In this Agreement, “OpenTable” and “we” mean OpenTable, Inc., and “User” and “you” mean any user of the Services. This Agreement incorporates OpenTable’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “OpenTable Policies”).
By accessing or using the Services or clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services (including, if applicable, purchasing, giving, using, or redeeming any OpenTable Gift Card (as defined below) or Merchant Gift Card (as defined below)). THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
OpenTable may update or revise this Agreement (including any OpenTable Polices) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by OpenTable, any use of the Services (e.g., the use of the Reservation Services or the Payment Services or the purchase of an OpenTable Gift Card) is subject to the version of this Agreement in effect at the time of use.
Part I - Reservation Services
1. Restaurant Reservations. OpenTable provides the Reservation Services to User for the purpose of assisting User in securing dining reservations at participating third-party restaurants (each, a “Restaurant”). In response to a User’s online request for a Restaurant reservation through the OpenTable Site or OpenTable Application, OpenTable directly contacts the Restaurant’s computerized database of reservations. The availability of reservations is determined at the time of User’s query. Once a reservation is made by User through the OpenTable Site or OpenTable Application, OpenTable will provide confirmation of the reservation to User by email. By using the Reservation Services, User agrees to receive reservation confirmations by email after booking a reservation through the Reservation Services.
If you are unable to keep your reservation and you fail to cancel at least 30 minutes in advance of the reservation, OpenTable will send you an email letting you know that our records indicate that you were a no-show. By using the Reservation Services, User agrees to receive no-show notifications by email after a report that your reservation was not honored, whether or not that was in fact the case. Your Account will be terminated if you are a no-show for four reservations within a 12-month period. If you receive a no-show notification email in error, please click here for information on how to dispute it. User agrees that all final no-show determinations will be made by OpenTable in its sole discretion.
3. OpenTable Dining Rewards. User may be able to participate in OpenTable’s User rewards program (“OpenTable Dining Rewards”). Participation is subject to the OpenTable Dining Rewards Terms and Conditions.
4. Usage Guidelines. User agrees to use the Reservation Services only to book reservations at Restaurants and then honor those reservations by arriving at the Restaurants on time and ordering and paying for meals. User further agrees not to book more than one reservation for User’s personal use during any one meal time (e.g., lunch, dinner, etc.). User may be able to book multiple reservations through OpenTable’s Administrative Assistant and/or Concierge programs. Resale or attempted resale of reservations is prohibited and is grounds for, among other things, cancellation of your reservations or termination of your access to the Services.
Part II – Payment Services
5. General Description and Requirements. The Payment Services allow Users to pay bills at participating Restaurants through the OpenTable Application. In order to use the Payment Services at a participating Restaurant, you must: (1) install the OpenTable Application on a compatible mobile device; (2) make a reservation for the Restaurant through the Reservation Services; (3) provide valid payment card information through the OpenTable Application as further described below; (4) provide and verify your mobile phone number as further described below; and (5) have an Account in good standing. The Payment Services may not be available for all Restaurants; for a list of participating Restaurants, please visit the OpenTable Site or OpenTable Application. There is no fee to you to use the Payment Services, but your mobile carrier’s standard text message and data charges may apply; you are responsible for any fees charged by your mobile carrier in connection with your use of the Payment Services and OpenTable Application.
To confirm that the payment card information you have provided is accurate, we will place a temporary $1.00 authorization hold on your debit or credit card at the time you provide your payment card information through the OpenTable Application. After we verify that your payment card information is accurate, usually within a few days, the $1.00 hold will be removed. In no event will your payment card actually be charged for this $1.00 authorization.
By providing debit or credit card account information through the OpenTable Application, you represent, warrant, and covenant that: (1) you are legally authorized to provide such information to us; (2) you are legally authorized to perform payments from the debit or credit card account(s); and (3) such action does not violate the terms and conditions applicable to your use of such debit or credit card account(s) or applicable law. When you authorize a payment using a debit or credit card account via the OpenTable Application, you represent, warrant, and covenant that there are sufficient funds or credit available to complete a payment using the debit or credit card account.
7. Verified Mobile Phone Number. In order to use the Payment Services, you must provide a valid mobile phone number through the OpenTable Application and verify such number as instructed by us. To verify your mobile phone number, we will send you a code via text message to the mobile phone number you provided, and you must enter that code as instructed in the OpenTable Application. If you change your mobile phone number, you must promptly provide and verify your new mobile phone number. When you provide your mobile phone number, you expressly consent to receive direct dial calls, autodialed and prerecorded message calls, and text messages relating to the Payment Services at that number.
