Welcome and thank you for your interest in NexTable, Inc. (“NexTable“). NexTable allows users to make online reservations at restaurants (“Restaurants”) through its website located at www.nextable.com and other affiliated websites owned and operated by NexTable (the “Site”, and any products and services provided by NexTable, collectively referred to as the “Service“).
2. Reservation Services. NexTable provides the Service to Users to enable Users to make online reservations at participating third-party restaurants (“Restaurants”). To make a reservation, you will be required to provide your name, mobile telephone number and an email address. When you provide your mobile phone number and email address, you consent to receive information about your reservation and other communications through text services or the email address You have specified.
Any reservation is subject to the availability of the Restaurants for your specified time, date and party, and is not confirmed until a confirmation email has been received. Some restaurants may require that you provide your credit card to make a reservation, for example, if the reservation is for a large party or for special events. If your credit card is required for your reservation, you will be asked to enter your credit card information during the reservation process.
3. No-Show Policy. In order to maintain the quality of the Services that we offer to all Users, NexTable requires that you provide at least 60 minutes notice of the cancellation of a reservation made through the Service, which may be performed by contacting the restaurant directly or by doing so through the Service. In the event that the Restaurant has a separate cancellation policy (for example, for large parties or for special events) and has required that provide a credit card to confirm your reservation, NexTable will provide you with the Restaurant’s cancellation policy at the time of booking. While NexTable does not charge for cancellation fees, you will be required to pay any applicable cancellation fees for any cancellation not made in accordance with the terms of the restaurant’s cancellation policy.
If you are unable to make your reservation and fail to cancel within the required time, NexTable will send you an email notifying you that NexTable’s records indicate that you were a no-show for that reservation. You may dispute any no-show by contacting us email@example.com or by contacting us through the Site. Any final determination of a no-show shall be made by NexTable at its sole discretion. If you fail to provide us or the applicable Restaurant with the required notice to cancel six reservations within a six (6) month period, NexTable reserves the right, at its sole discretion, to suspend or terminate your account.
4. Additional Policies. The following additional policies are incorporated herein by reference. Please read them carefully. Capitalized terms used, but not defined in a particular policy may be defined elsewhere in the Terms.
- B. Terms and Conditions of Sale. NexTable may, from time to time, display or otherwise announce offers or other promotional material from various Restaurants or other merchants, retailers or similar entities (collectively, the “Merchants”). If we offer, and you choose to purchase specialized dining experiences for through Merchants, any such purchases will be subject to these Terms. The Merchants are fully responsible for resolving any and all issues, concerns and/or complaints with respect to the terms and conditions of any offer(s), including, but not limited to the purchase, refund, credit (or other transaction) related to any offer displayed or otherwise made available on the Sites or through the Services. The Merchants are fully responsible for all goods and services marketed, sold or otherwise provided to you as well as for any and all injuries, illnesses, damages, claims, liabilities and costs (“Liabilities”), if any, they may cause you to suffer, directly or indirectly, in full or in part, whether related to the purchase or use or otherwise. You waive, release and agree to hold harmless NexTable and its subsidiaries, affiliates, partners, officers, directors, employees and agents from any Liabilities arising from or related to any act or omission of a Merchant in connection with your purchase and/or use of any item(s) displayed on NexTable.
- C. Suggestions To Us. If you submit suggestions to us through feedback or otherwise, you acknowledge and agree that: (a) your suggestions do not contain confidential or proprietary information; (b) we are under any obligation of confidentiality with respect to the suggestions; (c) we shall be entitled to use or disclose (or choose not to use or disclose) such suggestions; (d) we may have something similar to the suggestions already under consideration; (e) your suggestions become the property of us without any obligation of us to you; and (f) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances. If you do not agree with these terms regarding feedback, or want to maintain ownership of any intellectual property contained in any specific feedback, your sole option and recourse is to not submit such specific feedback to NexTable.
