THIS AGREEMENT. THE PARTIES ACKNOWLEDGE
THAT THE FOREGOING REFLECTS THE ALLOCATION OF RISKS PROVIDED HEREIN.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR
THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH
A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR
LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY
CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH
LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE
JURISDICTION WHERE YOU ARE LOCATED.
- Confidentiality. The terms of this Agreement, the contents of any
SeatMe Report, any username, password, or other access credentials
issued to you, and any other information provided to you by SeatMe
hereunder (the “Confidential Information) are confidential and
proprietary to SeatMe. Merchant shall not disclose Confidential
Information to any person (other than its legal advisers or those
employees with a need to know for the purpose of performance of this
Agreement, or use any Confidential Information for any purpose other
than performance of this Agreement.
- Assignment. Merchant may not assign or delegate its rights or
obligation under this Agreement to any third party, either in whole or
in part, without the prior written consent of SeatMe, whether by merger
(regardless of whether Merchant is the surviving entity), change of
control, operation of law, or otherwise. Any attempt to assign or
delegate this Agreement, in violation of the foregoing, shall be void.
Subject to the foregoing, this Agreement shall be binding on the Parties
and their respective successors and permitted assigns. SeatMe may assign
this Agreement without restriction.
- Equitable Relief. The Parties agree that a breach of Section 9 will
cause SeatMe irreparable harm for which monetary damages would be
difficult or impossible to quantify, and would be insufficient to remedy
the harm. Accordingly (and notwithstanding Section 12, below), SeatMe
will be entitled to seek injunctive relief to prevent any actual or
threatened breach thereof, without need of proof of damages or posting
of a bond. The foregoing is in addition to, and shall not limit, any
other remedies it may have at law or at equity.
- Arbitration. As commercial businesses and sophisticated contracting
parties, each of SeatMe and Merchant have a vested interest in resolving
disputes cheaply and expediently. Accordingly, the Parties agree that
any and all disputes arising in connection with this Agreement shall be
resolved by binding arbitration before a single arbitrator in San
Francisco, California, through, and subject to the then-current rules
of, an established alternative dispute resolution ("ADR") provider
mutually agreed upon by the parties. For any claim where the total
amount of the award sought is less than $10,000, the Party requesting
relief may elect to resolve the dispute through binding
non-appearance-based arbitration subject to the following additional
rules: i) the arbitration shall be conducted by telephone, online and/or
be solely based on written submissions, the specific manner shall be
chosen by the party initiating the arbitration; ii) the arbitration
shall not involve any personal appearance by the Parties or witnesses
unless otherwise mutually agreed by the Parties; and iii) any judgment
on the award rendered by the arbitrator may be entered in any court of
competent jurisdiction. The Parties further agree and acknowledge that
all claims brought hereunder shall be brought by the Party initiating
the claim in its individual capacity, and not as a plaintiff or class
member in any purported class or representative proceeding.
Notwithstanding the foregoing, the Parties agree that nothing herein
shall be deemed to waive, preclude, or otherwise limit a Party’s right
to seek equitable relief in a court of law, or to file suit in a court
of law to address claims of infringement of such Party’s intellectual
- Miscellaneous. Notices pursuant to this Agreement must be in
writing, and are effective upon receipt or five days after dispatch,
whichever occurs first. This Agreement and any associated additional
policies constitutes the entire agreement of the Parties with respect to
the subject matter hereof and supersede all previous agreements, either
oral or written, between the Parties with respect hereto, and may not be
modified except as set forth in Section 6. Section headings are for
reference only and shall not be considered in the construing of this
Agreement. This Agreement will be governed by the California laws,
excluding conflict of law rules. To the extent any legal proceeding
arising in connection with this Agreement is permitted to be filed in
a court law, such disputes shall be brought in and subject to the
exclusive jurisdiction and venue (and the Parties waive any claim of
forum non conveniens) of the state and federal courts located in San
Francisco, California. Neither SeatMe nor Merchant will be liable for
delay or default in the performance of its respective obligations under
this Agreement if such delay or default is caused by conditions beyond
its reasonable control, including, but not limited to, fire, flood,
accident, earthquakes, telecommunications line failures, electrical
outages, data losses, acts of God, or labor disputes. In the event any
provision of this Agreement is held invalid or unenforceable, such
provision shall be deemed to be restated to reflect as nearly as
possible the original intentions of the Parties in accordance with
applicable law, or if not capable of being so restated, shall be deemed
severable and severed from the Agreement without affecting the validity
of the remaining provisions. The Parties hereto are independent
contractors, and nothing in this Agreement is intended to, or should be
construed to create a partnership, agency, joint venture or employment
relationship. This Agreement may be executed in counterparts, each of
which shall be an original and all of which together shall constitute
one and the same document.