8. Account Settings. You may establish certain default settings for your use of the Payment Services through the OpenTable Application, such as your preferred payment card account. You may change these settings through the OpenTable Application.
9. Payment Authorization and Settlement. After you place an order at a participating Restaurant, you may indicate through the OpenTable Application that you intend to pay your Restaurant bill using the Payment Services. You may review your bill and select the gratuity from certain options through the OpenTable Application. When you indicate through the OpenTable Application that you intend to pay your Restaurant bill using the Payment Services, you authorize the Restaurant to charge your debit or credit card for the full amount of your final bill. You may only use the Payment Services to pay the full amount of the bill; no split checks or partial payments are permitted. This Agreement does not alter your payment obligations to Restaurants; you are responsible for timely payment of all amounts owed by you to any Restaurant. Except to the extent otherwise required by applicable law, OpenTable is not responsible or liable for any payments authorized through the OpenTable Application using your payment card information.
10. Receipts and Transaction History. As a courtesy, we will email a receipt to the email address associated with your Account upon completion of a transaction using the Payment Services. You may print and save copies of these receipts. If you would like a paper receipt, you must request one from the Restaurant at the time of the transaction.
11. Certain Limitations. You acknowledge and agree that OpenTable provides the Payment Services only as a convenience and is not a party to your payment transactions performed using the Payment Services. OpenTable is an independent contractor for all purposes and is not your agent or trustee. OpenTable is not responsible, and has no liability for, the products or services that are paid for with the Payment Services. OpenTable is not responsible for any overcharges or other payment disputes with Restaurants. Users must resolve payment and other disputes directly with Restaurants.
OpenTable is not liable for any payments that the Payment Services do not complete because: (1) your debit or credit card account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit or overdraft protection of the debit or credit card account; (2) you have not provided us with correct payment account information; (3) your debit or credit card has expired; or (4) circumstances beyond our control (such as, but not limited to, power outages, interruptions of cellular service, or any other interferences from an outside force) prevent the execution of the transaction. To the extent that any amounts owed cannot be collected from your debit or credit card account through the Payment Services, you are solely responsible for paying the applicable Restaurant(s) by other means.
Part III – Gift Card Services
12. Purchase of OpenTable Gift Cards. You may purchase electronic gift cards and gift certificates issued by OpenTable (each, an “OpenTable Gift Card”) through the OpenTable Site and OpenTable Application in increments of $5.00, up to a maximum of $500.00. When you purchase an OpenTable Gift Card, we notify the person you have designated as the recipient of the OpenTable Gift Card by email. Unless otherwise required by applicable law, OpenTable Gift Cards are non-returnable and non-refundable, except that unredeemed OpenTable Gift Cards may be returned within 24 hours of purchase for a refund of the purchase price to the debit or credit card account used for the purchase.
14. Lost or Stolen OpenTable Gift Cards. OpenTable is not responsible for any OpenTable Gift Cards used without your permission or for any lost or stolen OpenTable Gift Cards. OpenTable may, in its sole discretion, cancel and replace a lost or stolen OpenTable Gift Card (if it has not already been redeemed) with a new OpenTable Gift Card if you provide via the OpenTable Site or OpenTable Application the email address to which the original OpenTable Gift Card was sent.
15. OpenTable Gift Card Customer Service. If you have any questions about OpenTable Gift Cards, please contact OpenTable Customer Service at 1-888-503-7558.
17. Merchant Responsibility. You acknowledge and agree that the applicable Merchant, not OpenTable, is the issuer of the Merchant Gift Cards and is solely responsible for honoring the Merchant Gift Cards and that OpenTable acts only as a seller of the Merchant Gift Cards. OpenTable provides the Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to any Merchants or Merchant Gift Cards. Each applicable Merchant is solely responsible for the products and/or services provided in connection with the use or redemption of a Merchant Gift Card. You agree that you purchase Merchant Gift Cards at your own risk and shall not hold OpenTable, any of its affiliates, or any of their respective employees, officers, directors, agents, representatives, or service providers responsible for any act or omission of any Merchant. Each Merchant is responsible for ensuring that it and the Merchant Gift Cards that it issues comply with all applicable laws and regulations, including, without limitation, laws regulating gift certificates, gift cards, and stored value cards and unclaimed property laws. You further acknowledge and agree that OpenTable is not responsible for any act or omission of Merchant in connection with the issuance, sale, or redemption of, or unclaimed property law compliance with respect to, any Merchant Gift Card, including, without limitation, any failure by any Merchant to honor any Merchant Gift Card or the imposition of any terms and conditions on any Merchant Gift Card that violate any applicable laws or regulations. For any and all issues or questions related to Merchant Gift Cards or any other products or services offered by Merchants, you must contact the applicable Merchant. Except as set forth in Section 16, you must settle any returns, disputes, and any other issues relating to Merchant Gift Cards directly with the applicable Merchant.
