ANDIAGO SERVICE TERMS AND CONDITIONS (“TECHNOLOGY SERVICE TERMS”)
These Technology Service Terms are incorporated by reference to an order form signed by and between the Restaurant and Andiago as defined and detailed therein (the “Order Form”) and will be dated as of Andiago’s signature date on the Order Form (the “Effective Date”). The Order Form combined with these Technology Service Terms may be referred to herein as the “Agreement.” In the event of a conflict between these Technology Service Terms and the Order Form, the Order Form shall control.
Last updated 04/06/2021
ANDIAGO TECHNOLOGY SERVICE
Andiago, Inc. (“Andiago”) offers the Andiago Technology Service (“ATS” or “Services” or “Andiago Services”). It consists of four (4) components. Restaurant will have access to ATS with respect to the feature set as set forth on the Order Form. Restaurant’s use of ATS shall be subject to all online terms of service applicable to each product (the “Terms of Service”), which terms are incorporated herein by reference. Access is further defined on the Order Form.
(A) The Andiago App A B2C consumer-facing mobile application, available on iOS;
(B) Andiago for restaurant A restaurant management console, which controls, for example, dining room seating inventory, certain other front-of-house operations, customer-to-restaurant electronic communications, CRM, and various reporting modules among others;
(C) Andiago Web Widget A web-based booking widget;
(D) Andiago Verification
A user authentication layer, which provides the Restaurant with accesses to customer information stored in the Andiago’s global user database, including certain personal information, including photos, contact information, and dietary preferences.
SETUP, INSTALLATION, AND MAINTENANCE
Andiago Services require setup, installation and, in some cases, ongoing maintenance from both Andiago and the Restaurant. For the life of this Agreement the Restaurant will have access to Andiago’s technical and customer support teams. Additionally, Restaurant agrees to cooperate with Andiago to implement the ATS, including by completing Andiago’s onboarding questionnaire and providing Andiago with all other reasonably requested information about the Restaurant, such as address, contact, floorplans, and inventory information. Upon receipt of all necessary information from Restaurant, Andiago shall provide Restaurant with access credentials to access the Andiago Services within 10 business days.
Restaurant hereby grants to Andiago a nonexclusive, royalty-free, worldwide license, to use, copy, import, display, reproduce, perform, and distribute (i) any information, data, text, photographs, videos, audio clips, written posts, comments, software, scripts, or graphics provided by Restaurant to Andiago; (ii) Restaurant’s trademarks, trade names, business names, logos, descriptions, photographs or other identifiers; and (iii) any other content provided by Restaurant to Andiago, in connection with the provision, operation and promotion of the Andiago Services and Andiago’s Business (and the business of Andiago’s successors and business partners), including on Andiago’s customer or Restaurant lists or website (“Restaurant Content”). Restaurant shall be responsible for all acts and omissions by any Restaurant Personnel. Should Restaurant, in its sole discretion, find any use of the Restaurant Content by Andiago objectionable, Restaurant shall promptly notify Andiago of such objectionable use, and Andiago shall to the extent reasonably practicable use commercially reasonable efforts to promptly cease using the Restaurant Content in the manner found objectionable by Restaurant.
COMMUNICATIONS FROM ANDIAGO AND IT'S PARTNERS
LICENSE GRANT FOR ANDIAGO MARKS
Subject to these Technology Service Terms, Andiago grants Restaurant a limited, revocable, non-exclusive, non-sublicensable, non-transferable right and license to use Andiago’s trademarks, logos, and service marks (“Andiago Marks”) in the form provided by Andiago to Restaurant solely for the purposes of marketing and promoting the availability of Reservations on the Andiago Services. Should Andiago, in its sole discretion, find any use of the Andiago Marks by Restaurant objectionable, Andiago shall notify Restaurant of such objectionable use, and Restaurant shall immediately cease using the Andiago Marks in the manner found objectionable by Andiago.
FEES, PAYMENTS, AND DISBURSEMENTS
Each calendar month during the Term, Andiago shall invoice Restaurant for all fees due in connection with the services provided hereunder as set forth on the applicable Order Form. All payments shall be made in U.S. Dollars. Andiago at its sole election may require Restaurant to provide a credit card for automatic bill payment. In the event that any fees are not received and/or cannot be billed to the Restaurant’s credit card on file, any overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1.5% per month (18% per year). Restaurant will have a 7-day grace period per month to make payment, after which time Andiago reserves the right to suspend or terminate the Restaurant’s access to one, any or all parts of ATS.
