RESY TECHNOLOGY SERVICE TERMS AND CONDITIONS
(“TECHNOLOGY SERVICE TERMS”)
These Technology Service Terms are incorporated by reference to an order form signed by and between the Restaurant and Resy as defined and detailed therein (the “Order Form”) and will be dated as of Resy’s signature date on the Order Form (the “Effective Date”). The Order Form combined with these Technology Service Terms may be referred to herein as the “Agreement.” In the event of a conflict between these Technology Service Terms and the Order Form, the Order Form shall control.
Last updated 11/17/2020
1. RESY TECHNOLOGY SERVICE
Resy Network, Inc. (“Resy”) offers the Resy Technology Service (“RTS” or “Services” or “Resy Services”). It is comprised of five (5) components. Restaurant will have access to RTS with respect to the feature set as set forth on the Order Form. Restaurant’s use of RTS shall be subject to all online terms of service applicable to each product (the “Terms of Service”), which terms are incorporated herein by reference. Access is further defined on the Order Form.
(A) The Resy App
A B2C consumer-facing mobile application, available on both iOS and Android;
A restaurant management console, which controls, for example, dining room seating inventory, certain other front-of-house operations, customer-to-restaurant electronic communications, CRM, and various reporting modules;
(C) Resy Web Widget
A web-based booking widget;
(D) Resy Auth
A user authentication layer, which provides the Restaurant with accesses to customer information stored in the Resy’s global user database, including certain personal information, including photos, contact information, and dietary preferences; and
(E) Resy API
A Resy API, available to you should you want to build custom applications on top of RTS.
2. SETUP, INSTALLATION, AND MAINTENANCE
Resy Services require setup, installation and, in some cases, ongoing maintenance from both Resy and the Restaurant. For the life of this Agreement the Restaurant will have access to Resy’s technical and customer support teams. Additionally, Restaurant agrees to cooperate with Resy to implement the RTS, including by completing Resy’s onboarding questionnaire and providing Resy with all other reasonably requested information about the Restaurant, such as address, contact, floorplans, and inventory information. Upon receipt of all necessary information from Restaurant, Resy shall provide Restaurant with access credentials to access the Resy Services within 10 business days. Resy shall also provide each Restaurant with training of Restaurant’s employees and other personnel (the “Restaurant Personnel”) based on the applicable Product stated on the Order Form as follows:
- Platform (Floor Plan Only): Video training delivered via email + Twice-weekly training webinar
- Platform: Video training delivered via email + Twice-weekly training webinar
- Platform 360: Video training delivered via email + 1-2 hour private webinar training
- Platform FS: Video training delivered via email + 1-2 hour private webinar training
Restaurant hereby grants to Resy a nonexclusive, royalty-free, worldwide license, to use, copy, import, display, reproduce, perform, and distribute (i) any information, data, text, photographs, videos, audio clips, written posts, comments, software, scripts, or graphics provided by Restaurant to Resy; (ii) Restaurant’s trademarks, trade names, business names, logos, descriptions, photographs or other identifiers; and (iii) any other content provided by Restaurant to Resy, in connection with the provision, operation and promotion of the Resy Services and Resy’s Business (and the business of Resy’s successors and business partners), including on Resy’s customer or Restaurant lists or website (“Restaurant Content”). Restaurant shall be responsible for all acts and omissions by any Restaurant Personnel. Should Restaurant, in its sole discretion, find any use of the Restaurant Content by Resy objectionable, Restaurant shall promptly notify Resy of such objectionable use, and Resy shall to the extent reasonably practicable use commercially reasonable efforts to promptly cease using the Restaurant Content in the manner found objectionable by Restaurant.
