REZKU POS TERMS OF USE
Last modified February 27, 2024
1. BINDING CONTRACTUAL TERMS
By submitting a Rezku Order Form to Rezku or downloading or using the Rezku POS website (the “BackOffice Website”), including all Content (as defined below) available through the BackOffice Website or the Rezku POS tablet application or as a service (SaaS) provided directly by Rezku or through the Apple or Google store websites (individually and collectively the “Rezku POS App”) and any integrated software and any associated software or by accessing any associated content such as email feeds, feeds through apps or other related services provided by Guest Innovations, Inc. (collectively the “Rezku POS Service”), the person or entity downloading or using the Rezku POS Service (“You” or “Your”) signify (a) that You have read and understood these Terms of Use (which include the Privacy Policy); and (b) that these Terms of Use have the same force and effect as a signed agreement. The Rezku POS Service is provided by Guest Innovations, Inc., a company registered in Delaware (“Guest Innovations,” “We,” “Us,” or “Our”).
If You are accepting these Terms of Use on behalf of Your employer, You affirm that You have the authority to do so. You affirm that You are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, warranties, and indemnification set forth in these Terms of Use, and to abide by and comply with these Terms of Use. In addition, You affirm that You have not been previously suspended or removed from the Rezku POS Service.
The Rezku POS Service is intended for use by restaurants and their employees (each, a “Restaurant User”) to manage point of sale operations.
ATTENTION: PLEASE READ THESE TERMS OF USE AND OUR PRIVACY POLICY, WHICH IS PART OF THESE TERMS OF USE, CAREFULLY BEFORE USING THE REZKU POS SERVICE. DOWNLOADING OR USING ANY PART OF THE REZKU POS SERVICE INDICATES THAT YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF USE AND PRIVACY POLICY IN FULL. IF YOU DO NOT ACCEPT THESE TERMS OF USE AND PRIVACY POLICY, DO NOT USE THE BACKOFFICE WEBSITE AND DO NOT USE AND DELETE ANY DOWNLOADED APPLICATIONS AND MATERIALS INCLUDING THE REZKU POS APP IMMEDIATELY.
ARBITRATION NOTICE: THESE TERMS OF USE CONTAIN AN ARBITRATION CLAUSE. YOU AND WE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. YOU AND WE INSTEAD AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND WE WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
We may change these Terms of Use at any time. Please review the Terms of Use each time You visit the Rezku POS Service. BY USING THE REZKU POS SERVICE, YOU AGREE TO BE BOUND BY THE MOST RECENT VERSION OF THE TERMS OF USE. If We materially change these Terms of Use, We will let You know when You login to the Rezku POS Service and by sending an email notifying You of the changes to the email address We have on file for You.
These Terms of Use include a disclaimer of warranties, a disclaimer of liability, as well as a release and indemnification by You, and a class action waiver in Sections 3, 4, 8, 12, 13, 15-18, 20, and 22. Please review those sections (and all of the other terms) carefully.
2. PRIVACY POLICY
Our Privacy Policy describes the information Guest Innovations collects when You and others use the Rezku POS Service. It also describes how Guest Innovations uses or shares any personal information You share with it. Our Privacy Policy is part of these Terms of Use. By agreeing to these Terms of Use, You are also consenting to Our collection, use, and sharing of Your personal information in accordance with Our Privacy Policy. Please click here to review Our Privacy Policy.
3. LINKS TO AND FROM THE REZKU POS SERVICE
The Rezku POS Service may contain links to third party websites and online services (such as apps) that are not owned or controlled by Guest Innovations. Guest Innovations has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites or online services, and You access and use these websites or online services solely at Your own risk. These links are provided for Your reference and convenience only, and do not necessarily imply any endorsement, sponsorship or recommendation of the material on these third-party websites or online services or any association with their operators. In addition, Guest Innovations will not and cannot control or edit the content of any third-party website or online service. BY USING THE REZKU POS SERVICE, YOU EXPRESSLY RELEASE GUEST INNOVATIONS, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, LICENSORS, LICENSEES, AND SUPPLIERS (COLLECTIVELY “THE GUEST INNOVATIONS PARTIES”), AND APPLE FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY WEBSITE OR ONLINE SERVICE AND FROM ANY LOSS OR DAMAGE OF ANY SORT YOU MAY INCUR FROM DEALING WITH ANY THIRD PARTY. Accordingly, We encourage You to be aware when You leave the Rezku POS Service and to read the terms and conditions of use for each other website or online service that You visit.
Except as You have otherwise agreed with Guest Innovations in writing, You may link to the BackOffice Website from Your website, subject to the following: (1) You may not frame the BackOffice Website or any portion of the BackOffice Website; (2) You will not override or hinder the functionality of an end-user’s Web browser’s “back” function; (3) the link must be identified using a plain text rendering of the Guest Innovations, Rezku, or Rezku POS name and not any Guest Innovations, Rezku, or Rezku POS logo; (4) You may not use any Guest Innovations, Rezku, or Rezku POS logos in any way; (5) You may not use the link in any way that suggests that Guest Innovations is associated with or endorses You or Your website or online service; (6) the link may not appear on any website or online service that a reasonable person may consider obscene, defamatory, harassing, offensive or malicious, and may not be presented in any way that disparages Guest Innovations or damages its rights, reputation, or goodwill; and (7) We may terminate Your right to link to the Rezku POS Service at any time for any reason or no reason.
4. USER SUBMISSIONS
The Rezku POS Service may permit the submission of text, graphics, photos, videos, material, information, comments, feedback, notes, messages, ideas, concepts, know-how, techniques, or other communications submitted by You and other users (“User Submissions”) and the hosting, sharing, and/or publishing of such User Submissions. For instance, Restaurant Users can post photos. You understand that whether or not such User Submissions are published or posted, Guest Innovations (1) does not guarantee any confidentiality with respect to any User Submissions, (2) does not pay any compensation for User Submissions, and (3) is under no obligation to respond to or post any User Submissions.