5. Accessing the Site. You must be an individual of at least 18 years old to use the Service, and have not previously been removed or suspended from the Service for any reason. By using the Service, you represent that you (i) are 18 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms, and (ii) have not previously been removed or suspended from the Service. Further, by using the Service or by making a reservation on the Service, you agree to abide by and comply fully with these Terms, and you agree and acknowledge that you are accepting the benefit of the Service, subject to these Terms.
6. Account Information & Responsibilities Of Registered Users.
- Account Information. In order to register for the Service and receive information about your use of the Service, you will have to create an account. You hereby represent and warrant that the information you provide to NexTable upon registration and, at all other times, will be true, accurate, current, and complete, and that you will ensure that such information is kept accurate and up-to-date at all times.
- Password. As a registered User, you will have login information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you should preserve the confidentiality of your username and password. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify NexTable by e-mail firstname.lastname@example.org. You are solely responsible for your own losses or losses incurred by NexTable and others (including other users) due to any unauthorized use of your account that occur prior to notifying NexTable that your account was compromised.
6. Ownership; Proprietary Rights. The Site and Service are owned and operated by NexTable. The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the Site and Service provided by NexTable (“NexTable Content”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All NexTable Content contained on the Site are the copyrighted property of NexTable or its subsidiaries or affiliated companies and/or third parties. All trademarks, service marks, and trade names are proprietary to NexTable or its affiliates and/or third parties. You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the NexTable Content, and nothing herein shall be interpreted to grant you any right or license under any intellectual property rights of NexTable or any third party.
7. User Content and our Intellectual Property Policy. The Service may currently or in the future allow you and other users to submit, post, and share content such as reviews, restaurant lists, messages, commentary or any other content (“User Content”). If you provide any User Content to NexTable, including any reviews or comments of restaurants, we require a license to such User Content. You represent and warrant that you own all intellectual property rights in the content that you post on the Site. We may remove content that is reported to be infringing. Although the User Content that you post remains your property, by submitting it to Us, you grant to us a worldwide, perpetual, irrevocable, royalty-free, non-exclusive license to use, display, publish, distribute, reproduce, archive, create derivative works from, and re-license the content in any form and in any media currently existing or to be invented. We also reserve the right to remove any User content from the Site at any time and for any reason but We have no obligation to review any content posted, but we reserve the right to review and remove any content if we determine, in our sole discretion, that it violates these Terms, might violate any laws or rights of others, or might subject us to liability or hurt its reputation or goodwill. Entered content is never edited. It either remains on the Site as entered by the user or removed entirely as stated above.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who reasonably believe that material appearing on the Internet infringes their rights under U.S. copyright laws. If you believe in good faith that any Content made available in connection with the Services infringes your copyright, you (or your agent) may send us a notice requesting that the Content be removed or access to it blocked. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright for details). DMCA notices and counter notices should be sent to the address below.
8. Prohibited Use Of The Service. The Service offered by NexTable is strictly for Your personal use, and You agree to honor any reservations made through the Service by arriving to the Restaurant at the time specified in your registration and paying the bill in full. You further agree to not “double book” or make more than one (1) reservation through the Service for any given period of time. Resale or attempted resale of any reservation is a violation of these Terms and is grounds for termination of Your account. Notwithstanding the above, NexTable reserves any other rights or remedies for any breach under applicable law.
