THESE CLIENT TERMS AND CONDITIONS (THE “TERMS”) GOVERN YOUR USE AND ACCESS TO THE SAAS-BASED RESERVATION AND GUEST MANAGEMENT PLATFORM (THE “PLATFORM”) AND RELATED PROFESSIONAL SERVICES (THE “SERVICES”) PROVIDED BY SEVENROOMS INC. (“SEVENROOMS”). BY EXECUTING AN ORDER FORM REFERENCING THESE TERMS AND SPECIFYING THE VENUE USING THE PLATFORM (THE “VENUE”), YOU (“CLIENT” OR “YOU”) AGREE TO BE BOUND BY THESE TERMS AND THE ORDER FORM (COLLECTIVELY, THE “AGREEMENT”). ANY TERMS USED BUT NOT DEFINED HEREIN WILL HAVE THE MEANING ASSIGNED TO THEM IN THE ORDER FORM.
1.1. Grant. SevenRooms grants Client a limited, non-transferable, non-sublicensable license to access and use the Platform to manage guest services at the Venue(s) during the Term (the “Subscription”) subject to the Agreement. The Subscription includes the right to (a) make and use a reasonable number of copies of any written or online descriptions of the Platform functionality or related requirements made available to Client (collectively, “Documentation”), and (b) use any changes to the Platform made available to Client by SevenRooms at no additional cost (an “Update”). Updates are applied automatically to the Platform. The Subscription extends to any Client or Venue personnel authorized to use the Platform by Client (“Users”).
1.2. Restrictions. Except as explicitly permitted herein, Client may not, directly or indirectly: (a) modify or create derivative works of the Platform; (b) decompile, reverse engineer, or translate any portion of the Platform into human-readable form (except to the extent expressly allowed by applicable law); (c) rent, lease, share, distribute, or sell the Platform or the Services to any third party,; (d) remove, alter or deface proprietary notices or marks in the Platform or Documentation; (e) disclose the results of testing or benchmarking of the Platform; (f) circumvent or disable the Platform’s security, copyright protection, or license management mechanisms, (g) interfere with the Platform’s operation; (h) use the Platform to violate the law or the rights of any third party; or (i) attempt to do any of the foregoing. Client is responsible for providing each User with credentials to access the Platform and ensuring that all Users comply with the Agreement. Client and Users must keep their Platform credentials secure, and immediately inform SevenRooms of any suspected unauthorized use of the Platform. SevenRooms may take any actions it deems reasonable, including denying access to Users or a Venue, for any breach of this Section 1.2.
1.3. Connectivity. Client is responsible for any network or internet connectivity required to access the Platform. Client consents to the processing and storage of Client Information on hardware owned or controlled by SevenRooms and/or its third party service providers (such as Amazon Web Services).
1.4. Additional Features. An “Add-On” is an optional Platform feature available for an additional fee or otherwise subject to additional terms that will be communicated by SevenRooms and agreed to by Client. Add-Ons may include integrations to Third Party Services, or guest loyalty and reward programs that may include a brand sponsorship component. Where Add-Ons are subject to additional terms. Client must accept such additional terms prior to accessing the Add-On.
2.1. Support. As part of the Subscription, SevenRooms will (a) use commercially reasonable efforts to promptly resolve issues with the Platform reported through the “support” feature of the Platform or by email to email@example.com, (b) provide Client with all generally released Updates, and (c) provide Client with access to standard Documentation (collectively, the “Support Services”). Additional support may be provided as set forth in the Order Form.
2.2. Training. SevenRooms provides up to three hours, of virtual training on the Platform as part of the Implementation. In-person training may be available for an additional fee (and travel costs).
2.3. Implementation. SevenRooms will perform configuration and implementation services (“Implementation”) for each Venue as set forth in the Order Form. Implementation includes account setup and provisioning and floorplan digitization. Implementation is not included in the Support Services described in Section 2.1. Client will designate a single User as Client’s project lead for Implementation. Once Implementation is scheduled by the parties (which may be by email), SevenRooms may charge Client a rescheduling fee of up to ten percent (10%) of the Implementation Fee if Client reschedules.