You shall be solely responsible for Your own User Submissions and the consequences of posting or publishing them. Guest Innovations does not claim ownership of any of Your User Submissions. However, by submitting the User Submissions to Guest Innovations, You hereby grant Guest Innovations and its successors, assigns, and affiliates a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sublicenseable (through multiple tiers) and transferable license to use, reproduce, distribute, prepare derivative works of, display, publish, broadcast, perform, make, use, import, offer to sell, sell, and otherwise transfer and exploit all copyrights, inventions, and other intellectual property rights in the User Submissions in connection with the Rezku POS Service and Guest Innovations’ (and its successors’, assigns’, and affiliates’) business, including without limitation for promoting and redistributing part or all of the Rezku POS Service (and derivative works thereof) in any form and media formats and through any media channels. You also hereby grant each user of the Rezku POS Service a worldwide, non-exclusive, royalty-free license to access Your User Submissions through the Rezku POS Service, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Rezku POS Service and under these Terms of Use. You also hereby grant Guest Innovations and its successors, assigns, and affiliates a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sublicenseable (through multiple tiers) and transferable license to use Your name, Your restaurant name, Your restaurant logo, and Your photos in marketing.
In connection with User Submissions, You represent and warrant that You will not: (i) submit or post material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including trademark, privacy, and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to post the material and to grant Guest Innovations all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Guest Innovations or any third party; (iii) submit or post material that involves gambling, gaming, sweepstakes, and/or any other activity with an entry fee and a prize, or (iv) submit or post material that is otherwise inappropriate. In addition, You agree to pay for all royalties, fees, and other payments owed to any party by reason of Your posting or submitting User Submissions. GUEST INNOVATIONS DOES NOT ENDORSE ANY USER SUBMISSION OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED THEREIN, AND THE GUEST INNOVATIONS PARTIES EXPRESSLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH USER SUBMISSIONS. Guest Innovations does not permit trademark or copyright infringing activities, infringement of rights of publicity, or infringement of other intellectual property rights on its Rezku POS Service, and Guest Innovations will remove all Content (including User Submissions) if properly notified that such Content or User Submission infringes on another’s rights. (See Section 9 below). Guest Innovations will not necessarily monitor User Submissions. However, Guest Innovations reserves the right to monitor, alter, edit, or remove Content (including User Submissions) and block users without prior notice and for any reason. Guest Innovations also reserves sole discretion to decide whether any Content (including a User Submission) is appropriate and complies with these Terms of Use.
You understand that when using the Rezku POS Service, You may be exposed to User Submissions from a variety of sources, and that Guest Innovations is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that You may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST THE GUEST INNOVATIONS PARTIES OR APPLE WITH RESPECT THERETO, AND AGREE TO INDEMNIFY AND HOLD THE GUEST INNOVATIONS PARTIES AND APPLE HARMLESS TO THE FULLEST EXTENT ALLOWED BY LAW REGARDING ALL MATTERS RELATED TO YOUR USE OF THE SERVICE.
5. ACCESS TO THE SERVICE/USERS WHO VIOLATE TERMS OF USE
Guest Innovations may, at its sole discretion, disable or terminate the accounts of any users who violate these Terms of Use, including, but not limited to, the accounts of (i) users who submit User Submissions that infringe copyrights, trademarks, rights of publicity, or other intellectual property rights, especially if they do so repeatedly, (ii) users who fail to pay applicable fees for use of the Rezku POS Service, (iii) Restaurant Users who use a subscription for more than one restaurant location, unless multiple locations are included in Your agreement with Guest Innovations, (iv) users who provide false or inaccurate information, (v) users who breach these Terms of Use including any warranties, and users who misuse or challenge Guest Innovations’ rights in the Content.
6. RESTRICTIONS ON USE OF THE REZKU POS SERVICE
In Your use of the Rezku POS Service, You will not:
- use the Rezku POS Service for any purpose other than for using the features We intentionally make available to You;
- copy, download or distribute any part of the Rezku POS Service in any form or medium without the prior written authorization of Guest Innovations;
- alter, modify or make derivative works from any part of the Rezku POS Service without the prior written authorization of Guest Innovations;
- resell or attempt to license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party, all or any part of the rights granted to You under these Terms of Use, the Rezku POS Service or any Content, in whole or in part;
- provide false personal information;
- create an account for anyone other than Yourself without permission, unless You are an administrative user;
- create another account without Our permission, if We have disabled Your account;
- share Your password, let anyone else access Your account, or do anything else that might jeopardize the security of Your account;
- assign or transfer Your account or login information to anyone;
- use web crawlers, web robots, web scutters, ants, automatic indexers, bots, worms, and other such devices in connection with the Rezku POS Service; provided, however, that general purpose Internet search engines and non-commercial public archives that use tools to gather information for the sole purpose of displaying hyperlinks to the Rezku POS Service are granted a limited exception from the foregoing exclusion, provided that they do so from a stable IP address or range of IP addresses using an easily-identifiable agent;
- post, transmit or submit any confidential (including social security or alternate national identity numbers, non-public phone numbers or non-public email addresses, but excluding Your or any other person's credit card information), false, misleading, unlawful, infringing, threatening, abusive, harassing, libelous, defamatory, discriminatory, obscene, offensive, inflammatory, scandalous, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate the law;
- upload, download, post, email or otherwise transmit any material that may infringe copyright, patent, trademark, trade secret, or other intellectual property or proprietary rights of any party;
- upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
- use the Rezku POS Service in any manner that could damage, disable, overburden, or impair the Rezku POS Service or interfere with any other party’s use of the Rezku POS Service;
- obtain or attempt to obtain any content through any means not intentionally made available or provided for through the Rezku POS Service;
- facilitate gambling, gaming, raffles, lotteries, sweepstakes, and/or any other activity featuring the award of a prize;
- impersonate or misrepresent any person or entity or Your affiliation with someone else;
- collect personally-identifiable information of other users, unless You are an administrative user;
- harvest information about users for the purpose of sending, or to facilitate or encourage the sending of, unsolicited bulk or other communications;
- remove, modify, disable, block, obscure or otherwise impair any advertising in connection with the Rezku POS Service;
- solicit other users to join, become members of, or contribute money to any online service or other organization;
- post or transmit any worms, viruses, Trojans, or other harmful, disruptive, or destructive files, code, or programs to the Rezku POS Service;
- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
- stalk or otherwise harass any person or entity;
- harm minors in any way; or
- use any discussion functionality to advertise or perform any commercial solicitation.
