Fliprestó Agreement

Updated as of February 7 , 2019
FLIPRESTO “FLIPRESTÓ GUEST HUB” & “COUPON PLATFORM” CLIENT AGREEMENT
BY PLACING AN ORDER, COMPLETING THE REGISTRATION PROCESS, CLICKING TO ACCEPT THIS AGREEMENT OR ACCESSING, DOWNLOADING OR USING ANY ELEMENT OF FLIPRESTÓ GUEST HUB & FLIP RESTÓ COUPON PLATFORM, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS, DOWNLOAD OR USE FLIPRESTÓ GUEST HUB OR FLIPRESTÓ COUPON PLATFORM.
This Fliprestó Guest Hub Client Agreement & & Flip Restó Coupon Platform (this “Agreement”) is entered into by and between Fliprestó, with its principal place of business at 2700 Glades Cir. Suite 112, Weston, Florida 33327 (“Fliprestó”), and the entity placing an order for or accessing Fliprestó Guest Hub (“Client” or “you”). The “Effective Date” of this Agreement is the earliest of the date on which Client first places an Order (as defined below), clicks to accept this Agreement or otherwise registers for, accesses or uses Fliprestó Guest Hub.
This Agreement permits Client to order Fliprestó Guest Hub & & Flip Restó Coupon Platform through one or more executed order or intake forms referencing this Agreement or online through a registration page or order flow (in each case, an “Order”). The Order will identify the restaurant(s) for which Fliprestó Guest Hub & & Flip Restó Coupon Platform is permitted to be used (“Restaurant(s)”). In addition to the terms below, each Order is deemed part of this Agreement to the extent it covers Fliprestó products and services with respect to Fliprestó Guest Hub. Each party expressly agrees that this Agreement is legally binding upon it. Client understands and agrees that Fliprestó may modify this Agreement from time to time as permitted in Section 13.8 (Changes to Agreement) below. This Agreement is divided into two parts. Part 1 describes the terms that govern your use of Fliprestó Guest Hub & & Flip Restó Coupon Platform. Part 2 explains each party’s obligations under Fliprestó’s service policy for Fliprestó Guest Hub & & Flip Restó Coupon Platform. If you are an individual accepting on behalf of Client, you represent and warrant that (i) you are of legal age to form a binding contract and have full legal authority to bind Client to this Agreement, (ii) you have read and understand this Agreement and (iii) you agree, on behalf of the Client, to this Agreement.
PART 1: TERMS AND CONDITIONS
1. Definitions.
“Fliprestó Hardware” means the hardware systems or devices, if any, to be provided by Fliprestó pursuant to an Order.
“Fliprestó Network” means the proprietary Fliprestó online restaurant reservation network (or any successor network) consisting of flipresto.com and any other websites, messenger bot, wireless platforms or applications owned or operated (in whole or in part) by Fliprestó or its affiliates, and any third party partner websites, platforms or services in relation to which Fliprestó or its affiliates enter into agreements from time to time.
“Fliprestó System” or “Flip Restó Guest Hub” & “Flip Restó Coupon Platform” means Fliprestó’s system that enables promoting your restaurant (online and printed advertisement, offers, give aways, reservation and table management capabilities with respect to each Restaurant subject to this Agreement, as specified in the applicable Order, as made available through: (a) the Restaurant-facing features and functionality of the Fliprestó Network, (b) the Fliprestó Software, and (c) the Fliprestó Hardware (if applicable).
“Fliprestó Software” means the object code version of Fliprestó’s proprietary software provided to Client, which may consist of one or more applications or modules and may include desktop, mobile or other software, and any updates thereto as may be provided by Fliprestó.
2. Licenses and Support.
2.1. Fliprestó System License.
2.1.1. License Grant. Subject to the terms and conditions of this Agreement, Fliprestó hereby grants Client a non-exclusive, nontransferable, non sublicensable, revocable license to use the Fliprestó System during the applicable Restaurant Term, but only in connection with the applicable Restaurant’s access to and promotion on the Fliprestó Network and management of customer reservations and tables, customer service, surveys, job posting at such Restaurant.
2.1.2. Restrictions. Client agrees not to and agrees not to authorize any third party to: (a) copy, modify or make derivatives of, reverse engineer, disassemble, decompile or otherwise attempt to discover any portion of the source code or trade secrets of the Fliprestó System (except to the extent such prohibition on reverse engineering is prohibited by law, and then only upon advance notice to Fliprestó); (b) distribute, sell, sublicense, rent, or lease the Fliprestó System, or otherwise provide third parties with use of the Fliprestó System; (c) remove, obscure or alter any notice of any copyright, trademark, patent or other proprietary right related to the Fliprestó System; or (d) publicly disseminate performance information or analysis regarding the Fliprestó System.
