Terms and Conditions of Use for Merchants (“Terms of Sale”)
Set forth below are the terms and conditions governing the use of table booking system (“System”) to provide table booking services and/or offers to private users via Openrice.com, other media platforms or websites and applications including mobile applications (hereinafter collectively referred as the “Channels”) powered by Openrice Group Inc. and/or its subsidiary(ies) (hereinafter collectively referred to as the “Company”, if the context requires or permits, “Company” may refer to any one of Openrice Group Inc. and/or its subsidiary(ies)). The Company’s provision of the System and/or the Channels for users to provide table booking services and/or offers shall hereinafter be referred to as “Merchant Services”. Any user using the System and/or any Merchant Services shall be hereinafter referred as the “Merchant”.
By using the Merchant Services, the Merchant acknowledge and agree that it will be bound by
- the Terms of Sale, the Terms and Conditions; and
- the terms and conditions of any service agreement, service order form or any agreement (hereinafter collectively referred as the “Agreement”) entered into between the Company and the Merchant, and in the event of any conflict, the terms and conditions of the Agreement shall prevail.
The Merchant’s right to use the Merchant Services is non-exclusive, revocable and non-transferable and shall be effective from the date as stipulated in the Agreement which will be terminated on the expiry date of the Agreement or upon termination in accordance with the terms of the Agreement, whichever is earlier.
Provision of the Standard Solution
- The Merchant Services provided by the Company shall be used only by the participating restaurant(s) (“Participating Restaurant(s)”) as stipulated in the Agreement.
- The Merchant undertakes that it shall comply, and shall procure each Participating Restaurant(s) (including its employees, agents and contractors and Authorized User(s) as defined in the Agreement (collectively “Related Parties”)) to comply with this Terms of Sale. The Merchant shall be fully responsible for any breach of any term of the Terms of Sale by the Participating Restaurant(s) or the Related Parties.
- The Parties agree that the Company shall have the exclusive right to substitute, remove, modify or enhance part or all of the components of the System at any time at its absolute discretion without any notice to the Merchant and the Merchant shall have no right to object to such substitutions, removals, and/or enhanced version of the System provided that the Company shall give to the Merchant reasonable notice of such changes that may affect the normal use of the System and provided that such substitutions, removals, modifications, enhancements or upgrades will not deprive the Merchant of the standard features and functionalities of the System as at the commencement date of the use of the System.
The Company will use its best effort to ensure that sufficient capacity is maintained on its computer facilities to enable:
- the Participating Restaurant(s) to use and access the System; and
- users of the Channels to access the Channels.
The Company may at its own absolute discretion during any period of time:
- carry out scheduled maintenance and non-scheduled maintenance of the System and the Channels; and
- provide and carry out daily backup of the data collected and maintained by the Company for the Merchant (“Database”).
- The Merchant shall be solely responsible for the provision of its Participating Restaurant(s)’ own internal facilities (including terminal, mobile device, software, modem and telecommunications facilities) necessary for utilizing the Merchant Services (“Access Facilities”).
- Company accepts no responsibility for any deficiency in or the maintenance of the Merchant’s Access Facilities.
- The Merchant shall promptly notify Company of any malfunction, error or defect in the System and provide Company with a list of output and any other data that Company may request in order to reproduce conditions similar to those present when such error, defect or malfunction occurred.
- The Merchant shall maintain procedures to facilitate the reconstruction of any lost or altered files, data or computer software, and the Merchant agrees that Company will not be liable under any circumstances for any consequences arising from lost or corrupted data, files or programs that are not due to acts or omissions of Company or employees, agents and subcontractors of Company.
- The Merchant shall ensure that only the Authorized User(s) (as defined in the Agreement) who have been properly trained may log into the System and use the System in accordance with the service guidelines as may be provided by Company from time to time during the term of the Agreement.
- The Merchant shall ensure that the information/ content uploaded to the System is true, legal, accurate and not misleading.
- The Merchant shall not upload or submit any unlawful or inappropriate content to the System.
- The Merchant agrees that Company shall have the right to pre-screen, refuse or remove from the System and/ or the Channels any content that violates any term of the Terms of Sale or any applicable laws or regulations.
- The Merchant shall ensure that seat inventory(ies) of the Participating Restaurant(s) provided through the System is valid and up-to-date.
- The Merchant shall maintain and shall procure its employees, agents and contractors to maintain the confidentiality of the login information required to access the System.
- The Merchant shall promptly notify Company of any changes in information about the Participating Restaurant(s) and any change in the particulars of the Corp Admin (as defined in the Agreement) in accordance with the terms of the Agreement.
- The Merchant shall honestly and accurately report the actual attendance of fulfilled reservations which were made via the System in a timely manner. In the event of any dishonest act of the Merchant, e.g. manipulation of the attendance record and number of seated customers in the Participating Restaurant(s), the Company shall be entitled to suspend the Merchant Services immediately and/ or terminate the Agreement without prejudice to any other rights and remedies available to the Company. The Merchant shall not be entitled to refund of any fees already paid pursuant to the terms of the Agreement and shall forthwith settle any unpaid charges in the event of termination of the Agreement as a result of breach of this provision.