Guest Innovations may cooperate with any law enforcement authorities or court order requesting or directing Guest Innovations to disclose the identity of anyone violating these Terms of Use.
Guest Innovations believes in children’s online safety and does not wish to receive information regarding children under 16 years old. Therefore, You may not post or submit any personally-identifiable information of a child under 16 years old or information sufficient to locate such a child on or through the Rezku POS Service. If You are under 16 years of age, then please do not attempt to submit any information to or use the Rezku POS Service.
7. INTELLECTUAL PROPERTY
Everything You see, hear, or otherwise experience on the Rezku POS Service, including but not limited to the graphics, videos, text, software, photographs, scripts, software screens, design elements, artwork, templates, layout designs, interactive features and the like, the concepts and ideas underlying the Rezku POS Service, and all statistical, analytical, and other data captured by or through the Rezku POS Service (collectively, “Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Guest Innovations, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Guest Innovations owns the copyright in the selection, coordination, arrangement and enhancement of the Content. Any unauthorized use of any materials on the Rezku POS Service may violate copyright, trademark, and other laws. GUEST INNOVATIONS, REZKU, REZKU PRIME, REZKU TABLET, REZKU POS, MAKING RESTAURANTS MORE, and WAITKU are trademarks of Guest Innovations.
If Your Rezku POS Service account is in good standing, You are granted a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the paid-for portions of the Rezku POS Service for the sole benefit of Your business.
For Your personal use, You may view, copy, and print pages from the Rezku POS Service. Otherwise, the Rezku POS Service may not be copied, downloaded, modified, reproduced, distributed, published, performed, streamed, transmitted, broadcasted, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Guest Innovations reserves all rights not expressly granted in and to the Rezku POS Service and the Content. You agree not to use, copy, download, or distribute any of the Content other than as expressly permitted herein, including any use, copying, downloading, making derivative works from, or distribution of User Submissions of third parties obtained through the Rezku POS Service for any commercial purposes. You may not incorporate the Content into, or stream or transmit the Content via any hardware or software application or make it available via frames or in-line links unless expressly permitted by Guest Innovations in writing. You may not create, recreate, advertise or distribute an index of a significant portion of the Content unless authorized in writing by Guest Innovations. You may not build a business using the Content, whether or not for profit. If You copy or print pages of the Content for personal use, You must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security-related features of the Rezku POS Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Rezku POS Service or the Content therein, nor may You scrape or use any extraction methods to obtain any Content or data from the Rezku POS Service.
8. ADVERTISEMENTS/RELEASE
Guest Innovations takes no responsibility for advertisements or any third party material posted on the Rezku POS Service, nor does it take any responsibility for the products or services provided by restaurants, hotels or other service providers with profiles or other Content on the Rezku POS Service (“Advertisers”). Any dealings You have with Advertisers found while using the Rezku POS Service are between You and the Advertiser, and You agree that the Guest Innovations Parties are not liable for any loss or claim that You may have against an Advertiser.
YOU AGREE THAT YOU BEAR ALL RISK AND YOU AGREE TO RELEASE THE GUEST INNOVATIONS PARTIES AND APPLE FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, NOW AND IN THE FUTURE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICE AND YOUR TRANSACTIONS WITH ADVERTISERS OR OTHER THIRD PARTIES. YOU FURTHER WAIVE ANY AND ALL RIGHTS AND BENEFITS OTHERWISE CONFERRED BY ANY STATUTORY OR NON-STATUTORY LAW OF ANY JURISDICTION THAT WOULD PURPORT TO LIMIT THE SCOPE OF A RELEASE OR WAIVER. YOU WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS WHICH YOU HAVE OR MAY HAVE UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA OR ANY SIMILAR PROVISION OF THE STATUTORY OR NON-STATUTORY LAW OF ANY OTHER JURISDICTION (INCLUDING WITHOUT LIMITATION THE STATES OF MISSOURI, DELAWARE AND PENNSYLVANIA) TO THE FULL EXTENT THAT YOU MAY LAWFULLY WAIVE ALL SUCH RIGHTS AND BENEFITS.
9. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT
If You are an intellectual property owner or an agent thereof and believe that either (1) any Content or User Submissions on the Rezku POS Service or (2) any material or activity contained on an online location to which Guest Innovations has referred or linked users, infringes upon Your intellectual property rights, You may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) and 512(d) for further detail):
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Rezku POS Service are covered by a single notification, a representative list of such works on the Rezku POS Service;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Us to locate the material (or in the case of referrals or links that are claimed to lead to infringing material or activity, identification of the reference or link that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Us to locate that reference or link);
- information reasonably sufficient to permit Us to contact You, such as an address, telephone number, and, if available, an email address;
- a statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notification pursuant to the DMCA should be submitted to:
DMCA Manager
Guest Innovations, Inc.
1740 Creekside Oaks Drive, Suite 175
Sacramento, CA 95833
530-298-7219
dmca@guestinnovations.com
You acknowledge that if You fail to comply with all of the requirements of this Section, Your DMCA notice may not be valid. Emails or notices sent to Guest Innovations without a proper subject line, or for purposes other than communication about intellectual property claims, may not be acknowledged or responded to.
10. TRADEMARKS AND CELEBRITY MATERIAL
- Guest Innovations responds to complaints that Content infringes trademarks or celebrity material. Trademarks include logos, brand names, and trade dress, which is the distinctive visual appearance of a product or its packaging.
- Please be aware that celebrities, and sometimes others, may have a "right of publicity," which means that they may have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. Although You may be a fan, You risk infringing celebrity rights if You use a celebrity name or likeness on the Rezku POS Service and You don't have the celebrity's permission.
- If You are a trademark owner or a celebrity and You believe Your rights have been infringed on the Rezku POS Service, please submit a notification of infringement to Our agent listed in Section 9 above.
- To submit a notification, You must be the trademark owner or celebrity or an authorized agent of the trademark owner or celebrity.
- When submitting a notification of trademark or trade dress infringement, provide a copy of the relevant trademark or trade dress registration(s) from the U.S. Patent and Trademark Office. Please also provide the location on the Rezku POS Service where You believe the infringement is occurring.
