THESE TERMS OF USE (the “Terms”) apply to each Order that you (“Customer”) enter into with NoShowPro LLC, a Delaware limited liability company (“NoShowPro”), and that incorporates these Terms by URL.
BY ENTERING INTO AN ORDER FOR PRODUCTS OR SERVICES THAT REFERENCES THESE TERMS, YOU AFFIRM THAT YOU HAVE THE LEGAL AUTHORITY TO BIND ANY PERSON IN YOUR ORGANIZATION TO THESE TERMS.
The parties agree as follows:
1. Provision of Services.
Subject to Customer’s compliance with the terms and conditions set forth in these Terms and any applicable Order, NoShowPro will make available to Customer the services and functionality provided by its proprietary restaurant technology platform during the Term (the “Platform”). NoShowPro is an advisory service and the Platform is intended to assist Customer to increase its customer satisfaction and loyalty, manage certain costs and ultimately increase profitability.
2. Use of the Platform; Authorized Users.
These Terms govern Customer’s use of the Platform and the data, content and services available on the Platform. Each Authorized User (“Authorized User(s)” means one or more individuals who have been authorized by Customer to use the Platform on behalf of Customer) will be provided with a user account, provided that Authorized Users are limited to employees and contractors of Customer and are subject to the limitations in the Order. Customer and Authorized Users must protect their username and passwords, and not make them available to persons or entities not authorized to use the Platform on behalf of the Customer. Customer will (a) be responsible for Authorized Users compliance with these Terms and liable for any Authorized Users breach thereof, (b) comply with all laws applicable to the use of the Platform, (c) use industry standard means to prevent unauthorized access to, use of or reproduction of the Platform, and notify NoShowPro promptly of any such unauthorized access, use or reproduction, (d) use the Platform only as permitted in these Terms and by applicable laws, and (e) advise its employees, agents and contractors who have access to the Platform of the restrictions in these Terms.
3. Customer Responsibilities and Acknowledgements.
3.1 Third Party Products
3.2 . In order to provide the functions and features of the Platform, NoShowPro will need access to Customer’s accounts with certain third party reservation platforms, point of sale vendors, and other third party vendors or services providers that Customer elects to use and that NoShowPro has made available within the Platform (“Third Party Products”). As such, Customer appoints NoShowPro as its agent with authorization to access and use its accounts with such Third Party Products and Customer Data (as defined below) for the purpose of providing Customer and the Authorized Users with the functions and features of the platform, and Customer agrees to provide its account login information for such purposes. Customer also authorizes the Third Party Products to disclose Customer Data to NoShowPro. Customer hereby grant to NoShowPro and its affiliates a nonexclusive, perpetual right to use Customer Data and the other information Customer and Authorized Users may enter, upload or make available through the Platform to improve NoShowPro’s and its affiliates’ products and services and perform relevant industry trend analyses during and after the term of these Terms. NoShowPro may also aggregate or de-identify Customer Data in order to share relevant industry trends with third parties. Customer represents and warrants to NoShowPro that it has the requisite rights to use the Platform, to disclose Customer Data to NoShowPro, and appoint NoShowPro as its agent for Third Party Products, all as contemplated by the Agreement.
3.3 Customer Data. Customer will be solely responsible for (a) its use of the Platform and (b) the accuracy, quality and legality of the Customer Data and the means by which Customer acquired the same. Customer will use the Platform and use and disclose Customer Data to NoShowPro in a manner that at all times complies with all applicable laws.