SMS Texts. As part of its routine use of the Platform, venues in the United Kingdom and Hong Kong where texting functionality is supported will be able to send up to 1,000 SMS texts per month to guests to confirm a reservation, waitlist entry or status, and to communicate in free form (each, a “SMS”). Additional SMS texts will be billed at $0.05 each.
2.4. Custom Services. SevenRooms may provide additional services to Client (“Custom Services” and, together with the Implementation, the “Services”). The terms, requirements, and pricing for any Custom Services must be forth and agreed to in an Order Form or an amendment thereto.
3. THIRD PARTY MATERIAL
3.2. Third Party Content. SevenRooms makes content from third parties, including but not necessarily limited reservation and payment data provided by Third Party Services, available via the Platform (“Third Party Content”). SevenRooms is not responsible for the accuracy or completeness of Third Party Content. If SevenRooms is required to remove Third Party Content or is notified that certain Third Party Content may violate applicable law or third party rights, SevenRooms may remove such Third Party Content without notifying Client in advance.
3.3. Open Source Software. Certain items of code provided with the Platform are subject to “open source” or “free software” licenses (“OSS”), a list of which is available in the Documentation as necessary. OSS is not subject to the terms and conditions of this Agreement, except for this section and the disclaimers and limitations of liability. Instead, each item of OSS is licensed under the terms of the license that accompanies such OSS. Nothing in this Agreement limits Client’s rights under, or grants Client rights that supersede, the terms of any applicable end-user license for the OSS.
4. INTELLECTUAL PROPERTY
4.1. Platform. Subject to the license granted in Section 1.1, SevenRooms or its licensors retain all right, title and interest in the Platform, the Usage Information, and any derivative works thereof.
4.2. Client Information. As between the parties, Client owns all right, title and interest in, and is solely responsible for, any information specific to a Venue that is uploaded by Users to the Platform or otherwise made available by Client to SevenRooms under this Agreement (“Client Information”). For clarity, Client Information includes names and contact information of Venue guests, the date and time of reservations, purchases, payment information, and reservation details of such guests (“Guest Information”), along with Venue photographs, floor plans, table configurations and other designs. If multiple Client Venues are, or later become managed via the Platform, Guest Information from each Venue will be available to all Users of all other Venues, subject to the access rights of such Users. In addition to the restrictions in Section 1.2, Client and Users may not use the Platform to transmit, store, display, distribute or otherwise make Client Information available that is illegal, harmful, or offensive, including content that is defamatory, obscene, abusive, invasive of privacy, or pornographic, and SevenRooms may, in its sole discretion, remove or delete any such Client Information. Client grants SevenRooms (a) a worldwide, royalty-free, sublicensable, nonexclusive license, during the Term, to use Client Information solely to provide the Subscription to perform the Services and for routine archival records, and (b), a worldwide, perpetual, royalty free, sublicensable, and nonexclusive right to use aggregated, de-personalized information derived from Client Information, including Guest Information, to improve the Services, share with SevenRooms’ marketing partners, develop new offerings, or for other lawful purposes. SevenRooms may have independent access to certain Guest Information of Client (i.e., through individual sign-up with SevenRooms or other offerings or sources) or other Client Information, and nothing in this Section 4.2 limits SevenRooms’ right to use such information. Client is solely responsible for creating backup copies of and securely storing any Client Information and/or Guest Information.
4.3. Usage Information. SevenRooms owns all data regarding installation, registration, and use of the Platform, and data related to Platform performance, including response times, load averages, usage statistics, and activity logs, (collectively, “Usage Information”). Usage Information does not include any personally identifiable information but may include aggregated information derived from Client Information.
4.4. Marks. Client grants SevenRooms a limited, non-exclusive, non-transferable, sublicensable right to use its trademarks, service marks, logos, name, branding, and equivalent identifiers (“Marks”) on the Platform, in performance of the Services, and for attribution as set forth in Section 11.7, consistent with Client’s standard guidelines regarding the use of the Marks. Client retains all other rights in the Marks and SevenRooms’ use of the Marks will inure to Client’s benefit.