11. MESSAGING AND ADVERTISING
If You provide patron or restaurant employee contact information, such as phone number or email address, the Rezku POS App allows You to send SMS message notifications and other notifications to such patron or restaurant employee. You acknowledge and agree that You are solely responsible for obtaining consent from patrons and restaurant employees to (i) input their personal information into the Rezku POS Service, and (ii) contact them via SMS message or other notification and for complying with all text, email, and advertising laws and regulations.
12. USING THE REZKU POS SERVICE
- Account Requirements. To use the Rezku POS Service, You will be required to provide Your name, email address, and password, to have an active merchant services account with a merchant services provider, and to have a restaurant located in the United States or Canada.
- Employee Accounts. Each employee should be given a unique user pin. Each pin can be associated with permissions that allow or disallow that specific user access to certain functions and settings. You are responsible to set and restrict the permissions of each user. You are responsible for determining employment-related laws that apply to Your employees and setting up Your Rezku POS Service account accordingly.
- Hardware/Network Connection. You acknowledge and agree that You are responsible for obtaining and operating all computer hardware and network hardware and services needed to operate the Rezku POS Service. You acknowledge and agree that You are responsible for maintaining a strong and consistent internet connection (“Connection”) at the location(s) where the Rezku POS Service is in use and must have a dedicated network for the Rezku POS Service. You must maintain a Connection to operate the Rezku POS App, process credit and debit card transactions, and generally complete electronic transactions through the Rezku POS Service. Guest Innovations does not perform wiring services. We recommend that You: purchase card readers, printers, cash draws, and POS router switches from Us to help ease of installation, operation, and so that our support staff may help You to trouble-shoot your POS network remotely (purchases of this hardware through a party other than Us may not be supported by Our support team for troubleshooting or set-up); and purchase iPads directly from Apple (using the latest iPad technology with most up-to-date iOS version). iPads should be used solely for the Rezku POS Service (no third party software should be used on the same iPad). If You purchase hardware from third parties, You are responsible for setting it up. If You need assistance from Us in connection with hardware from a third party, We may charge an additional setup fee. You use third party hardware at Your own risk. You may return to Us, for any reason within 30 days of purchase, any printers, iPad stands, routers, switches, wiring kits, scales, scanners and cash drawers that You purchased from Us. We do not accept returns or issue refunds or credits for card readers or iPads. You must return the purchased hardware in new condition with all original manuals and supplies and in original boxes. It is Your responsibility to pay all shipping and postage of returned items. You will be charged a 25% restocking fee for any items returned. Defective hardware that You purchased from Us may be returned to the manufacturer for replacement, subject to the manufacturer’s replacement policy, if such defect is discovered after 30 days from purchase date. Each manufacturer carries a different warranty. Please read the warranty information with Your hardware for the terms of the manufacturer’s warranty. Guest Innovations does not accept hardware for return after 30 days from purchase date. In Our sale and replacement of hardware, You agree that we may substitute a comparably valued device making up the hardware in the event the device you selected is out of stock or otherwise not currently available to Us and/or if We reasonably believe that the requested hardware is not compatible with your POS software or other equipment. Except as otherwise set forth above regarding replacement of defective hardware purchased from Us within 30 days of such purchase, you acknowledge that We provide all hardware to You on an 'as is' basis, with no representations or warranties. You agree to release and hold Us harmless from any claims relating to any breach of manufacturer’s or third party’s warranties and that We are not be liable to You for any loss, delay, error, interruptions or damage of any kind or character, whether direct, indirect or consequential, resulting from inoperable, defective or otherwise non-working hardware. We have no liability or responsibility for fulfilling the terms of the manufacturer or other third-party warranties, if any. Your sole recourse relating to the manufacturer or other third-party warranty shall be through the manufacturer or, as applicable, the third party. You are solely responsible for complying with the card brand operating regulations and applicable laws regarding Your use of the Hardware. You acknowledge that any hardware provided under this Agreement may be embedded with Our or our suppliers’ proprietary technology ("Software"). You shall not obtain title, copyrights or any other proprietary right to any Software. At all times, We or Our suppliers retain all rights to such Software, including but not limited to updates, enhancements and additions. You shall not disclose such Software to any party, convey, copy, license, sublicense, modify, translate, reverse engineer, decompile, disassemble, tamper with, and/or create any derivative work based on such Software. Your use of such Software shall be limited to that expressly authorized by Us. In the event the hardware requires additional Software, you are obligated to cooperate with Us for the receipt and installation of such Software and/or to participate in a dial in or other down load procedure. Offline Mode. If You temporarily lose Your Connection, the Rezku POS App may contain a feature that allows You to temporarily operate certain elements of the Rezku POS Service and maintain data relating thereto, such as accepting credit and debit cards and storing transaction and card information, to process transactions once Your Connection is restored (“Offline Mode”). However, Offline Mode contains inherent limitations. Offline Mode will not provide You with confirmation that a credit card transaction is authorized, approved, or declined until Your Connection is restored. You must establish a Connection within forty-eight (48) hours of Your Connection loss to (1) process card transactions collected during the loss, and (2) synchronize or execute any other transactions that occurred during the loss that require a Connection. Offline Mode may not maintain the Rezku POS Service, transaction or card information, or operate forty-eight (48) hours after the Connection loss. In addition, while in Offline Mode, You may not have access to or use of certain services that are normally available when You have a Connection. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR AND ASSUME ALL LEGAL AND FINANCIAL RESPONSIBILITY FOR ACTIVITY THAT OCCURS DURING OFFLINE MODE, INCLUDING TRANSACTIONS AND CARD PROCESSING. GUEST INNOVATIONS DOES NOT GUARANTEE OR ASSUME ANY LIABILITY FOR YOUR TRANSACTIONS IN CONNECTION WITH OFFLINE MODE THAT MAY BE DENIED AUTHORIZATION, DECLINED, REVERSED, CHARGED BACK, DAMAGED, OR LOST, OR YOUR CONNECTION, SERVICES, OPERATIONS, OR DATA IN CONNECTION WITH OFFLINE MODE THAT ARE INTERRUPTED, DAMAGED, OR LOST, REGARDLESS FOR THE REASON FOR, OR TIME OF, SUCH EVENT.