3.4 Usage Restrictions. Customer will not (a) make the Platform or any portion thereof available to anyone other than Customer and its Authorized Users or use the Platform for the benefit of anyone other than Customer, for compensation or otherwise, (b) use the Platform to store or send infringing, libelous or otherwise unlawful, harassing, abusive, threatening, vulgar, obscene or otherwise objectionable material, or material that is harmful to minors in any way, (c) use the Platform to store or send material in violation of third party privacy rights or other rights, (d) transmit any virus, worm, spyware, Trojan Horse or other malicious code (“Malicious Code”) to the Platform, (e) interfere with the integrity or performance of the Platform or any networks or computer systems used to provide the Platform, or any other NoShowPro customer’s use of the Platform, (f) attempt to gain unauthorized access to the Platform or networks or computer systems used to provide the Platform, (g) modify, translate, copy or create derivative works of the Platform, or any part, feature, function or user interface thereof, except as expressly permitted herein, (h) access the Platform in order to build a competitive product or service, (i) decompile, disassemble, reverse engineer or reduce to human-perceivable form the Platform (to the extent such restriction is not prohibited by law), (j) attempt to remove, modify or obscure any proprietary notices on the Platform, (k) have any right to receive the code for the Platform, or (l) harvest or collect information or data regarding other users of the Platform.
3.5 Suspension. If an Authorized User is in breach of these Terms, without limiting NoShowPro’s other rights or remedies, NoShowPro may suspend the Authorized User’s use of the Platform immediately.
3.6 Modifications to The Platform. NoShowPro may update the Platform to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and other relevant factors.
4. Confidentiality.
4.1 By virtue of these Terms, the parties may disclose to each other information that is confidential (“Confidential Information”). Confidential Information shall include but not be limited to the terms and pricing under these Terms and the Orders, Customer Data residing in the Platform, and all information clearly identified as confidential at the time of disclosure or which a reasonable person would understand to be subject to confidential treatment by the disclosing party.
4.2 A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
4.3 Each party agrees not to disclose the other party’s Confidential Information to any third party other than as set forth in the following sentence for a period of five years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; however, we will protect the confidentiality of Customer Data residing in the Platform for as long as such information resides in the Platform. Each party may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under these Terms, and each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental entity as required by law. NoShowPro will protect the confidentiality of Customer residing in the Platform in accordance with Section 7.
5. Fees and Payment.
5.1 Fees and Expenses. Customer will pay all fees and expenses specified in the applicable Order. Except as otherwise specified in these Terms or in the applicable Order, (a) fees and expenses are based on the products and services purchased and not actual usage, (b) payment obligations are non-cancelable and fees and expenses paid are non-refundable, and (c) prices are stated in U.S. dollars. If Customer exceeds the quantity of service purchased under any Order, Customer shall promptly purchase and pay for the excess quantity.
5.2 Invoicing and Payment. Fees and expenses will be charged in accordance with the relevant Order and will be due 30 days from the date of the applicable invoice.
5.3 Suspension of Service. If any charge owing by Customer is thirty (30) days or more overdue, NoShowPro may, without limiting its other rights and remedies, suspend access to the Platform until such amounts are paid in full, provided NoShowPro has given Customer at least ten (10) days’ prior notice that its account is overdue. Customer will reimburse NoShowPro’s costs and attorneys’ fees incurred in any attempt to collect or the collection of overdue amounts.
5.4 Taxes. NoShowPro's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If NoShowPro has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 6.5, NoShowPro will invoice Customer and Customer will pay that amount unless Customer provides NoShowPro with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, NoShowPro is solely responsible for taxes assessable against it based on its income, property and employees.
5.5 Future Functionality. Except as otherwise set forth in an Order, Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by NoShowPro regarding future functionality or features.
6. Proprietary Rights and Licenses.
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, NoShowPro and its licensors reserve all of their right, title and interest in and to the Platform, including all of their related intellectual property rights. No rights are granted to Customer other than as expressly set forth in these Terms.
6.2 Permission to Use The Platform. NoShowPro grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use the Platform, the Platform, the Documentation ordered by Customer, solely during the Term (as defined in the Order), and solely for Customer’s internal business operations and to permit its Authorized Users to do the foregoing, all subject to the terms and conditions of these Terms and applicable Order.
6.3 License by Customer to Use Feedback. Customer grants to NoShowPro and its affiliates a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, transferable, sublicensable license to use and incorporate into the Platform any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or its Authorized Users relating to the Platform. NoShowPro will not be obligated to credit Customer or its Authorized Users for such feedback or hold any such feedback in confidence.