2.1.3. Fliprestó EULAs. Certain Fliprestó Software may be provided with an End User License Agreement that applies specifically to such software (“Fliprestó EULA”). Client hereby agrees to any such Fliprestó EULA designated by Fliprestó at or prior to the time of Client’s order. Any Fliprestó EULA will apply solely in relation to Client’s use of the Fliprestó Software itself. In event of any conflict between this Agreement and any Fliprestó EULA, the Fliprestó EULA will control solely with respect to its subject matter and this Agreement will control in all other cases.
2.2. Setup, Training and Support. Fliprestó will provide setup, training and support services for the Fliprestó System in accordance with its standard internal policies and as further described in Part 2, Service Policy, below. Client may use deliverables or work product provided by or on behalf of Fliprestó in connection with such services (“Deliverables”) solely in support of Client’s permitted use of the Fliprestó System and subject to the same terms and conditions as apply to the Fliprestó System hereunder.
2.3. Promotion and Online Reservations; Use of Client Listing Materials. Fliprestó will place listings for Client’s Restaurant(s) on the Fliprestó Network and will allow users of the Fliprestó Network (“Users”) to make online reservations at the Restaurant(s), make use of customer service for the Restaurant(s) and use promotions fro the Restaurant(s). During the applicable Restaurant Term(s), Fliprestó may copy, distribute, publicly display and perform, and reformat Client Listing Materials for purposes of promoting and making available , promotions for Client’s Restaurant, reservations for Client’s Restaurants that are on the Fliprestó Network. All goodwill arising from use of Client Listing Materials will inure to the benefit of Client. “Client Listing Materials” means trademarks, trade names, business names, logos, descriptions, menus and/or photographs of Client’s Restaurant(s).
2.4. Hardware-Specific Terms. All Fliprestó Hardware, if any, is leased to Client, not sold. All title to the Fliprestó Hardware, if any, remains with Fliprestó, and Client will not permit the Fliprestó Hardware, if any, to become subject to any liens or security interests. For clarity, “Fliprestó Hardware” does not include hardware systems or devices procured by Client from any third party supplier.
3. Data. During the applicable Restaurant Term, Fliprestó will provide Client with certain Fliprestó Data as permitted under Fliprestó’s then-current Fliprestó Privacy Policy (currently located at https://flipresto.com/privacy-policy/) (the “Fliprestó Privacy Policy”). Subject to the terms and conditions of this Agreement, Client may use such Fliprestó Data as Fliprestó may provide for its lawful business purposes. “Fliprestó Data” means data related to Users and Users’ reservations at Client’s Restaurants that Fliprestó makes available to Client through the Fliprestó System. Subject to the terms and conditions of this Agreement, Fliprestó may use any Client Data provided by Client for Fliprestó’s lawful business purposes. “Client Data” means Restaurant schematic information, reservation information and similar data submitted by Client to the Fliprestó System, but excluding Fliprestó Data. As between the parties, Client shall retain all right, title and interest (including any and all intellectual property rights) in and to the Client Data as provided to Fliprestó. During the thirty (30) day period after the Term ends, provided that Client is current in all payments, Client will have the opportunity to request that Fliprestó export or download for Client the Client Data and Fliprestó Data in Client’s account of the Fliprestó System.
4. Client’s Obligations.
4.1. Registration and Login Information; Responsibility for Employees. All information Client provides to Fliprestó to establish or maintain its Fliprestó System account must be true, accurate, current and complete. Such information may include physical address, email address, phone number and other information as Fliprestó may reasonably request. Client will maintain the confidentiality of its login and password information for the Fliprestó System and will be responsible for all actions taken through Client’s account for the Fliprestó System. Client agrees to immediately notify Fliprestó of any unauthorized use of its account or any other breach of security related to its use of the Fliprestó System. Client will limit use of the Fliprestó System to its authorized employees and contractors and will be responsible for their compliance with this Agreement.
4.2. Fliprestó Service Policy; Online Reservations. Client agrees to the Fliprestó Service Policy in Part 2. Client agrees to accept online reservations processed through the Fliprestó Network and honor those reservations in accordance with the Client Responsibilities provisions in Part 2.