3. LICENSE GRANT FOR RESY MARKS
Subject to these Technology Service Terms, Resy grants Restaurant a limited, revocable, non-exclusive, non-sublicensable, non-transferable right and license to use Resy’s trademarks, logos, and service marks (“Resy Marks”) in the form provided by Resy to Restaurant solely for the purposes of marketing and promoting the availability of Reservations on the Resy Services. Should Resy, in its sole discretion, find any use of the Resy Marks by Restaurant objectionable, Resy shall notify Restaurant of such objectionable use, and Restaurant shall immediately cease using the Resy Marks in the manner found objectionable by Resy.
4. FEES, PAYMENTS, AND DISBURSEMENTS
Each calendar month during the Term, Resy shall invoice Restaurant for all fees due in connection with the services provided hereunder as set forth on the applicable Order Form. All payments shall be made in U.S. Dollars. Resy at its sole election may require Restaurant to provide a credit card for automatic bill payment. In the event that any fees are not received and/or cannot be billed to the Restaurant’s credit card on file, any overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1.5% per month (18% per year). Restaurant will have a 7-day grace period per month to make payment, after which time Resy reserves the right to suspend or terminate the Restaurant’s access to one, any or all parts of RTS.
When Restaurant is owed funds, provided Restaurant has supplied Resy with all necessary payment and/or banking information as part of Restaurant setup Resy will disburse those funds via ACH transfer as directed by the Restaurant within 72 hours of ticket, reservation, event date.
5. TERM & TERMINATION
This Agreement shall commence on the Effective Date and shall continue through the Initial Term stated on the Order Form. After the Initial Term, this Agreement shall automatically renew for additional successive Renewal Terms as specified on the Order Form unless either party notifies the other party of non-renewal as specified on the Order Form. The Initial Term and all subsequent Renewal Terms shall be the “Term”. Notwithstanding anything to the contrary, in the event of any termination the Restaurant will remain liable for (i) any amount due under the Order Form through the effective date of termination, (ii) any termination fees charged pursuant to the Order Form; and (iii) and any amount that may later become due as a result of a chargeback or similar transaction. Sections 6, 7, 8, 9, 10 and 11 shall survive any termination. The Agreement shall be in effect until either party exercises its right to terminate as outlined here:
(A) Restaurant’s Right to Terminate
Except as set forth in Section 5(B) below, Restaurant may only terminate the Agreement as set forth on the Order Form.
(B) Parties’ Mutual Right to Terminate
Either party may terminate immediately upon written notice to the other: (a) if the other party materially breaches any warranty, representation, covenant or obligation under this Agreement and fails to cure such breach within ten (10) calendar days following receipt of written notice thereof; (b) if the other party is subject to a dissolution, receivership, liquidation, insolvency, conservatorship, consolidation, cessation of business, voluntary or involuntary bankruptcy.
(C) Resy’s Right to Terminate
(1) Resy may terminate this Agreement in the event of non-payment of fees due upon ten (10) days’ notice.
(2) Resy may immediately terminate this Agreement, by written notice to the Restaurant, during the Term, Restaurant, or any of its employees, is charged with or has committed a crime or engages in any actions involving moral turpitude or which may bring Resy or any of its brands under ridicule, contempt, scandal, public disrepute, or which shock, insult, or offend the people of this nation or any class or group thereof or reflects unfavorably upon Resy, or which in the judgment of Resy is or may be detrimental to Resy or its brands.
(D) Termination for Delayed Setup
Resy may terminate this Agreement for Restaurant’s delayed setup as set forth on the Order Form.
Restaurant shall defend, indemnify, and hold harmless Resy and its affiliates, employees, officers, directors, agents, partners, and content providers, representatives, successors and assigns (“Resy Parties”) from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to: (i) Restaurant’s or Restaurant Personnel’s use or misuse of, or access to, any part of Resy Services; (ii) the Restaurant Content (iii) any act or omission of Restaurant, any Restaurant Personnel, or any third party using Restaurant’s or Restaurant Personnel’s access credentials, account, or identity on Resy’s Business; or (iv) any breach of the Agreement by Restaurant. Resy shall defend, indemnify, and hold harmless Restaurant from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to (1) any breach by Resy of the confidentiality obligations provided for in Section 7 below, or (2) infringement of any third-party intellectual property right by the Services, hosted environment and/or documentation, when used by Restaurant as permitted hereunder and without modification.