7. Customer Data.
7.1 “Customer Data” means information and data about Customer, its business, and its end customers provided by Customer or generated during Customer's use of the Platform, including information and data obtained from or provided by the Third Party Products during Customer's and its Authorized Users' use of the Platform.
7.2 Privacy. NoShowPro use of personal information contained in Customer Data, if any, is subject to our Privacy Policy
8. Disclaimers.
8.1 Each party represents and warrants that it: (i) has full power and authority to enter into these Terms; (ii) the execution and performance of the Terms and the consummation of the transactions contemplated hereby have been duly and properly authorized by all requisite corporate action on its part; and (iii) the Terms have been duly executed and delivered by such party.
8.2 CUSTOMER’S USE OF THE PLATFORM, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM IS AT CUSTOMER’S OWN RISK. THE PLATFORM, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NOSHOWPRO DOES NOT MAKE ANY REPRESENTATION, WARRANTY OR GUARANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND NOSHOWPRO DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NOSHOWPRO DOES NOT REPRESENT OR WARRANT THAT (A) THE PLATFORM OR DATA WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE, ACCURATE, COMPLETE OR COMPLETELY SECURE, (B) MALICIOUS CODE WILL NOT BE TRANSMITTED TO CUSTOMER IN USE OF THE PLATFORM, (C) ALL DEFECTS IN THE PLATFORM OR WORK PRODUCT (IF ANY) WILL BE CORRECTED, (D) THE PLATFORM OR WORK PRODUCT (IF ANY) WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR (E) CUSTOMER WILL ACHIEVE ANY PARTICULAR RESULT. ANY USE OR RELIANCE UPON THE REPORTS BY CUSTOMER SHALL BE AT ITS OWN RISK. NOSHOWPRO WILL NOT BE LIABLE IN ANY WAY RELATED TO ANY THIRD-PARTY CONTENT, DATA OR APPLICATION.
9. Indemnification and Limitations of Liability.
9.1 Indemnity. Unless prohibited by applicable law, Customer shall indemnify NoShowPro and its affiliates (including their respective officers, directors, employees and agents) and hold them harmless against any liabilities, damages and costs (including reasonable attorney fees and final settlement amounts) from any claims or legal proceedings (including actions by government authorities) arising out of or relating to: (a) Customer’s and/or its Authorized Users’ breach of these Terms or any agreement with respect to Third Party Product; (b) Customer Data or any other content Customer and/or its Authorized Users provide to NoShowPro; (c) unlawful use of the Platform; or (d) Customer’s and/or Authorized Users’ gross negligence or willful misconduct.
9.2 LIMITATION OF LIABILITY. NOSHOWPRO WILL NOT BE LIABLE UNDER THESE TERMS OR ANY ORDER FOR ANY LOST INCOME OR LOST PROFITS OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER FOR TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY, WHETHER OR NOT FORESEEABLE AND HOWEVER RISING, AND EVEN IF NOSHOWPRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOSHOWPRO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR AN ORDER, WHETHER FOR TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY, WILL NOT EXCEED THE AMOUNT CUSTOMER PAID TO NOSHOWPRO FOR THE PLATFORM SET FORTH IN THE ORDER TO WHICH THE CLAIM RELATES (SUCH AMOUNT, THE “DAMAGES CAP”). THE LIMITATIONS HEREIN WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS HEREIN ARE REASONABLE AND A BASIS OF THE BARGAIN, AND THAT NOSHOWPRO WOULD NOT ENTER INTO THESE TERMS WITHOUT CUSTOMER’S AGREEMENT TO SUCH LIMITATIONS.9.3 LIMITATION ON TIME TO FILE CLAIMS. A PARTY MUST FILE ANY CLAIM ARISING FROM OR RELATED TO THESE TERMS OR ANY ORDER WITHIN ONE (1) YEAR AFTER THE CLAIM AROSE, OR THE CLAIM WILL BE FORFEITED AND FOREVER BARRED.
10. Term and Termination.
10.1 Term and Termination. These Terms apply during the term of each Order. If either party commits a breach of a material term of these Terms (including Customer’s failure to pay amounts when due hereunder) that is not cured within 30 days following receipt of notice of the breach, the non-breaching party may terminate the relevant Order(s).