You also agree not to use the Service for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the proceeding sentence, you agree that you will not, whether through the Service, your User Content, or otherwise, do or attempt to:
A. Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site, NexTable Content, User Content, or any other part thereof, except and solely to the extent permitted by law, or otherwise attempt to use or access any of the Service other than as intended;
B. Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any part of the Service, use of the Service, access to the Site, or content obtained through the Service (including without limitation NexTable Content, User Content, and Third Party Content (as defined below)), for any purpose other than for your personal, noncommercial purposes, except and solely to the extent permitted by these Terms;
C. Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any part of the Service, or features that enforce limitations on the use of the Service or any content therein;
D. Bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service;
E. Use any robot, spider, scraper, or other automated means of any kind to access or scrape the Service, except by bona-fide search engines periodically indexing the Service as part of a process of indexing sites and services available on the internet generally, and in such a case solely in accordance with our Robots.txt file and any other posted guidelines;
F. Frame or otherwise enclose any NexTable trademark or any portion of the Service in any other site or service for any purpose without our express written permission;
G. Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
H. Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
I. Create a false identity or impersonate another for the purpose of misleading others as to the identity of the sender or the origin of a message, including, but not limited to, providing misleading information in any reviews or to any feedback or rating system employed through the Service;
J. Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious software programs;
K. Interfere with or disrupt the Service, networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers;
L. Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in your User Content, whether by posting such material to the Site or otherwise; or
M. Use the Site in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations, or the rights of any third party.
10. Location and Social Media Services. The Service may currently or in the future offer features designed to help you share information with others, including in whole or in part based on your location or through social networks. These features are strictly offered on an “opt-in” basis and no disclosure of such information will be made without your consent.
A. If you use certain features of the Service enabling you to share information with others using Facebook, Twitter, Google+, or other third party sites (each a “Social Networking Site”), you authorize NexTable to share that information with the Social Networking Site. If you have any questions on how the Social Networking Site may use your information, please review their policies.
B. NexTable may customize your experience on the Service based on your location (“Location-based Features”). For example, NexTable may allow you to automatically be checked in on Foursquare, Yelp or GoogleNow (or other similar services) when you are seated at a Restaurant, permit you to share your location with other users of the Service, or customize our interface to provide you with Restaurants that that are near your current location. In order to use Location-based Features you must allow the Service access to your localized position, which may be accessed through a variety of means, including, if available, GPS, Internet Protocol (“IP”) Address, cellular tower, and/or other location identifiers now known or later developed. If you choose to disable Location-based Features, you will not be able to utilize certain features of the Service. By authorizing NexTable to access your location, you agree and acknowledge that (i) any device data we collect from you in connection with the Service is directly relevant to your use of the Service and (ii) NexTable may provide Location-based Features related to your then-current location for the duration of your browser session. You acknowledge and agree that NexTable does not guarantee the accuracy of any location information, including your location information or the location information of other users of the Service, and your use of any Location-based Features is at your sole risk.
12. Third Party Content and Links. The Service may contain references or links to third-party materials and services (including, without limitation, links to Restaurant websites) not controlled by NexTable or its suppliers or licensors. NexTable provides such information and links as a convenience to you and should not be considered endorsements or recommendations of such sites or any content, products or information offered on such sites. You acknowledge and agree that NexTable is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked from the Service.
A. By NexTable. NexTable, in its sole discretion and for any reason or no reason, may terminate your account on the Service, disable your access to the Service (or any part thereof), discontinue the Service and any related services, or terminate any license or permission granted to you hereunder, at any time, with or without notice. You agree that NexTable shall not be liable to you or any third-party for any such termination. In particular, NexTable reserves the right to suspend or terminate your account if you are a “no-show” to six reservations within a six (6) month period, as set forth in Section 3. Without limiting the generality of the foregoing, NexTable may terminate your account in cases of actual or suspected fraud, or violations of these Terms or other laws or regulations, and any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies NexTable may have at law or in equity.
B. By You. If you are dissatisfied with the Service, then please let us know by e-mailing us at email@example.com. Your only remedy with respect to any dissatisfaction with (i) the Service, (ii) any of these Terms, (iii) any policy or practice of NexTable in operating the Service, or (iv) any content or information transmitted or made available through the Service, is to terminate your use of the Service. You may terminate your use by closing your account and discontinuing your use of any and all parts of the Service, or by providing NexTable with notice of termination at firstname.lastname@example.org.