- The Company will provide personal data of individual private users of Company’s table booking Services (“Personal Data”) to the Merchant via the System for the purposes of enabling the Participating Restaurant(s) to make reservation for the respective private users and to conduct operation and business analysis aiming to provide better services to such private users.
- The Merchant shall properly protect the Personal Data collected through the System in accordance with the applicable laws. The Merchant shall make sure the Personal Data are only accessible by staff members of the Participating Restaurant(s) on a need-to-know and confidential basis for the aforesaid purposes and not for any other purposes.
- Unless express consent is obtained from respective data subjects of the Personal Data, the Merchant must not and shall procure the Related Parties and any of its affiliated parties not to use any of the Personal Data for purposes other than those stated in Clause 3.11 above, including but not limited to for any direct marketing purposes.
- The Merchant shall ensure maintenance of all the licenses and permits which are required in connection with the business operation of the Participating Restaurant(s) to comply with all the applicable laws.
- The Merchant agrees that Company may disclose or publish the name, address(es) and telephone number(s) of the Merchant and/or the Participating Restaurant(s), and any other relevant information for promoting the Merchant Services.
- The Merchant agrees to use its best effort to display the promotional materials, such as tent card, leaflet, sticker etc., regarding the table booking services provided by Company at the Participating Restaurant(s).
- The Merchant shall not resell or assign or attempt to resell or assign the Merchant Services to any parties without the prior written consent of Company.
- The Sub-Clauses 3.12 and 3.13 hereof shall survive the termination of the Agreement.
Deposit required for Table Booking
- This provision only applies to the Merchant which requires any booking person to guarantee the table booking by deposit:-
- Merchant shall specify the amount of deposit (“Deposit”) per dining person which is required to guarantee any table booking via the System.
- A booking person will be required to provide credit card (“Credit Card”) information including credit card holder’s name, credit card no. and expiry date to guarantee the booking.
- Deposit will only be charged to the Credit Card in the event of any no-show (number of attendees less than the number of dining persons being reserved for will not be counted as no-show) or any change or cancellation of the reservation after the deadline as pre-set by the Merchant via the System (which is deemed to be “no-show”).
- Merchant must report the no-show via the System (“Notification”) within 2 days after the reserved dining date, then the System will automatically send an email (“Email”) to the booking person advising him/her of the Deposit to be charged to the Credit Card. Otherwise, the reservation is deemed to be honored and no Deposit will be charged.
- In case of any no-show, Company will charge the Deposit to the Credit Card within 7 working days upon receipt of the Notification if there is no appeal lodged by the booking person.
- A booking person can appeal (“Appeal”), if any, to Company by email with written evidence to justify the Appeal within 5 working days from the transmission date of the Email. Company will then discuss with the Merchant within 3 working days upon receipt of the Appeal to confirm if the Deposit should be charged and the confirmed actions will be taken accordingly.
- After deducting the Deposit Handling Fee (as defined and stipulated in the Agreement) from the collected Deposit as handling fee, the Company will pay the balance of the collected Deposit to the Merchant by check or by any other method as agreed between the Company and the Merchant before the end of the following month.
- The Company shall not be liable for any cost, loss, claim or damage incurred by any parties directly or indirectly arising out of collection or unsuccessful collection of any Deposit from any booking person.
- “Force Majeure Event” means act of God, war, act of foreign enemies, terrorists attack, riot, civil commotion, strike, lockout, other labour disturbance (including those involving Company) or any other circumstances beyond the reasonable control of the Company.
- The Company shall in no event be liable for any delay or failure to provide any Merchant Services pursuant to any terms due to Force Majeure Event.
- If a delay or failure of Company to perform its obligations is caused or anticipated due to Force Majeure Event, the performance of Company’s obligations will be suspended.
Intellectual Property Rights
The intellectual property rights in the System and the Channels (“Company IP Rights”) including but not limited to:
- any material (including but not limited to Company’s software, documentation, templates, data, design, element graphics, formatting or CGIs) which is incorporated into or which has been used in the course of developing or operating the System and the Channels; and
- the user interface of the Channels and System, shall vest in the Company and/or its holding company.
- Subject to Clause 6.1 above, the intellectual property rights in any data, logo, design, graphic and/or any other related materials (“Information”) owned and provided by the Merchant and incorporated into the Channels and System shall vest in the Merchant.
- The Merchant undertakes that it shall not directly or indirectly infringe nor permit its related parties to infringe the Company IP Rights under any circumstances, in breach of which the Merchant shall indemnify the Company in respect of all actions, costs, claims, demands, expenses, liabilities and losses of whatsoever nature resulting therefrom.