4.3. Client Responsibilities for Fliprestó System. Client shall be fully responsible for any loss or damage that occurs to the Fliprestó System while in Client’s possession and agrees to take reasonable steps to protect the Fliprestó System from theft, damage, deterioration or loss. If an Fliprestó System is damaged, stolen or lost, Client will be responsible for the costs of repair or replacement. Client will also remain responsible for all applicable rental fees, provided that Fliprestó has provided a repaired or replacement unit. Fliprestó recommends that Client obtain adequate property damage and public liability insurance covering the Fliprestó Hardware and its use during the Term of this Agreement
4.4. Representations and Warranties. Client represents, warrants and covenants to Fliprestó that (a) it has the requisite right, power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement; (b) this Agreement has been accepted by Client and constitutes a legally valid and binding obligation of Client, enforceable against Client in accordance with its terms; (c) Client owns or controls the Restaurant(s) and shall be responsible for the Restaurant(s)’ compliance with this Agreement; (d) in its use of the Fliprestó System and any Fliprestó Data, Client will comply with all applicable foreign, federal, state and local laws and regulations, including without limitation laws relating to personal data, the CAN-SPAM Act of 2003 and the Telephone Consumer Protection Act of 1991 (collectively, “Laws”), Client’s applicable privacy policy and the Fliprestó Privacy Policy; and (e) Client has all necessary rights, consents and permissions to provide all Client Data and Client Listing Materials to Fliprestó and grant the rights granted by Client herein, and the exercise of Fliprestó’s rights to Client Data and Client Listing Materials as contemplated herein will not violate or infringe any Laws, third party intellectual property right, right of privacy or right of publicity or any applicable privacy policy of Client.
5. Indemnity by Client. Client will indemnify, defend (at Fliprestó’s option) and hold harmless Fliprestó, its affiliates and their respective employees, directors, officers, employees, representatives and agents (“Fliprestó Indemnified Parties”) from and against any claim brought or threatened by a third party arising from: (a) Client’s breach of any provision, warranty or representation in this Agreement; (b) Client’s willful acts or omissions, negligence, or other similar wrongdoing; or (c) Client’s failure to comply with any Laws. Client will pay all costs (including, but not limited to, court costs and reasonable attorneys’ fees and costs), damages, losses, liabilities, expenses, penalties, judgments and settlements incurred by the Fliprestó Indemnified Parties, or which the Fliprestó Indemnified Parties otherwise become subject to, in connection with or arising from any such claim. Client may not settle any such claim without Fliprestó’s prior written consent. Fliprestó may assume the defense of any such claim at its option and Client’s expense, but this shall not limit Client’s other obligations under this Section 5.
6. Payment. Client agrees to pay Fliprestó in accordance with the applicable Order. One-time “Setup and activation Fee(s)” are due upon the Effective Date of this Agreement, and monthly billing for all other fees by Fliprestó shall commence upon the date of setup of the Fliprestó System at each applicable Restaurant. All recurring fees are billed monthly in advance. Client agrees to make payment by either ACH/direct debit or credit card, pursuant to the payment instructions provided by Client to Fliprestó in the form requested by Fliprestó. If Client opts to pay by any other method, Client agrees to pay an additional twenty dollars ($20.00) per month payment processing fee. Client also understands and agrees that Client may be responsible for additional charges delineated on the Order(s), if applicable. In addition, Client understands and agrees that Fliprestó may, with respect to each Restaurant, after the Restaurant Initial Term (as defined below), and in its sole discretion, modify the prices listed on the Order(s). Fliprestó will use reasonable efforts to provide sixty (60) days written notice prior to any such modification. Invoice payment terms are net thirty (30) days.
6.1. Late Payments. Any amounts not paid when due under this Agreement will bear interest at the rate of one and a half percent (1.5%) per month or the highest rate permitted by law, whichever is less, computed and compounded daily from the date due until the date paid. Late payments may result in an immediate suspension of services.
6.2. Taxes. Client acknowledges and agrees that all applicable taxes associated with the Fliprestó System and the use thereof, and any other products and services sold, rented or provided by Fliprestó hereunder, with the exception of income taxes, will be the sole responsibility of Client and billed in addition to any other fees due Fliprestó. All fees set out in Order(s) are exclusive of VAT and other sales and use taxes. Client must pay any applicable taxes upon presentation of an appropriate invoice. In addition, Client agrees to pay, and to indemnify and hold Fliprestó harmless from, any sales, use, excise, import or export, value added or similar tax or duty not based on Fliprestó’s income, as well as the collection or withholding thereof, including penalties and interest, and all government permit or license fees and all customs and similar fees levied upon the delivery of the Fliprestó System(s) and the use thereof, and any other products and services sold, rented or provided by Fliprestó under the Agreement, and any costs associated with the collection of any of the foregoing items.
