Master Service Agreement

TERMS AND CONDITIONS These Terms and Conditions (the “Terms”) are incorporated by reference in the Yelp Nowait Master Services Agreement entered into between Yelp Inc., the provider of the Yelp Nowait Services (“Yelp Nowait”) and the Client indicated in the Yelp Nowait Master Services Agreement and the Order Form. Terms not defined in these Terms shall take the meaning as defined in the Yelp Nowait Master Services Agreement.

  1. Yelp Nowait Obligations.
    1. Services. Subject to these Terms, which are incorporated into the Agreement, Yelp Nowait will use commercially reasonable efforts to host and provide Client with the services (the “Services”) set forth on an applicable order form entered into between the parties (an “Order Form”). The Services shall be rolled out to the applicable Client location(s) as set forth in the applicable Order Form.
    2. Client Account. Subject to Section 2(a), Yelp Nowait shall provide Client with an account through its Client portal (“Client Portal Account”), through which Client can access its account settings and view certain data and analytics that may be provided by Yelp Nowait regarding Client’s use of the Services. Client’s access and use of the Client Portal Account is conditioned on compliance with the Terms of Use http://nowait.com/restaurants/terms/.
    3. Hardware. To the extent Yelp Nowait is leasing, selling, or otherwise provisioning any hardware (such as iPads) to Client in connection with the Services, such hardware shall be identified in the applicable Order Form and is subject to the applicable requirements in these Terms.
    4. Training. Yelp Nowait shall provide training & implementation for the Services in the manner and dates described in the applicable Order Form.
    5. Support. Yelp Nowait shall provide customer support for the Services in the manner and dates described in the applicable Order Form.
    6. Analytics. Yelp Nowait provides each Client with access to data and reports related to the Services described in the applicable Order Form. Yelp Nowait may, from time to time, provide Client with statistical information relating to visitors to the use of the Service. Client may not disclose or display this information to any third party.
  2. Client Obligations.
    1. Client Information. Client shall be responsible for providing Yelp Nowait with certain information and content for use in connection with the Services and setting up the Client Portal 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 shall provide Yelp Nowait with all applicable trademarks, logos and such other images and branding materials (“Client Logos”) necessary for branding the Services in accordance with Client’s instructions. Client is responsible and shall indemnify Yelp Nowait for any liability resulting from or arising out of Client Data or Client Logos. Yelp Nowait shall not be responsible or liable for any failure to perform Services 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 Services is complete and accurate, and (ii) Client shall keep its Client Portal Account up-to-date with current information.
    2. Fees and Payment. Client agrees to pay Yelp Nowait all fees in the amounts, at the times and subject to any other conditions set forth in the applicable Order Form. The terms of the Order Form shall govern payment of fees and valid payment methods. Yelp Nowait reserves the right to change its Fees at its sole discretion, with such changes being effective upon 15 days after sending email notification of such price change to Client’s account email address indicated in the Order Form. If Client does not agree to increases in the Fees, Client may terminate the Agreement by providing notice of Client’s termination to Yelp Nowait by email to support@nowait.com prior to the date those new Pricing Terms go into effect. Upon termination of this Agreement for any reason, Client shall pay to Yelp Nowait all fees due for Services rendered up to and including the effective date of termination. 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 Nowait 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 Nowait for all reasonable costs (including attorneys’ fees) incurred in collecting payments. 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 the performance of these Terms.
      IF CLIENT PROVIDES NOWAIT WITH CREDIT CARD, DEBIT CARD, OR BANK ACCOUNT INFORMATION, CLIENT AUTHORIZES YELP NOWAIT 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 CARD USED TO PURCHASE AD PROGRAMS. THE FORM OF PAYMENT CANNOT BE CHANGED OR ALTERED UNLESS ALL AMOUNTS DUE UNDER THE TERMS HAVE BEEN PAID IN FULL OR OTHERWISE AGREED TO BY THE PARTIES IN WRITING. YELP NOWAIT WILL UPDATE CLIENT’S PAYMENT CARD INFORMATION IF YELP NOWAIT IS NOTIFIED BY CLIENT’S BANK OR CREDIT CARD PROVIDER THAT THE PAYMENT CARD INFORMATION HAS CHANGED OR HAS BEEN UPDATED.
    3. Privacy Policy. In connection with its use of End User Data (as defined below), Client shall abide by the terms of Yelp Nowait’s privacy policy located at http://nowaitapp.com/privacy or another location if Client is informed by Client.