“Reservation” as used in these Technology Service Terms will refer to reservations made by customers to dine with Restaurant (the “Customers”) that are input, stored, and managed in Resy OS, which may or may not have any direct connection to the Resy App, Resy Website or Resy API. Restaurant acknowledges that Restaurant is solely responsible, and that Resy is not in any way responsible, for any of Restaurant’s or Restaurant Personnel’s interactions with Customers or other third parties as a result of or in connection with a Reservation, or for a Customer’s dining or other experience at a Restaurant, or for any and all claims, damages, illnesses, injuries, liabilities, or costs (“Claims”) Restaurant or a Customer may suffer that arise or result from (i) Restaurant’s interaction with any Customer; (ii) any of Restaurant’s products or services; (iii) any communications with Customers, or other individuals by Restaurant Personnel (as that term is defined below), whether through Resy’s Business or otherwise; (iv) Customer’s dining or other experience at a Restaurant; or (v) compliance with any food and beverage related laws, including but not limited to all applicable laws relating to the provision of alcohol to minors or inebriated parties. Restaurant agrees to indemnify the Resy Parties for any Claims arising out of or in connection with any of the foregoing.
7. CONFIDENTIALITY & INTELLECTUAL PROPERTY
Resy fully understands and respects the Restaurant’s concerns with regard to confidentiality. In connection with this Agreement, the Restaurant may furnish Resy with certain information relating to Restaurant’s business and affairs that is confidential or proprietary, including procedures and manners of operation, customized software, customer information, and other data identifiable as Restaurant’s, all of which will be held strictly confidential. Each party shall retain all right to, title of, ownership of, and interest in its hardware, software, respective trademarks, service marks, trade names, and all other intellectual property worldwide. Resy grants the Restaurant a non-exclusive, non-transferable right and license to use Resy’s Services for its internal purposes during the Term. The Restaurant agrees that the Restaurant will not: copy or distribute the Resy Services or any software contained therein, or adapt or prepare any derivative work based on the Resy Services or any software contained therein ; make any use of the Resy Services other than as set forth in this Agreement; or permit any third party to do any of the foregoing.
8. REPRESENTATIONS AND WARRANTIES
(A) Mutual Representations and Warranties
Each party represents and warrants to the other party that: (i) it has the right to enter into the Agreement; and (ii) the Agreement is a valid and binding obligation of such party.
(B) Restaurant Warranties
Restaurant further represents and warrants that: (i) the party signing the Order Form is an authorized representative of the Restaurant with the authority to bind Restaurant to the Agreement; (ii) Restaurant has obtained and shall maintain throughout the Term all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws and industry best practices; (iii) Restaurant will remain fully responsible for all access to and use of the Resy Services on Restaurant’s (and Restaurant Personnel’) access credentials and accounts, whether or not Restaurant has knowledge of or authorizes such access and use; (iv) neither Restaurant nor Restaurant Personnel will share or provide access to their respective access credentials to any third parties, and Restaurant will use best efforts to protect the secrecy of access credentials; (vi) Restaurant has all necessary right, authorization, and consents to grant to Resy all rights and licenses granted herein, including for any Restaurant Content; (vii) Restaurant has provided and will continue to provide Resy with accurate and complete account and other information, and will inform Resy in writing of any changes or updates to such information during the term of the Agreement; (viii) the use of any Restaurant Content, as contemplated by these Technology Service Terms, will not infringe, misappropriate, or violate any intellectual property, proprietary, or other rights of any third party; and (ix) Restaurant, and all Restaurant Personnel will perform all of each of their obligations, and exercise all of each of their rights, in compliance with all applicable laws.
9. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
THE RESY SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE RESY PARTIES DO NOT WARRANT THAT: (I) THE RESY SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE PROVIDED OR MADE AVAILABLE BY RESY IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THE RESULTS OF USING THE RESY SERVICES WILL MEET RESTAURANT’S REQUIREMENTS; OR (V) THE RESY SERVICES WILL BE UNINTERRUPTED OR THAT ANY INTERRUPTION WILL BE CORRECTED IN A TIMELY MANNER. RESTAURANT’S USE OF THE RESY SERVICES IS SOLELY AT RESTAURANT’S OWN RISK.
(B) LIABILITY LIMITATION
IN NO EVENT SHALL THE RESY PARTIES BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE RESY SERVICES FOR ANY CLAIM RELATED TO (I) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (III) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE RESY SERVICES OR RESY’S BUSINESS; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH RESTAURANT’S USE OF THE RESY SERVICES OR RESY’S BUSINESS; (V) RESTAURANT’S FAILURE TO PROVIDE RESY WITH ACCURATE ACCOUNT OR OTHER INFORMATION; (VI) ANY LIABILITY RESULTING FROM RESTAURANT’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; (VII) RESTAURANT’S FAILURE TO ACCESS THE RESY SERVICES OR RESY’S BUSINESS DUE TO MALFUNCTION(S) IN EQUIPMENT, INFRASTRUCTURE, SYSTEM, OR THE NETWORK USED BY RESTAURANT; OR (VIII) RESTAURANT’S PERFORMANCE OR NON-PERFORMANCE IN CONNECTION WITH THE RESY SERVICES, RESY’S BUSINESS OR ANY RESERVATION, USER, OR ANY CUSTOMER. IN NO EVENT SHALL RESY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED $500.00.
10. GOVERNING LAW, ARBITRATION CLAUSE & CLASS ACTION WAIVER
(A) Governing Law
The Agreement, and the transactions contemplated hereby shall be governed by and construed under the law of the State of New York without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods.
Except that either party may seek equitable or similar relief from any court of competent jurisdiction, any dispute, controversy or claim arising out of or in relation to the Agreement, that cannot be settled amicably by the parties, shall be finally settled in accordance with the arbitration rules of JAMS then in force by one or more arbitrators appointed in accordance with said rules. The parties agree that any dispute arising from or relating to the subject matter of the Agreement shall be resolved in New York County, New York. The proceedings shall be in English. The award rendered shall be final and binding on both parties. Judgment on the award may be entered in any court of competent jurisdiction. The prevailing party shall be entitled to recover costs and attorneys’ fees.
(C) Class Action Waiver
Neither party shall participate in a class action or class-wide arbitration for any claims covered by this Agreement. Restaurant also agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Resy is a party to the proceeding. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then solely the preceding language in this Section 10(c) will be null and void.
Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with the Agreement.
(E) Limitation for Bringing Claims
Restaurant agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Resy Services or the Agreement must be filed within one (1) year after such claim of action arose or be forever banned.
This arbitration agreement will survive the termination of the Agreement.
11. Resy At Home
In addition to the RTS described herein, select Restaurants may also participate in Resy At Home, an online ordering platform. Restaurant will provide the information required to maintain the Resy At Home service. Restaurant is responsible for ensuring that this information, including menu and pricing details, is up to date. Resy will use the information provided to populate the options presented to the customer within the Resy At Home experience. Restaurant is solely responsible for the fulfillment of all orders placed through Resy At Home. In calculating and processing the billing for orders placed through Resy At Home, Resy is acting as Restaurant’s billing agent. This includes the calculation and payment processing for sales tax. Restaurant agrees with the tax determination made by Resy and agrees to remit the appropriate sales tax as required by law.
(A) Relationship of the Parties. The parties shall be independent contractors under these the Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or Restaurants for any purpose, and neither party has the authority to bind the other in any respect.