When Restaurant is owed funds, provided Restaurant has supplied Andiago with all necessary payment and/or banking information as part of Restaurant setup Andiago will disburse those funds via ACH transfer as directed by the Restaurant within 72 hours of ticket, reservation, event date.
TERM & TERMINATION
This Agreement shall commence on the Effective Date and shall continue through the Initial Term stated on the Order Form. After the Initial Term, this Agreement shall automatically renew for additional successive Renewal Terms as specified on the Order Form unless either party notifies the other party of non-renewal as specified on the Order Form. The Initial Term and all subsequent Renewal Terms shall be the “Term”. Notwithstanding anything to the contrary, in the event of any termination the Restaurant will remain liable for (i) any amount due under the Order Form through the effective date of termination, (ii) any termination fees charged pursuant to the Order Form; and (iii) and any amount that may later become due as a result of a chargeback or similar transaction. Sections 6, 7, 8, 9, 10 and 11 shall survive any termination. The Agreement shall be in effect until either party exercises its right to terminate as outlined here:
(A) Restaurant’s Right to Terminate
Except as set forth in Section 5(B) below, Restaurant may only terminate the Agreement as set forth on the Order Form.
(B) Parties’ Mutual Right to Terminate
Either party may terminate immediately upon written notice to the other: (a) if the other party materially breaches any warranty, representation, covenant or obligation under this Agreement and fails to cure such breach within ten (10) calendar days following receipt of written notice thereof; (b) if the other party is subject to a dissolution, receivership, liquidation, insolvency, conservatorship, consolidation, cessation of business, voluntary or involuntary bankruptcy.
(C) Andiago’s Right to Terminate
(1) Andiago may terminate this Agreement in the event of non-payment of fees due upon ten (10) days’ notice.
(2) Andiago may immediately terminate this Agreement, by written notice to the Restaurant, during the Term, Restaurant, or any of its employees, is charged with or has committed a crime or engages in any actions involving moral turpitude or which may bring Andiago or any of its brands under ridicule, contempt, scandal, public disrepute, or which shock, insult, or offend the people of this nation or any class or group thereof or reflects unfavorably upon Andiago, or which in the judgment of Andiago is or may be detrimental to Andiago or its brands.
(D) Termination for Delayed Setup
Andiago may terminate this Agreement for Restaurant’s delayed setup as set forth on the Order Form.
Restaurant shall defend, indemnify, and hold harmless Andiago and its affiliates, employees, officers, directors, agents, partners, and content providers, representatives, successors and assigns (“Andiago Parties”) from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to: (i) Restaurant’s or Restaurant Personnel’s use or misuse of, or access to, any part of Andiago Services; (ii) the Restaurant Content (iii) any act or omission of Restaurant, any Restaurant Personnel, or any third party using Restaurant’s or Restaurant Personnel’s access credentials, account, or identity on Andiago’s Business; or (iv) any breach of the Agreement by Restaurant. Andiago shall defend, indemnify, and hold harmless Restaurant from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to (1) any breach by Andiago of the confidentiality obligations provided for in Section 7 below, or (2) infringement of any third-party intellectual property right by the Services, hosted environment and/or documentation, when used by Restaurant as permitted hereunder and without modification.
“Reservation” as used in these Technology Service Terms will refer to reservations made by customers to dine with Restaurant (the “Customers”) that are input, stored, and managed in Andiago for restaurant, which may or may not have any direct connection to the Andiago App or Andiago Website. Restaurant acknowledges that Restaurant is solely responsible, and that Andiago is not in any way responsible, for any of Restaurant’s or Restaurant Personnel’s interactions with Customers or other third parties as a result of or in connection with a Reservation, or for a Customer’s dining or other experience at a Restaurant, or for any and all claims, damages, illnesses, injuries, liabilities, or costs (“Claims”) Restaurant or a Customer may suffer that arise or result from (i) Restaurant’s interaction with any Customer; (ii) any of Restaurant’s products or services; (iii) any communications with Customers, or other individuals by Restaurant Personnel (as that term is defined below), whether through Andiago’s Business or otherwise; (iv) Customer’s dining or other experience at a Restaurant; or (v) compliance with any food and beverage related laws, including but not limited to all applicable laws relating to the provision of alcohol to minors or inebriated parties. Restaurant agrees to indemnify the Andiago Parties for any Claims arising out of or in connection with any of the foregoing.