6.3. Credit Terms. Client shall pay an administrative fee of twenty-five dollars ($25.00) for any returned check or for any rejected credit card charge or for any rejected automatic bank account debit. Fliprestó reserves the right to switch Client to a non-automatic payment method following any rejected credit card charge or any rejected automatic bank account debit, and Client understands and agrees that Client will incur an additional twenty dollars ($20.00) per month payment processing fee if Client is switched to a non-automatic payment method.
6.4. Credits and Debits. Fliprestó may, in its sole discretion, complete an Internet reservation reconciliation and issue credits and debits as necessary to resolve any discrepancies between these reconciliations and initial reservation information reported through the Fliprestó Network.
7. Ownership. Fliprestó is, and will remain, the owner of the Fliprestó System, Fliprestó Network, Fliprestó Data, any aggregate data based on Client Data that does not contain personally identifiable or Client specific information, Usage Information (as defined below), all Deliverables and any other data as may be collected through the Fliprestó Network, any modifications, improvements or derivative works of the foregoing (including as may incorporate Feedback, as defined below), and all patents, copyrights, trademarks, service marks, trade secrets and other proprietary or intellectual property rights, whether registered, unregistered, known or unknown, associated with any of the foregoing (“Fliprestó Technology”). Nothing herein limits Fliprestó’s use of the Fliprestó Technology in any manner. Client will take such actions as Fliprestó may reasonably request to confirm Fliprestó’s ownership of the Fliprestó Technology. Except as expressly provided in this Agreement, no right, title or interest therein or thereto will be transferred to Client hereunder, irrespective of any use of the words “purchase”, “sale” or any similar terms. Client, from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information to Fliprestó (“Feedback”). Fliprestó may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. Client further agrees that Fliprestó may collect usage and technical information regarding Client’s use of the Fliprestó System, including without limitation Client’s IP address and approximate geographic location, hardware and device information (e.g. carrier, operating system and type) and records regarding features of the Fliprestó System used and session length (“Usage Information”) and may use Usage Information for any lawful business purpose.
8. Term; Termination.
8.1. Term. The term of this Agreement commences on the Effective Date and, unless terminated earlier as expressly provided herein, shall continue until the end of all Restaurant Term(s) (as defined below) (the “Term”). Each Restaurant shall be subject to this Agreement beginning on the date a Restaurant is subject to an Order until the date that is twelve (12) months after the date the Fliprestó System is setup at such Restaurant (each, a “Restaurant Initial Term”). Upon the expiration of the applicable Restaurant Initial Term, the Agreement (and each Order) shall automatically renew with respect to the applicable Restaurant for additional one (1) month periods until either party provides the other party with at least thirty (30) days prior written notice of termination of this Agreement or that such Restaurant shall no longer be subject to this Agreement (each renewal period, a “Restaurant Renewal Term” and together with the applicable Restaurant Initial Term, the “Restaurant Term”).
8.2. Termination. If Client wishes to terminate this Agreement or requests that a Restaurant no longer be subject to this Agreement without Cause (as defined below) prior to the end of any applicable Restaurant Initial Term, Client may do so, provided Client provides thirty (30) days prior written notice to Fliprestó, and Client pays, within such thirty (30) day period, and with respect to each Restaurant which would no longer be subject to this Agreement, all remaining monthly fees applicable to any remaining portion of any Restaurant Initial Term applicable to such Restaurant(s). Either party may terminate this Agreement (or any individual Order) immediately by giving the other party written notice of termination in the event that the other party: (a) becomes insolvent; (b) files a petition in bankruptcy or any other law for the relief of, or relating to, debtors; (c) makes an assignment for the benefit of its creditors; (d) ceases to carry on its business or passes a resolution for its liquidation, dissolution or winding up; or (e) breaches any of its obligations under this Agreement in any material respect, which breach is not cured within thirty (30) days after the breaching party receives written notice of such breach from the non-breaching party (each such event shall constitute “Cause”). Without limiting the foregoing, in the event that Client has failed to pay any amount due hereunder within thirty (30) days following the due date for such payment, Fliprestó may immediately terminate this Agreement.
8.3. Cancellation Prior to Setup. If Client wishes to cancel or reschedule setup of the Fliprestó System, Client must notify Fliprestó seven (7) days before the agreed upon setup date or will be subject to a non-refundable two hundred and fifty dollar ($250) cancellation fee, in addition to any travel expenses incurred by Fliprestó for the setup.