- Without prejudice to other provisions under this clause, the Merchant further warrants and undertakes that the Information supplied to the Company hereunder for use in the System and/or Channels does not and shall not infringe any intellectual property rights and any other right of third party (including but not limited to any registered or unregistered trademark, patent, copyright or design). In the event of default of the foregoing, the Merchant shall indemnify Company in respect of all actions, costs, claims, demands, expenses, liabilities and losses of whatsoever nature incurred or suffered by Company as a result thereof.
- This clause shall survive the termination of the Agreement.
- A party shall keep confidential and not make use of any information and data of a confidential nature of the other party or treated as confidential by the other party, including without limitation information related to the subject matter of the Agreement and the System, developmental, technical, product, sales, marketing, promotional, operating, performance, cost, policy, financial, business, process and other proprietary information, trade secrets, know-how, customers, customer information, and the terms of the Agreement (“Confidential Information”) and shall procure its officers, employees, agents and sub-contractors to keep such information confidential, save for the purposes of and only to the extent necessary for the due performance of the Party’s obligations under the Agreement.
- A party shall not be in breach of Clause 7.1 above in circumstances where it is compelled by applicable laws, regulations or orders given by any government authority or regulatory body of competent jurisdiction to disclose the other party’s Confidential Information.
- Notwithstanding any other provision of this clause, the Company may disclose any Confidential Information to its related companies, solicitors, auditors, insurers or accountants under duty of confidentiality.
- This clause shall survive the termination of the Agreement.
Liability of Company
- Nothing in this Terms of Sale shall operate to exclude or restrict any party’s liability for death or personal injury resulting from negligence or fraud.
- Subject to Clause 8.1 above and to the fullest extent permitted by law, the Company shall not be liable to the Merchant in respect of any loss, damage or claim (including indirect, special, economic or consequential loss or damage or loss of revenue, profit, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings) which may be suffered or incurred or which may arise directly or indirectly in respect of Company’s performance of the Agreement or any activity contemplated by the Agreement whether for breach of contract, tort (including without limitation negligence) or under any statutes or otherwise and whether or not Company was made aware of the possibility of such loss or damage or should have been aware of that possibility.
- Notwithstanding anything to the contrary in the Agreement, to the fullest extent permitted by law, the aggregate liability of Company under or in relation to provision of the Merchant Services, the Agreement, the performance of the Agreement or any activity contemplated by the Agreement, whether for breach of contract, tort or any statute or otherwise in any calendar year shall in no event exceed the total fees paid by the Merchant to Company in that calendar year.
- The Merchant confirms that it has not relied on any representation made by Company which has not been stated expressly in the Agreement or upon any descriptions, illustrations or specifications contained in any document, including without limitation catalogues or publicity matter produced by Company.
- To the fullest extent permitted by law, Company shall not be liable for any loss, claim or damage directly or indirectly arising out of any visit or non-visit to the Participating Restaurant(s) by the individual private users of the System or the Channels, or for any disputes between the Participating Restaurant(s) and the individual private users of the System or the Channels or any other parties arising out of or in the connection with the use of any Merchant Services and/ or the sale of any goods provided by the Merchant and/or the Participating Restaurant(s).
- Merchant shall at all times indemnify and hold harmless Company and its officers, employees, agents and contractors from and against any loss (including legal costs and expenses), claim or liability incurred or suffered as a result of:
- a breach by the Merchant of its obligations under the Agreement;
- any willful, unlawful or negligent act or omission of the Merchant; or
- any breach or inaccuracy in any of the Merchant’s representations, undertakings or warranties under the Agreement; or
- any action or claim brought by (i) any user in connection with his/her use of any offer provided by the Merchant via the Channels and/or his/her visit to the Participating Restaurant(s); or (ii) any third party which relates to all or any part of the Information, including but not limited to leakage of information from the Database or any infringement of intellectual property rights, defamation or misappropriation of trade secrets caused by any act of the Merchant or any of the Related Parties.
- The Company does not warrant that the Merchant Services, the System and the Channels will be uninterrupted or error-free and does not make any warranty as to the results to be obtained from use of the Merchant Services, the System, the Channels or the content thereof, either express or implied, including without limitation implied warranties of fitness for a particular purpose, with respect to the Merchant Services.
- To the fullest extent permitted by law, the Merchant hereby agrees to assume the entire risk as to the quality and performance of the Merchant Services and that Company shall not be liable if the System and/ or the Channels are or is unavailable to the Merchant, the Participating Restaurant(s) or individual private users of the System or the Channels for whatsoever reason.
Without prejudice to any other rights which Company shall/ may have under the Agreement or at law, Company may terminate the terms of the Agreement
- for any reason, by giving 2 months’ advance notice in writing to the Merchant; or
- immediately by notice in writing to the Merchant if the Merchant is in breach of any term of the Agreement and that such breach is not remedied within fourteen (14) days of it being notified by Company.
- In the event any provision of the Agreement is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions of the Terms of Sale shall not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there shall be added as part of the Agreement one or more provisions as similar in terms as may be legal, valid and enforceable under the applicable law.
Rights of Third Parties
- No person other than a party to the Agreement shall have any right to enforce or enjoy the benefits of any of the terms of the Agreement.