    4. Promotion and Branding. The parties shall work together to promote, market and publicize the Services. Any public display of or reference to the Services will at all times include attribution to Yelp Nowait and its site and platform, with adherence to the current Yelp Nowait branding guidelines described at https://nowaitapp.com/about/brand-assets which are subject to change with 30 days written notice.
    5. Compliance. Client shall comply with all applicable laws, rules and 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).
  3. Licenses and Intellectual Property.
    1. License to Yelp Nowait. Client hereby grants to Yelp Nowait during the Term a non-exclusive, royalty-free right and license to use the Client Data and Client Logos solely in connection with provision of the Services, and any marketing, promotional, or publicity efforts or campaigns.
    2. Licenses to Client. Yelp Nowait hereby grants to Client during the Term a limited, non-exclusive, royalty-free, non- transferable, non-sublicensable right and license to (i) access and use the Services and Client Portal in accordance with this Agreement; and (ii) use and display Yelp Nowait’s trademarks, logos and such other images and branding materials provided by Yelp Nowait in connection with promoting, marketing and publicizing the Services (all such activities shall be done in accordance with this Agreement and follow Yelp Nowait’s Brand Assets guide http://nowaitapp.com/about/brand-assets).
    3. Intellectual Property. Yelp Nowait owns and retains all right, title, and interest in the Services and the End User Data, including all intellectual property rights relating thereto (but excluding the Client Data and Client Logos).
  4. Yelp Nowait iPad Program:
    The below terms in this subsection are applicable to Clients who are provided an iPad; each of the terms herein apply to both the iPad and iPad Pro except where specifically noted), by Yelp Nowait as part of the Service. In addition to accepting these Terms as part of Client’s enrollment into the Yelp Nowait Service, by using the iPad, Client confirms Client’s agreement with the terms and conditions related to the iPad program set forth below:

    1. iPad Costs and Timing. If Client is eligible to receive an iPad from Yelp Nowait, the iPad device is provided to Client at no additional cost in order to access the Services. Client can expect to receive its iPad within 5 to 7 business days after Client has accepted these Terms. Client will receive an iPad 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 shall keep iPads free of all security interests, liens and other encumbrances. Client agree to use the iPad devices only in accordance with instructions prescribed by Yelp Nowait and shall maintain the iPad devices at its expense during the term of these Terms.
    2. Duration. You can keep the iPad as long as Client is a Yelp Nowait customer under an active subscription under these Terms for the Services, until Yelp Nowait wants to replace it with another iPad or Yelp Nowait terminates Client’s use of the iPad.
    3. Returning the iPad prior to the Scheduled Term End Date. Client can simply return the iPad back to Yelp Nowait in the same condition Yelp Nowait provided it to Client, less reasonable wear from usage. If there is excessive wear from usage as determined by Apple or the iPad distributor, Yelp Nowait will pass through to Client any charges imposed by Apple or the iPad distributor, and Client agrees to pay Yelp Nowait these additional charges due to poor maintenance of the device, either through the submitted credit card or invoice. Client must ensure that the iPad will be signed out of iCloud and/or any other services prior to returning to Yelp Nowait. If Yelp Nowait is unable to restore the iPad device to factory defaults, Yelp Nowait will charge $500 for such iPad (or $800 for iPad Pro) due to its inability to reuse the device.
    4. Multiple iPads. The first iPad is included in regular Yelp Nowait Fee, if Client qualifies. For Clients who want to have more than one iPad, Yelp Nowait will charge an additional “per seat” fee for each additional iPad requested by Client to enable access to the Services and Yelp Nowait technical support. If Client cancels Client’s Yelp Nowait subscription, Client agrees to return the iPad(s) back to Yelp Nowait, or buy them from Yelp Nowait, as further explained below.
    5. Return of iPad after Termination. Upon termination of these Terms, Yelp Nowait will send Client a pre-paid and pre-addressed shipping label. You must ship the iPad to Yelp Nowait to the pre-addressed location within 14 days after the termination of its Yelp Nowait these Terms. The date of shipment is the date that Client hand over the boxed and pre-addressed iPad to the shipper/carrier designated on the pre-addressed shipping label, as indicated in the carrier’s shipping document. Client must ensure that the iPad will be signed out of iCloud and/or any other services prior to returning to Yelp Nowait. If Yelp Nowait is unable to restore the iPad device to factory defaults, Yelp Nowait will charge $500 for such iPad (or $800 for iPad Pro) due to its inability to reuse the device. PLEASE NOTE: IF YOU DO NOT SHIP THE IPAD TO NOWAIT BY THE END OF THE 14TH DAY AFTER THE TERMINATION OF THESE TERMS, YOU HEREBY AUTHORIZES NOWAIT TO CHARGE $500.00, OR (IF APPLICABLE) $800 FOR THE IPAD PRO, AGAINST THE CREDIT CARD SUBMITTED TO YOU AND ON FILE WITH YELP NOWAIT(PLUS ANY REQUIRED SALES TAX, IF APPLICABLE), AND YOU RETAIN POSSESSION AND OWNERSHIP OF THE IPAD ONCE THE CHARGE HAS FINALLY BEEN FINALIZED BY CLIENT’S CREDIT CARD COMPANY.