8.4. Effect of Termination. Upon the expiration or termination of the Agreement for any reason: (a) the license(s) to the Fliprestó System granted by Fliprestó to Client hereunder will immediately terminate; (b) Client will, if applicable, return all Fliprestó Hardware to Fliprestó in compliance with Fliprestó’s reasonable instructions (and failure to return Fliprestó Hardware will result in assessment of applicable charges pursuant to Fliprestó’s policies); (c) the rights and obligations of the parties under Sections 3 (Data), 5 (Indemnity by Client), 6 (Payment; inclusive of all subsections), 7 (Ownership), 8.4 (Effect of Termination), 9 (Warranty Disclaimer), 10 (Limitation of Liability), 11 (Confidentiality), 12 (Indemnity by Fliprestó) and 13 (General) will survive such expiration or termination; and (e) any amounts still due to Fliprestó shall be immediately due and payable and continue to bear interest in accordance with Section 6.1.
9. Warranty Disclaimer. THE FLIPRESTO SYSTEM, FLIPRESTO NETWORK AND ANY DELIVERABLES OR SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” FLIPRESTO MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE FLIPRESTO SYSTEM, THE FLIPRESTO NETWORK, DELIVERABLES OR SERVICES, AND FLIPRESTO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE FLIPRESTO SYSTEM, THE FLIPRESTO NETWORK AND ALL DELIVERABLES OR SERVICES (INCLUDING WITHOUT LIMITATION THOSE RELATED TO SETUP, CONNECTIVITY AND WIRING) PROVIDED HEREUNDER BY FLIPRESTO OR ANY THIRD PARTY VENDOR SELECTED BY FLIPRESTO, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. FLIPRESTO DOES NOT WARRANT THAT CLIENT’S USE OF THE FLIPRESTO SYSTEM OR FLIPRESTO NETWORK WILL BE UNINTERRUPTED OR ERROR-FREE, THAT FLIPRESTO WILL REVIEW THE CLIENT DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CLIENT DATA WITHOUT LOSS. FLIPRESTO SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF FLIPRESTO.
10. Limitation of Liability. FLIPRESTO, NETSPOT USA LLC OR ANY OR THEIR REPRESENTATIVES, WILL NOT BE LIABLE TO CLIENT FOR (1) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR (2) ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE ARISING OUT OF THIS AGREEMENT. IN NO EVENT WILL FLIPRESTO’S CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY RELATED CAUSE OF ACTION, EXCEED THE TOTAL AMOUNTS PAID BY CLIENT TO FLIPRESTO OR NETSPOT USA LLC UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE INITIAL CLAIM FOR WHICH DAMAGES ARE RECOVERED HEREUNDER. CLIENT UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. The parties agree that the limitations specified in Section 9 (Warranty Disclaimer) and this Section 10 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11. Confidentiality. Any confidential or proprietary information of either party, whether of a technical, business or other nature, including, but not limited to trade secrets, know-how, technology and information relating to customers, business plans, promotional and marketing activities, finances and other business affairs, (collectively, “Confidential Information”) disclosed to the recipient party by the disclosing party in connection with this Agreement will be treated by the recipient party as confidential and proprietary, provided that it is marked at time of disclosure as confidential or proprietary or is of such a nature that a reasonable business person would consider it confidential or proprietary. The terms and conditions of this Agreement (including, without limitation, pricing), the Fliprestó Technology, and any performance information regarding the Fliprestó System or Fliprestó Network are all deemed Confidential Information of Fliprestó. Unless specifically authorized by the disclosing party or in order to exercise its rights under this Agreement, the recipient party will: (a) not disclose such Confidential Information to any third party (other than as set forth in this Section, below); and (b) otherwise use reasonable precautions to protect such Confidential Information from unauthorized use and disclosure, including, without limitation, all precautions it uses to protect its own Confidential Information of a similar nature. Any employee, contractor, agent or advisor, given access to any Confidential Information must have a legitimate “need to know” in order to perform a party’s obligations or exercise its rights under this Agreement and the recipient party shall remain responsible for each such person’s compliance with the terms of this Agreement. The obligations set forth in this paragraph will not apply to any information that: (i) was already known to the recipient party, other than under an obligation of confidentiality, at the time of disclosure by the disclosing party; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the recipient party; (iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the recipient party in breach of this Agreement; (iv) was disclosed to the recipient party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others; or (v) was developed independently by the recipient party without any use of Confidential Information. Notwithstanding the foregoing, the recipient party may make disclosures to the extent required by Law, rule, stock exchange rule, subpoena, governmental proceeding or court order.
