NoshList End User Agreement
This is an agreement ("Agreement") between Nosh ("we", "us", "Nosh", or "NoshList") and you, an end user ("you", "user" or "subscriber") of NoshList's restaurant waitlist service (the "Service") as described herein. By establishing, activating, using, or paying for the Service, you acknowledge that you have read and understood these terms, you agree to the terms and conditions in this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms, and to the prices, charges, and conditions provided to you in association with your enrollment, including marketing materials and the NoshList website, which are incorporated herein by reference. This Agreement governs the Service and any website, application or software used in conjunction with the Service.
Service Description And Term Of Service
NoshList provides restaurant waitlist management services, enabled with a variety of notification methods for subscribers to communicate with diners, plus a number of convenience, quality and functional features. We may alter, expand, or reduce the features of the service from time to time without notice. You acknowledge that not all Services can be guaranteed to perform acceptably from all locations, including, but not limited to via mobile telephones, pay phones or satellite phones due to various in-country, carrier or other restrictions.
The Service is offered both as a free and a paid service. The paid Service is offered on a month-to-month basis, beginning on the date NoshList activates Service, and automatically renews on a monthly basis. NoshList may also offer the Service for twelve consecutive months pursuant to optional annual pricing plans. You may cancel the Service at any time through the NoshList website. If you cancel Service prior to the end of the monthly or annual billing period, you will not be entitled to billing credits or refunds for the unused portion of your billing period or unused prepaid usage credits, unless you cancel during the Money Back Guarantee period described herein.
Free Trial Offer
From time to time, NoshList may allow users to subscribe pursuant to a promotional offer granting a free trial for Service ("Free Trial"). Free Trial subscribers will receive free use of the Service solely for a limited period of time and all use of the Service shall be subject to the terms herein, plus all other restrictions, limitations and conditions identified in the specific promotional offer. Notwithstanding any other provision in this Agreement, all Free Trial subscriptions are provided solely as an accommodation to the subscriber, and NoshList reserves the right, at all times in its sole discretion, to terminate any Free Trial at any time without notice. Once the Free Trial period expires, the subscriber will be ineligible to subsequently establish another Free Trial account under the same or any other identity, unless expressly permitted to do so under the terms of a specific promotional offer
Promotional Offers for New Subscribers
From time to time, NoshList may offer discounts and/or special incentives exclusively for new subscribers. Notwithstanding any other provision in this Agreement, NoshList reserves the right, at all times in its sole discretion, to terminate any promotional offer at any time without notice. Unless expressly permitted under the terms of a specific promotional offer, current and former subscribers, under the same or any other identity, are ineligible for any promotional offer reserved for new subscribers.
Termination for Cause
Either party may terminate this Agreement at any time in the event that the other party breaches any provision of this Agreement in any material respect and fails to cure such breach within 30 days after receipt of written notice of such breach. Notwithstanding the foregoing, NoshList, may terminate this Agreement and/or suspend the provision of the Service immediately for: illegal, fraudulent, excessive or improper use of the Service or if deemed reasonably necessary by NoshList to prevent interruption or disruption to the NoshList system, its business or other customers; if any portion of an invoice not reasonably disputed in good faith as herein provided remains unpaid when due; or for breach, not subject to cure. NoshList shall not be liable to you or any third party should we exercise our right to discontinue Service, in whole or in part, or terminate this Agreement pursuant to this section.
Use Of Service
Responsibility for Account Information
In connection with your use of the Service, you will be asked to provide an email address and specify a password in connection with your use of the Service and website. You are entirely responsible for maintaining confidentiality of your password and account information, and all identification and security codes that control access to the Service and website. You are responsible for all uses of the Service in association with your account, whether or not authorized by you.
Responsibility for Communications and Content
You are the sole owner of content and solely responsible for the content of all communications using your account. You must comply with all laws while using the Service; you must not transmit any communication that violates any law, court order or regulation; you must not violate any third party rights in using the Service; and you must not use the Service in any way that damages, interferes with, or disrupts NoshList's system or other users. We may suspend any such communications. You understand and agree that your use of the Service and any content is solely at your own risk.
Consent to Receive Email
By establishing a paid or trial account with NoshList, you consent to receive periodic email communication from us concerning services and billing, including without limitation, notices of service updates, payment transactions, payment methods, conference reports, and other correspondence required for administration of the Service. NoshList does not provide paper invoices, payment receipts or instructions; you are expected to manage the Service through the NoshList website, and we expect to communicate with you as necessary via email and the NoshListwebsite.
