Terms of Services
OpenTable, Inc., along with its subsidiaries or affiliated companies ("OpenTable", "We", "Us", or "Our") provides the website located at https://gifts.opentable.com/ ("Website"), including the related mobile phone application ("Application") and related services (the Website, Application, and such services are collectively, the "Services"). This Terms of Services Agreement ("Agreement") sets forth the legally binding terms for your purchase, use and redemption of the Services and Products (described below). The terms "you" and "your" mean the person purchasing, using or redeeming the Services or Products. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER. By clicking on any button that demonstrates your assent to the Agreement, accessing or using the Services, or giving, using, or redeeming a Product or Products (a) you acknowledge that you have read, understand, and agree to be bound by this Agreement and (b) you are of legal age and not prohibited by law from accessing or using the Services, or giving, using, or redeeming a Product or Products. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS IN THIS AGREEMENT, YOU DO NOT HAVE PERMISSION TO USE THE SERVICES OR THE PRODUCTS. YOU MAY PRINT AND KEEP A COPY OF THIS AGREEMENT.
DESCRIPTION OF SERVICES
Subject to your compliance with this Agreement, OpenTable will provide the following Services to you. We assist in your purchasing and receiving of gift cards, certificates, points, loyalty rewards, and other products ("Products") for use at our third party vendors who have partnered with OpenTable ("Vendor Partners"). When you place an Order for a Product from a Vendor Partner, we notify the applicable Vendor Partner of your Order. We also notify the purchaser and recipient of the Order. YOU ACKNOWLEDGE AND AGREE THAT THE APPLICABLE VENDOR PARTNER, NOT OPENTABLE, IS THE ISSUER OF THE PRODUCTS AND SOLELY RESPONSIBLE FOR HONORING THE PRODUCTS.
Subject to the terms of this Agreement, OpenTable grants you a nontransferable, nonexclusive, royalty-free, fully paid, worldwide license (without the right to sublicense) to install and execute one copy of the Application, in executable object code format only, solely on your handheld mobile device and solely for your personal use. The license granted to you in this Agreement are subject to the restrictions set forth in the Permitted Use section below.
AVAILABILITY OF SERVICES
You acknowledge and agree that the availability of the Services, including the delivery of SMS messages and the availability of web-based browsing is dependent on your mobile phone, internet service provider and Carrier. You acknowledge that the Services may differ depending on the Carrier with whom you maintain an account and that Carrier's ability to support the Services. OpenTable is not responsible for the act or omission of any Carrier, any limitations imposed by such Carrier, or such Carrier's ability or inability to support the Services. You agree to pay all fees charged by your Carrier in connection with your use of the Services. You acknowledge and agree that these rates depend on the applicable Carrier and your personal subscription package with that Carrier. In addition, OpenTable is not responsible for any limitations of the internet or your mobile phone. In the event your Carrier or mobile phone fails to deliver any communication to OpenTable in timely fashion, due to, but not limited to, mobile network failure, non-compatibility of your phone model with the Services, lack of reception, lack of battery power, you acknowledge and agree that OpenTable shall not liable for any associated loss or damage. In addition, OpenTable is not liable for any user error in using the Services, including submission of an Order.
You shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Application or make the Application available to any third party. You shall preserve all copyright and other proprietary rights notices on the Application and all copies thereof. The Services (including the Application) are for your personal and non-commercial use. You agree that you will not use the Services (including the Application) or duplicate, reproduce, copy, download, publish, modify, make derivative works of, distribute, display, use, or otherwise commercially exploit the Services (including the Application) or Agreement for any purpose, except to review the information or place and pay for Orders. You shall not access the Services (including the Application) in order to build a similar or competitive product or service. The Service (including the Application) is only to be used as it was intended and outlined in this Agreement and the Website. All other uses are prohibited. You may not attempt, authorize, encourage, or support others' attempts, to circumvent, reverse engineer, reverse compile, decrypt, break, or otherwise alter or interfere with the Services (including the Application). You agree to advise OpenTable promptly of any such unauthorized uses or attempts. You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy the Services (including the Application), or any content contained therein. You agree not to upload any computer viruses, worms, or any software intended to damage or alter a computer system or data to the Services (including the Application). Any future release, update, or other addition to functionality of the Service (including the Application) made available to you by OpenTable shall be subject to the terms of this Agreement.
MODIFICATION OF SERVICES
OpenTable reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including removing, adding, or modifying the Website, Application, related services, Products and/or Vendor Partners. OpenTable shall have no liability to you for any modification or discontinuation of the Services. 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.
REGISTRATION AND ACCOUNTS
When registering for an account with OpenTable ("Account"), you agree to provide true, accurate, current and complete data about yourself on the OpenTable registration form ("Registration Data"). You also agree to promptly update the Registration Data to keep it true, accurate, current and complete. If you fail to do any of these things, OpenTable will have the right to suspend or terminate your use of the Services and/or terminate your Account. To use the Services, you will be required to input credit card information into the Application, including the three digit CVV number on the back of the credit card. The three digit CVV will not be stored and must be re-entered for each Order. You are solely responsible for maintaining the confidentiality of your CVV number and Account, and you are solely responsible for all use of your Account, whether authorized by you, or not. You agree to immediately notify OpenTable of any unauthorized use of your Account, or any other breach of security. Unauthorized individuals attempting to access these areas of the Services may be subject to prosecution.