- Indemnity. You agree to indemnify and hold harmless NexTable and its parent, subsidiaries, affiliates or any related companies, licensors and suppliers, and their respective directors, officers, employees, agents, representatives, and contractors, and other NexTable users who use any User Content You upload to the Site or other users, from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, legal and accounting fees) arising from or in any way related to (i) your use or misuse of the Service (including your use or misuse of Third Party Content); (ii) your User Content; (iii) your breach or other violation of these Terms including any representations, warranties and covenants herein; (iv) your violation of the rights of any other person or entity, including, but not limited to claims that any User Content infringes or violates any third party intellectual property rights. NexTable reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You may not settle any matter without the prior written consent from NexTable. NexTable will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- Disclaimers. THE SERVICE (INCLUDING, WITHOUT LIMITATION, THE SITE, NEXTABLE CONTENT, OR ANY OTHER PRODUCT, SERVICE OR INFORMATION PROVIDED BY NEXTABLE), USER CONTENT, THIRD-PARTY CONTENT, AND ANY OTHER SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEXTABLE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, WITH RESPECT TO THE PRODUCTS OR SERVICES PROVIDED BY NEXTABLE.
- Limitation of Liability. IN NO EVENT WILL NEXTABLE, ITS OFFICERS OR DIRECTORS, OR RESTAURANTS, BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH (I) YOUR VISIT TO A RESTAURANT THROUGH THE SERVICE (II) YOUR USER OF THE SERVICE, NEXTABLE CONTENT, OR THE SITE; (III) THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SERVICE, ANY CONTEN; OR (IV) THE COMPLIANCE OR NON-COMPLIANCE OF A RESTAURANT IN CONJUNCTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF NEXTABLE IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL NEXTABLE, ITS OFFICERS OR DIRECTORS, OR RESTAURANTS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED GREATER THAN THREE HUNDRED DOLLARS ($300).
- Limitations; Basis of the Bargain. APPLICABLE LAW MAY NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND NEXTABLE, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND NEXTABLE, NEXTABLE’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT NEXTABLE WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
19. Dispute Resolution. We are committed to providing you a means of resolving disputes that arise between you and NexTable quickly and cost effectively. Accordingly, you and NexTable agree that we will resolve any claim or dispute that arises out of this Agreement or in connection with your use of the Service (a “Claim“) in accordance with one of the subsections below. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within two (2) years after such claim or cause of action arose or be forever barred. As in many circumstances we are able to resolve disputes with users amicably, we strongly encourage you to first contact us directly to seek a resolution before escalating to one of the options below. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
A. Law and Forum for Disputes. This Agreement shall be governed in all respects by the laws of the State of North Carolina as they apply to agreements entered into and to be performed entirely within North Carolina between North Carolina residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against NexTable must be resolved exclusively by a state or federal court located in Charlotte, North Carolina, except as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Charlotte, North Carolina for the purpose of litigating all Claims that arise between you and NexTable.
B. Arbitration Option. For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $5,000 and not filed on behalf of a putative class, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. The parties shall split any costs and expenses in connection with the Arbitration. In the event a party elects arbitration, the dispute shall be resolved through binding non-appearance-based arbitration through the American Arbitration Association (“AAA”), and in accordance with the AAA’s Commercial Arbitration Rules available online at http://www.adr.org. Notwithstanding the foregoing, AAA and the parties must comply with the following rules: a) 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; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this “Arbitration Option” subsection and without any abridgment of the powers of the arbitrators.
C. Improperly Filed Claims. All claims you bring against NexTable must be resolved in accordance with this Dispute Resolution Section. All claims filed or brought contrary to the Dispute Resolution Section shall be considered improperly filed. Should you file a claim contrary to the Dispute Resolution Section, NexTable may recover attorneys’ fees and costs up to $1000, provided that NexTable has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
19. Notices. NexTable may provide you with notices by mail, electronic mail, or postings on the Service. You may provide NexTable with notices by United States Registered Mail sent to NexTable, Inc., 601 S. Cedar Suite 111, Charlotte, NC 28202. If notice is provided by electronic mail, notice will be deemed given twenty-four hours after electronic mail is sent, unless NexTable is notified that the electronic mail address is invalid. If notice is provided by posting through the Service, then notice will be deemed given upon such posting. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Service. In such case, notice will be deemed given three days after the date of mailing.
