Unified Master Services Agreement for
Yelp Reservations, Yelp Waitlist, Yelp WiFi and Yelp Connect
Ver: June 1, 2019
This Unified Master Services Agreement (“Agreement”) between the business identified in the applicable Order Details Form (“Client”) and Yelp Inc. and its related Affiliates (collectively, “Yelp”) contains the terms and conditions for
the Yelp Reservations (Sections I(A), I(C) and Section II), Yelp Waitlist (Sections I(B), I(C) and Section II), Yelp WiFi (Section I(D) and Section II) and Yelp Connect (Section (I(E) and Section II ordered services specified in the applicable Order Details Form (collectively the “Service(s)”, and, individually and respectively, the “Yelp Reservations Service”, “Yelp Waitlist Service”, “Yelp WiFi Service” and “Yelp Connect”) offered by Yelp on the various Yelp properties, including websites and mobile applications (the “Site”), and such terms and conditions shall govern Client’s use of the Service as of the date that Client indicates its agreement to the Agreement, commonly in the form of a checkbox on the Site or in an email (the Effective Date”), for the benefit of Client’s customers and patrons (“End Users”). The “Order Details Form(s)” are made available to Client in an email or in a self-serve transaction flow within Client’s business owners account on the Site which identify the Services purchased, any specific Service descriptions, fees, payment schedule and quantities, and become effective as of the date Client indicates agreement to the Agreement. The executed Order Details Forms are incorporated by reference into this Agreement. In the event of a conflict in terms between the terms and conditions contained in this Agreement and an Order Details Form, the Order Details Form will prevail, in descending priority in the event of multiple Order Details Forms. The Parties may enter into subsequent Order Details Forms for additional or different Services by referencing this Agreement. If Client has entered into another agreement with Yelp for any of the Services hereunder, Client agrees that Yelp will continue to provide such Service(s) in accordance with the applicable purchase order, order details form or agreement previously agreed to by the parties, provided that, such Services will be provided under, and subject to, the terms and conditions of this Agreement and that, in the event of any conflict, this Agreement will control over any and all prior agreements. Yelp and Client are each referred to as a “Party” and collectively as the “Parties”. “Affiliates” means any parent or subsidiary of Yelp Inc.
Client and Yelp agree that any phone calls with Yelp, whether or not initiated by Yelp, may be monitored and recorded for quality and training purposes.
The following sections set forth the agreement details for the applicable Service(s) purchased in an Order Details Form and the general legal terms that apply to all Services.
I. SERVICE SPECIFIC TERMS AND CONDITIONS
A. YELP RESERVATIONS
1. Terms Applicable to Clients Purchasing Yelp Reservations Services on the Order Details Form. The following terms and conditions in this Section I(A)(1) are applicable only to Clients who have ordered the Yelp Reservations Service, as indicated in the applicable Order Details Form:
a) Services. Yelp’s reservation service allows End Users using the Site or affiliate websites to make online reservations at participating restaurants (“Yelp Reservations Service”). The Yelp Reservations Service is intended to
replace ‘pen and paper’ reservation book and existing front-of-house restaurant management methods by allowing End Users to view the availability of seats at a restaurant or other venue and make reservations without having to call into the restaurant, and allowing Client’s personnel to manage the venue’s availability, floor and guestbook via nearly any internet-enabled device. Should Client request, Yelp may provide Service Device (defined below) to Client in accordance with Section I(C).
b) Accounts. In order for Client to use the Yelp Reservations Service and aspart of the signup process, Client is required to register to create an account on Yelp (“Yelp Reservations Client Account”). As part of that registration, Client will provide all applicable information requested during the registration process through the management interface on the Site, including, but not limited to, Client’s address, operating hours, seating capacity, seating configuration, and any common corporate ownership with other restaurants. By creating a Yelp Reservations Client Account, Client represents and warrants that: (i) Client is of legal age to form a binding contract; (ii) Clientis an authorized representative of Client or other entity with the authority tobind such party to this Agreement; (iii) all information provided within the application is true and accurate; and (iv) Client agrees to be bound by this Agreement on behalf of Client or its parent entity (as applicable). Clientpersonnel may access and manage reservations made through the Yelp Reservations Service on any Service Device by accessing the Yelp Reservations Client Account.
c) Approval at Yelp’s Sole Discretion. Afterthe registration process is complete, Yelp will review the information submitted by Client. Yelp reserves the right to approve or deny use of the Yelp Reservations Service for Client (or the applicable parent entity) at its sole discretion. Any continued use of the Yelp Reservations Service or the Site is subject to Client’s continued compliance with this Agreement.
d) General Client Commitments. Yelp requires that Client commit to certain implementation practices throughout the term of Client’s use
of the Yelp Reservations Service. Client will:
i) use the Service Device provided by Yelp (unless otherwise agreed to by the Parties in writing), and the Yelp Reservations iPad app, as Client’s
front-of- house management tool;
ii) ensure the Service Device (or such other device as agreed to bythe Parties) is charged and available for use by trained front-of-house staff;
iii) provide Wi-Fi in the restaurant at all times for connectivity ofthe Yelp Reservations iPad app with the internet;
iv) implement the Yelp Reservations ‘Reserve Now’ button or Date/Time/Party Size widget on Client’s website. The Yelp Reservations button or widget will be the only online reservation provider on Client’s website, and if applicable, its Facebook page (or other social media page) and mobile app;
v) accept and honor online reservations via the Site; and
vi) make no distinction between tables that are available for reservation online or via the phone. All tables available for reservation will
be available online and via the phone.
e) Yelp Reservations Widget. Client may install a Yelp Reservations widget (“Reservations Widget”) on its own website which will enable Client’s customers to make reservations directly from the Client’s website, as it would from the Yelp website or mobile applications. Subject to the below terms and conditions in this subsection (e), Client may request Yelp to install the Reservations Widget by providing Yelp with its website login credentials. Yelp will not share the login credentials with any third party, without the prior written consent of Client. Yelp will not be liable to Client for any errors or omissions caused by Yelp’s negligence in installing the Reservations Widget. Yelp will delete the login credentials after it has successfully installed the Reservations Widget.
2. Yelp Reservation Policies
a) Service Configuration and License. Prior to offering the Yelp Reservations Service to End Users, Client must use the management interface in the Yelp Reservations Client Account to provide basic information for each Client location and configure the dates and times for which reservations will be available. That includes, without limitation, providing Client location’s address, operating hours, seating capacity, seating configuration, and any common corporate ownership with other restaurants. Client may also upload photographs and additional
information for Client to be displayed to End Users.
b) Acceptance of Reservations. Yelp offers the Yelp Reservations Service to facilitate and assist End Users in making reservations at participating restaurants, and End Users make their reservations based upon the availability of seating at Client. When a End User makes a reservation for an available reservation slot on the Yelp Reservations Service, that reservation is binding upon Client and may not be cancelled except as provided below. All reservations are between Client and End User, and Client agrees to honor all reservations made through the Yelp Reservations Service. Client may, in its discretion, choose to “overbook” its seating capacity by accepting multiple reservations for a single reservation slot, but Client acknowledges and agrees that Client is solely responsible, and that Yelp has no responsibility for any overbooking of reservations, whether made through the Yelp Reservations Service or otherwise.
c) Reservation Cancellation Policy.
i) End User Cancellations. Yelp requires that all End User-initiated cancellations of reservations be made at least 30 minutes before the scheduled time of the reservation. An End User may cancel the reservation through the Yelp Reservations Service or by contacting Client directly. Client agrees to promptly update the Yelp Reservations Service for any cancellations made directly through Client and notify Yelp of any cancellations not made in accordance with this Section.