12. Indemnity by Fliprestó. Fliprestó agrees to (a) defend Client, and its officers, directors, employees, representatives and agents, from and against any and all third party claims alleging that the Fliprestó System when used by Client as authorized under this Agreement infringes or misappropriates such third party’s United States patent, copyright, trademark or other proprietary right and (b) pay all costs and damages awarded against Client or agreed in settlement by Fliprestó (including court costs and reasonable attorneys’ fees and costs) in relation to such claim, provided that Client (i) promptly notifies Fliprestó in writing of any such claim (and in any event provides notice in sufficient time for Fliprestó to respond without prejudice), (ii) promptly tenders to Fliprestó exclusive control of the defense and any settlement of such claim and (iii) provides reasonable cooperation and assistance to Fliprestó in the defense or settlement of any such claim. If Client’s use of the Fliprestó System is (or in Fliprestó’s opinion is likely to be) enjoined, if required by settlement or if Fliprestó determines such actions are reasonably necessary to avoid material liability, Fliprestó may, in its sole discretion: (x) substitute for the Fliprestó System substantially functionally similar programs and documentation; (y) procure for Client the right to continue using the Fliprestó System; or if (x) and (y) are not commercially reasonable, (z) terminate this Agreement and refund to Client the fees paid by Client for the portion of the Restaurant Term(s) which was paid by Client but not rendered by Fliprestó. The foregoing obligations of Fliprestó shall not apply: (1) if the Fliprestó System is modified by any party other than Fliprestó; (2) if the Fliprestó System is combined with products or processes not provided or authorized by Fliprestó; (3) to any unauthorized use of the Fliprestó System; (4) to any unsupported release of the Fliprestó Software or any third party or open source code; or (5) if Client settles or makes any admissions with respect to a claim without Fliprestó’s prior written consent. THIS SECTION 12 SETS FORTH FLIPRESTO’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
13. General.
13.1. Governing Law. This Agreement will be construed in accordance with the laws of the State of Florida, USA without reference to its choice of law provisions and without regard to the United Nations Convention on the International Sale of Goods. The Federal and State courts located in the County of Broward, Florida will be the exclusive venue for any claim or dispute between the parties or against any agent, employee, successor, or assign of the other, whether related to this Agreement or otherwise and the parties hereby consent to the personal jurisdiction of those courts for such purposes. The prevailing party in any dispute under this Agreement will be entitled to its costs and reasonable attorneys’ fees.
13.2. Force Majeure. Fliprestó will not be liable to Client in any way whatsoever for any failure or delay in performance of any of its obligations under this Agreement arising out of any event or circumstance beyond the reasonable control of Fliprestó.
13.3. Other. The parties are independent contractors. Nothing in this Agreement will be construed to create any joint venture, partnership, franchise, or agency relationship between the Parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other party in any way. Neither this Agreement nor any rights and/or obligations hereunder (including, without limitation, the licenses granted hereunder) may be assigned, sold, transferred or delegated by Client without the prior written consent of Fliprestó and any attempt to do so shall be null and void from the beginning. In the event that Client wishes to assign, sell, transfer or delegate (each, “Assign”) this Agreement to another party, Client must request such consent from Fliprestó at least fourteen (14) days prior to such assignment, sale, transfer or delegation (each, an “Assignment”). No Assignment will relieve Client of its payment obligations incurred prior to the date of the Assignment. For the avoidance doubt, Fliprestó may Assign (whether by merger, operation of law or otherwise) this Agreement or any or all of its rights and/or obligations hereunder (including, without limitation, the licenses granted hereunder) at its sole discretion. All rights, benefits and protections of Fliprestó under this Agreement also extend to all Fliprestó affiliates. Fliprestó shall be solely responsible for all of its obligations under this Agreement.
13.4. Notices. Except where another notice process is permitted herein (including in Section 13.8 (Changes to Agreement)), all notices required or permitted to be given under this Agreement must be sent to Client at any one of Client’s addresses, facsimile numbers, or email addresses that have been provided to Fliprestó and to Fliprestó at 2700 Glades Cir. Suite 112, Weston, Florida, USA 33327, Email: legal@fliprestó.com, Attention: General Counsel, and will be deemed effectively given: (a) upon delivery when personally delivered against receipt therefor; (b) upon delivery when sent by certified mail, postage prepaid, and return receipt requested; (c) upon transmission when transmitted by facsimile or other electronic transmission; or (d) upon delivery when sent by a nationally recognized overnight service with delivery confirmation.