CONFIDENTIALITY & INTELLECTUAL PROPERTY
Andiago fully understands and respects the Restaurant’s concerns with regard to confidentiality. In connection with this Agreement, the Restaurant may furnish Andiago with certain information relating to Restaurant’s business and affairs that is confidential or proprietary, including procedures and manners of operation, customized software, customer information, and other data identifiable as Restaurant’s, all of which will be held strictly confidential. Each party shall retain all right to, title of, ownership of, and interest in its hardware, software, respective trademarks, service marks, trade names, and all other intellectual property worldwide. Andiago grants the Restaurant a non-exclusive, non-transferable right and license to use Andiago’s Services for its internal purposes during the Term. The Restaurant agrees that the Restaurant will not: copy or distribute the Andiago Services or any software contained therein, or adapt or prepare any derivative work based on the Andiago Services or any software contained therein ; make any use of the Andiago Services other than as set forth in this Agreement; or permit any third party to do any of the foregoing.
REPRESENTATIONS AND WARRANTIES
(A) Mutual Representations and Warranties
Each party represents and warrants to the other party that: (i) it has the right to enter into the Agreement; and (ii) the Agreement is a valid and binding obligation of such party.
(B) Restaurant Warranties
Restaurant further represents and warrants that: (i) the party signing the Order Form is an authorized representative of the Restaurant with the authority to bind Restaurant to the Agreement; (ii) Restaurant has obtained and shall maintain throughout the Term all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws and industry best practices; (iii) Restaurant will remain fully responsible for all access to and use of the Andiago Services on Restaurant’s (and Restaurant Personnel’) access credentials and accounts, whether or not Restaurant has knowledge of or authorizes such access and use; (iv) neither Restaurant nor Restaurant Personnel will share or provide access to their respective access credentials to any third parties, and Restaurant will use best efforts to protect the secrecy of access credentials; (vi) Restaurant has all necessary right, authorization, and consents to grant to Andiago all rights and licenses granted herein, including for any Restaurant Content; (vii) Restaurant has provided and will continue to provide Andiago with accurate and complete account and other information, and will inform Andiago in writing of any changes or updates to such information during the term of the Agreement; (viii) the use of any Restaurant Content, as contemplated by these Technology Service Terms, will not infringe, misappropriate, or violate any intellectual property, proprietary, or other rights of any third party; and (ix) Restaurant, and all Restaurant Personnel will perform all of each of their obligations, and exercise all of each of their rights, in compliance with all applicable laws.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
THE ANDIAGO SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE ANDIAGO PARTIES DO NOT WARRANT THAT: (I) THE ANDIAGO SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE PROVIDED OR MADE AVAILABLE BY ANDIAGO IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THE RESULTS OF USING THE ANDIAGO SERVICES WILL MEET RESTAURANT’S REQUIREMENTS; OR (V) THE ANDIAGO SERVICES WILL BE UNINTERRUPTED OR THAT ANY INTERRUPTION WILL BE CORRECTED IN A TIMELY MANNER. RESTAURANT’S USE OF THE ANDIAGO SERVICES IS SOLELY AT RESTAURANT’S OWN RISK.