ii) Client Cancellations. The management interface for the Yelp Reservations Service will allow Client to specify a reservation cancellation policy (“Cancellation Policy”), which will be made available to End Users on the Site. Client agrees to abide by the Cancellation Policy for all reservations made on the Yelp Reservations Service. Any change to Client’s Cancellation Policy will be effective only for reservations made after such change and Client’s prior Cancellation Policy will apply to any preexisting reservations.
iii) Credit Card Holds and Cancellation Fees. Yelp itself does not impose a fee on End Users for cancellations. Client may require that End Users provide a credit card to make a reservation using the Yelp Reservations Service in accordance with its Cancellation Policy, including for special occasions or for large parties. If Client requires End Users to use a credit card to hold a reservation, End Users will be required to provide their credit card information during the reservation process. The End User’s credit card information will be stored with Yelp’s third-party credit card processor and will not be made available to either Yelp or Client. If the End User is a “no-show” and fails to cancel the reservation within the required amount of time set forth in the Cancellation Policy, Client may use the Yelp Reservations Service to initiate charging the End User a fee if such a fee is explicitly set forth in Client’s Cancellation Policy. Yelp will facilitate the charge and send the payment to Client, minus any applicable payment processing fees. Should the End User challenge the charge through the End User’s issuing bank (a “chargeback”), Yelp will make a commercially reasonable effort to oppose the chargeback if Yelp determines, at Yelp’s sole discretion, opposition is merited. If the End User’s issuing bank enforces the chargeback and Yelp has distributed the charged-back funds to Client, Client agrees to reimburse Yelp the chargeback amount, plus any associated fees, and that Yelp may elect to charge the total amount to Client’s credit card on file with Yelp. In the alternative, Yelp may, at its sole discretion, offset the chargeback amount against any other amounts owed by Yelp to Client whether in connection with thisAgreement or any other services provided by Yelp to Client.
d) Training. Yelp will provide training, support and documentation for the use and setup of the applicable Service and Service Device by Client in the manner and dates described in the applicable Order Details Form. If Client
requests additional support training, Yelp may provide such training subject to its availability and payment by Client of Yelp’s then-current training fees. Client may also access the support center on the Site.
e) Client Information.
i) Information Provided with Reservations. The following information, if known to Yelp, will be made available to Clients for reservations made through the Yelp Reservations Service:
– The End User’s name and phone number;
– The End User’s email address;
– Any information about the End User’s dining preferences that the End User has disclosed for the reservation, including, but not limited to food allergies, dietary restrictions, specific seating preferences, or if the reservation is for a special occasion; and
– Information related to an End User’s past visits to Client (or other clients sharing Client’s corporate ownership).
f) Information Stored with the Yelp Reservations Service. The Client may store information about End Users on the Yelp Reservations Service in a similar manner as a ‘pen and paper’ reservation book. For example, information about the End User’s dining history, eating or seating preferences, food allergies, or VIP status may be stored on the Yelp Reservations Service for reference for future visits by the End User. Yelp reserves the right to use such information in an aggregate, non-personally identifiable form to assist Yelp in understanding general user trends and preferences for the Yelp Reservations Service. This information may be made available to Client as well as part of Yelp’s ongoing efforts to improve the Yelp Reservations Service and provide additional information about Client’s clientele to Client. Yelp may also disclose such information to other restaurants in limited circumstances and without identifying Client during such disclosure, for example if the End User has identified a food allergy or if the End User is a VIP or food critic.
h) Use of End User Information. Unless prior written approval is received from Yelp, Client will not: (a) disclose any information obtained through the Yelp Reservations Service that can be used to uniquely identify an End User including, without limitation, names, phone numbers, physical addresses, email addresses, and credit card information (“Personal Information”) obtained from the Yelp Reservations Service to unaffiliated third parties; or (b) use Personal Information of End Users for any purpose other than (i) as needed to fulfill and process the End User’s reservation; or (ii) add the End User to Client’s guest database (if applicable). If Client discloses Personal Information to third parties under shared corporate ownership with Client, Client will ensure that such third parties are aware of by the Personal Information use restrictions and confidentiality obligations of this Agreement. Client may not use End User information for direct marketing unless the End User has expressly opted-in to receive such marketing communications from Client. For avoidance of doubt, the limitation in the preceding sentence will not apply to any Personal Information obtained by Client through other means not involving the Yelp Reservations Service, including but not limited to a End User’s opt-in to Client dining rewards programs operated separately from the Service, or Personal Information collected during the End User’s visit at Client.
B. YELP WAITLIST:
1. Terms Applicable to Clients Purchasing Yelp Waitlist Services onthe Order Details Form. The following terms and conditions in this Section I(B) are applicable only to Clients who use the Yelp Waitlist Service (formerly known as Yelp Nowait), as indicated in the applicable Order Details Form. Should Client request, Yelp may provide a Service Device to Client inaccordance with Section I(C).
a) Services. Yelp’s online waitlist management service (the “Yelp Waitlist Service”) allows End Users using the Site or affiliate websites to give their phone number to Client to virtually wait in line at the restaurant, track the waitlist movement, and receive notification when a table is ready. Yelp will use commercially reasonable efforts to host and manage Client’s waitlist and provide Client with the Yelp Waitlist Services set forth on an applicable Order Details Form. The Yelp Waitlist Services will be rolled out to the applicable Client location(s) as set forth in the applicable Order Details Form.
b) Client Account. In order for Client to use the Yelp Waitlist Service and as part of the signup process, Client is required to register to create an account on Yelp through its Client portal (“Yelp Waitlist Client Account”), through which Client can access its account settings and view certain data and analytics that may be provided by Yelp regarding Client’s use of the Yelp Waitlist Services. By creating a Yelp Waitlist Client Account on the Site, Client represents and warrants that: (i) Client is of legal age to form a binding contract; (ii) Client is an authorized representative of Client or other entity with the authority to bind such party to this Agreement; (iii) all information provided within the application is true and accurate; and (iv) Client agrees to be bound by this Agreement on behalf of Client or its parent entity (as applicable).
c) Approval at Yelp’s Sole Discretion. After the registration process is complete, Yelp will review the information submitted by Client. Yelp reserves the right to approve or deny use of Yelp Waitlist Service for Client (or the applicable parent entity) at its sole discretion. Any continued use of the Yelp Waitlist Service or the Site is subject to Client’s continued compliance with this Agreement.
d) General Client Commitments. Yelp requires that Client commit to certain implementation practices throughout the term of Client’s use of the Yelp Waitlist Service. Client will (i) use the Service Device provided by Yelp (unless otherwise agreed to by the Parties in writing), and the Yelp Waitlist iPad app; (ii) ensure the Service Device (or such other device as agreed to by the Parties) is charged and available for use by trained front-of-house staff; and (iii) provide Wi-Fi in the restaurant at all times for connectivity of the Yelp Waitlist iPad app with the internet.
e) Training. Yelp will provide training, support and documentation for the use and setup of the applicable Service and Service Device by Client in the manner and dates described in the applicable Order Details Form. If Client requests additional support training, Yelp may provide such training subject to its availability and payment by Client of Yelp’s then-current training fees. Client may also access the support center on the Site.
f) Analytics. Yelp provides each Client with access to data and reports related to the Yelp Waitlist Services described in the applicable Order Details Form. Yelp may, from time to time, provide Client with statistical information relating to End Users’ use of the Service. Client may not disclose or display this information to any third party.