4.5. Feedback. Client grants SevenRooms a worldwide, perpetual, irrevocable, royalty-free right and license to use any ideas, recommendations or other input provided by Client or Users about the Platform and Services to SevenRooms without restriction.
5.1. Fees. All fees under a Order Form (“Fees”) will be due within ten (10) days of the date stated on the Order Form. Implementation and first Subscription Fees will be due within ten (10) days of the Effective Date.
5.2. Payment Options. You may elect to have your Fees automatically deducted either via accepted credit card or ACH (the “Automatic Payment Options”), at no additional charge. From time to time, SevenRooms may notify you of additional Automatic Payment Options. For an additional fee of twenty-five dollars ($25.00) per transaction, you may also elect to be invoiced and make manual payments via check or wire, with payments due net ten (10) days from your receipt of the invoice. For credit cards or any other payment provider that we may later accept (a “Payment Provider”), your Payment Provider agreement, and not these Terms, will govern your use of the designated account. We also use a Third Party Service to process such Fees. By providing your payment information for any Automatic Payment Options, you agree that we may invoice you for all fees and charges when they become due to us without additional notice or consent and agree to keep such payment information up to date.
5.3. Subscription Terms. Subscriptions will automatically renew at the rates then in effect, until cancelled as set forth in Section 6.1. For clarity, during any Subscription Term, you agree to pay any Transaction Fees that become due, as well as all Subscription Fee payments set forth on your Order Form that are applicable to the entire Subscription Term, regardless of whether you use the Platform or Services for the entirety of such period. Any early termination of an Order Form or this Agreement (other than due to SevenRooms’ material breach) will not relieve you of this obligation.
5.4. Changes. SevenRooms may change its Fees and billing practices upon written notice to you, provided that (i) any pre-paid fees will not be affected by such change and (ii) in the event of any price increases, you will have thirty (30) days to reject any such change by providing a written termination notice to SevenRooms. If you do not provide a written notice of termination within such thirty-day period, then you will be deemed to have approved and accepted such changes.
5.5. Late Payment. SevenRooms may assess a late payment charge of one and one-half percent (1.5%) per month (or the maximum allowed by law, if less) on overdue Fees until payment is received in full. In addition, if Client fails to pay overdue Fees within five (5) days of notice that payment is late, SevenRooms may suspend its access to the Services and/or Platform until payment is received in full. Any payment failure that remains uncured for thirty (30) days shall constitute a material breach under Section 6.2 herein.
5.6. Taxes. The Fees do not include any taxes, duties or similar assessments of any nature that may be imposed on the Services or Subscription (“Taxes”). Client is responsible for paying all Taxes. SevenRooms will use commercially reasonable efforts to list Taxes as a separate line item on each invoice.
6. TERM AND TERMINATION
6.1. Term. The Agreement will become effective on the Effective Date and will continue until the end of the “Subscription Term” indicated on the Order Form (which will be one (1) year if no such period is indicated). The Subscription Term will begin on the earlier of (a) the first date a User creates a Platform account, or (b) the Start Date indicated on the Order Form (if no Start Date is indicated, the Start Date will be fourteen (14) days after the Effective Date (the “Term”). Thereafter, the Term (including the Subscription Term and all Services) will automatically renew for successive twelve (12) month periods, unless either party notifies the other in writing of its intent not to renew at least sixty (60) days prior to the expiration of the then-current Term, or as earlier terminated pursuant to Section 6.2.
6.2. Termination for Material Breach. Either party may terminate this Agreement or an Order Form for a material breach of the other party that remains uncured for thirty (30) days’ after the breaching party’s receipt of a written notice of such breach. SevenRooms may additionally terminate this Agreement upon shorter written notice if (i) Client ceases to utilize the Platform for a period of at least ninety (90) days without communicating a reason to it (for example, due to Venue renovation), or (ii) in the reasonable judgement of SevenRooms, Client’s Venue or Users are acting in a manner that would create imminent and material risk to SevenRooms.
