Last updated 01/28/2023
1. Use of Services
1.1 You may only access and use the software services, and hardware provided by WaitLess Inc. (collectively “WaitLess”, “we”, “us”, or “our”) if you are an authorized employee of a WaitLess Inc. customer (“Merchant”) that has agreed to a software subscription for WaitLess Services pursuant to a Merchant Agreement entered into between WaitLess Inc. and Merchant. WaitLess Inc. grants you a limited, revocable, non-exclusive, non-transferable license to access and use the applicable Services solely and exclusively for Merchant’s internal business purposes at the specified location outlined in the Merchant Agreement.
1.2 You agree to use the Services only for the management and operation of Merchant’s business in a single location and the Merchant shall not directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (b) modify, translate, or create derivative works based on the Services; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services; (d) remove or obscure any proprietary notices or labels from the Services; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with WaitLess Inc.'s provisioning of the Services; (f) violate or breach any operating procedures, requirements or guidelines regarding Merchant’s use of the Services that are posted on or through the WaitLess Inc. Platform or otherwise provided or made available to Merchant; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third- party or provide it as a service bureau; (h) conduct any penetration or vulnerability testing on the Services or network; or (i) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the user interface.
2. Limitation of Liability and Disclaimer of Warranties
2.1 Except for the express warranties set forth herein, WaitLess Inc. and its third-party providers hereby disclaim all express or implied warranties with regard to the services, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement and quality. WaitLess Inc. and its third-party providers make no representations or warranties regarding the reliability, availability, timeliness, suitability, accuracy or completeness of the services or the results you may obtain by using the services. Without limiting the generality of the foregoing, WaitLess Inc. and its third-party providers do not represent or warrant that (a) the operation or use of the services will be timely, uninterrupted or error-free; or (b) the quality of the services will meet your requirements. You acknowledge that neither WaitLess Inc. nor its third-party providers control the transfer of data over communications facilities, including the internet, and that the services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. WaitLess Inc. is not responsible for any delays, delivery failures, or other damage resulting from such problems. Without limiting the foregoing, WaitLess Inc. does not warrant or guarantee that any or all security attacks will be discovered, reported, or remedied, or that there will not be any security breaches by third parties. Except where expressly provided otherwise by WaitLess Inc., the services are provided to merchant on an "as is" basis.
2.2 In no event will WaitLess Inc. be liable under any contract, negligence, strict liability, or other theory: (a) for any indirect, exemplary, incidental, special or consequential damages; (b) for loss of use, inaccuracy, cost of procurement of substitute goods, services or technology, loss of profits, data or business interruption; or (c) for any matter beyond its reasonable control, whether or not foreseeable, even if WaitLess Inc. has been advised of the possibility of such loss or damage, and even if a remedy set forth herein has failed its essential purpose.
2.3 To the maximum extent permitted by applicable law and rules, WaitLess Inc.’s aggregate liability to you or any third parties in any circumstance is limited to one hundred dollars ($100).
3. Indemnification
3.1 You agree to defend, at your expense to indemnify and hold harmless WaitLess Inc. and its directors, officers, employees, affiliates, and agents from and against any claims, liability, damages, expenses and costs, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach or alleged breach of these Terms of Service, or any other policy issued by WaitLess Inc.; (b) the intellectual property rights of any person; (c) any Applicable Law or Rules including, without limitation, privacy and consumer protection laws; and (d) your access to, use or misuse of the Third-Party Content or Services. WaitLess Inc. will provide notice to you of any such claim, suit, or proceeding. WaitLess Inc. reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting WaitLess Inc.’s defense of such matter.
4. Arbitration
Please read the following arbitration agreement (the “Arbitration Agreement”) carefully. It may require you to arbitrate most disputes with WaitLess Inc. and, if applicable to you, may limit the manner in which you can seek relief from WaitLess Inc.
4.1 Agreement to Arbitrate
Except where prohibited by Applicable Law and Rules, you agree that any and all disputes or claims that have arisen or may arise between you and WaitLess Inc., whether arising out of or relating to these Terms of Service or in connection with your use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement. You agree that, by agreeing to these Terms of Service, you and WaitLess Inc. are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Arbitration shall be filed and occur in Middlesex County, Massachusetts, and will govern the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate, provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
4.2 Prohibition of Class and Representative Actions and Non-Individualized Relief
Except where prohibited by Applicable Law and Rules, you and WaitLess Inc. agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both you and WaitLess Inc. agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
4.3 WaitLess Inc. is always interested in resolving disputes amicably and efficiently, and most participant concerns can be resolved quickly and to the participant’s satisfaction by contacting WaitLess Inc.’s team at admin@waitless.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to WaitLess Inc. should be sent to WaitLess Inc. at 8 Dresden Lane, Billerica, MA, 01821. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If you and WaitLess Inc. do not resolve the claim within sixty (60) calendar days after the Notice is received, you or WaitLess Inc. may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by WaitLess Inc. or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or WaitLess Inc. is entitled.