g) Client Information. Client will be responsible for providing Yelp with certain information and content for use in connection with the Yelp Waitlist Services and setting up the Yelp Waitlist Client Account during the registration process, including without limitation a Client representative’s first and last name, email address, Client or location description, Client name, street address, city, state and zip code (collectively, “Client Data”). In addition, Client will provide Yelp with all applicable trademarks, logos and such other images and branding materials (“Client Logos”) necessary for branding the Yelp Waitlist Service in accordance with Client’s instructions. Client is responsible and will indemnify Yelp for any liability resulting from or arising out of Client Data or Client Logos. Yelp will not be responsible or liable for any failure to perform Yelp Waitlist Service that is caused by Client’s delay in or failure to provide Client Data. Client hereby represents, warrants and covenants that: (i) all required registration information submitted to the Yelp Waitlist Service is complete and accurate, and (ii) Client will keep its Yelp Waitlist Client Account up-to-date with current information.
i) Remote Entry. Remote Entry is a popular Yelp Waitlist Service feature that allows End Users to remotely add their party to Client’s waitlist without the requirement of being on Client’s premises. Client agrees that it will implement Remote Entry capability into its Service no later than 30 days after signing up for the Yelp Waitlist Service. Yelp may terminate the Agreement if Client fails to implement Remote Entry at any time after such 30-day period.
j) Waitlist Widget. Client may install a Waitlist widget (“Waitlist Widget”) on its own website which will enable Client’s customers to join a waitlist directly from the Client’s website, as it would from the Yelp website or mobile applications. Subject to the below terms and conditions in this subsection (e), Client may request Yelp to install the Waitlist Widget by providing Yelp with its website login credentials. Yelp will not share the login credentials with any third party, without the prior written consent of Client. Yelp will not be liable to Client for any errors or omissions caused by Yelp’s negligence in installing the Waitlist Widget. Yelp will delete the login credentials after it has successfully installed the Waitlist Widget.
C. YELP RESERVATIONS AND YELP WAITLIST SERVICE DEVICES: Yelp Managed iPad Program for Yelp Reservations and Yelp Waitlist Services.
1. Summary. The terms and conditions in this section are applicable to Clients who are provided an iPad (all iPads except for iPad Pro), iPad Pro or other similar device (a “Service Device”) by Yelp as part of the Yelp Reservations Services and/or Yelp Waitlist Services and as further specified in the applicable Order Details Form.. In addition to accepting this Agreement as part of Client’s enrollment into the applicable Service, by using the Service Device, Client confirms its agreement with the terms and conditions related to the Service Device program set forth below:
(a) Service Device Costs and Timing. If Client is eligible to receive a Service Device from Yelp, the Service Device is provided to Client at no additional cost in order to access the Services (unless otherwise agreed to by the Parties in writing). Client should expect to receive its Service Device within 2 to 4 business days after Client has accepted this Agreement. The Client will receive a Service Device that is either new (as will be the case in most instances) or a refurbished (in rare cases), but in any case, not more than 2 years old. Client will keep Service Devices free of all security interests, liens and other encumbrances. Client agrees to use the Service Devices only in accordance with instructions prescribed by Yelp and will maintain the Service Devices at its expense during the term of this Agreement. Yelp leases the Service Devices from a third party, who retains title of the Service Device, unless otherwise provided herein.
(b) Duration. The Client can keep the Service Device as long as it is a customer with an active subscription under this Agreement for the Yelp Reservations Service or Yelp Waitlist Service, as applicable, or until Yelp replaces it with another Service Device.
(c) Required Facilities. Client is solely responsible, at Client’s expense, for providing (i) a suitable location for the installation and operation of the Service Devices, and any other related peripheral equipment and interconnect devices; (ii) any electrical power and any required internet service for Service Devices used by Client; and (iii) any replacement, service, or repair of the Service Devices (excluding reasonable wear). Yelp is not responsible for any reservations or revenue lost during any malfunction of a Service Device or due to misuse of the applicable Service or Service Devices by Client personnel.
(d) Returning the Service Device prior to the Scheduled Term End Date. Client may return the Service Device back to Yelp in the same condition Yelp provided it to Client, less reasonable wear from usage prior to the Agreement Term or applicable Service subscription end date. If there is excessive wear from usage or poor maintenance as determined by Apple or the Service Device distributor, Yelp will pass through to Client any charges imposed by Apple or the Service Device distributor, and Client agrees to pay Yelp these additional charges, either through the submitted credit card or invoice. Client must ensure that the Service Device will be signed out of iCloud and/or any other services prior to returning to Yelp. If Yelp is unable to restore the Service Device to factory defaults, Yelp will charge $600 for such Service Device (or $800 if such Service Device is an iPad Pro) due to its inability to reuse the device, plus any applicable sales taxes.
(e) Multiple Service Devices. The first Service Device is included in regular Yelp Subscription Fee unless otherwise specified in the applicable Order Details Form. Yelp will charge an additional “per seat” fee for each additional Service Device requested by Client to enable access to the Services and Yelp technical support. If Client cancels its Yelp Reservations Service and/or Yelp Waitlist Service, Client agrees to return all Service Device(s) back to Yelp, or buy them from Yelp, as further explained below.
(f) Return of Service Device after Termination. Upon termination of this Agreement (or the applicable Service subscription end date, if earlier), Yelp will send Client a shipping box to return the Service Device to Yelp with a pre-paid and pre-addressed shipping label, or as otherwise required by Yelp or its lender. Client must ship the Service Device to the pre-addressed location within 14 days after the termination of this Agreement (or the applicable Service subscription end date, if earlier). The date of shipment is the date that Client handed over the boxed and pre-addressed Service Device to the shipper/carrier designated on the pre-addressed shipping label, as indicated in the carrier’s shipping document.
PLEASE NOTE: IF CLIENT DOES NOT SHIP THE SERVICE DEVICE BY THE END OF THE 14TH DAY AFTER THE TERMINATION OF APPLICABLE SERVICE OR AGREEMENT, CLIENT AUTHORIZES YELP TO CHARGE $600.00 FOR AN IPAD AIR AND $800.00 FOR AN IPAD PRO AGAINST ITS SUBMITTED CREDIT CARD (PLUS ANY REQUIRED SALES TAX, IF APPLICABLE), AND CLIENT RETAINS POSSESSION AND OWNERSHIP OF THE SERVICE DEVICE ONCE THE CHARGE HAS BEEN FINALIZED BY CLIENT’S PAYMENT PROCESSOR.
(g) Keeping the Service Device. Unless otherwise prohibited by Yelp, Client will be allowed to keep the Service Device if and when Yelp is able to collect $600.00 for an iPad Air and $800.00 for an iPad Pro (plus any requisite sales tax) as authorized by Client above from its credit card for each Service Device Client wants to keep. But please note, Yelp still retains the right to wipe all of the software on the Service Device and reset the Service Device to its factory settings. Any content Client has on the Service Device will be lost, so please remember to back up its content to another storage service or device before Yelp restores the Service Device to its factory settings.
(h) Damage to the Service Device. If the Service Device becomes damaged, such as a cracked screen or any Yelp pre-loaded software is removed, Client will need to call Client’s Account Manager who can try to resolve the issue with Client. If the issue cannot be resolved, Client will pay to Yelp $600.00 for the Service Device or, if applicable, $800.00 for an iPad Pro, plus any requisite sales tax. If requested by Client and approved by Yelp, Client’s Account Manager can arrange to have another Service Device (or iPad Pro, if applicable) preloaded with all of the same Yelp software expedited to Client within a target of 5 to 7 business days upon payment of the preceding replacement costs. Client’s Account Manager will also arrange to have Client’s old Service Device sent back to our warehouse. If it turns out the damage or malfunction is covered under a warranty, then Yelp will refund the amount paid to Yelp by Client under this Section.
(i) Stolen or misplaced Service Devices. If the Service Device is stolen or lost, then Client is financially responsible for replacing the Service Device for $600.00 for an iPad Air and $800.00 for an iPad Pro plus any applicable sales taxes. For a replacement Service Device, Yelp will arrange with Client to send Client a preloaded replacement Service Device. Yelp will aim to deliver the Service Device to Client within 2 to 4 business days, and upon termination of the subscription that relates to that Service Device, Client must either return the Service Device to Yelp or purchase it as set forth above.