20. Miscellaneous. This is the entire agreement between you and NexTable relating to the subject matter herein, and supersedes all previous communications, representations, understandings and agreements, either oral or written, between you and NexTable with respect to said subject matter. These Terms shall not be modified or waived except in a writing signed by both parties, or by a change to these Terms as provided in the Section 17 (“Modification of the Terms”), above. In the event any of the provisions of these Terms are held unenforceable or invalid by a court of competent jurisdiction, such provisions shall be deemed severed, and the remaining provisions thereof shall remain in full force and effect. The failure of NexTable to enforce, in any one or more instances, any of the provisions herein shall not be construed as a waiver of the prior or future performance of any such terms or conditions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and NexTable as a result of these Terms or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and NexTable other than pursuant to these Terms. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by NexTable without restriction, including by operation of law, merger, reincorporation, recapitalization, or sale of all or substantially all of the assets to which this agreement pertains. Any assignment attempted to be made in violation of these Terms shall be void. The headings and captions in this Agreement are used for convenience only and are not to be considered in interpreting this Agreement.
The services hereunder are offered by:
601 S. Cedar Suite 111
Charlotte, NC 28202
Updated May 29, 2015
1. NexTable License. NexTable hereby grants Restaurant a nonexclusive, nontransferable, revocable license to use NexTable through its website located at www.nextable.com and other affiliated websites owned and operated by NexTable (the “Site”, and any products and services provided by NexTable, collectively referred to as the “Service“). during the Term as permitted hereunder. In addition, Restaurant shall not (a) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site or Services; (b) reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any part of the Site or Services, for any purpose.
2. Online Reservations. Restaurant agrees to accept and honor online reservations processed through the Site. Restaurant understands that all reservations will be assumed seated unless a reservation is marked as cancelled or no-show. Restaurant shall have forty-eight (48) hours to change an assumed seated reservation to cancelled or no-show. NexTable will be Restaurant’s non-exclusive reservation service on the Internet during the Term of this Agreement. For purposes of this Agreement, “Site” is defined as the NexTable proprietary online restaurant reservation and table management system and Services, or any other web sites, wireless platforms, or other applications, owned or operated by NexTable or its affiliates, and any third party partner sites.
3. Restaurant Materials. Restaurant hereby grants, and NexTable accepts, a license to use, copy, and/or publicly display, during the Term, any and all trademarks, trade names, business names, logos, descriptions, menus and/or photographs of Restaurant’s restaurant(s) (collectively, the “Restaurant Materials”) as may be provided to NexTable by Restaurant. Restaurant represents and warrants that it has the right to license the Restaurant Materials.
4. Payment. Restaurant agrees to pay NexTable in accordance with the pricing listed on the Enrollment Form..
5. Ownership of NexTable, Site and Data. NexTable is, and will remain, the owner of the Site, Services and data collected from users from the Site, and all patents, copyrights, trademarks, service marks, trade secrets and other proprietary intellectual property, whether registered, unregistered, associated with Site and the Services, and except as expressly provided in this Agreement, no right, title or interest therein or thereto will be transferred to Restaurant hereunder.
6. Termination. Either party may terminate this Agreement immediately by giving the other party written notice of termination in the event that the other party: (a) becomes insolvent; (b) files a petition in bankruptcy; (c) makes an assignment for the benefit of its creditors; or (d) breaches any of its obligations under this Agreement in any material respect, which breach is not cured within ten (10) days after the breaching party receives notice of such breach from the non-breaching party. Without limiting the foregoing, in the event that Restaurant has failed to pay any amount due hereunder within thirty (30) days following the due date for such payment, NexTable may immediately terminate this Agreement, or, in its discretion, suspend service to Restaurant until such payment has been received. Upon the expiration or termination of the Agreement for any reason: (a) the license(s) granted by NexTable to Restaurant hereunder will immediately terminate; (b) the rights and obligations of the parties under Sections 4-11 will survive such expiration or termination; and (c) any amounts still due NexTable shall remain due.