6.3. Effects of Termination. Upon expiration or termination of the Agreement or an Order Form, (a) Client’s license to the Platform will terminate and Client will stop using the Platform and remove or destroy any copies of the Documentation in its possession; and (b) each party will return or destroy any Confidential Information of the other party in its possession. Sections 1.2, 4, 5, 6.3, 7, 8.2, 9, 10, and 11 will survive termination of expiration of this Agreement. Client may use any Client Information exported from the Platform following termination without restriction. Unless Client terminates this Agreement for SevenRooms’ material breach, no prepaid fees will be refunded, and Client will remain responsible for all Subscription payments for the then-current Term.
7.1. General. “Confidential Information” means non-public or proprietary information in any form disclosed by or on behalf of either party that (a) is marked or identified as “confidential” or with a similar designation, or (b) by its nature or the circumstances of its disclosure ought reasonably to be treated as confidential. The Platform, Documentation, and Usage Information is Confidential Information of SevenRooms; Client Information is Confidential Information of Client. Each party may have access to the other party’s Confidential Information as a result of this Agreement. Confidential Information is the sole property of the disclosing party. Each party will additionally treat the terms of this Agreement as Confidential Information.
7.2. Use. Each party will: (a) only use Confidential Information to fulfill its obligations hereunder; (b) only provide access to Confidential Information on an “as-needed” basis to its personnel, agents, and/or consultants who are bound by obligations materially similar to this Section 7.2, and (c) maintain Confidential Information using methods at least as protective as it uses to protect its own information of a similar nature, but in no event using less than a reasonable degree of care. The obligations in this Section 7.2 will apply during and for three (3) years after the Term, except in the case of Confidential Information that is a trade secret, in which case the obligations will remain in effect as long as the trade secret is maintained.
7.3. Exceptions. Confidential Information does not include information that is: (a) publicly available when disclosed or becomes publicly available without fault of the recipient after disclosure; (b) rightfully learned by recipient from entities not bound to keep such information confidential, (c) independently developed by recipient; or (d) approved for unrestricted disclosure by the disclosing party. In addition, a recipient may disclose the other party’s Confidential Information as required by court order or applicable law (provided that, to the extent legally permissible, the recipient promptly notifies the other party of such requirement and cooperates with the other party’s reasonable efforts to prevent or limit the scope of such disclosure, at the other party's expense).
8. WARRANTIES AND DISCLAIMERS
8.1. Performance. The Services will be performed in a professional and workmanlike manner.
8.2. Disclaimer. ASIDE FROM THE LIMITED WARRANTY IN SECTION 8.1, SEVENROOMS EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM, OR THE SERVICES. SEVENROOMS PROVIDES THE PLATFORM ON AN “AS-IS” BASIS AND DOES NOT WARRANT THAT THE PLATFORM OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
9. INDEMNIFICATION; RELEASE
9.1. SevenRooms Indemnity. SevenRooms will indemnify Client (and its affiliates and their shareholders, directors, employees and other agents) against any loss or damages arising from any claim that the Platform, only as used in accordance with the Documentation and this Agreement, infringes the intellectual property rights of a third party. If the Platform or any of its components is found to so infringe, SevenRooms will (in its sole discretion) either (a) procure the right for Client to continue to use the Platform; or (b) modify the Platform to be non-infringing without materially diminishing its functionality. If neither (a) nor (b) is commercially reasonable, SevenRooms may terminate the Agreement upon at least thirty (30) days’ prior written notice and refund to Client any unused, prepaid Subscription Fees. This Section 9.1 sets forth Client’s sole remedy, and SevenRooms’ entire liability, with respect to any indemnifiable claim.
9.2. Client Indemnity. Client will indemnify SevenRooms (and its affiliates and their shareholders, directors, employees and other agents) against any loss or damages arising from any claim arising out of (i) Client’s use of the Platform, Documentation or Services in any manner not expressly permitted hereunder, (ii) Client’s use of any Client Data, and/or (iii) Client’s business or services in any way (including but not limited to claims arising from Client’s guests and/or any violation of any applicable law or regulation), except to the extent that such claim is covered under Section 9.1 above.
10. LIMITATION OF LIABILITY
10.1. Disclaimer; Limits. SUBJECT TO SECTION 10.2, (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) A PARTY’S TOTAL LIABILITY ARISING OUT OF THE AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CLIENT UNDER THE AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM.