(j) Pre-loaded software on the Service Device. In addition to the Yelp Reservations and/or Yelp Waitlist app used to perform the applicable Services, Yelp uses a special third party mobile device management program (“MDM software”) on the Service Device for business purposes, including, but not limited to, keeping the software up to date, helping keep it secure from prying eyes, and providing Yelp information on how to improve the Yelp software. The MDM software controls the Service Device and its security settings, manages the applications on the Service Device, and the Service Device’s ability to access, process, use and store any content, activity and other data. Because the MDM software will enable Yelp to have access to certain information originating from Client’s use of the Service Device, as explained below in greater detail, Yelp wants to make sure Client understands what the MDM software will process, collect and store, and how Yelp will use it. Yelp has licensed the MDM software from a third party, and they will also have access and use rights to the content originating from the Service Device. You agree to make sure that everyone using the Service Device is aware of the MDM software and that they explicitly agree to its operation, use, transfer and storing of information and activity on the Service Device as a condition of its use by the Client Users,as defined below.
(k) The MDM software. The MDM software is used for license and policy management, security, change and configuration management, patch management, imaging, inventory resource tracking, and energy management on all Service Devices. Anti-virus software may also be installed, as well as other content and activity monitoring tools, as necessary, to meet Yelp’ business, legal, and security requirements, as further set forth herein.
(l) Notice to Client Users. The Client will notify all employees, temporary workers and contractor who have access to and use the Service Device (“Client Users”) that any Client Content, Client Personal Data and Usage and Personal Data provided as part of the MDM software will processed and stored by Yelp and be made available to a third party for processing and storing as part of Yelp’ use of the MDM software to provide the Yelp Services.
(m) Usage and Personal Data. Client agrees that Yelp may also process and share the Usage and Personal Data with certain third parties to manage Client’s account, send service-related notifications, bill for purchased Services, enforce compliance with this Agreement, facilitate the provisioning of Updates, improve of the MDM software and/or Service, better understand its business needs and comply with its contractual obligations and applicable law. Relationship Data and Usage and Personal Data may also be transferred to Yelp’ affiliates from time to time solely for the purpose of providing the applicable Yelp Services for the benefit of Client.
(n) Data Transfer. Client agrees that Client Content, Relationship Data, and Usage and Personal Data collected or received by Yelp in connection with the download, installation, configuration, maintenance, support and use of the MDM software or Yelp service may be transferred, stored and processed by Yelp and its service providers in the United States or any other country in which Yelp or its affiliates or service providers maintain facilities.
(o) Non-removal of MDM Software. The Client and its Client Users are prohibited from removing or disabling the MDM software, unless and until Client has paid Yelp the fee to own the Service Device.
(p) Protect Us for its Failure to Obtain Consent from its Client Users. You agree to defend, indemnify, and hold harmless Yelp against any claims, losses, fines, or damages arising from or relating to its failure to obtain the express consent to the disclosures and conditions of use from Client Users. It is really important that the Client Users understand that their use of the Service Device will be monitored, as explained and set forth in this Section.
(q) No liability for Your Content on the Service Device and No Warranties. Due to the potentially unstable nature of portable devices, Yelp cannot be liable for the loss of any content that Client or the Client Users place on the Service Device. Client is responsible for removing all content from the Service Device, such as photos, music, contacts, web histories, apps, etc.…) as of the applicable date of termination. THE SERVICE DEVICES ARE PROVIDED “AS IS”. YELP MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICE DEVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(r) Remotely Wiping and Locking the Service Device. Yelp may remotely wipe (erase) all of the content and applications on or after the date of termination of this Agreement while it is still in Client’s possession. Client will not hold Yelp responsible for any liability arising from any of the content stored by Client Users on the Service Device which is erased by Yelp, whether during the term or after the term. Yelp also may “lock” the Service Device (i.e. render it inoperable) at any time for a violation of this Agreement, or at the end of the Service Device’s applicable subscription term.
(s) Client-provided Device. In the event that the Parties agree to Client’s use of a Client-provided service device in connection with the applicable Services hereunder, Client acknowledges and agrees to install and use the applicable Service app and the MDM software.
Definitions for this Section:
“Client Content” means any and all data, applications, files, information or materials accessed, transmitted, uploaded, published or displayed through the software by Client and the Client Users. It does not include Relationship Data or Usage and Personal Data.
“Client Personal Data” means personally identifiable information from or about an individual either provided by Client or Client to Yelp via the MDM software, including personal information that the MDM software collects during the activation and maintenance of Client’s applicable Service account. Client Personal Data does not include Relationship Data or Usage and Personal Data.
D. YELP WIFI
1. Terms Applicable to Clients Purchasing Yelp WiFi Services on the Order Details Form. The following terms and conditions in this Section D are applicable only to Clients who have ordered the Yelp WiFi Service (formerly known as Turnstyle and Yelp WiFi), as indicated in the applicable Order Details Form.
(a) Services. Yelp’s Wi-Fi social marketing service (the “Yelp WiFi Service”) allows End Users to log into Client’s Wi-Fi via a Yelp-provided Wi-Fi enabled access point that is configured to facilitate the technical processing and transmission of Client Data required to perform the Services (“Access Point Device”) and enables Client to market to those patrons who have agreed to receive marketing messages. Yelp will use commercially reasonable efforts to host and provide Client with the Yelp WiFi Service set forth on an applicable Order Details Form entered into between the parties.
(b) Set-up. Client will make commercially reasonable efforts to cooperate with the reasonable requests of Yelp, including providing Yelp required information and access to Client Access Point Device and third-party systems in order for Yelp to configure and integrate the Access Point Device with the Yelp WiFi system, as required to provide the Services.
(c) Client Obligations in Respect of the Access Point Device. Client is solely responsible, at Client’s expense, for providing (i) a suitable location for the installation and operation of the Access Point Device, and any other related peripheral equipment and interconnect devices; (ii) any electrical power and any required internet service for Access Point Device used by Client; and (iii) any replacement, service, or repair of the Service Devices (excluding reasonable wear). Client will not and will not permit any other person to: (1) interfere with or prevent the operation of the Access Point Device; (2) remove the Access Point Device from the location where it is installed; or (3) modify, tamper with or disassemble the Access Point Device, or attempt to do any of the above, without providing prior warning to Yelp. Yelp is not responsible for any reservations or revenue lost during any malfunction of the Access Point Device or due to misuse of the applicable Service or Access Point Device by Client personnel. Client agrees to install visible signage indicating the use of location-based marketing technology through their Wi-Fi platform, both within the major entry ways to the store, and within all major trafficked areas. For a template please contact .
(d) Provision of the Services. During the Service subscription Term, Yelp will: (i) provide to Client basic support through the Yelp WiFi website for the purchased Services at no additional charge as described more fully in Customer Support below; and (ii) use commercially reasonable efforts to make the Yelp WiFi Services available 24 hours a day, 7 days a week, with minimal downtime, except for: (A) planned downtime and scheduled upgrades, or (B) any unavailability caused by circumstances beyond Yelp’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Yelp employees), Internet service provider failures or delays, or the unavailability or modification by third parties of third party sites.
(e) Provisioning of the Services. Yelp may update the functionality and user interface of the Services from time to time in its sole discretion as part of its ongoing mission to improve the Services and Clients’ use of the Services.
(f) Customer Support. Yelp will provide the following standard customer support to Client:
i.Web Support. Client will have access to Yelp ’s technical support web site and may use the web site to submit service requests. Web support will not include, and Yelp will not provide, any professional or expert advice of any kind. Yelp will use commercially reasonable efforts to correct any reproducible failure of the Services to substantially conform to its expected operation; provided, however, that Yelp
will not be required to provide a correction for all such nonconformities.
ii. Service Upgrades and Scheduled Downtime. Yelp may update the Services in its sole discretion. Yelp may from time to time schedule downtime for maintenance and upgrades.