(B) LIABILITY LIMITATION
IN NO EVENT SHALL THE ANDIAGO PARTIES BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE ANDIAGO SERVICES FOR ANY CLAIM RELATED TO (I) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (III) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE ANDIAGO SERVICES OR ANDIAGO’S BUSINESS; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH RESTAURANT’S USE OF THE ANDIAGO SERVICES OR ANDIAGO’S BUSINESS; (V) RESTAURANT’S FAILURE TO PROVIDE ANDIAGO WITH ACCURATE ACCOUNT OR OTHER INFORMATION; (VI) ANY LIABILITY RESULTING FROM RESTAURANT’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; (VII) RESTAURANT’S FAILURE TO ACCESS THE ANDIAGO SERVICES OR ANDIAGO’S BUSINESS DUE TO MALFUNCTION(S) IN EQUIPMENT, INFRASTRUCTURE, SYSTEM, OR THE NETWORK USED BY RESTAURANT; OR (VIII) RESTAURANT’S PERFORMANCE OR NON-PERFORMANCE IN CONNECTION WITH THE ANDIAGO SERVICES, ANDIAGO’S BUSINESS OR ANY RESERVATION, USER, OR ANY CUSTOMER. IN NO EVENT SHALL ANDIAGO’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED $500.00.
GOVERNING LAW, ARBITRATION CLAUSE & CLASS ACTION WAIVER
(A) Governing Law
The Agreement, and the transactions contemplated hereby shall be governed by and construed under the law of the State of California.
Except that either party may seek equitable or similar relief from any court of competent jurisdiction, any dispute, controversy or claim arising out of or in relation to the Agreement, that cannot be settled amicably by the parties, shall be finally settled in accordance with the arbitration rules of JAMS then in force by one or more arbitrators appointed in accordance with said rules. The parties agree that any dispute arising from or relating to the subject matter of the Agreement shall be resolved in New York County, New York. The proceedings shall be in English. The award rendered shall be final and binding on both parties. Judgment on the award may be entered in any court of competent jurisdiction. The prevailing party shall be entitled to recover costs and attorneys’ fees.
(C) Class Action Waiver
Neither party shall participate in a class action or class-wide arbitration for any claims covered by this Agreement. Restaurant also agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Andiago is a party to the proceeding. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then solely the preceding language in this Section 10(c) will be null and void.
Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with the Agreement.
(E) Limitation for Bringing Claims
Restaurant agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Andiago Services or the Agreement must be filed within one (1) year after such claim of action arose or be forever banned.
This arbitration agreement will survive the termination of the Agreement.
(A) Relationship of the Parties. The parties shall be independent contractors under these the Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or Restaurants for any purpose, and neither party has the authority to bind the other in any respect.
(B) Entire Agreement and Severability. These Technology Service Terms, the Order Form, and any Terms and Conditions applicable to the Andiago Services are the entire Agreement between Restaurant and Andiago with respect to Restaurant’s use of the Andiago Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Restaurant and Andiago with respect to the Andiago Services. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
(C) Force Majeure. Andiago shall not be liable for any failure to perform Andiago’s obligations hereunder where such failure results from any cause beyond Andiago’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
(D) Assignment. The Agreement is personal to Restaurant, and is not assignable, transferable or sublicensable by Restaurant except with Andiago’s prior written consent. Andiago may assign, transfer or delegate any of Andiago’s rights and obligations hereunder without consent.
(E) Notices. Unless otherwise specified in these Term of Service, all notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to firstname.lastname@example.org.
(F) Modifications; Waiver. Andiago may modify these Technology Service Terms at any time in its sole discretion by posting the revised terms online. Changes will become effective ten (10) days after they are posted. Your continued use of the Andiago Services after any changes take effect will constitute your acceptance of all applicable changes. Except where otherwise explicitly set forth herein, no other change to or consent or waiver under these Technology Service Terms or an applicable Order Form will be effective unless in a mutually agreed upon instrument in writing signed by both parties (a “Andiago Amendment Form”). The failure of either party to enforce its rights under these Technology Service Terms or an applicable Order Form at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.
(G) Headings; Interpretation. The section and paragraph headings in these Technology Service Terms are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in these Technology Service Terms shall be read as being followed by “without limitation” where appropriate.
APPENDIX A — ORDER FORM
Credit Card Processing Fee
Andiago will deduct a credit card processing fee of 2.9% + $0.30 any transaction amount charged to the restaurant’s customer through Andiago.
Reservation & Service Fee
Andiago will retain a reservation and service fee that will be capped so that it does not exceed $1 dollar per person in the reservation. The fee on the first reservation that an Andiago member makes at the restaurant will be 2% of the transaction amount. This fee is reduced to 1% on the following reservations that the Andiago member makes at the restaurant. This fee is completely waived for reservations made through Andiago's booking module on your website or social channels.