    6. Keeping the iPad. Unless otherwise prohibited by Yelp Nowait, Client will be allowed to keep the iPad if and when Yelp Nowait is able to collect $500.00 for the iPad, or (if applicable) $800 for the iPad Pro (plus any requisite sales tax), as authorized by Client from its credit card for each iPad Client wants to keep. But please note, Yelp Nowait still retains the right to wipe all of the software on the iPad and reset the iPad to its factory settings. Any content Client have on the iPad will be lost, so please remember to back up its content to another storage service or device before Yelp Nowait restores the iPad to its factory settings.
    7. Damage to the iPad. If the iPad becomes damaged, such as a cracked screen or any Yelp Nowait 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 Nowait $500.00 for the iPad or, if applicable, $800.00 for the iPad Pro, plus any requisite sales tax). If requested by Client and approved by Yelp Nowait, Client’s Account Manager can arrange to have another iPad (or iPad Pro, if applicable) preloaded with all of the same Yelp Nowait 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 iPad sent back to our warehouse. If it turns out the damage or malfunction is covered under a warranty, then Yelp Nowait will refund the amount paid to Yelp Nowait by Client under this section 14(g).
    8. Stolen or misplaced iPads. If the iPad is stolen or lost, then Client is financially responsible for replacing the iPad for $500.00 (or, if applicable, $800.00 for the iPad Pro), plus any applicable sales taxes. For a replacement iPad, Yelp Nowait will arrange with Client to send Client a preloaded replacement iPad. Yelp Nowait will aim to deliver the iPad to Client within 2 to 4 business days, and upon termination of the subscription that relates to that iPad, Client must either return the iPad to Yelp Nowait or purchase it as set forth above.
    9. Pre-loaded software on the iPad. In addition to the Yelp Nowait app used to perform the Yelp Nowait Services, Yelp Nowait uses a special third party mobile device management program (“MDM software”) on the iPad for business purposes as described in greater details below, including but not limited to keeping the software up to date so Client don’t have to worry about that, helping keep it secure from prying eyes, and providing Yelp Nowait information on how to improve the Yelp Nowait software. It does this by controlling the device and security settings, managing the applications on the iPad, as well as the ability to access, process, use and store any content, activity and other data on the iPad, as further described below. Because the MDM software will enable Yelp Nowait to have access to certain information originating from Client’s Client’s use of the iPad, as explained below in greater detail, Yelp Nowait wants to make sure Client understands what the MDM software will process, collect and store, and how Yelp Nowait will use it. Yelp Nowait has licensed the MDM software from a third party, and they will also have access and use rights to the content originating from the iPad. Client agrees to make sure that everyone using the iPad is aware of the MDM software and that they explicitly agree to its operation, use, transfer and storing of information and activity on the iPad as a condition of its use by the End Users.
    10. 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 iPads. Anti-virus software may also be installed, as well as other content and activity monitoring tools, as necessary, to meet Yelp Nowait’s business, legal, and security requirements, as further set forth herein.
    11. Notice to End Users. Client will notify all End 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 Nowait and be made available to a third party for processing and storing as part of Yelp Nowait’s use of the MDM software to provide the Yelp Nowait Services.
    12. Usage and Personal Data. Client agree that Yelp Nowait 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 these Terms, 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 Nowait’s affiliates from time to time solely for the purpose of providing the applicable Yelp Nowait Services for the benefit of Client.
    13. Data Transfer. Client agrees that Client’s Content, Relationship Data, and Usage and Personal Data collected or received by Yelp Nowait in connection with the download, installation, configuration, maintenance, support and use of the MDM software or Yelp Nowait Service may be transferred, stored and processed by Yelp Nowait and its service providers in the United States or any other country in which Yelp Nowait or its affiliates or service providers maintain facilities.
    14. Non-removal of Yelp Nowait Pre-installed Software. Client and its End Users are prohibited from removing or disabling any pre-installed software, including the MDM software, unless and until Client has paid Yelp Nowait the requisite fee to own the iPad under section 4(f) above. If Client or its End Users removes any pre-installed software, Client agrees that such removal would constitute damage to the iPad under Section 4(g).