2. Client Data
(a) Responsibility. Client has sole responsibility for the accuracy, appropriateness and completeness of all data, information records and files that Client loads, transmits to or enters into the Yelp WiFi Service, and including all results from processing such data, including compilations, and derivative works thereof (“Client Data”). Yelp will use Client Data it is provided to perform the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Client Data.
(b) Third-Party Disclosures and Consents. Client is solely responsible for obtaining all necessary third-party consents and making all required third party disclosures in accordance with applicable law (including applicable provincial and federal privacy laws) regarding data or information (including any personally-identifiable information) collected by Yelp through the Access Point Device from third parties.
(c) Restrictions. Client agrees not to upload or transmit any Client Data: (i) that Client does not have the lawful right to copy, transmit, distribute, and display (including any Client Data that would violate any confidentiality or fiduciary obligations that Client might have with respect to Client Data); (ii) for which Client does not have the consent or permission from the owner of any personally identifiable information contained in Client Data; (iii) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights or violates any privacy rights of any third party (including, without limitation, any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; or (vi) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability.
3. Access Point Device Maintenance and Return. This section is applicable in the event that Client has received the Access PointDevice(s).
(a) Use. During the Service subscription term, Client may use the Access Point Device on its premises as long as it continues to actively use the Yelp WiFi Service under the Agreement, until Yelp replaces it with another Access Point Device or either Party terminates Client’s use of the Access Point Device. Yelp shall at all times retain ownership of the Access Point Device unless otherwise specifically itemized in the Order Details Form.
(b) Returning the Access Point Device. Client may return the Access Point Device back to Yelp at any time in the same condition as the Access Point Device was when Yelp provided it to Client, less reasonable wear from usage.
(c) Damage to the Access Point Device. If the Access Point Device becomes damaged or malfunctions, Client will need to call Client’s Account Manager who can try to resolve the issue with Client. If necessary, Client’s Account Manager can arrange to have another Access Point Device expedited to Client within a target of 2 to 4 business days for $250.00 (plus any requisite sales tax). Client’s Account Manager will also arrange to have Client’s old Access Point Device sent back to Yelp’s warehouse. If it turns out the damage or malfunction is covered under a warranty, then Yelp will refund Client’s $250.00 (plus any requisite sales tax collected).
(d) Stolen or misplaced Access Point Devices. If the Access Point Device is stolen or lost, then Client is financially responsible for replacing the Access Point Device for $250.00, plus any applicable sales taxes. Yelp will assess the $250.00 against Client’s credit card on file or recover the cost in another manner. For a replacement Access Point Device, Yelp will arrange with Client to send Client a preloaded replacement Access Point Device. Yelp will aim to deliver the Access Point Device to Client within 2 to 4 business days, and upon termination of the subscription that relates to that Access Point Device, Client must either return the Access Point Device to Yelp or purchase it as set forth below.
(e) Keeping the Access Point Device. Unless otherwise prohibited by Yelp, Client will be allowed to keep the Access Point Device if and when Yelp is able to collect $250.00 (plus any requisite sales tax) as authorized by Client from its credit card for each Access Point Device Client wants to keep. But please note, the Access Point Device may not function correctly without the Yelp WiFi Service. Yelp still retains the right to wipe all of the software on the Access Point Device and reset the Access Point Device to its factory settings.
(f) Return of Access Point Device after Termination. Unless Client has paid for the Access Point Device, upon termination of the Agreement (or the applicable Service subscription end date, if earlier), Yelp will send Client a pre-paid and pre-addressed label to use in returning the Access Point Device to Yelp, or as otherwise required by Yelp. Client must ship the Access Point Device to Yelp to the pre-addressed location within 7 days after the termination of its Yelp WiFi Service. The date of shipment is the date that Client handed over the boxed and pre-addressed Access Point Device to the shipper/carrier designated on the pre-addressed shipping label, as indicated in the carrier’s shipping document.
(g) PLEASE NOTE: IF CLIENT DOES NOT SHIP THE ACCESS POINT DEVICE TO YELP WIFI BY THE END OF THE 7TH DAY AFTER THE TERMINATION OF THE APPLICABLE SERVICE OR AGREEMENT, CLIENT AUTHORIZES YELP TO CHARGE $250.00 AGAINST ITS SUBMITTED PAYMENT CARD (PLUS ANY REQUIRED SALES TAX, IF APPLICABLE), AND CLIENT WILL RETAIN POSSESSION AND OWNERSHIP OF THE ACCESS POINT DEVICE ONCE THE CHARGE HAS FINALLY BEEN FINALIZED BY THE CLIENT’S PAYMENT CARD PROCESSOR.
(h) Monitoring Software. Yelp uses software to monitor the Access Point Device through the CloudTrax network (or similar service in the future) and the Yelp database (“monitoring software”) on the Access Point Device to keep the software up to date, help keep it secure, and provide Yelp information on how to improve the Yelp software.
E. Yelp Connect Program:
Terms Applicable to Clients Purchasing Yelp Connect Services on the Order Details Form. The following terms and conditions in this Section I(E) are applicable only to Clients who have ordered the Yelp Connect Service, as indicated in the applicable Order Details Form.
(a) This program allows Client to publish posts and content through Client’s business owner account that will appear in designated areas on the Site, including Client’s Yelp business page, and/or be included in select Yelp marketing communications (such as email) to Yelp users. If Client has an active CPC Program and active Yelp Connect Program at the same time, Client’s Yelp Connect posts may also appear in a special location (such as a carousel) that would be displayed to Yelp users, and such posts may be treated as Ad Impressions under your CPC Program when a user Clicks on Client’s post. Yelp will provide the Yelp Connect Program beginning on the applicable service start date specified on the Order Form and Client may terminate its subscription to the Yelp Connect Program at any time (effective immediately) through its Yelp business owners account (subject to availability) or by providing written notice to Yelp’s Account Management team via email. Yelp will bill Client, in arrears, the monthly subscription fee set forth on the Purchase Order for this program (prorated for any mid-month start or termination).
II. GENERALLY APPLICABLE LEGAL TERMS AND CONDITIONS
A. LEGAL TERMS APPLICABLE TO ALL SERVICES
2. Limitations. Client agrees that it will not permit any Client Account Users or any other person to: (a) permit any person to access or use the Management Account other than the Client Account Users authorized under the Agreement; (b) modify, adapt, alter or translate any software underlying the Services or Management Account, except as expressly allowed hereunder; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Service to any other person; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of any software underlying the Services (including the Management Account); or (e) use or copy the any software underlying the Services (including the Management Account) except as expressly allowed hereunder.
3. Client Responsibilities. Client agrees that Client is responsible for the compliance by the Client Account Users with this Agreement and for the Client Account Users’ use of the Services, as well as for ensuring that the Client Account Users maintain the confidentiality of their Account IDs. Client agrees that Client is responsible for all charges incurred by the Client Account Users with access to the Services. For greater certainty but without limiting the generality of the foregoing, Client agrees that Client will not:
(a) use or permit the Client Account Users to use the Services except as permitted by this Agreement;
(b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than to the Client Account Users except as expressly contemplated by this Agreement;
(c) use or permit the Client Account Users to use the Services to collect, transmit or process: (A) infringing, obscene, threatening, offensive, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (B) any non-public or personally-identifiable data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity;
(d) use or permit the Client Account Users to use the Services to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;
(e) continue to use the Services in a manner that interferes with or disrupts the integrity or performance of the Services following a notice from Yelp of such use;
(f) attempt to gain unauthorized access to the Services or its related systems or networks;
(g) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services;
(h) use any data mining, robots or similar data gathering or extraction methods of the Services, or the online content of Yelp Inc., or otherwise violate Yelp’s online terms of service;
(i) access the Services for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services; or
(j) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services.