Resale and Transfer
You are expressly prohibited from reselling or transferring the Service and/or software to any other person for any purpose, without express written permission from NoshList in advance.
Unlawful and Prohibited Use
You agree to use the Service only for lawful purposes. You are expressly prohibited from using the Service to transmit or receive any communication or material of any kind when in NoshList's sole judgment the transmission, receipt, or possession of such communication or material would constitute, or encourages conduct that would constitute, a criminal offense, give rise to a civil liability, or otherwise violate any applicable laws. You are expressly prohibited from using the Service for any abusive or fraudulent purpose, including using the Service in a way that interferes with our ability to provide the Service to you or other customers or avoids your obligation to pay for communications services. NoshList, in its sole discretion, may terminate your Service without advance notice if it believes you have violated the aforementioned restrictions, or if you act in a manner that is threatening, obscene, harassing, or abusive to NoshList personnel. You are liable for any and all use of the Service by any person using the Service provided to you and agree to indemnify and hold harmless NoshList against any and all liability for any such use. If NoshList, in its sole discretion, believes that you have violated the aforementioned restrictions, NoshListmay forward personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
Unauthorized Commercial Use
The Service for internal business purposes only, or for the direct benefit of you, your company or affiliated organization. You agree that will not make the Service available to unaffiliated persons, whether or not you generate income from this practice. If NoshList in its sole discretion, believes that your account is being used by unauthorized persons, your account may be immediately suspended or cancelled without prior notice to you.
Theft of Service
You agree to notify NoshList immediately if you become aware at any time that your Service is being stolen or fraudulently used, or access to your,identification codes or security codes has been compromised. You must provide a detailed description of the circumstances of the theft or stolen or fraudulent use of the Service and supply any additional documentation reasonably requested by NoshList. Failure to do so in a timely manner may result in the termination of your Service and additional charges.
Copyright, Trademark, and Unauthorized Use.
The Service and any software used to provide the Service or provided to you in conjunction with providing the Service, and all Services, information, documents, and materials on NoshList's website are protected by copyright, trademark, or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively "Marks") of NoshList are and shall remain the exclusive property of NoshList and nothing in this Agreement shall grant you the right or license to use such Marks.
Copyright Agent NoshList Legal Department
275 Sacramento Street, 4th Floor
San Francisco, CA 94111
Audit and Law Enforcement
NoshList reserves the right to audit your use of the Service to enforce the provisions of this Agreement. NoshList reserves the right to track and monitor your Service and usage subject to the requirements of the United States Patriot Act and other laws and appropriate law enforcement processes. You acknowledge and agree that this Agreement is sufficient notice to you of such monitoring to the extent any notice is required under applicable federal or state law.
Charges And Payments
You must provide a valid credit card number or checking account information (bank routing number plus account number) when the Service is activated. You authorize NoshList to charge automatically to your credit card or bank account (ACH) any amounts payable by you in connection with your use of the Service. Your right to use the Service is subject to any limits established by your credit card issuer. Your charges and credits issued will appear on an online billing statement that you may access from the NoshList website. You give NoshList permission to obtain authorization for use of your credit card from your card issuer. If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise NoshList at once. If you enroll in ACH billing, and you close or change or bank account, you must advise NoshList at once. Your initial use of the Service authorizes NoshList to charge the credit card and/or bank account number on file with NoshList, updated by any changed information related to card expiration, replacement, or substitution. This authorization remains valid until 30 days after NoshList receives your notice to terminate our authority to charge your card, whereupon we will charge you for any outstanding charges and terminate the Service. NoshList bills all charges and applicable taxes and fees monthly in advance (except for usage-based charges, which will be billed monthly in arrears, plus any other charges which NoshList chooses to bill in arrears) to your designated payment method. NoshList is not responsible for any overdraft or other charges imposed by your card issuer or bank due to insufficient funds in your account. NoshList reserves the right to bill at more frequent intervals if the outstanding amount due at any time exceeds $50. All charges will be billed according to the rates and terms set forth in published materials and found on the NoshListwebsite. Notwithstanding the foregoing, if you are purchasing the Service through a third party, any such third party billing terms apply to your purchase of the Service.