    15. Protect Us for its Failure to Obtain Consent from its End Users. Client agrees to defend, indemnify, and hold harmless Yelp Nowait 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 End Users. It is really important that the End Users understand that their use of the iPad will be monitored, as explained and set forth in this Section.
    16. No liability for Client’s Content on the iPad and No Warranties. Due to the potentially unstable nature of portable devices, Yelp Nowait cannot be liable for the loss of any content that Client or the End Users place on the iPad. Client is responsible for removing all content from the iPad, such as photos, music, contacts, web histories, apps, etc…) as of the date of termination. THE IPADS ARE PROVIDED “AS IS”. Yelp Nowait MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE IPAD DEVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
    17. Remotely Wiping and Locking the iPad. Yelp Nowait may remotely wipe (erase) all of the content and applications on or after the date of termination of these Terms while it is still in Client’s possession. Client agree that Client will not hold Yelp Nowait responsible for any liability arising from any of the content stored by End Users on the iPad which is erased by Yelp Nowait, whether during the term or after the term. Yelp Nowait also may “lock” the iPad (i.e. render it inoperable) at any time for a violation of these Terms, or at the end of the iPad’s applicable subscription term.
    18. Definitions for this Section: “Relationship Data” means personal information that the MDM software collects during the activation and maintenance of its account. It may include names and contact details of its personnel involved in using the MDM software and/or the Service. It does not include information collected through the publicly accessible portions of Yelp Nowait’s webpages, which is subject to the privacy policy posted on those webpages. “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 End 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 Nowait via the MDM, including personal information that the MDM collects during the activation and maintenance of Client’s account. Client’s Personal Data does not include Relationship Data or Usage and Personal Data. “User” means Client or any person that uses the iPad, or foreseeably would use the iPad. “Usage and Personal Data” means (a) aggregated technical data about Client’s and End Users’ use of the MDM and User’s iPads, including but not limited to the MDM software and/or Yelp Nowait account identification number; iPad make and model; iPad operating systems; operating system versions; the total number iPads running; the number of active iPads; dates and times of MDM software console logins; iPad ownership type; application names, identifiers, versions, whether the application is public or managed; database actions taken; external calls, HTTP requests and browser load pages made by the MDM software/Service; errors made by the applications running in the MDM software/Service; and the amount of memory and CPU usage across the MDM software/Service, and (b) any personal information that Yelp Nowait or its service provider collects during the activation and maintenance of Client’s account; and may include names and contact details of Client personnel involved in maintaining or using the MDM software. It does not include information collected through the publicly accessible portions of our webpages, which is subject to the privacy policy posted on those webpages.
  5. Term; Termination.
    1. Term. The Agreement shall commence on the Effective Date and shall continue for the Initial Term specified on the Order Form, unless terminated earlier in accordance with this Section. After the Initial Term, the Agreement shall automatically renew on a month to month basis until Client informs Yelp Nowait with no less than 30 days days of its intent not to renew the Agreement or the Agreement is otherwise terminated by the Parties, as set forth below.
    2. Termination for Convenience. Yelp may terminate this Agreement at any time, for any or no reason, by providing notice to the other Party. Termination by Client. Client may terminate this Agreement on any day of the month by providing thirty (30) days written notice, including email, to Client’s account management contact for Yelp. If Client pays monthly, then Yelp will prorate the invoice amount to reflect the partial termination month.
    3. Termination for Cause. The Agreement may be terminated if the Client or Yelp Nowait materially breaches a provision of this Agreement and fails to cure such breach within 45 days after receiving written notice of such breach from the non-breaching party.
    4. Effects of Termination. Termination of this Agreement shall not be an exclusive remedy for breach and, whether or not termination is effected, all other remedies at law and in equity will remain available to the non-breaching party. Upon any expiration or termination of this Agreement, all obligations of the parties shall cease, except that (i) all payment obligations that accrued prior to the effective date of termination 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. (ii) Client shall send back any hardware that has not been purchased by Client upon termination in accordance with the requirements specified in the Product Hardware Lease Agreement attached hereto as Schedule 2, and (iii) Client shall send back any hardware that has not been purchased by Client upon termination.
    5. 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. 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.