4. Fees and Taxes.
(a) Payment. Client agrees to pay Yelp all fees in the amounts, at the times and subject to any other conditions set forth in the applicable Order Details Form (the “Fees”). The terms of the Order Details Form shall govern payment of fees and valid payment methods. The Fees are fixed for the duration of any Commitment Period specified in any Order Form, if applicable. If Client is not under a Commitment Period and has the ability to terminate the Order Form at any time, Yelp reserves the right to change its Fees at its sole discretion, with such changes being effective upon forty (40) days after sending email notification of such price change to Client’s account email address indicated in the Order Details Form. If Client does not agree to increases in the Fees, Client may terminate the applicable Service with the increased fees by providing notice of Client’s termination to Yelp by email to Client’s account management contact at Yelp or prior to the date those new pricing terms go into effect.
(b) Past Due Amounts. Any amount not paid when due shall bear a late payment charge until paid at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. If any payment is past due, Yelp shall have the right to take whatever action it deems appropriate (including without limitation suspending or terminating Client’s access and use of the Services). Client agrees to reimburse Yelp for all reasonable costs (including attorneys’ fees) incurred in collecting payments. Notwithstanding anything to the contrary herein, failure to pay for any amounts due hereunder after receiving a late payment notice from Yelp may result in Yelp, in its sole discretion and without limiting its other rights and remedies, suspending the applicable Services purchased or terminating the Agreement. Further, Client agrees to receive text or SMS messages on the mobile device numbers provided to Yelp in connection with the collection past due amounts owed to Yelp.
(c) RECURRING PAYMENT AUTHORIZATION. IF CLIENT PROVIDES YELP WITH CREDIT CARD, DEBIT CARD, OR BANK ACCOUNT INFORMATION (“PAYMENT METHOD”), CLIENT AUTHORIZES YELP TO USE SUCH PAYMENT INFORMATION TO AUTOMATICALLY CHARGE CLIENT ON A RECURRING BASIS TO COLLECT ALL FEES DUE HEREUNDER. CLIENT REPRESENTS THAT HE OR SHE IS AUTHORIZED TO INCUR CHARGES AGAINST THE PAYMENT METHOD USED TO PURCHASE THE SERVICES. THE FORM OF PAYMENT METHOD CANNOT BE CHANGED OR ALTERED UNLESS ALL AMOUNTS DUE UNDER THE AGREEMENT HAVE BEEN PAID IN FULL OR OTHERWISE AGREED TO BY THE PARTIES IN WRITING. YELP WILL UPDATE CLIENT’S PAYMENT METHOD AND USE THAT NEW PAYMENT METHOD TO RECEIVE PAYMENT OF FEES DUE IF YELP IS NOTIFIED BY CLIENT’S BANK OR CREDIT CARD PROVIDER THAT THE PAYMENT CARD INFORMATION HAS CHANGED OR HAS BEEN UPDATED. This Section will in no way limit any other remedies available to Yelp under applicable laws.
(d) Taxes. The Fees for the Services do not include any excise, excise, sales, use, value added or other taxes, personal property or other taxes, assessments, tariffs, fines, penalties or duties that may be required by federal, state, local, provincial or foreign jurisdictions (collectively, “Taxes”). In jurisdictions where Yelp has the legal obligation to collect such Taxes, the amount of such Taxes will be invoiced to Client, and Client will pay such amount unless Client provides Yelp with a valid tax exemption certificate authorized by the appropriate taxing authority. Any taxes which are otherwise imposed on payments to Yelp will be Client’s sole responsibility. Client will provide Yelp with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Yelp to establish that such taxes have been paid. Client shall pay promptly and before delinquency all Taxes imposed under current or subsequent law upon sales of taxable goods or services in performance of this Agreement.
(e) Currency. All payments, prices and other amounts relevant to this Agreement are in U.S. Dollars.
(f) Additional Features. Yelp may offer certain optional features and functionalities for Client (“Additional Features”), including but not limited to the ability for Clients to provide targeted offers or deals to End Users. The use of any Additional Features may require additional fees and require Client to agree to additional terms and conditions specific to those Additional Features, which will be provided to Client at the time Client elects to utilize those Additional Features through Yelp.
5. Intellectual Property
(a) Ownership of Service and Site. Yelp will retain and own all intellectual property rights to the Service, including any modifications or improvements to the Service.
(b) License to Client Materials. By providing information or materials, including Client’s logo(s) and business name and all related metadata submitted by Client (collectively, the “Client Materials”), to Yelp hereunder, Client grants Yelp a nonexclusive, royalty-free, perpetual, irrevocable license to use, reproduce, distribute, adapt, and publicly display, in any medium now known or hereafter developed, such Client Materials (and any derivatives thereof) in connection with the applicable Service(s), for analytical or reporting purposes, or in connection with Yelp’s promotional or marketing purposes. As between the Parties, Client retains all right, title, and interest in Client Materials.
(c) License to Yelp Marks. During the Term, Client may market and promote its business or operation through use of the Yelp name or logo using advertising that has been reviewed and approved in advance by Yelp and in compliance with Yelp Trademark Usage Guidelines. However, Client will not advertise any connection with Yelp, nor use Yelp’ name, symbols, or other identifying marks or property nor make any representation, either express or implied, as to Yelp’ promotion or endorsement of Client or Client’s business, without prior written approval by Yelp. In any event, Client agrees that it will not include the Yelp logo in any advertisement, or in close proximity to any advertisement, for any illegal products or services.
(d) Reservation of Rights. Except for the licenses granted in Sections II(5)(b) and (c), neither Party intends to grant, or actually grants any license, covenant not to sue, or any other immunity or right in connection with this Agreement under any intellectual property rights of that Party, whether by implication, statute, inducement, estoppel or otherwise, and each Party hereby reserves all of its rights other than the rights explicitly granted in this Agreement.
6. Restrictions on Use of the Service
(a) Prohibited Actions. As a conditions of Client’s use of the Service, Client represents and warrants that it will not engage in, nor allow any third party under Client’s control to engage in, any activity related to the Service that is unlawful or prohibited, including, but not limited to: (i) use of the Service to transmit or otherwise distribute any advertisement or content that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as reasonably determined by Yelp; (ii) interfering or attempting to interfere with the proper working of the Service or prevent others from using the Service; (iii) using the Service for any fraudulent or unlawful purpose (iv) violating intellectual property rights; (v) accessing, tampering, or gaining access to any part of the Service that Client is not authorized to access, including information for other Client Accounts on the Service; (vi) removing, circumventing, disabling, damaging or otherwise interfering with any security-related features of the Service; or (vii) decompiling, disassembling, or otherwise reverse engineering or attempting to reconstruct or discover any source code or underlying ideas or algorithms of the Service or of Yelp software.
(b) Non-solicitation. During the Term of the Agreement, Client will not directly (through its own products and services) or indirectly (hiring or inducing a third party to do so on Client’s behalf) solicit End Users (in email campaigns or otherwise) to write and submit reviews, commentary or feedback about Client or Client’s services (regardless of whether the user receives any compensation or consideration), on any Internet or mobile application user generated content platforms, such as Yelp, Google, Twitter, Facebook, etc.… Yelp strictly enforces this restriction in the interest of protecting consumers from artificially inflated, hand-picked reviews which do not reflect the typical user experience.