From time to time, NoshList may offer a Money Back Guarantee ("Trial Guarantee"), the duration (the "Trial Period") and terms of which may vary according to the terms of specific sales promotions as described in the promotional literature or on the website, which is applicable only to your first-ordered account. (You will not qualify for the Trial Guarantee program if you cancel and subsequently re-establish a NoshList account at the same or another location.) Under the terms of this Trial Guarantee, if it applies, NoshList may refund some or all charges, provided that you cancel the Service within the specified number of days in the Trial Period after the Activation Date. NoshList reserves the right to terminate, revoke, or change the terms of this Trial Guarantee at any time, without prior notice. No refund of usage charges or any taxes or fees applicable to such charges will apply, including but not limited to toll-free access charges.
NoshList Annual Service Plans
The annual service fees associated with the optional NoshList Annual Service Plans represent payment for twelve consecutive months of Service commencing on the Activation Date. You will be responsible for any additional charges for services or usage not covered by the plan, billed on a monthly basis. If you cancel the Service prior to the end of the annual period, you will not receive a refund or credit for the unused portion of your billing period, unless you cancel within an applicable Trial Guarantee period, as described herein. At the conclusion of the annual period, your Service will automatically renew for a subsequent twelve-month period at the then-current renewal price for the selected NoshList annual Service plan, unless you choose to switch to an alternate pricing plan or cancel Service prior to the anniversary of the Activation Date.
Price and Price Changes
Prices and charges relating to the Service are posted on the NoshList website. We may change the prices and charges for the Service from time to time. We may decrease prices without providing advance notice. Increases to the prices or charges for the Service are effective no sooner than seven days (1) after posted on the NoshList website or (2) you are otherwise notified of the changes, including being sent an electronic notification to the email address registered on your account.
Failure to Pay
We may suspend, restrict, or cancel the Service and this Agreement if you do not make payments for current or prior bills by the required due date. Service cancellation will result in your loss of the conference identification numbers associated with the Service.
Late Payment Charge
We may add interest charges to any past-due amounts at the lower of 1.5% per month or the maximum rate allowed by law, prorated for each day payment is past due. Acceptance of late or partial payments (even if marked "Paid in Full" or with other restrictions) shall not waive any of our rights to collect the full amount of your charges for the Service. You agree to reimburse us for reasonable attorneys' fees and any other costs associated with collecting delinquent or dishonored payments. If charges cannot be processed through your credit or debit card, we will charge you an additional $15.00. If the state where you receive the Service requires a different fee, we will charge you that amount.
Invalid Payment Method
If we determine, in our sole discretion, that the payment method(s) registered on your account is no longer valid (such as the passing of an expiration date associated with a credit card or a failed payment transaction against that card, for any reason), we may suspend or restrict the Service until you provide a valid payment method.
You are responsible for, and must pay, any applicable federal, state, local, or other governmental sales, use, excise, public utility, or other taxes, Universal Service Fund fees, and charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service. These amounts are in addition to payment for the Service and will be billed to your credit or debit card as set forth in this Agreement. If you are exempt from payment of such charges, you must provide documentation satisfactory to us that you are exempt. Tax exemption will only apply from and after the date NoshList receives and verifies this documentation. Taxes and other applicable fees will be in the amounts specified by federal, state, and local authorities.
You acknowledge and agree that credit allowances for interruption of the Service will not be provided.
You must notify NoshList within seven days after receiving your credit or debit card statement if you dispute any NoshList charges on that statement or such dispute will be deemed waived.
You may cancel the Service at any time by notifying NoshList according to the procedures specified on the NoshList website. You remain fully liable for accrued charges, taxes, and fees outstanding at the time of termination, and you authorize NoshList to process these amounts to your credit or debit card. You agree that if we are unable to process these amounts to your designated credit or debit card(s), we may take other steps as we deem necessary to collect the fees owed to us for the Service, and that you will be responsible for all costs and expenses we incur in connection with such collection activity, including collection fees, court costs and legal fees.
Your Account Obligations
In consideration of your use of the Service, you agree to: provide true, accurate, and current information about yourself when creating an account; maintain the confidentiality of your account and password and restrict access to your computer; and accept responsibility for all activities that occur under your account or password. If you provide any information that is untrue, inaccurate, or not current, we reserve the right to suspend or terminate your account and refuse any and all current and future use of the Service. You further agree to immediately notify us of any unauthorized use of your password or account or any other breach of security.
3rd Party Content
NoshList may permit 3rd Parties to publish content on the Site or include 3rd Party content via Application Programming Interfaces (APIs) including but not limited to graphics, text or copy, reviews, and pricing and promotional information. Despite our best efforts, typographical and/or pricing mistakes may, on rare occasions, appear on the Site, and NoshList cannot guarantee the price of any promotion or offer. NoshList is not the publisher or owner of this content and assumes no liability thereof. NoshList further assumes no liability for 3rd Party promotions and offers whatsoever, included but not limited to price, quality, value, or availability.