    6. Survival. Sections 2(b), 3(c), 4, 5(d – f), 6, 7, 8 and 9 shall survive termination of this Agreement.
  6. Confidentiality.
    1. Obligations. In the event Yelp Nowait discloses information (in any form) to Client that Client should reasonably understand to be confidential, such as pricing, this Agreement, and customer lists (“Confidential Information”), then Client will (i) hold Confidential Information in strict confidence (using no less than a reasonable degree of care) and (ii) only use Confidential Information internally for the purposes for which it is disclosed.
    2. Exclusions. The obligations in this Section shall not apply to any information that (i) is made generally available to the public without breach of this Agreement, (ii) is independently developed by Client, (iii) is disclosed without restriction to Client by a third party not subject to any confidentiality obligation with respect to such information, or (iv) was in Client’s lawful possession prior to the disclosure. Client may disclose Confidential Information as required by law or court order; provided that, Client provides Yelp Nowait with prompt written notice thereof and uses its best efforts to limit disclosure.
  7. Representations and Warranties.
    1. Both Parties. Each party represents and warrants that (i) it has the right to enter into this Agreement and perform its obligations hereunder and (ii) it has the right and authority to provide the rights and licenses as set forth herein.
    2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS,” AND NOWAIT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT; AND ALL WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING AND COURSE OF PERFORMANCE. NOWAIT DOES NOT WARRANT THAT (i) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE OR UNINTERRUPTED OR ERROR FREE OR (ii) ANY DEFECTS OR ERRORS WILL BE CORRECTED.
  8. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER NOWAIT NOR ITS LICENSORS OR PARTNERS OR AGENTS SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (A) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, COMPENSATORY OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (B) AMOUNTS IN THE AGGREGATE THAT EXCEED ANY PAYMENTS BY COMPANY TO NOWAIT HEREUNDER DURING THE 3 MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES.
  9. Service Level. From time to time, the Service may not be available for any reason including, but not limited to, routine maintenance or technical problems. Client understands and acknowledges that access to the Service may be interrupted, suspended, terminated, or otherwise limited from time to time, and this in no way holds Yelp Nowait liable for any damages arising out of Client’s access to the Service.
  10. Miscellaneous
    1. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    2. Assignment. This Agreement is not assignable or transferable by a party except with the other party’s prior written consent; provided that, a party may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all of its assets or business to which this Agreement relates. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns.
    3. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as provided herein.
    4. No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement.
    5. Notices. All notices under this Agreement will be in writing, electronic or otherwise, and will be deemed to have been duly given: when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Client (i) consents to receive communications from Yelp Nowait in an electronic form; and (i) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Yelp Nowait provides to Client electronically satisfy any legal requirement that such communications would satisfy if it were be in writing.
    6. Force Majeure. Yelp Nowait will not be liable for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to, earthquakes, loss of utilities, and other disasters.
    7. Choice of Law and Arbitration Any claim, controversy, cause of action or dispute that might arise between Client and Yelp Nowait (“Claim”) will be exclusively governed by laws of the United States of America and the State of California consistent with the Federal Arbitration Act without regard to conflict of law provisions or giving effect to any principles that may provide for the application of the laws of another jurisdiction. Client agrees that any subpoena, third-party discovery request, or other third-party process directed to Yelp Nowait must issue from, or be domesticated by, the state or federal courts located within San Francisco County, California. All Claims must be exclusively and finally resolved and settled by final and binding arbitration administered by and in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) before a single arbitrator who is a member of the AAA. 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 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 on appeal to a court of competent jurisdiction for such errors. The arbitrator’s ruling will otherwise be final and binding on all parties, and may be entered in any court of competent jurisdiction. 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 THESE TERMS. CLIENT AND YELP NOWAIT 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 NOWAIT 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, AND THIS SUBSECTION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
    8. Amendments. Yelp Nowait may modify this Agreement from time to time and such modification shall be effective upon 15 days after Yelp Nowait has sent an email containing a notification of such modifications. If the modifications to the Agreement will have a material impact on the value or performance of the Yelp Nowait product, the Client may terminate the Agreement upon 15 days prior written notice and the Client will be issued a prorated refund of the unused portion of the monthly Fees.
    9. Interlineation. Any of Client’s terms or conditions that are in addition to or different from those contained in or added by way of interlineation to the Master Services Agreement, including any Order Form, as originally provided to Client by Yelp Nowait that are not separately expressly agreed to in writing by both parties are deemed material and are hereby objected to and rejected by Yelp Nowait. The Agreement embodies the entire and exclusive agreement between the parties respecting the subject matter herein, and supersedes any and all prior related oral, emailed or written representations and agreements between the parties. No statements or promises by either party have been relied upon in entering into the Agreement, except as expressly set forth herein.