7. Warranty Disclaimer. NEXTABLE MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO SITE OR THE SERVICES, AND NEXTABLE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO NEXTABLE, THE SITE AND ALL SERVICES PROVIDED HEREUNDER BY NEXTABLE OR ANY THIRD PARTY VENDOR SELECTED BY NEXTABLE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. NEXTABLE DOES NOT WARRANT THAT NEXTABLE WILL BE UNINTERRUPTED OR ERROR-FREE.
8. Limitation of Liability. NEXTABLE WILL NOT BE LIABLE TO RESTAURANT FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE ARISING OUT OF THIS AGREEMENT. IN NO EVENT WILL NEXTABLE’S CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY RESTAURANT TO NEXTABLE DURING THE SIX (6) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE INITIAL CLAIM FOR WHICH DAMAGES ARE RECOVERED.
9. Confidentiality. Any confidential or proprietary information of either party, whether of a technical, business or other nature, including, but not limited to trade secrets, know-how, technology and information relating to customers, business plans, promotional and marketing activities, finances and other business affairs, including but not limited to the terms of this Agreement and NexTable (collectively, “Confidential Information”) disclosed to the recipient party by the disclosing party will be treated by the recipient party as confidential and proprietary. Unless specifically authorized by the disclosing party, the recipient party will: (a) not disclose such Confidential Information to any third party; and (b) otherwise protect such Confidential Information from unauthorized use and disclosure to the same extent that it protects its own Confidential Information of a similar nature. This Section 9 will not apply to any information that: (i) was already known to the recipient party, other than under an obligation of confidentiality, at the time of disclosure by the disclosing party; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the recipient party; (iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the recipient party in breach of this Agreement; (iv) was disclosed to the recipient party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others; or (v) was developed independently by the recipient party without any use of Confidential Information.
10. Indemnification. Restaurant agrees to indemnify, defend and hold harmless NexTable, and its officers, directors, employees, representatives and agents, from and against any and all actions, causes of actions, claims, demands, liabilities, losses, judgments, damages or expenses (collectively, “Claim” or “Claims”) which NexTable may at any time incur, sustain or become subject to by reason of any Claim brought by a third party and: (a) arising out of the Restaurant’s breach of any provision, warranty or representation in this Agreement; (b) arising out of the Restaurant’s willful acts or omissions, negligence, or other similar wrongdoing; or (c) arising from Restaurant’s failure to comply with any law or regulation. Restaurant will pay all costs, damages, and expenses incurred by NexTable, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by NexTable in connection with or arising from any such Claim, provided that NexTable promptly notifies Restaurant in writing of any such Claim, and promptly tenders to Restaurant control of the defense and any settlement of such Claim.
11. General. Neither this Agreement nor the licenses granted hereunder are assignable or transferable by Restaurant without the prior written consent of NexTable. This Agreement will be construed in accordance with the laws of the State of accordance with the laws of the State of North Carolina, without reference to its choice of law provisions. The Federal and State courts located in Mecklenbur County, North Carolina will be the exclusive venue for any claim or dispute between the parties whether related to this Agreement or otherwise and the parties hereby consent to the personal jurisdiction of those courts. The prevailing party in any dispute under this Agreement will be entitled to its costs and reasonable attorneys’ fees. All notices required or permitted to be given under this Agreement will be deemed given (i) three business days after being deposited in the mail, first class, postage prepaid, (ii) upon transmission, if sent by facsimile, (iii) upon delivery, if served personally or sent by any generally recognized overnight carrier, or (iv) upon transmission, if sent by e-mail and later confirmed by one of the preceding means. If any provision of this Agreement shall be judged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and both such counterparts shall constitute but one instrument. Facsimile signatures shall also be binding.