- Setup/Training. If You seek assistance from Guest Innovations in connection with setting up hardware or software or training users to use the Rezku POS Service, You understand that such services will be provided remotely unless specifically noted otherwise on Your invoice. All travel charges must be prepaid in full.
- Bar Tab Feature. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE AND ASSUME ALL RISK AND LIABILITY WHEN USING THE REZKU POS APP'S BAR TAB FEATURE. PRE-AUTHORIZING CREDIT CARD TRANSACTIONS CAN INCREASE YOUR LIABILITY WITH REGARD TO CHARGE BACKS AND CARDS NOT BEING SUCCESSFULLY CHARGED FOR THE FULL AMOUNT OF THE TRANSACTION. AS THE BAR TAB INCREASES, THE REZKU POS APP DOES NOT RE-AUTHORIZE THE HIGHER AMOUNT OF THE BAR TAB; THIS CAN RESULT IN CREDIT CARDS NOT BEING ABLE TO BE CHARGED FOR THE FULL AMOUNT OF THE TRANSACTION. YOU SHOULD ALWAYS SETTLE A BAR TRANSACTION BEFORE THE GUEST LEAVES YOUR ESTABLISHMENT. If you leave a BAR tab open it will be charged a tip amount explained in the app or 20%.
- Taxes, Fines, Fees, Tips. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR AND ASSUME ALL LEGAL AND FINANCIAL RESPONSIBILITY FOR TAXES, FINES, FEES, AND ASSOCIATED LOSSES. YOU AGREE TO DEFEND AND HOLD THE GUEST INNOVATIONS PARTIES HARMLESS OF ANY AND ALL LIABILITY CONCERNING TAXES INCLUDING, BUT NOT LIMITED TO: COLLECTING, REPORTING, DETERMINING AND CONFIGURING SETTINGS, DATA STORAGE, AND ACCURACY OF YOUR TAX COLLECTIONS AND PAYMENTS. IT IS YOUR SOLE RESPONSIBILITY TO CONSULT WITH YOUR CERTIFIED PUBLIC ACCOUNTANT OR TAX PROFESSIONAL CONCERNING SALES, USAGE, OR OTHER TAXES, AND TIPS, GRATUITIES, SERVICE CHARGES, SURCHARGES, DISCOUNTS, AND OTHER FEES.
13. PAYMENT SERVICES
- Term of Agreement. This Agreement binds You on the earlier of Your execution of an Order Form to this Agreement or Our provision to You of the Rezku POS Service. Unless otherwise stated in the Order Form or other writing signed by Us, the initial term (“the “Initial Term”) of this Agreement is 3 years (36 months). Following the end of the Initial Term and any renewal term, the Agreement automatically renews for periods of twelve (12) months (each a “Renewal Term”), unless either party gives written notice of its intent to terminate or not renew the Agreement at least 90 days before the then-current term expires. The Initial Term together with the any Renewal Term(s) are referred to as the “Term” of this Agreement.
- Paying for Rezku POS Service - Subscription Fee and Charges. You agree to pay and authorize Us to charge Your credit card or bank account on file with Us for one-time and recurring fees, charges, costs and expenses for and related to the Rezku POS Service and hardware purchased from Us as set forth in Section 12 of these Terms and Conditions, when they become due, which include, but are not limited to, set-up and monthly subscription fees (the “Fees”). Fees set forth in an Order Form may be amended by Us and where You use a Rezku POS Service or purchase hardware not listed on an Order Form, You will be charged Our then current price for such services and/or hardware as part of the Fees. You are responsible for all taxes applicable to the Fees in any applicable jurisdiction. We may offset and have you pay any amounts you owe under this Agreement out of the money you are paid through your merchant account. agree not to unreasonably dispute charges or automated recurring payments and You further agree to pay all fees and costs associated with any unsubstantiated chargeback requests. If You request a chargeback for Fees billed to You with Your credit or debit card company without first contacting Us in writing in an attempt to resolve the matter, Your account will be charged a one-time $299.00 chargeback fee. In addition, Your account may be permanently closed. We do not provide refunds or partial refunds for software charges, including but not limited to monthly or yearly subscription fees, setup fees, travel fees and/or menu building fees. We may change the Fees We charge for Our services for any Renewal Term. At least thirty (30) days before pricing changes become effective, We will post pricing changes at Rezku.com/POS/Standard-Pricing or will notify You of pricing changes by email or other communication. Continued use of the Rezku POS Service following the effective date of such pricing changes will be deemed an acceptance of the new pricing unless You terminate Your account prior to the effective date of the new pricing. In the event Your payment information cannot be verified, is invalid, is over-limit or is not otherwise acceptable, Guest Innovations may, at its discretion (i) suspend or cancel Your access to the Rezku POS Service without notice; (ii) generate invoices for payment; or (iii) pass through to You any fees incurred by Guest Innovations as a result of a rejected payment attempt (including but not limited to ACH rejection fees). You agree to pay all collection costs, including reasonable attorney’s fees for the collection of unpaid balances. Where applicable, You agree that You are solely responsible for directly maintaining and payment of all costs and fees associated with an Apple developer account with Apple and complying with all rules and regulations of Apple and Google.
- Paying for Rezku POS Service (Cash Discount Program Option). The Rezku POS App allows the option to use the Rezku POS App for no or a reduced monthly fee if You enroll in Our cash discount program. If You enroll in Our cash discount program, Your patron users are charged a convenience fee when they pay using a method other than cash (“Patron Convenience Fee”). The Patron Convenience Fee is 3.99% for in-restaurant payments and 4.99% for online payments. If a patron pays with cash, the Rezku POS App can issue a credit to the Restaurant User of the restaurant choosing. The Patron Convenience Fee is applied to partially or totally cover payment processing charges, gateway fees, security and development costs and monthly SaaS fees, so that You can dramatically decreases Your credit card processing costs. The purpose of the non-cash adjustment is to incentivize customers to pay with cash. This is an “in-kind incentive” in compliance with §2(A) of the Durbin Amendment, a provision of 15 U.S.C. § 1693o-2 whereby a cash discount is provided from the regular price in accordance with such document. You agree to be solely responsible for conducting Your own due diligence on Your use of the cash discount program and for determining the compliance of such program with the card brand operating regulations and federal and state law. You bear all of the risks associated with using the cash discount program. You agree to indemnify and hold Us harmless from any damage, loss, claim, or liability arising from the use of the cash discount program.