10.2. IF CLIENT IS A CALIFORNIA RESIDENT, IT HEREBY WAIVES ITS RIGHTS UNDER CALIFORNIA CIVIL CODE 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.”
10.3. Exclusions. The limitations in Section 10.1 will not apply to (a) a party’s indemnification obligations; (b) a party’s misappropriation or infringement of the other party’s intellectual property or any misuse of Confidential Information; (c) Client’s failure to pay Fees; or (d) a party’s gross negligence or willful misconduct.
11.1. Dispute Resolution; Arbitration; The parties agree that, except for any action arising out of (i) a party’s breach of its confidentiality obligations hereunder, (ii) a party’s misappropriation or infringement of the other party’s intellectual property; or (iii) Client’s failure to pay Fees, any dispute, claim or controversy arising out of or relating in any way to the Services, the Platform and this Agreement will be determined by binding arbitration or in small claims court (if applicable and the at the choosing of the party bringing the action). In executing this Agreement, Client agrees that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that the parties are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of Client’s use of the Services. To seek arbitration or to file a small claim court action against SevenRooms, Client must first send to SevenRooms, by certified mail, a written notice of its claim, including a description of the basis for the claim and the relief being sought, to: General Counsel, SevenRooms, 122 W 27TH ST, 7TH FLOOR, NEW YORK, NY 10001. If SevenRooms initiates arbitration, it will send a similar written notice to the Client address provided with the Order Form. Following either party’s receipt of such a written notice, the parties agree to first use reasonable efforts to reach an amicable resolution to the claim. If the parties cannot reach an agreement to resolve the claim within thirty (30) days after the notice is received, either may commence an arbitration proceeding or file a claim in small claims court. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The arbitrator will be bound by the terms of this Agreement. All issues will be for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless the parties agree otherwise, any arbitration hearings or small claims court proceedings will take place within 20 miles of SevenRooms’ offices.
11.2. Class Action Waiver. The parties agree that each may bring claims against the other only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims with its claims and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
11.3. Timing. Client and SevenRooms agree that any cause of action arising out of or related to this Agreement must commence within six (6) months after the cause of action accrues or such cause of action will be permanently barred.
11.4. Governing Law and Venue. The Agreement will be governed by and interpreted in accordance with the laws of the State of New York. The parties irrevocably consent to the jurisdiction of the state and federal courts located in New York County, New York for any action arising out the Agreement.
11.5. Independent Contractors. The parties are independent contractors and the Agreement does not create a partnership, joint venture or agency relationship between them. Neither party will represent that it has the power to bind the other.
11.6. Waiver; Severability. A party’s failure to enforce a provision of this Agreement will not waive its right to enforce a subsequent breach of that or any other provision. A court’s determination that any provision of the Agreement is invalid will not affect any other provisions.
11.7. Attribution. SevenRooms may list Client as a its client on the SevenRooms website and marketing materials, and may use Client Marks to do so consistent with Client’s style guidelines. The parties may agree to additional marketing efforts (i.e., case studies, events) in writing.
11.8. Assignment. Neither party may assign the Agreement without the other party’s prior written consent, except if there is a merger, consolidation or sale of all or substantially all of a party’s stock or assets and provided that the assigning party provides written notice to the other promptly following any such assignment.
11.9. Force Majeure. Except for payment obligations, neither party will be liable for a failure to perform its obligations under the Agreement as a result of events beyond its reasonable control that can’t be mitigated by the exercise of due care.
11.10. Notices. All legal notices related to this Agreement will be in writing and sent via overnight courier requiring signature on delivery to the party’s address specified on the Order Form. Operational communications, including changing a party’s notice address, may be delivered by email.
11.11. Entire Agreement; Amendment. The Agreement is the entire agreement of the parties with respect to its subject matter. No changes to this Agreement (or an Order Form) will be valid unless made in writing and signed by the parties.
11.12. Execution. The Agreement takes effect upon execution of an Order Form, which may be executed in any number of counterparts, by digital signature, by a scanned signature page in a format such as PDF, or via a recognized electronic consent method. All signature pages or equivalents will be deemed an original, and all of which taken together will constitute a single agreement.