5. Compliance with Laws
5.1 You agree to comply with all federal, state, provincial, local and foreign laws, rules, and regulations applicable to you and Merchant’s business in relation to your use of the Services, including any applicable privacy and consumer protection laws, tax laws and regulations, the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandards.org and the by-laws, and any and all other rules, policies and procedures of VISA, MasterCard, Discover and/or other card networks as in effect from time to time.
6. Limitations
6.1 WaitLess Inc. is not a POS system and is not responsible for the completion of the transaction. WaitLess Inc.’s limitations are to the extent of the interaction between the customer, Merchant, and the POS system.
6.2 Purchases and Payment Transactions made through the WaitLess Inc. app happen between the customer and the POS system. WaitLess Inc. does not process payments nor is it responsible for the completion of the transaction.
7. Maintenance
7.1 WaitLess Inc. may perform maintenance on the WaitLess Services which may result in service interruptions, delays, or errors. WaitLess Inc. will not be liable for any such interruptions, delays, errors, or bugs. WaitLess Inc. may contact you to assist you with the WaitLess Services and obtain information needed to identify and fix any errors. Waitless may inform users of maintenance updates through email communications at least 24hrs prior to the said update.
7.2 WaitLess Inc. may release enhancements, improvements, or other updates to the WaitLess Services. You shall integrate and install any update into your systems within 30 days of your receipt of notice from WaitLess that such actions by you are required. Failure to install any updates in a timely fashion may impair the functionality of the WaitLess Services. WaitLess will have no liability for your failure to properly install the most current version of any update, and WaitLess Inc. will have no obligation to provide support or services for any outdated versions.
8. Compliance with privacy laws
The App Provider makes the following additional commitments, representations, and warranties to Customer:
8.1 The App Provider will only process Customer Data and Personal Information on behalf of, and as Service Provider of, the Customer, and not collect, retain, use, or disclose that data for any purpose other than to perform the App Provider’s obligations under this Agreement, as permitted under CCPA and other applicable privacy and data protection laws (collectively, “Privacy Laws”). In no event will the App Provider “sell” (as defined by Privacy Laws) any such personal information.
8.2 The App Provider will not collect, use, retain, disclose, sell, or otherwise make Customer Data or Personal Information available for App Provider’s own commercial purposes or in a way that does not comply with the CCPA or other Privacy Laws.
8.3 App Provider will limit personal information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to provide the Services set forth in the Agreement or another compatible operational purpose.
9. Data subject rights - assistance with requests
9.1 App Provider will reasonably cooperate and assist Customer with meeting Customer's CCPA and Privacy Law compliance obligations and respond to CCPA-related inquiries, including responding to verifiable consumer requests, taking into account, the nature of App Provider's processing, and the information available to App Provider. App Provider will make available to Customer, in a manner consistent with the functionality of the Service and App Provider’s role as a Service Provider of Personal Information of data subjects, the ability to fulfill data subject requests to exercise their rights under Privacy Laws.
9.2 If App Provider receives a request from Customer’s data subject to exercise one or more of its rights under Privacy Laws in connection with the Services, App Provider will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where possible, by using the functionality of the Services. App Provider shall comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.
9.3 App Provider must notify the Customer immediately if it receives any complaint, notice, or communication that directly or indirectly relates either party's compliance with Privacy Laws relating to provisioning of the Services.
10. Miscellaneous
10.1 Any action, claim, or dispute related to these Terms of Service will be governed by the laws of the Commonwealth of Massachusetts, excluding its conflicts of law provisions. Except as set forth in Section 7, the parties agree that the state courts in Middlesex County, Massachusetts shall have exclusive jurisdiction to hear and determine any dispute between them. The Uniform Computer Information Transactions Act will not apply to these Terms of Service. If any provision of these Terms of Service is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms of Service, which will remain in full force and effect. Failure of WaitLess Inc. to act on or enforce any provision of these Terms of Service will not be construed as a waiver of that provision or any other provision herein. No waiver will be effective against WaitLess Inc. unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by WaitLess Inc. and you, these Terms of Service constitute the entire agreement between you and WaitLess Inc. with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between you and WaitLess Inc. with respect to the subject matter. The section headings are provided merely for convenience and will not be given any legal import. These Terms of Service will inure to the benefit of the WaitLess Inc. successors and assigns. You may not assign these Terms of Service without WaitLess Inc.’s prior written consent. Any information submitted or provided by you to the Services might be publicly accessible. Important and private information should be protected by you.
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