PAYMENT & BILLING
You agree to pay for the full cost of the Products that you Order through your Account (including through a SMS or web browser command originating from your Account), as set forth during your Order process. You assume all liability for and shall promptly pay any and all such charges. You agree that all Orders made by you through your Account cannot be exchanged and are non-refundable.
VENDOR PARTNERS AND VENDOR RESPONSIBILITY
By agreeing that the applicable Vendor Partner, not OpenTable, is the issuer of the Products and that the applicable Vendor Partner is solely responsible for honoring the Products, you are agreeing that the applicable Vendor Partner shall be fully responsible for any and all injuries, illnesses, damages, claims, liabilities, and costs suffered by you or any recipient of a Product you purchase or acquire, caused in whole or in part by the Vendor Partner or its products and services, as well as for any liability under laws, including but not limited to, any laws regulating gift certificates, gift cards, and stored value cards, including but not limited to unclaimed property liability arising from unredeemed or partially redeemed gift certificates.
You further agree and acknowledge that OpenTable is not responsible for any Vendor Partner or their condition on honoring the Products. OpenTable provides the Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Vendor Partners or Products. You purchase all Products toward Vendor Partners at your own risk.
OpenTable owns all rights, titles and interests in and to the Services, including the Website and Application and all materials and content contained therein, including, without limitation, all content, site design, logos, button icons, images, digital downloads, data compilations, text, and graphics. All such items are protected by copyright, trademark and other intellectual property laws. Any unauthorized use of such items is strictly prohibited. The provision of the Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. OpenTable and its suppliers reserve all rights not granted in this Agreement.
OpenTable may suspend your ability to use the Services or may terminate this Agreement effective immediately, without notice or explanation. The Services may be suspended if we receive excessive charge backs on the credit card associated with your Account or if you are believed to be in violation of any part of this Agreement. After any suspension or termination, you may or may not be granted permission to re-establish an Account. You agree that OpenTable shall not be liable to you for any termination of this Agreement or for any effects of this termination. You are always free to discontinue your participation and use of the Services at any time. You understand that any termination of your Account may involve deletion of any content you stored on your Account from our live databases, for which OpenTable will have no liability whatsoever.
DISCLAIMER OF WARRANTIES
THE SERVICES (INCLUDING THE WEBSITE AND APPLICATION) ARE PROVIDED "AS-IS" AND "AS AVAILABLE". WE EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE VIRUS FREE, FREE OF HARMFUL COMPONENTS, ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE, OR (D) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. YOU AGREE TO USE THESE SERVICES AT YOUR OWN RISK. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE APPLICATION, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DOWNLOAD.
EXCLUSION OF DAMAGES
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM YOUR USE OF THE SERVICES (INCLUDING THE WEBSITE AND APPLICATION) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE PRICE YOU PAID FOR YOUR MOST RECENT ORDER OR FIFTY US DOLLARS ($50)
WITHOUT LIMITING THE FOREGOING, OPENTABLE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF YOUR LOSSES DUE TO THEFT, AND OTHER FACTORS OUTSIDE OF OPENTABLE'S CONTROL.
You also agree to indemnify and hold harmless OpenTable and its representatives, agents, affiliates, directors, managers, officers, employees and shareholders (the "Indemnified Parties") from and against any liability, damage, loss, cost or expense (including attorneys' fees) incurred in connection with any third-party claim, demand, proceeding or action ("Claim") brought against any of the Indemnified Parties arising out of your use of the Services or any alleged breach by you of any provision of this Agreement.
The Website may contain links to third-party websites ("Third-Party Websites"). Such Third-Party Websites are not under the control of OpenTable. OpenTable is not responsible for any Third-Party Websites. OpenTable provides these Third-Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or their products or services. You use all links in Third-Party Websites at your own risk. When you leave the Website, our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You hereby release us, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, and actions of any kind including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of (1) Vendor Partners or (2) Third-Party Websites. 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 FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The Application and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from OpenTable, or any products utilizing such data, in violation of the United States export laws or regulations.
CHANGES TO AGREEMENT
This Agreement is subject to occasional revision, and if we make any substantial changes, we will notify you by sending you a SMS text or email and/or by prominently posting notice of the changes on our Website. Any material changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of a SMS text or email to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Website. These changes will be effective immediately for new users of the Services. Continued access or use of the Services or giving, using, or redeeming a Product or Products following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. Certain provisions of this Agreement may be superseded by expressly designated legal notices or terms located on particular pages of the Website.
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, counts, claim, or cause of action) between you and OpenTable or OpenTable’s employees, agents, 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 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 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 “Rules and Procedures”).
You are therefore GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to 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.
You and OpenTable must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR OPENTABLE MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) 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, (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, OpenTable 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, (d) OpenTable also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator shall honor claims of privilege and privacy recognized at law; (f) 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; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) 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 then in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or OpenTable 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 San Francisco County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco, California in order to preserve the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco 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 subparts (a) and (b) in the paragraph above (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 provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor OpenTable shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Francisco County, California.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
This Agreement and the relationship between you and OpenTable shall be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
No failure or delay by OpenTable in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement. You agree 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 Services or Agreement must be filed within one year after such cause of action arose or be forever barred. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word "including" means "including without limitation". This Agreement represents the entire understanding of the parties regarding its subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. This Agreement is binding and shall ensure to the benefit of both parties and their respective successors, heirs, executor, administrators, personal representatives and permitted assigns. You shall not assign any of your rights or obligations. Unless stated otherwise in this Agreement, if any parts of this Agreement are determined to be invalid, all other terms will remain in effect, and the invalid provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other.