(c) Violations. Violation of any of the foregoing may result in immediate termination of this Agreement, among other available remedies, at Yelp’ sole discretion, and may subject Client to state and federal penalties and other legal consequences. Yelp reserves the right, but will have no obligation, to review Client’s use of the Service, including in relation to user complaints or disputes, in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
(d) Compliance with Laws. Client agrees that it will use the Service in compliance with all applicable local, state, national and international laws, rules and regulations.
(e) Client understands and acknowledges that Yelp allows consumers to post content about Client’s business, including photos, ratings, and reviews. Client understands and acknowledges that Yelp employs automated software in an effort to showcase the most reliable and useful reviews while displaying other reviews less prominently (“Recommendation Software”). Client understands and acknowledges that while Yelp uses its Recommendation Software to identify potentially less helpful reviews, the Recommendation Software may sometimes suppress legitimate reviews or fail to detect illegitimate reviews. Client understands and acknowledges that any purchase of the Services or other paid features, such as advertising, from Yelp will not influence the Recommendation Software or otherwise allow or enable Client, directly or indirectly, to alter reviews or impact whether, where, or how reviews appear on Yelp.
7. Term and Termination
(a) Term. The term of this Agreement of Service will begin on the date Client accepts the terms and conditions of this Agreement and continues until terminated, as set forth under this Agreement (the “Term”). If an Order Form specifies a Commitment Period, the Agreement will renew on a month-to-month basis after the end of the Commitment Period until notice of termination is provided by Client or Yelp in accordance with the below subsections.
(b) Termination by Yelp. Yelp may terminate this Agreement at any time, for any or no reason, by providing notice to the Client via email provided by Client in the Business Owner Account or by overnight courier service to the address on file with Yelp.
(c) Termination by Client. Unless otherwise set forth in an applicable Order Details Form (such as a Commitment Period), Client may terminate an applicable Service subscription term or this Agreement on any day of the month by providing thirty (30) days written notice, including email, to Client’s account management contact at Yelp. If Client pays in advance (e.g. monthly or quarterly), then Yelp will prorate the invoice amount to reflect the partial termination month. If a Commitment Period applies, then, in the event of any termination pursuant to this paragraph within such Commitment Period, Client will pay the applicable Early Termination Fee as further set forth below.
(d) Refund or Payment upon Termination. If the Agreement is terminated by Client in accordance with this section, Yelp will refund Client any prepaid fees for Services unrendered after the effective date of termination. Client will pay any unpaid and outstanding fees owed to Yelp up to and including through the effective date of termination. In no event will termination relieve Client of its obligation to pay any fees payable to Yelp for the period prior to the
effective date of termination, and such obligation to pay will survive any termination of this Agreement.
(e) Effect of Termination. Notwithstanding anything to the contrary, in the event of any termination, Client will remain liable for any amount due under this Agreement through the effective date of termination, and any amount that may later become due as a result of a chargeback under Section I(A)(2)(c)(iii), and such obligation to pay will survive any termination of this Agreement. Upon termination of this Agreement, any licenses provided by Yelp to Client under this Agreement will terminate and Client will immediately remove and cease any use of the icons or other trademarks or logos belonging to the other. Sections II(3), II(4)(b), II(5)(b), II(5)(c), II(7)(a), II(7)(d), and II(8)-(12) (inclusive) will survive the termination of this Agreement for any reason.
(f) EARLY TERMINATION FEE (THIS SECTION IS ONLY APPLICABLE IFTHERE IS AN “EARLY TERMINATION FEE” IN AN ORDER FORM: RECOGNIZING THE DISCOUNTED PRICING OFFERED BY YELP IN EXCHANGE FOR THE COMMITMENT PERIOD, AS WELL AS THE UP-FRONT SALES, SETUP, AND OPPORTUNITY COSTS THAT YELP BEARS IN CONNECTION WITH THE ORDER DETAILS FORM, AND OTHER DAMAGES THAT BEAR A REASONABLE RELATIONSHIP TO THE RANGE OF ACTUAL DAMAGES THAT, AS OF THE EFFECTIVE DATE, THE PARTIES ANTICIPATE WOULD FLOW FROM AN EARLY TERMINATION BY CLIENT, CLIENT AGREES TO PAY THE EARLY TERMINATION FEE SET FORTH IN ANY ORDER DETAILS FORM, IF CLIENT TERMINATES SUCH ORDER DETAILS FORM AFTER THE EFFECTIVE DATE AND BEFORE THE END OF ITS COMMITMENT PERIOD.
8. Representations and Warranties
(a) Yelp Warranties. Yelp represents and warrants to Client that: (i) Yelp has the right to enter into this Agreement and to grant the rights and licenses granted to Client under this Agreement; (ii) this Agreement are a valid and binding obligation of Yelp; and (iii) it has obtained and will maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations.
(b) Client Warranties. Client represents and warrants to Yelp that: (i) Client has the right to enter into this Agreement and to grant the rights and licenses granted to Yelp under this Agreement; (ii) this Agreement is a valid and binding obligation of Client; and (iii) it has obtained and will maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and implementing regulations including without limitation the Telephone Consumer Protection Act and the CAN-SPAM Act, in connection with its obligations under this Agreement. Client agrees to obtain all necessary consents required under applicable laws, rules and regulations (including without limitation the Telephone Consumer Protection Act and the CAN-SPAM Act). Further, Client hereby represents and warrants to Yelp that (x) it will remain fully responsible for all access to and use of the Service and Management Account through Client’s Account IDs’ login name and password, including access to any features the use of which results in monetary charges to Client, whether or not Client has knowledge of or authorizes such access and use; (y) it will not share or provide access to Client’s Management Account and Account IDs’ login name and password to any third parties, and will use best efforts to protect the secrecy of Client’s login name and password; ; and (z) it has provided and will continue to provide Yelp with accurate and complete account and other information, and will inform Yelp in writing of any changes or updates to such information during the term of this Agreement.
9. Indemnification. Client will defend, indemnify and hold harmless Yelp and its agents, officers, directors and employees, from and against any and all third party claims, actions, losses, damages, liabilities, costs and expenses (including, but not limited to, attorney fees and costs) (collectively, a “Third Party Claim”) arising out of or in connection with (i) any breach or alleged breach by Client of this Agreement or
of the representations and warranties made by Client in this Agreement, and (ii) Client and Client’s employees and agents use of the Service and any information obtained through the Service. Yelp’s right to indemnification is conditioned upon the following: (1) reasonably prompt written notice to Client of any Third Party Claim for which indemnification is sought, provided that failure by Yelp to provide such notice will not release Client of its indemnity obligations hereunder, unless Client is materially prejudiced by Yelp’ failure to give such prompt notice; (2) providing control of the investigation, preparation, defense and settlement thereof to Client; and (3) providing reasonable cooperation at Client’s request and expense, in the defense of the Third Party Claim. Yelp will have the right to participate in the defense of a Third Party Claim with counsel of Yelp’s choice at Yelp’s expense. Client will not, without the express written consent of Yelp, settle or compromise any Third Party Claim, or consent to the entry of any judgment that imposes any liability or obligation upon Yelp or admits and wrongdoing on the part of Yelp.