13.5. No Waiver; Severability. The failure of either party to insist upon or to enforce strict performance of any provision of this Agreement, or to exercise any right or remedy under this Agreement, will not be interpreted or construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right or remedy in that or any other instance. If any provision of this Agreement shall be judged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
13.6. Headings; Construction. The headings to the clauses, sub-clause and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted the Agreement or any provision thereof.
13.7. Entire Agreement. Subject to Section 2.1.3 (Fliprestó EULAs), this Agreement (including, without limitation, Parts 1 and 2), together with all Orders to the extent such Orders cover Fliprestó products and services with respect to Fliprestó Guest Hub & Flip Restó Coupon Platform and payment instructions provided pursuant to Section 6 (which are incorporated by this reference) sets forth the entire agreement, and supersedes any and all prior agreements, between the parties with respect to the subject matter hereof. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
13.8. Changes to Agreement. Subject to the specific terms for pricing modifications in Section 6 (Payment) above, Fliprestó may modify this Agreement from time to time and will provide reasonable notice of such modifications through an Fliprestó website, email or other means as determined by Fliprestó. As specified by Fliprestó, some modifications may become effective upon the start of the next Restaurant Renewal Term for each applicable Restaurant. Alternatively, Fliprestó may specify that a modification will become effective, following a reasonable notice period, during Client’s then-current Restaurant Term; in this case, if Client does not agree to the modifications, Client’s exclusive remedy will be to provide Fliprestó with notice of termination of this Agreement (which notice must be given prior to the effective date of the modification specified by Fliprestó) and to receive a refund from Fliprestó of any unused recurring fees prepaid by Client for the terminated period of the then-current Restaurant Term. Client may be required to click to accept the modified terms in order to continue using the Fliprestó System, and in any event continued use of the Fliprestó System after the effective date of the modification will constitute Customer’s acceptance of the modified terms. For new Restaurants added to this Agreement pursuant to an Order, the version of this Agreement in effect at the time such Order is entered shall apply.
13.9. Export Compliance. Client acknowledges that the Fliprestó Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Client shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Fliprestó Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Client agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
13.10. Third-Party Code. The Fliprestó Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
PART 2: FLIPRESTO SERVICE POLICY SETUP AND ACTIVATION
An Fliprestó Project Coordinator will walk Client through the setup and activation process.
Services included with the Setup and Activation fee:
Assistance with Client’s completion of a questionnaire that enables the optimal configuration of the Fliprestó System. The questionnaire and associated 
confirmation discussion (by telephone or email) must be completed at least one week prior to the date of setup and activation and if it is not completed within 
such timeframe Fliprestó may cancel setup and activation.
Planning and coordination of Fliprestó Systems setup and activation.
Up to three (3) hours of training conducted on the day of setup and activation. Should Client refuse training or fail to have staff available for training on the 
day of setup and activation, Fliprestó is not obligated to provide follow-up training.
The following are not provided by Fliprestó and are solely the responsibility of Client:
Activation, installation, and configuration of Restaurant computers, tablets, printers, Internet connectivity, Ethernet wiring, network equipment or WiFi connectivity.
Installation costs incurred from third party Internet connectivity providers or networking professionals.
Electrical work (e.g. extending electrical power to the host stand).
Modifications to desk, host stand, or other mounting area for the Fliprestó System.
Supplemental work, which maybe done on Client’s Restaurant(s) premises by OpenTable employees if mutually agreed in writing by the parties, will be invoiced at a rate specified on the applicable Order. Third-party costs are passed on to Client.
NETWORK WIRING 
Fliprestó, at its discretion, may provide some assistance for minor wiring to supported, wired networks in order to accelerate the setup and activation of the Fliprestó System(s). Fliprestó staff may assist management at the Restaurant(s) in retaining a third party wiring professional, but Fliprestó shall not assume responsibility for wiring work on Restaurant premises. Any internal or external wiring work at the Restaurant(s) shall be the responsibility of the Client.
WIRELESS ACCESS 
Client understands and agrees that Fliprestó is not and will not be responsible for the installation, configuration, maintenance, or troubleshooting of any wireless solution including, but not limited to, computers (desktop, laptop, netbook, or tablet), bridges, routers, and access points. Client shall provide its own technical support for any wireless solution. Client is responsible for ensuring that any wireless solution is secure. When configuring any wireless solution, Fliprestó recommends that the broadcast of the service set identifier is disabled and that access to any wireless solution is restricted using the media access control address. Client agrees to use encryption protocols (WPA2 recommended) to secure any wireless solution.
