This USER Agreement (the "Agreement") and the policies referred to herein contain the complete terms and conditions that apply to your use of the restaurant reservation services (the "Services") being offered at the URL: http://www.opentable.com and all affiliated web sites owned and operated solely by OpenTable (collectively, the "OpenTable Site"). As used in this Agreement, "OpenTable" refers to OpenTable, Inc. and any of its subsidiaries, and "USER" or "you" refers to you. USE OF THE SERVICES AND THE OPENTABLE SITE CONSTITUTES KNOWING ACCEPTANCE AND ACKNOWLEDGEMENT OF THIS USER AGREEMENT, AND OPENTABLE'S DINING REWARDS TERMS AND CONDITIONS (COLLECTIVELY, THE “OPENTABLE POLICIES)”.
OpenTable may modify this Agreement's terms and conditions at any time without notice. Continued use of the Services and the OpenTable Site after a change in this Agreement, or after implementation of any other new policy constitutes acceptance of such change or policy. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR ANY REVISED VERSION OF THIS AGREEMENT, PLEASE DO NOT USE THIS SITE.
1. WHAT WE DO
OpenTable provides the 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, the OpenTable Site 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, OpenTable will provide confirmation of the reservation to USER by email. By using the Services, USER agrees to receive reservation confirmations by email after booking a reservation through the OpenTable Site.
2. NO SHOW POLICY
OpenTable is committed to providing superior quality services to its USERS and Restaurants. To assist us in maintaining a consistently high level of service with the participating Restaurants and patrons, USERS are asked to cancel any reservations that they will be unable to honor at least 30 minutes in advance on the day of the reservation. You may cancel your reservation online or call the restaurant directly. In the case of larger party reservations, where the restaurant has requested a credit card, you may be required to cancel your reservation in accordance with that restaurant's individual cancelation policy, which will always be shared with the USER at the time the reservation is made.
If you are unable to keep your reservation and you fail to cancel, OpenTable will send you an email letting you know that our records indicate that you were a no-show. By using the Services, USER agrees to receive no-show confirmations by email after a Restaurant and/or the OpenTable Site reports your reservation was not honored, whether or not that was in fact the case. Your OpenTable account will be terminated if you no-show for four reservations within the same twelve-month period. If you receive a no-show confirmation email in error, please click here for information on how to dispute it. USER agrees that all final no-show determination will be made by OpenTable in its sole discretion.
4. USAGE GUIDELINES
The Services are being offered to USER for USER's personal use. USER agrees to use the Services only to book reservations at participating Restaurants and then honor those reservations by arriving at the Restaurant(s) on time and ordering and paying for a meal. USER further agrees not to book more than one (1) 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. OpenTable expressly reserves all its rights and remedies under applicable state and federal law.
Any and all other uses which are unlawful or in violation of this Agreement's terms and conditions are prohibited. OpenTable reserves the right, in its sole discretion, to refuse service, terminate accounts, remove or edit content, or cancel reservations.
5. OPENTABLE DINING REWARDS
USER may be able to participate in OpenTable's USER benefits program, OPENTABLE DINING REWARDS. Participation is subject to OpenTable Dining Rewards Terms and Conditions.
6. EMAIL POLICY
7. INTELLECTUAL PROPERTY AND GRANT OF RIGHTS TO USER
The materials and services provided for and depicted on the OpenTable Site are protected by copyright, trademark, patent and other intellectual property laws. All text, graphics, video, data or other content on the OpenTable Site ("OpenTable Content") is provided to USER by OpenTable for the sole purpose of using the Services. USER shall not copy, display, modify, create derivative works of, publish, or sell the OpenTable Content or any information, software, or services provided by OpenTable hereunder. 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. Nothing in this Agreement shall affect any rights of OpenTable or its licensors in the Services or 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. Nothing in this Agreement shall affect any rights of OpenTable or its licensors in the Services or 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.
8. REVIEWS, COMMENTS, COMMUNICATIONS, AND OTHER CONTENT
At OpenTable’s invitation, USER may submit reviews, comments, and ratings, send e-mails and other communications; and submit suggestions, ideas, comments, questions, or other information for publication and distribution to restaurants and other third parties, so long as the content is not 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 does 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 e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of content. OpenTable reserves the right (but not the obligation) to remove or edit such content, but may not regularly review submitted content.
If you do submit material, and unless we indicate otherwise, you grant OpenTable a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, and display such content throughout the world in any media. You represent and warrant that you own or otherwise control all of the rights to the content that you submit; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify OpenTable for all claims resulting from content you supply. OpenTable has the right but not the obligation to monitor and edit or remove any activity or content, including but not limited to content that violates the standards of this website, as determined by OpenTable in its sole discretion. OpenTable takes no responsibility and assumes no liability for any content submitted by you or any third party.
9. ACCESS AND INTERFERENCE
Much of the information on the OpenTable Site is updated on a real time basis and is proprietary or licensed to OpenTable by its Restaurants or third parties. By using the OpenTable Site, you agree not to:
Use any robot, spider, scraper or other automatic device, process or means to access the OpenTable Site for any purpose without OpenTable’s express written permission.
Take any action that imposes or may impose (in OpenTable’s sole discretion) an unreasonable or disproportionately large load on our infrastructure.
Implement any manual processes to monitor or copy OpenTable Content from the OpenTable Site without express written permission.
Utilize any device, software or routine that will interfere or attempt to interfere with the functionality of the OpenTable Site.
10. LIABILITY LIMITATIONS
IN NO EVENT SHALL OPENTABLE BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH (I) ANY USE OF THE SERVICES, THE OPENTABLE SITE OR THE OPENTABLE CONTENT, (II) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE SERVICES OR THE OPENTABLE SITE FOR RESERVATIONS), OR (III) THE PERFORMANCE OR NON-PERFORMANCE OF ANY RESTAURANT IN CONNECTION WITH THE SERVICES. IN ADDITION, ALL USERS SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING USERS 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, THE OPENTABLE SITE OR THE OPENTABLE CONTENT. OPENTABLE IS NEITHER AN AGENT OF NOR IS CONNECTED WITH ANY AFFILIATED RESTAURANT IN WHICH A USER HAS MADE A RESERVATION. ASIDE FROM THE SERVICES PROVIDED ON THE OPENTABLE SITE. OPENTABLE IS NOT LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH A USER’S VISIT TO AN AFFILIATED RESTAURANT.
11. DISCLAIMER OF WARRANTY
THE INFORMATION, PROGRAMS, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED ON THE OPENTABLE SITE, INCLUDING, WITHOUT LIMITATION, THE SERVICES AND THE OPENTABLE CONTENT, ARE PROVIDED TO USER ON AN 'AS IS' BASIS AND WITHOUT WARRANTY OF ANY KIND. OPENTABLE DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, THE OPENTABLE SITE, THE OPENTABLE CONTENT AND RELATED MATERIALS PROVIDED HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING.
12. LINKS TO THIRD PARTY SITES
The OpenTable Site may contain hypertext links to Web sites operated by parties other than OpenTable. Such hypertext links are provided for USER's reference only and OpenTable does not control such Web sites and is not responsible for their content. OpenTable's inclusion of any hypertext links to such Web sites does not imply any endorsement of the material on such Web sites or any association with their operators.
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 notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
14. NO 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 so transferred, assigned or delegated by OpenTable.
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.
16. 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 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 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 “Rules and Procedures”).
You are thus 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 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 (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 located 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.
17. CHOICE OF LAW
The 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: November 28, 2012