- Credit Card Processing. You agree to do all of Your credit card processing through our designated its processor(s) and bank(s) (“Preferred Processors”). If You use a third party other than the Preferred Processors to process your credit card processing, You agree to pay Us an additional $149.00 per month as part of your Fees. You authorize Us to have continuing and complete access to the information and activity in and under Your Sub-Merchant Processing Agreement and hereby authorize and the Preferred Processors and other third parties under such agreement to provide Us such information and transaction activity. Furthermore, You agree that you are solely responsible for all losses of any kind, including but not limited to (a) credit, chargeback, and fraud losses, and card network assessments that We or the Preferred Processors or other third parties may incur in connection with Your transactions; and (b) any fines, fees, assessments, or other costs or liability We or the Preferred Processors or other third parties may incur as a result of Your violation of applicable law or network rules under this Agreement or the Sub-Merchant Processing Agreement.
The term “Actively Processing” for the purposes of this Agreement shall mean the merchant processes bona fide transactions representing a minimum monthly average of $8,000.00 in transaction volume. - Patron Payment Services. The Rezku POS App allows patron users to pay their bill at participating restaurants. As a courtesy, We will email a receipt to the email address associated with a patron user upon completion of a transaction. You may print and save copies of these receipts. If a patron user would like a paper receipt, they must request one from the restaurant at the time of the transaction. Restaurant Users are responsible for determining how to comply with payment, tax-related, and other laws and regulations in their location(s), setting up their Rezku POS Service accounts accordingly, and paying all fees including but not limited to taxes, import fees, customs fees, duty fees, fines, and assessments. Further, You agree to comply with applicable laws, including but not limited to, opt-outs requirements and You having the prior express written consent from patron sent emails and You agree to have such patron consent prior to sending any emails using the email receipt feature and that We are in no way responsible for Your compliance with these laws.
- Gift Cards. We recommend that You purchase gift cards from Us. The Rezku POS Service is designed to work with gift cards provided by Guest Innovations and may not function with third party gift cards.
- Rezku POS Service – Temporary Hold on Account. You may put Your account on a temporary hold for a maximum of 3 months per calendar year at the following rates: $39.00 to put account on hold; $39.00 to reactivate account at end of hold; and $29.00 per month while account is on hold. The Term of the Agreement will be automatically extended for the period Your account is on hold. Please contact Us at support@rezku.com to arrange for a temporary hold on Your account. In the hold request, please include Your name, restaurant name, address, phone number, and the product You wish to place on hold.
- Rezku POS Service – Account Transfer. Subject to Section 19 of these Terms of Use, You may transfer Your account to another business as part of a merger or acquisition of Your business. For any permitted transfer, the transfer fee is $199.00. Please contact Us at support@rezku.com to arrange for an account transfer. In the transfer request, please include for the current licensee: Your name, restaurant name, address, phone number, the product You wish to transfer, and for the new licensee: a contact name, restaurant name, address, and phone number. You agree that unless and until Your account and the Agreement is transferred to a third party as set forth in this section, You remain responsible under this Agreement, including the payment of Fees.
- Rezku POS Service – Account and Agreement Termination/Reinstatement. Pursuant to the advance notice requirements set forth in Section 13(a) of these Terms of Use, You may terminate all or a portion of Your Rezku POS Service subscription and/or Agreement at any time at the end of the Term by completing and emailing Us a signed a cancelation form (the “Cancellation Form”). You may request a copy of a template Cancellation Form by email to support@rezku.com. You agree to use the Cancellation Form as the sole means to terminate all or a portion of Your Rezku POS Service subscription and/or Agreement. When You terminate your Agreement, Your access to the Rezku POS Service will terminate and You will no longer have access to the Rezku POS Service or the data in Your account. You will not receive a pro-rata refund or credit of monthly or other periodic Fees paid for a termination made within such period. If You cancel Your account, We may restrict or block services to You in the future. If You wish to reinstate Your account after You or We cancel Your account, You will be charged a $299.00 reinstatement fee. You agree that it is solely Your responsibility to transfer any data in Your account before termination of services and/or your Agreement and that service requests for transfer of data made to Us may be subject to data transfer Fees.
- Early Termination. Either You or We may terminate this Agreement at any time, for convenience and without cause, on thirty (30) days’ written notice to the other party. If We terminate this Agreement after a breach of this Agreement by You, including, but not limited to, by ceasing or reducing its payment processing payments with Us, or if You terminate this Agreement before the end of the Term, including for convenience and otherwise, without cause, You agree to pay an early termination fee of One Hundred Forty Nine dollars ($149.00) plus Your monthly SaaS fees multiplied by the number of months remaining until the end of the current term of the Agreement plus the dollar amount of any discounts you were provided.You agree to pay the early termination fee immediately upon termination, and You further authorize Us to charge such early termination fee from your credit card on file or deduct such amount by electronic transfer from Your bank account. You agree that the early termination fee is not a penalty, but rather is reasonable in light of the financial harm caused by Your early termination. Other remedies We may have under this Agreement still apply. If You fail to pay the early termination fee within ninety (90) days of termination you will owe Us an amount equal to: (i) the average monthly gross card processing dollar volume under Your Sub-Merchant Processing Agreement multiplied by 0.50% (i.e., 50 basis points); plus (ii) the average monthly Fees assessed to You under the Agreement for months during which You processed any transactions, (i) and (ii) each multiplied by the number of months remaining in the then-current Initial Term or Renewal Term, as applicable, of this Agreement. Notwithstanding the above, no early termination fee will be charged to the extent it is prohibited by applicable federal or state laws. Additionally, You agree to pay Us: (a) any unpaid invoice(s); and (b) any damages, losses, expenses, fees, fines, penalties, and adjustments we incur in connection with the Agreement.The parties expressly agree that the damages, which You and Us might reasonably anticipate to be sustained by Us, are difficult to ascertain and measure because of their indefiniteness or uncertainty and that the amount set forth above is a reasonable estimate of the damages that would probably be caused and shall be due regardless of proof of actual damages. Furthermore, If You received a promotional discount for the Rezku POS Service and/or on any hardware purchased from Us and Your Agreement is terminated early by Us for Cause or by You, without cause, You agree to pay Us the difference between Our publicized rates and the discounted rates provided to You.