INTERNET CONNECTIVITY 
An Internet connection (“Connectivity”) is necessary for consistent synchronization between the device(s) at any Restaurant and the Fliprestó data center. Client is responsible for obtaining Connectivity from an Internet service provider. Client understands that although the Fliprestó System may be used in an offline mode, it is the Client’s responsibility to restore Connectivity to synchronize with the Fliprestó data center. Client understands that online reservations will continue to be made even when running in an offline mode. It is the Client’s responsibility to notify Fliprestó support if online reservations need to be temporarily halted because the Client has lost Connectivity and cannot accommodate online reservations.
Client agrees to fully comply with Fliprestó’s current Internet Connection Requirements in order to ensure a proper connection to the Fliprestó Network and for efficient support. If Fliprestó is required to assist in either the installation or troubleshooting of Internet Connectivity, Client will incur an additional fee for this work at an hourly rate specified in the applicable Order.
Client agrees to be connected to the Internet and accept online reservations. If Client fails to implement Connectivity and/or accept online reservations, Client will be subject to the following charges:
Availability Offline Surcharge. Client understands and agrees that if Client refuses to accept online reservations through the Fliprestó Network when Connectivity is available, Client agrees to pay an availability offline surcharge. Client agrees to pay this additional monthly fee if Connectivity has not been implemented within sixty (60) days after the Fliprestó System(s) have been set up.
Support Surcharge. Client understands and agrees that if Client refuses Connectivity, Client agrees to pay a surcharge commensurate with the increased costs that Fliprestó incurs in supporting a customer that is not reachable with remote software. Client agrees to pay this additional surcharge if Connectivity has not been implemented within sixty (60) days after Fliprestó System has been set up.
TECHNICAL RESTRICTIONS
Client acknowledges and agrees that Fliprestó System(s) may have technical restrictions as communicated by Fliprestó from time to time.
CLIENT RESPONSIBILITIES 
Fliprestó depends on Client cooperation to enable us to provide the best possible service. To that end, Client specifically agrees to:
Treat diners who book reservations online the same as those diners making reservations by phone or walking in.
Ensure that all Client users of the Fliprestó System are adequately trained and use the Fliprestó System appropriately. This includes, without limitation, making reservations, seating parties, making configuration changes, honoring all online reservations, and using the cancel and no-show features carefully. When a party fails to show up for their reservation, designate the reservation as a “no show” in the system as this is the only way Client will be credited for the “no show”. Never “no-show” a party when the diners did arrive and dine at the Restaurant. In any instance where a Client disputes a confirmed reservation, Client must submit any all claims to Fliprestó prior to the end of the month following receipt of the invoice which references the disputed reservation. Fliprestó reserves the right to audit Client in the event that there is a dispute arising out of a reservation.
Make all tables at each Restaurant not set aside for walkins or preferred customers accessible on the Fliprestó System.
Keep the Fliprestó System updated to accurately reflect all temporary closures (e.g. holidays or remodeling) or periods when the Restaurant(s) is/are not accepting reservations for certain time slots made available to Users on the Fliprestó Network.
Be available for staff training on the Fliprestó System(s). Client agrees to bring as much of its Restaurant staff together as it can to make training more efficient and to train new Restaurant staff as they are hired.
Ensure connectivity and synchronization of the Fliprestó System as requested by Fliprestó.
Use the Fliprestó System in accordance with any documentation provided by Fliprestó from time to time. This includes, without limitation, utilizing all provided guidelines, tips, techniques, and other documented resolutions as well as “help” functions within the Fliprestó System as initial attempts to resolve problems. Helpful information may also be found at restaurant.fliprestó.com.
Accept rewards made available to diners pursuant to any Fliprestó loyalty or rewards program that are intended to be redeemed at your restaurant(s).
Client agrees to review all SMS, faxes, emails and mailed materials sent from Fliprestó regarding management of Client’s account.
Maintain Restaurant Connectivity and cooperate with Fliprestó and ISP staff in efforts to restore Connectivity.
Not input sensitive customer information into the OpenTable System (including, without limitation, credit card data).
SUPPORT 
Client may contact Fliprestó support at restaurant.support@flipresto.com for basic functionality support for the Fliprestó System. Fliprestó is unable to guarantee that all errors or issues with the Fliprestó System will be resolved.