19. Other Disclosures. For clarity, OpenTable Gift Cards and Merchant Gift Cards are not the same as OpenTable Dining Rewards. OpenTable Gift Cards and Merchant Gift Cards are products that you can purchase from us for redemption in accordance with their applicable terms and conditions. OpenTable Dining Rewards are points that automatically accumulate when you make and keep reservations at Restaurants through the Reservation Services, subject to the OpenTable Dining Rewards Terms and Conditions.
Part IV – Terms for All Services
21. Your Account. You may (but are not required to) create an account with OpenTable through the OpenTable Site or OpenTable Application (“Account”) in order to use the Reservation Services or to purchase, gift, or redeem (as applicable) OpenTable Gift Cards and Merchant Gift Cards. However, you must have an Account in order to use the Payment Services. When registering for an Account, you must 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. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify OpenTable of any unauthorized use of your Account or any other breach of security related to your use of the Services.
24. Modifications to Services. OpenTable reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the OpenTable Site, OpenTable Application, Restaurants, and/or Merchants. OpenTable shall have no liability to you for any of the foregoing actions. 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.
25. Intellectual Property Rights and Grant of Rights to User. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “OpenTable Content”) are provided to User by OpenTable or its partners or licensors solely to support User’s permitted use of the Services. The OpenTable Content may be modified from time to time by OpenTable in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the OpenTable Content by User shall constitute a material breach of this Agreement. OpenTable and its partners or licensors retain all rights in the Services and OpenTable Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of OpenTable or any third party is granted under this Agreement.
26. Application License. Subject to the terms and conditions of this Agreement, OpenTable grants User a non-exclusive, non-transferable, revocable license to use the OpenTable Application, in object code form only, on User’s compatible mobile devices, solely to support User’s permitted use of the Services.
27. Use Restrictions. The Services and OpenTable Content are offered solely for User’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. OpenTable expressly reserves all its rights and remedies under applicable state and federal laws. OpenTable reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel reservations, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any robot, spider, scraper, or other automatic or manual device, process, or means to access the Services or copy any OpenTable Content, except as expressly authorized by OpenTable; (2) take any action that imposes or may impose (in OpenTable’s sole determination) an unreasonable or a disproportionately large load on the Services or OpenTable’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or OpenTable Content to a third party; (5) use any portion of the Services or OpenTable Content to provide, or incorporate any portion of the Services or OpenTable Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to OpenTable); (7) modify any Services or OpenTable Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or OpenTable Content; (9) use the Services or OpenTable Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or OpenTable Content or access or use the Services or OpenTable Content for competitive analysis or benchmarking purposes.
28. Government End Users. The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any OpenTable Application with only those rights set forth therein.
29. Export Control. You may not use, export, or re-export any OpenTable Application or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
30. Termination. OpenTable may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, OpenTable may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any OpenTable Policies) or, with respect to purchasers of OpenTable Gift Cards or Merchant Gift Cards and Users of the Payment Services, if we receive excessive chargebacks on the debit or credit card associated with your Account. After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account, and you may lose access to and be unable to use any accumulated dining points as described in the OpenTable Dining Rewards Terms and Conditions. You agree that OpenTable shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which OpenTable will have no liability whatsoever.
31. Reviews, Comments, Communications, and Other Content. The Services may permit you to submit reviews, comments, and ratings; send emails and other communications; and submit suggestions, ideas, comments, questions, or other information for publication and distribution to restaurants and other third parties (“User Content”). Any such User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising, or health code violations (e.g., foreign objects in food, food poisoning, etc.). You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. OpenTable reserves the right (but has no obligation) to monitor, remove, or edit User Content in OpenTable’s sole discretion, including if User Content violates this Agreement (including any OpenTable Policies), but you acknowledge that OpenTable may not regularly review submitted User Content. If you do submit User Content, and unless we indicate otherwise, you grant OpenTable a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media. OpenTable takes no responsibility and assumes no liability for any User Content submitted by you or any other User or third party.