10.2 Retrieval of Customer Data. NoShowPro will make the Platform available for 60 days following termination for Customer to retrieve any Customer Data. After such period, NoShowPro shall destroy the Customer Data pursuant to its retention policy.
10.3 Effects of Termination; Surviving Provisions. Termination of these Terms will terminate all outstanding Orders. Termination of these Terms will not relieve Customer of its obligation to pay any fees owed to NoShowPro prior to the effective date of termination. Customer’s right to use the Platform ordered will terminate immediately and automatically upon the expiration or termination of the applicable Order. The following Sections will survive any termination or expiration of these Terms: 4, 5, 6.1, 6.3, 6.4, 6.5, 7, 9, 10.2, 10.3 and 11.
11. General Provisions.
11.1 Export Compliance. The Platform, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it is not named on any U.S. government denied-party list. Customer will not access or use the Platform in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
11.2 Entire Agreement; Order of Precedence. These Terms and the terms and conditions of the applicable Order (which are hereby incorporated into these Terms) contain the entire agreement between NoShowPro and Customer regarding NoShowPro’s provision of, and Customer’s receipt and use of, the Platform, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. Each Order will be governed by and incorporate these Terms. No amendment of these Terms or an Order will be effective unless in writing and signed by both parties. In the event of any inconsistency between an Order and these Terms, these Terms will prevail.
11.3 Relationship. The parties are independent contractors. Neither these Terms nor any Order creates a partnership, joint venture, agency or employment relationship between the parties.
11.4 Third-Party Beneficiaries. There are no third-party beneficiaries of these Terms.
11.5 Injunctive Relief. A party’s breach of these Terms related to confidential information or intellectual property rights would cause the non-breaching party irreparable harm for which the recovery of money damages would be inadequate. Therefore, if a party breaches or threatens to breach these Terms related to the other party’s confidential Information or intellectual property rights, the non-breaching party will be entitled to obtain injunctive relief, without the need to post a bond or prove actual monetary damages, to protect its rights under these Terms, in addition to any and all remedies available at law.
11.6 Waiver. No failure or delay by either party in exercising any right under these Terms or the applicable Order will constitute a waiver of that right. A party can enforce a waiver only if the other party made the waiver in writing.
11.7 Severability. If any provision of these Terms or the applicable Order is held by a court of competent jurisdiction to be contrary to law, the provision will be reformed to the nearest enforceable provision (or deemed severed from these Terms or the Order if that is impermissible), and the remaining provisions of these Terms and the applicable Order will remain in effect.
11.8 Construction. Neither these Terms nor any Order will be construed against the drafter. Lists following “include”, “includes” or “include” are illustrative and not exhaustive.
11.9 Force Majeure. NoShowPro’s non-performance under these Terms or an Order will be excused to the extent due to a cause beyond its reasonable control.
11.10 Arbitration. At NoShowPro’s sole discretion, NoShowPro may require Customer to submit any disputes arising from these Terms or use of the Platform, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Commercial Arbitration of the American Arbitration Association applying California law. A party who desires to initiate arbitration must provide the other party with a written demand for arbitration as specified in such rules. Unless the parties agree in writing otherwise, the arbitration will be conducted in the city of Los Angeles, California. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction. The arbitrator will have the right to include in the award any relief which they deem proper in the circumstances, only to the extent permitted by these Terms, provided that the arbitrator will not have the authority to award exemplary or punitive damages. The arbitrator will award the prevailing party its reasonable attorneys’ fees and expenses. Each party agrees that arbitration will be conducted on an individual, not a class‑wide, basis and that any arbitration proceeding between you and us and/or our affiliates will not be consolidated with any other arbitration proceeding involving us or any other person or entity.Notices. Except as otherwise specified in these Terms or in the applicable Order, all notices related to these Terms or the applicable Order will be in writing and will be effective upon (a) personal delivery or (b) the second day after delivered or sent by an internationally recognized overnight delivery service, costs prepaid. Notices will be addressed to the addresses in the Order.