In this Agreement, “SpotOn Reserve” and “we” mean the SpotOn Reserve company that is providing the Services to you, and with whom you are entering into this Agreement. The terms “User” and “you” mean any user of the Services. This Agreement incorporates SpotOn Reserve’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “SpotOn Reserve Policies”).
By accessing or using the Services or by clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER APPLICABLE TO USERS WHO ARE RESIDENTS OF THE UNITED STATES (INCLUDING ITS POSSESSIONS AND TERRITORIES), AND CANADA.
SpotOn Reserve may update or revise this Agreement (including any SpotOn Reserve Policies) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, you must terminate your use of the Services, in which case you will no longer have access to your Account. Except as otherwise expressly stated by SpotOn Reserve, any use of the Services (e.g., the use of the Reservation Services (as defined herein) or Waitlist Services (as defined herein), is subject to the version of this Agreement in effect at the time of use.
SpotOn Reserve makes available restaurant reservation services (the “Reservation Services”) and waitlist services (the “Waitlist Services”) through the SpotOn Reserve Sites to User for the purpose of assisting User in securing dining reservations or joining a waitlist at participating third-party restaurants (each, a “Restaurant”). In response to a User’s online request for a Restaurant reservation or to join a waitlist through the SpotOn Reserve Site, SpotOn Reserve contacts the Restaurant’s computerized database of reservations and waitlists, as applicable. The availability of reservations, estimated wait time or place in line on a waitlist is determined at the time of User’s query and based on information provided to SpotOn Reserve by the Restaurant. Once a reservation or waitlist request is made by User through the SpotOn Reserve Site, SpotOn Reserve will provide confirmation of the reservation or waitlist status to User by email or other electronic messages as has been agreed to by User. By using the Reservation Services or Waitlist Services, User agrees to receive reservation and waitlist confirmations, updates, modifications and/or cancellations by email or other electronic messages.
If you are unable to keep your reservation, the Restaurant may indicate that you were a no-show. Upon arriving at the Restaurant, it is the User’s responsibility to notify the host that the User has a reservation. User agrees that all final no-show determinations will be made by the applicable Restaurant in its sole discretion.
If you wish to remove yourself from a waitlist you have joined through the Waitlist Services, you can do so by managing your place in line through the SpotOn Reserve Site or by calling the Restaurant. Failure to appear at the Restaurant in a timely manner may result in the Restaurant bypassing your place on the waitlist for other guests or removing you from the waitlist entirely.
User agrees to use the Reservation Services or Waitlist Services only to book reservations or join waitlists at Restaurants and then honor those reservations or waitlist requests by arriving at the Restaurants on time and ordering and paying for meals. User further agrees not to book more than one reservation or join more than one waitlist for User’s personal use during any one meal time (e.g., lunch, dinner, etc.). Resale or attempted resale of reservations or waitlist spots is prohibited and is grounds for, among other things, cancellation of your reservations, removal from the waitlist or termination of your access to the Services.
You are required create an account with SpotOn Reserve through the SpotOn Reserve Site (“Account”) in order to use the Reservation Services or Waitlist Services. When registering for an Account, you must provide true, accurate, current, and complete data about yourself on the SpotOn Reserve registration form (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify SpotOn Reserve of any unauthorized use of your Account or any other breach of security related to your use of the Services.
Communications from SpotOn Reserve
Modifications to Services
SpotOn Reserve reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the SpotOn Reserve Sites, Restaurants, and/or Merchants. SpotOn Reserve shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
Intellectual Property Rights and Grant of Rights to User
The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “SpotOn Reserve Content”) are provided to User by SpotOn Reserve or its partners or licensors solely to support User’s permitted use of the Services. The SpotOn Reserve Content may be modified from time to time by SpotOn Reserve in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the SpotOn Reserve Content by User shall constitute a material breach of this Agreement. SpotOn Reserve and its partners or licensors retain all rights in the Services and SpotOn Reserve Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of SpotOn Reserve or any third party is granted under this Agreement.
The Services and SpotOn Reserve Content are offered solely for User’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. SpotOn Reserve expressly reserves all its rights and remedies under applicable laws (including state, federal, and provincial/territorial laws). SpotOn Reserve reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel reservations, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or SpotOn Reserve Content, except as expressly authorized by SpotOn Reserve; (2) take any action that imposes or may impose (in SpotOn Reserve’s sole determination) an unreasonable or a disproportionately large load on the Services or SpotOn Reserve’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or SpotOn Reserve Content to a third party; (5) use any portion of the Services or SpotOn Reserve Content to provide, or incorporate any portion of the Services or SpotOn Reserve Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to SpotOn Reserve); (7) modify any Services or SpotOn Reserve Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or SpotOn Reserve Content; (9) use the Services or SpotOn Reserve Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or SpotOn Reserve Content or access or use the Services or SpotOn Reserve Content for competitive analysis or benchmarking purposes. Although the SpotOn Reserve Sites may be accessible worldwide, not all features or services discussed, referenced, provided or offered through or on the SpotOn Reserve Site are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. SpotOn Reserve reserves the right to limit, in its sole discretion, the provision and quantity of any feature or service to any person or geographic area.