(B) Entire Agreement and Severability. These Technology Service Terms, the Order Form, and any Terms and Conditions applicable to the Resy Services are the entire Agreement between Restaurant and Resy with respect to Restaurant’s use of the Resy Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Restaurant and Resy with respect to the Resy Services. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
(C) Force Majeure. Resy shall not be liable for any failure to perform Resy’s obligations hereunder where such failure results from any cause beyond Resy’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
(D) Assignment. The Agreement is personal to Restaurant, and is not assignable, transferable or sublicensable by Restaurant except with Resy’s prior written consent. Resy may assign, transfer or delegate any of Resy’s rights and obligations hereunder without consent.
(E) Notices. Unless otherwise specified in these Term of Service, all notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com.
(F) Modifications; Waiver. Resy may modify these Technology Service Terms at any time in its sole discretion by posting the revised terms online. Changes will become effective ten (10) days after they are posted. Your continued use of the Resy Services after any changes take effect will constitute your acceptance of all applicable changes. Except where otherwise explicitly set forth herein, no other change to or consent or waiver under these Technology Service Terms or an applicable Order Form will be effective unless in a mutually agreed upon instrument in writing signed by both parties (a “Resy Amendment Form”). The failure of either party to enforce its rights under these Technology Service Terms or an applicable Order Form at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.
(G) Headings; Interpretation. The section and paragraph headings in these Technology Service Terms are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in these Technology Service Terms shall be read as being followed by “without limitation” where appropriate.
(H) Data Protection Addendum. As part of this Agreement, you agree to the terms of the Two-way DPA available here: http://resy.com/dpa. Under this DPA, the following details apply:
Restaurant as Controller
Data exporter/controller: Restaurant
Data importer/controller: Resy
Data Subjects: The Personal Data concern the following categories of Data Subjects:
Categories of data: Name, email addresses, phone numbers, diner notes, diner check details
Special categories of data: Diner-provided allergy information
Nature and purpose of processing Personal Data: Resy processes Restaurant data to improve
the dining experience for Restaurant diners and facilitate reservation booking at the Restaurant.
Types of processing activities: Analysis of diner information, display of diner details in ResyOS,
SMS and email with the diner regarding reservations
Resy as Controller
Data exporter/controller: Resy
Data importer/controller: Restaurant
Data Subjects: The Personal Data concern the following categories of Data Subjects: Resy
users who have made reservations at Restaurant
Categories of data: Name, email addresses, phone numbers, diner notes
Special categories of data: Diner-provided allergy information
Nature and purpose of processing Personal Data: Restaurants process Resy data to better
understand their diners, manage the dining experience, and communicate with
Types of processing activities: Display of diner details in ResyOS and communication with the
diner regarding reservations
APPENDIX A — ORDER FORM
1. Credit Card Processing Fee
Resy will retain 2.9% + $0.30 of any ticket or other transaction amount charged through Resy.
2. Event Ticketing Fee
Resy will retain (i) 3% of the ticket amount actually collected from users on a per person basis for Platform access; and (2) 2% of the ticket amount actually collected from users on a per person basis for Platform 360 or Platform FS access. Resy will apply the remaining amount, less applicable deductions (“Event Credit”) to services fees owed by Partner for Services hereunder as follows: 100% of the Event Credit will be applied after 3 days following the date of the applicable event. If the amount of the Event Credit exceeds the amount of service fees owed by Partner set forth in the applicable invoice, Resy will disburse the balance to Partner by payment method as directed.
3. Reservation Booking Fee for Premium Reservations
Resy will retain (i) 40% of the purchase price of each Premium Reservation for Platform access and (ii) 30% of the purchase price of each Premium Reservation for Platform 360 or Platform FS access. Resy will apply the remaining amount, less applicable deductions (“Reservation Credit”) to service fees owed by Partner for Services hereunder, in the invoice for the calendar month following the month in which the applicable Reservation was purchased. If the amount of the Reservation Credit exceeds the amount of the service fees owed by Partner, Resy will disburse the balance to Partner by payment method as directed.