- Location Restrictions. You acknowledge that monthly subscription charges for the Rezku POS Service are billed on a per location basis, and that use of the subscription service at more than one location without Our consent and paying the associated fees for that location is grounds for suspension of such service without a refund. There is no additional charge for use of any services on multiple devices at the same restaurant location.
- Additional Terms for Rezku Mobile Wallet Application. We have developed, own and may provide certain Restaurant Users access to and use of a white labeled mobile wallet and order taking application and related services that enable patrons of restaurant to store their payment credentials within Our systems for subsequent use by those patrons in transacting with and paying such Restaurant Users as part of checkout payment pages and processes using a tokenization service provided by Guest Innovations which replaces the patron/cardholder data for surrogate “Token” values for use by the Restaurant User (the “Rezku Mobile Wallet Application”). Access to the tokenization service offered through the Rezku Mobile Wallet Application requires a Restaurant User to integrate and certify its systems to the tokenization services using Our provided message specifications. Message specifications are limited to those that exist in Our current service offering. The Rezku Mobile Wallet Application may include additional features such as use of order and payment QR Codes and a pay by link feature whereby a Restaurant User may send a link to patrons via e-mail or SMS text message for the patron to authorize its payment transaction through the Rezku Mobile Wallet Application. Patrons’ access, use, and download the Rezku Mobile Wallet Application from the Apple or Google store websites are subject to terms of those websites, which include Our current terms of use and privacy policy set forth in these Term of Use, as may be amended from time to time by Us. We are a technology provider. We are not a bank, credit union, payment processor or other financial institution. Transactions using the Rezku Mobile Wallet Application are processed via the payment processor of the Restaurant User. A Restaurant User and We confirm the mutual understanding that we are each an independent data controller with respect to personal data received by Us from a Restaurant User as part of a Cardholder’s sign-up process for The Rezku Mobile Wallet Application (“Cardholder Persona Data”). The terms “data controller”, “personal data”, have the meanings given to them in applicable European Union general data protection regulation legislation. With regard to the pay by link feature of the Rezku Mobile Wallet Application, the Restaurant User agrees to comply with applicable laws, including but not limited to, opt-outs requirements and it having the prior express written consent from patron sent texts and it further agrees to have such patron consent prior to sending any texts using the pay by link feature and that We are in no way responsible for its compliance with these laws. The Rezku Mobile Wallet Application and service described and referenced herein that may be provided to a Restaurant User and its patrons by Rezku) and/or its third-party service providers will be governed such other terms provided by Us, which may include a Software as a Service Agreement – Terms and Conditions in addition to these Terms of Use.
- Payment Services for All Users. The following conditions will apply to any transaction by a patron or Restaurant User (collectively, the “Payment Services”):
- Payment Card Information. To use the Payment Services, You must provide account information for at least one valid debit or credit card through the Rezku POS Service. Guest Innovations uses this debit or credit card account information as described in Our Privacy Policy. You may add, delete, and edit the debit or credit card account information You have provided from time to time through the Rezku POS Service. If You provide account information for more than one valid debit or credit card, You must select which debit or credit card You want to use to pay Your bill.
- Authorization. To confirm that the payment card information You have provided is accurate, We will place a temporary $1.00 authorization hold on Your debit or credit card at the time You provide Your payment card information. After We verify that Your payment card information is accurate, usually within a few days, the $1.00 hold will be removed. Your payment card will not be charged for this $1.00 authorization.
- Payment Representations and Warranties. By providing bank, debit or credit card account information through the Rezku POS Service, You represent, warrant, and covenant that: (1) You are legally authorized to provide such information to Us; (2) You are legally authorized to perform payments from the debit or credit card account(s); and (3) such action does not violate the terms and conditions applicable to Your use of such debit or credit card account(s) or applicable law. When You authorize a payment using a debit or credit card account, You represent, warrant, and covenant that there are sufficient funds or credit available to complete a payment using the debit or credit card account. You understand and agree that We may use the information and data provided on Your application with Your processor and the information and data provided to Us while providing the Rezku POS Service, including personal information, for all legal purposes, including but not limited to the collection of amounts due.
- Verified Mobile Phone Number. For patrons to use the Payment Services, they must provide a valid mobile phone number through the Rezku POS Service and verify such number as instructed by Us. To verify their mobile phone number, We will send them a code via SMS message or other notification to the mobile phone number they provided, and they must enter that code as instructed in the Rezku POS Service. If they change their mobile phone number, they must promptly provide and verify their new mobile phone number. When they or You provide their or Your mobile phone number, they or You expressly consent to receive direct dial calls, autodialed and prerecorded message calls, and text messages relating to the Payment Services at that number. Restaurant Users are responsible for giving any notices and obtaining any consents required from their patrons in connection with payments.
- Integrations. If You integrate the Rezku POS Service with third party services or systems, You are responsible for any fees or expenses related to such integrations.
- Refunds/Chargebacks. Transactions conducted through the Rezku POS Service are NON-REFUNDABLE. We do not provide pro-rata credits or refunds. All transactions are final. You agree that You will not attempt to circumvent any refund prohibitions with regard to transactions You conduct through the Payment Services. You will not dispute or otherwise seek a “chargeback” from the company whose credit card You used to enter a transaction. Should You do so, Your account may be cancelled, and We may, in Our sole discretion, refuse to honor pending and future transactions made from all credit or debit card accounts on which such chargebacks have been made and may prohibit all persons in whose name the credit or debit card accounts exist and any person who accesses any associated online account or credit card or who otherwise breaches this provision from using the Rezku POS Service.