United States Government End Users
The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any SpotOn Reserve Site with only those rights set forth therein.
You may not use, export, or re-export any SpotOn Reserve Site or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
SpotOn Reserve may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, SpotOn Reserve may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any SpotOn Reserve Policies). After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account. You agree that SpotOn Reserve shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which SpotOn Reserve will have no liability whatsoever.
You agree to indemnify, hold harmless, and (at SpotOn Reserve’s request) defend SpotOn Reserve, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “SpotOn Reserve Parties”) from and against all claims resulting from (1) your use of the Services, or (2) any breach or alleged breach by you of this Agreement.
EXCEPT AS EXPRESSLY SPECIFIED HEREIN, IN NO EVENT SHALL THE SPOTON RESERVE PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT (INCLUDING ANY CHANGES THERETO), (2) ANY USE OF THE SPOTON RESERVE SITE, SERVICES, THE SPOTON RESERVE CONTENT, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF ANY OF THE SERVICES), OR (4) YOUR VISIT TO ANY RESTAURANT OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY RESTAURANT OR MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE SPOTON RESERVE SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE SPOTON RESERVE CONTENT. SPOTON RESERVE IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY RESTAURANT FOR WHICH A USER HAS MADE A RESERVATION OR CLAIMED AN OFFER OR PROMOTION.
IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT ENFORCEABLE AT LAW, YOU EXPRESSLY AGREE THAT OUR LIABILITY TO YOU (FOR AY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50).
You and SpotOn Reserve understand and agree that the disclaimers, exclusions, and limitations in this Section 15 and in Section 16 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that SpotOn Reserve would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Disclaimer of Warranties
YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND SPOTON RESERVE CANNOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES, ALL SPOTON RESERVE CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. SPOTON RESERVE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. SPOTON RESERVE DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT SPOTON RESERVE WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. SPOTON RESERVE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SPOTON RESERVE.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Third-Party Websites, Applications and Services
The Services may contain hypertext links to websites and applications operated by parties other than SpotOn Reserve. Such hypertext links are provided for User’s reference only, and SpotOn Reserve does not control such websites and is not responsible for their content. SpotOn Reserve’s inclusion of any hypertext links to such websites or applications does not imply any endorsement of the material on such websites or applications or any association with their operators. SpotOn Reserve assumes no liability whatsoever for any such third-party websites, applications or any content, features, products, or services made available through such third-party websites or applications. Additionally, Apple Inc., Google, Inc., or Microsoft Corporation will be a third-party beneficiary to this contract if you access the Services using applications developed for Apple iOS, Android, or Microsoft Windows devices, respectively. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third party beneficiary's terms of service, including any license transferability and other usage rules therein.
Restaurants and Merchants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you as a result of your (or such recipient’s) interaction with or visit to any Restaurant or Merchant or from any promotion, offer, product or service of any Restaurant or Merchant. Users must resolve all disputes directly with Restaurants. To the maximum extent permitted by applicable law, you hereby release the SpotOn Reserve Parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the SpotOn Reserve Parties pertaining to the subject matter of this Section 18.
If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by SpotOn Reserve.
Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE
If you are a resident of the United States (including its possessions and territories) or Canada, you agree that any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the SpotOn Reserve Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state or provincial/territorial arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
In the case of arbitration and where permitted by law, you are thus agreeing to GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
In the case of arbitration and where permitted by law, you and SpotOn Reserve must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR SPOTON RESERVE MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, SpotOn Reserve will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) SpotOn Reserve also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or SpotOn Reserve may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Sacramento County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Sacramento County, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Sacramento County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of SpotOn Reserve Parties (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor SpotOn Reserve shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration (including any claims brought by parties outside the United States or Canada), the dispute shall be exclusively brought in state or federal court located in Sacramento County, California. For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at (800) 778-7879 or visit the AAA website at https://www.adr.org.
Choice of Law
This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California, U.S.A, consistent with the Federal Arbitration Act (to the extent permitted by applicable law), without giving effect to any principles that provide for the application of the law of another jurisdiction. You may also be entitled to certain consumer protection rights under the laws of your local jurisdiction and/or country of residency.
Last Updated: August 13, 2020