You agree to defend, indemnify, and hold NoshList, its affiliates, and agents and any other service provider who furnishes services to you or enables us to furnish services to you in connection with this Agreement or the Service, harmless from claims or damages relating to or arising out of the Service or this Agreement, including, but not limited to: (1) your use of the Service (including without limitation, any person accessing the Service using your account; (2) any actual or alleged violation of this Agreement or any applicable law, rule or regulation by you or any person accessing the Service using your account; or (3) any actual or alleged infringement or violation by you or any person accessing the Service using your account of any intellectual property, privacy right, or other right of any person or entity. You agree that NoshList should not be and is not responsible for any third party claims against us that arise from your use of the Service. Further, you agree to reimburse us for all of our costs and expenses related to the defense of any such claims, including attorneys' fees, unless such claims are based on our willful misconduct or gross negligence.
This Service may, on occasion, provide links to a third party's website. These links allow you to leave the Site, and we encourage you to be aware when you leave the Site and to read the terms and conditions and privacy statements of each and every third party website that you visit. The linked website are not under our control and we are not responsible for the contents of any linked website or any link contained in a linked website. NoshList is not responsible for examining or evaluating such website, does not warrant or endorse them, and is not affiliated with the offerings, content, or practices of any third party website.
Limitations Of Liability
BY ENROLLING IN, ACTIVATING, USING, OR PAYING FOR THE SERVICE, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE LIMITATIONS OF NOSHLIST SERVICE DESCRIBED HEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF NOSHLIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY YOU IN REASONABLE RELIANCE, NOT TO EXCEED THE TOTAL AMOUNTS PAID BY YOU IN THE TWELVE MONTHS UNDER THIS AGREEMENT IMMEDIATELY PRECEDING THE CLAIM.
Disclaimer Of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOSHLIST, ON BEHALF OF ITSELF AND ITS AFFILIATES AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER NOSHLIST NOR ITS AFFILIATES, SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WARRANTS THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE SERVICE WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE. NEITHER NOSHLIST NOR ITS LICENSORS OR SUPPLIERS HAS ANY LIABILITY WHATSOEVER IN CONNECTION WITH YOUR USE OF SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. WE DO NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, NOSHLIST EMPLOYEES, AGENTS, OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.
This Agreement does not provide any third party with a remedy, claim, or right of reimbursement. Failure by NoshList to enforce any provision(s) of this Agreement shall not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between us and supersedes all prior agreements, understandings, statements, or proposals concerning the Service, including representations, whether written or oral. No written or oral statement, advertisement, or service description not expressly contained in the Agreement will be allowed to contradict, explain, or supplement it. Neither you nor NoshList is relying on any representations or statements by the other party or any other person that are not included in this Agreement. If any provision in this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
This Agreement, and all other aspects of the use of the Service and the NoshList website, shall be governed by and construed in accordance with the laws of the State of California, without regard to its choice of law rules. This governing law provision applies no matter where you reside, or where you use or pay for the Service. You agree to submit to the exclusive jurisdiction of the state or California courts located in or with responsibility for Contra Costa County, California to resolve any disputes arising hereunder. ANY CAUSE OF ACTION BY USE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER IT AROSE OR BE FOREVER WAIVED AND BARRED.
Events Beyond Our Control
NoshList will not be responsible to you for any delay, failure in performance, loss, or damage due to fire, explosion, power blackout, earthquake, volcanic action, flood, the weather elements, strike, embargo, labor disputes, civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond our reasonable control.
We can assign all or part of our rights or duties under this Agreement without notifying you. If we do that, we have no further obligations to you. You may not assign this Agreement or the Service without our prior written consent.
The provisions of this Agreement relating to indemnification, limitations on liability, warranty limitations, billings, and your obligations to pay for the Service provided, including any additional usage charges, shall survive any termination of this Agreement or termination of the Service.
Failure by NoshList to insist upon strict performance of any terms or conditions of this Agreement or failure or delay to exercise any rights or remedies provided herein or by law shall not release you from any of the warranties of obligations of this Agreement, and shall not be deemed a waiver of any right of NoshList to insist upon strict performance hereof or any of its rights and remedies.
Changes to this Agreement
275 Sacramento Street, 4th Floor
San Francisco, CA 94111
© Nosh, Inc. All rights reserved.
Last revised 10/01/13