(a) Confidential Information. “Confidential Information” means any information disclosed by either Party to the other Party under this Agreement which relates to the financial terms or other confidential aspects of the relationship between the Parties under this Agreement, and which is identified at the time of initial disclosure as confidential or should reasonably be considered confidential due to its nature and content. Confidential Information excludes information that: (i) through no unauthorized act or failure to act of the receiving Party, is or becomes generally known in the public domain; (ii) is or was made known to the receiving Party from a source other than the disclosing Party and that was not under any obligation of confidentiality towards the disclosing Party; or (iii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
(b) Confidentiality Obligation. The receiving Party will not use or disclose the Confidential Information of the other Party for any purpose except to the extent necessary to perform its obligations under this Agreement and to exercise its respective rights and licenses under this Agreement, provided, however, that each Party may disclose the terms and conditions of this Agreement (i) in confidence to its external auditors, attorneys and advisors; (ii) as required by law, with prior notice to the disclosing party and with confidential treatment or other or other confidentiality protection to the extent available; (iii) as required or advisable in connection with the requirements of a public offering, securities filing, securities exchange rules or other applicable securities laws or regulations; (iv) to the competent courts or arbitration bodies in connection with the enforcement or defense of its rights hereunder under confidentiality protection to the extent available; and (v) to the legal or financial representatives of a third party conducting a due diligence investigation in connection with a financing or the acquisition or disposition of a business or assets relating to this Agreement, provided that such disclosure is made pursuant to a confidentiality obligations at least as protective as this Agreement. Each Party will take the same measures to protect the Confidential Information of the other Party as it takes with respect to its own Confidential Information of like or similar importance, but in no event less than a reasonable degree of care given the sensitivity and strategic value of such Confidential Information.
(c) Mandatory Disclosures. Nothing in this Agreement will prevent the receiving Party from disclosing Confidential Information to the extent the receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the receiving Party will (i) assert the confidential nature of the Confidential Information to the agency; (ii) immediately notify the disclosing Party in writing of the agency’s order or request to disclose; and (iii) cooperate fully with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
11. Warranty Disclaimer and Limitation of Liability
(a) DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICE AND ANY MATERIALS PROVIDED BY YELP IN ACCORDANCE WITH THESE TERMS (INCLUDING ALL CONTENT, SOFTWARE, MATERIALS AND INFORMATION) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YELP DISCLAIMS ALL OTHER EXPRESS WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE OR ANY MATERIALS PROVIDED BY YELP (1) WILL MEET THE REQUIREMENTS OF THE OTHER PARTY, OR (2) WILL BE UNINTERRUPTED OR THAT ANY INTERRUPTION WILL BE CORRECTED IN A TIMELY MANNER. YELP FURTHER DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE AND ANY MATERIALS PROVIDED BY YELP INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE.
(b) LIABILITY LIMITATION. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL YELP BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS, EVEN IF CLIENT OR CLIENT’S AUTHORIZED REPRESENTATIVE, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. WITHOUT LIMITING THE FOREGOING, YELP WILL NOT BE LIABLE TO CLIENT FOR ANY CHANGES WHICH YELP MAY MAKE TO THE SERVICES, OR FOR (A) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICE (OR ANY FEATURES WITHIN THE SERVICES); (B) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH CLIENT’S USE OF THE SERVICES; (C) CLIENT’S FAILURE TO PROVIDE YELP WITH ACCURATE ACCOUNT OR OTHER INFORMATION; (D) ANY LIABILITY RESULTING FROM CLIENT’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; OR (E) CLIENT’S FAILURE TO ACCESS THE SERVICES DUE TO MALFUNCTION(S) IN EQUIPMENT, INFRASTRUCTURE, SYSTEM, OR THE NETWORK USED BY CLIENT. EXCEPT FOR AMOUNTS EXPRESSLY DUE AND OWING HEREUNDER, IN NO EVENT WILL YELP AND ITS AFFILIATES’ TOTAL LIABILITY TO CLIENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, INDEMNIFICATION OR OTHERWISE) EXCEED THE AMOUNT RECEIVED BY YELP FROM CLIENT DURING THE ONE YEAR PERIOD PRIOR TO THE EVENT GIVING RISE TO THIS CLAIM.
(c) Responsibility for End User Interactions. Client acknowledges that Yelp is not in any way responsible for any in-person interactions with an End User as a result of a Client’s use of the applicable Services provided by Yelp hereunder or for an End User’s consumer experience at Client. Client is solely responsible and liable for (i) any communications with End Users by Client personnel, whether through the applicable Service or otherwise; (ii) End User’s experience at Client; and (iii) compliance with any food and beverage related laws, including, but not limited to, applicable laws and regulations on the provision of alcohol to minors or inebriated parties. Client agrees to indemnify Yelp for any claims arising out of or in connection with the foregoing.
(d) Timing. Client will make any claim against Yelp in connection with this Agreement within 12 months of the respective cause of action arising, otherwise the claim will be deemed waived by Client.
(a) Governing Law and Arbitration.
(i) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof (“Claim“), shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator will issue a ruling in writing and will detail all findings of fact and law upon which the ruling was made. The arbitrator will not have the power to commit errors of law or legal reasoning, and the ruling may be vacated or corrected through judicial review by a court of competent jurisdiction under the California Arbitration Act.
(ii) Claims shall be heard by a single arbitrator. Arbitrations will be held in San Francisco, California, but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitration shall be governed by the laws of the State of California. The award of the arbitrators shall be accompanied by a reasoned opinion. The prevailing party shall be entitled to an award of reasonable attorney fees for any action under this Agreement.
(iii) NOTWITHSTANDING THE FOREGOING, FOR ANY CLAIM THAT IS NOT SUBJECT TO ARBITRATION, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA, WHICH IS THE PLACE OF PERFORMANCE OF THIS AGREEMENT.
(iv) CLIENT AND YELP AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH CLIENT AND YELP AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SUBSECTION (IV), AND THIS SUBSECTION (IV) IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
(b) Partial Invalidity. If any provision in this Agreement is found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement are being performed, then the meaning of that provision will be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it will be severed from the remainder of this Agreement, which will remain in full force and effect. In such event, the Parties will negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into this Agreement.
(c) Independent Contractors. The relationship of Yelp and Client is one of independent contractors, and nothing contained in this Agreement will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow Client to create or assume any obligation on behalf of Yelp for any purpose whatsoever. All financial obligations associated with Client’s business are the sole responsibility of Client.
(d) Modification and Waiver. Yelp may modify this Agreement from time to time. Yelp will provide notice of any material modifications to the Agreement via an email to Client at least 45 days in advance of the modification taking effect. Client’s continued use of the Services after the effective date of the modification constitutes acceptance of the modified terms. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, will operate as a waiver of any such right, power or remedy.
(e) Assignment. This Agreement may not be assigned by Client without the prior consent Yelp, which will not be unreasonably withheld or delayed, except that Client may assign this Agreement to a successor in connection with a merger, consolidation reorganization, reincorporation, or sale of all or substantially all of such Party’s business related to this Agreement, provided that such successor agrees in writing to assume and be bound by all the provisions of the Agreement. Any purported transfer, assignment, or delegation without such prior written consent will be null and void. Yelp may assign or transfer this Agreement for any reason. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
(f) Notices. All notices, demands or consents required or permitted under this Agreement will be (i) by email, provided an authorized representative of the other Party confirms receipt of the respective notice, demand or consent, or (ii) in writing and personally delivered or sent by telecopy, telegram or registered or certified mail, return receipt requested, or by a reputable overnight carrier to the address designated by the other Party and will be deemed to have been served when delivered, or if delivery is not accomplished by some fault of the addressee, when tendered. If to Yelp, such papers must be sent to Legal Department, Yelp Inc., 140 New Montgomery Street, San Francisco, CA 94105. The communications between Client and Yelp may employ electronic means, such as email or notifications provided by Yelp on Client’s Management Account. For contractual purposes, Client (i) consents to receive communications from Yelp in an electronic form, and (ii) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Yelp provides electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect Client’s statutory rights.
(g) Force Majeure. Except for Client’s obligations to pay Yelp hereunder, neither Party will be liable to the other Party for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, epidemics, earthquakes, strikes, civil disturbances, or similar causes.
(h) Entire Agreement. This Agreement and any additional guidelines linked to within this Agreement constitute the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement or understandings, whether oral or written with respect to the subject matter hereof.
END OF AGREEMENT