32. Your Representations and Indemnity. You represent and warrant that you own or otherwise control all of the rights to any User Content submitted by you; that all User Content submitted by you is accurate; and that exploitation of such User Content by OpenTable and its other Users, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at OpenTable’s request) defend OpenTable, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “OpenTable Parties”) from and against all claims resulting from (1) any User Content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement.
33. Liability Limitations. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SPECIFIED BELOW WITH RESPECT TO OPENTABLE GIFT CARDS AND MERCHANT GIFT CARDS, IN NO EVENT SHALL THE OPENTABLE PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT, (2) ANY USE OF THE SERVICES, THE OPENTABLE CONTENT, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE RESERVATION SERVICES OR PAYMENT SERVICES), OR (4) YOUR VISIT TO ANY RESTAURANT OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY RESTAURANT OR MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE OPENTABLE SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE OPENTABLE CONTENT. OPENTABLE IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY RESTAURANT FOR WHICH A USER HAS MADE A RESERVATION OR PAID A BILL USING THE PAYMENT SERVICES OR ANY MERCHANT THAT ISSUES A MERCHANT GIFT CARD.
WITH RESPECT TO PURCHASES OF OPENTABLE GIFT CARDS OR MERCHANT GIFT CARDS, OR IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT PERMITTED BY LAW, YOU EXPRESSLY AGREE THAT 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 PURCHASE OF AN OPENTABLE GIFT CARD OR MERCHANT GIFT CARD (AS APPLICABLE) OR FIFTY US DOLLARS ($50).
You and OpenTable understand and agree that the disclaimers, exclusions, and limitations in this Section 33 and in Section 34 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that OpenTable would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
34. Disclaimer of Warranties. THE SERVICES, ALL OPENTABLE CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. OPENTABLE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. OPENTABLE DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT OPENTABLE WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. OPENTABLE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF OPENTABLE.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
35. Links to Third-Party Websites. The Services may contain hypertext links to websites operated by parties other than OpenTable. Such hypertext links are provided for User’s reference only, and OpenTable does not control such websites and is not responsible for their content. OpenTable’s inclusion of any hypertext links to such websites does not imply any endorsement of the material on such websites or any association with their operators. OpenTable assumes no liability whatsoever for any such third-party websites or any content, features, products, or services made available through such third-party websites.
36. Release. Restaurants and Merchants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you (or, if applicable, any recipient of an OpenTable Gift Card or a Merchant Gift Card) as a result of your (or such recipient’s) interaction with or visit to any Restaurant or Merchant or from any product or service of any Restaurant or Merchant. You hereby release the OpenTable Parties from any and all such Claims. 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 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.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the OpenTable Parties pertaining to the subject matter of this Section 36.
37. Notify Us of Infringers. If you believe any of the Services violate your copyright, notify our copyright agent in writing. The contact information for our copyright agent is at the bottom of this Section.
In order for us to take action, you must do the following in your notice:
(a) provide your physical or electronic signature;
(b) identify the copyrighted work that you believe is being infringed;
(c) identify the item that you think is infringing your work and include sufficient information about where the material is located so that we can find it;
(d) provide us with a way to contact you, such as your address, telephone number, or email;
(e) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used in connection with the Services; and
(f) provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury) you are authorized to act on behalf of the copyright owner whose work is being infringed.
Here is the contact information for our copyright agent:
1 Montgomery St., Suite 700
San Francisco, CA 94014
Again, we cannot take action unless you give us all the required information.
38. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
39. Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by OpenTable.
40. Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
41. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. 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, count, claim, or cause of action) between you and the OpenTable Parties or their 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 otherwise 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, the “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in 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: (1) ANY CLAIMS BROUGHT BY YOU OR OPENTABLE MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) 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; (3) 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, (4) OpenTable also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) 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; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) 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, 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 County, California in order to maintain 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 (1) and (2) in this Section (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 part was not contained herein. If, however, either subpart (1) or (2) 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 located in San Francisco County, California.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
42. Choice of Law. This Agreement is made under and 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.
REVISION DATE: February 5, 2014