- Liability Disclaimer. GUEST INNOVATIONS IS NOT LIABLE FOR ANY PAYMENTS THAT THE PAYMENT SERVICES DO NOT COMPLETE BECAUSE: (1) YOUR DEBIT OR CREDIT CARD ACCOUNT DOES NOT CONTAIN SUFFICIENT FUNDS TO COMPLETE THE TRANSACTION OR THE TRANSACTION WOULD EXCEED THE CREDIT LIMIT OR OVERDRAFT PROTECTION OF THE DEBIT OR CREDIT CARD ACCOUNT; (2) YOU HAVE NOT PROVIDED US WITH CORRECT PAYMENT ACCOUNT INFORMATION; (3) YOUR DEBIT OR CREDIT CARD HAS EXPIRED; OR (4) CIRCUMSTANCES BEYOND OUR CONTROL (SUCH AS, BUT NOT LIMITED TO, POWER OUTAGES, INTERRUPTIONS OF CELLULAR SERVICE, OR ANY OTHER INTERFERENCES FROM AN OUTSIDE FORCE) THAT PREVENT THE EXECUTION OF THE TRANSACTION. To the extent that any amounts owed cannot be collected from Your debit or credit card account through the Payment Services, You are solely responsible for paying the applicable amount by other means.
- Confirmation. If You do not receive a confirmation number (in the form of a confirmation page or email) after submitting payment information, or if You experience an error message or service interruption while using the Payment Services, it is Your responsibility to confirm whether or not Your transaction has been completed.
You agree to pay Us the following additional fees and costs if applicable. Your deposit will be made by the processor to your bank. However We cannot control when your bank makes those funds available to You.
Transmission & Security Fee*
Monthly Minimum Fee**
Chargeback Fee***
ACH Chargeback Fee****
Next day funding+
Super quick funding++
*This is the batch, security, and gateway fee charged each time You batch payments to be sent to the processor.
**This is the minimum fee for processing each month
***This fee is accessed with each chargeback
****This fee is accessed with each ACH reject from Your Bank
+Your deposit will be made to your bank the next business day after clearing processing. Usually one business day before you would usually get your funding.
++Your deposit will be made the same business day that it clearing processing.
Usually the same business day (or within 12 hours) of the same business day that it is processed.
14. WARRANTIES
You warrant and represent to Guest Innovations as set out below:
- The information provided to Guest Innovations in any registration or application screen, profile, email, postings, telephone call or through other means including all personal details, contact details and all other data provided to Guest Innovations is true in all respects, up-to-date and not misleading in any way.
- You will keep the information referred to in paragraph (a) up to date.
- You will not access the Rezku POS Service under false identity or pretext and will not use it to falsify Your or any other person's identity (however, this will not prevent You from using an adopted name provided the name is used lawfully and in good faith).
- You will use the Rezku POS Service lawfully and in good faith.
- You will keep Your log-in details and password secure and will not share such information with third parties.
- You will not use any Rezku POS Service with a monthly subscription fee at more than one restaurant location.
- Restaurant Users will post any signage or online notices and take any other steps required to comply with laws and regulations applicable to their businesses, including but not limited to the cash discount program.
15. DISCLAIMER OF WARRANTIES
YOU AGREE THAT YOUR USE OF THE REZKU POS SERVICE SHALL BE AT YOUR SOLE RISK. THE REZKU POS SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE GUEST INNOVATIONS PARTIES AND APPLE GIVE NO WARRANTY NOR MAKE ANY REPRESENTATION IN RELATION TO THE REZKU POS SERVICE OR THE CONTENT. THE GUEST INNOVATIONS PARTIES AND APPLE EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW AND YOU WAIVE ANY REPRESENTATION OR WARRANTY ON THE PART OF THE GUEST INNOVATIONS PARTIES AND APPLE RELATING TO THE REZKU POS SERVICE OR THE CONTENT, EXPRESS, IMPLIED, STATUTORY, AND OTHERWISE IN CONNECTION WITH THE REZKU POS SERVICE, ANY SOFTWARE LICENSED OR PROVIDED TO YOU BY THE GUEST INNOVATIONS PARTIES OR APPLE AND ANY AGREEMENT WITH A THIRD PARTY, THAT MAY BE IMPLIED BY THESE TERMS OF USE, BY CUSTOM, OR BY LAW OR OTHERWISE AND WHICH IS NOT EXPRESSLY SET OUT HEREIN, INCLUDING ANY IMPLIED WARRANTIES OF AVAILABILITY OF THE REZKU POS SERVICE, NON-DISRUPTION, SECURITY, ACCURACY, THE USE OF REASONABLE CARE AND SKILL, QUALITY, MERCHANTABILITY, TITLE OR ENTITLEMENT, FITNESS FOR A PARTICULAR PURPOSE, ABILITY TO ACHIEVE A PARTICULAR RESULT OR FUNCTIONALITY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS AS WELL AS WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, AND COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, THE GUEST INNOVATIONS PARTIES AND APPLE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THE REZKU POS SERVICE OR ON ANY WEBSITES OR APPS LINKED TO THE REZKU POS SERVICE IS ACCURATE, COMPLETE OR CURRENT; THAT THE REZKU POS SERVICE WILL OPERATE WITHOUT INTERRUPTION OR ERROR; OR THAT THE QUALITY, SAFETY OR LEGALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE REZKU POS SERVICE OR AGREEMENTS YOU ENTER WITH THIRD PARTIES SUCH AS ADVERTISERS WILL MEET YOUR EXPECTATIONS; THAT THE REZKU POS SERVICE WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY GUEST INNOVATIONS; THAT REZKU POS SERVICE ERRORS WILL BE CORRECTED; THAT THE REZKU POS SERVICE IS PCI COMPLIANT; THAT THE REZKU POS SERVICE COMPLIES WITH THE AMERICANS WITH DISABILITIES ACT (ADA) OR ANY OTHER LAWS; OR THAT YOUR USE OF THE SERVICE FOR SMS MESSAGING, EMAIL OR OTHER NOTIFICATIONS DOES NOT VIOLATE LOCAL, STATE OR NATIONAL LAWS. THE GUEST INNOVATIONS PARTIES AND APPLE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DATA LOSS OR CORRUPTION), RESULTING FROM YOUR ACCESS TO AND USE OF THE REZKU POS SERVICE, (III) UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR INFORMATION STORED THEREIN, (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE REZKU POS SERVICE, (V) BUGS, VIRUSES, TROJAN HORSES, DESTRUCTIVE COMPUTER CODES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE REZKU POS SERVICE BY ANY THIRD PARTY, AND/OR (VI) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE REZKU POS SERVICE.
16. INDEMNITY
YOU ACKNOWLEDGE THAT THE GUEST INNOVATIONS PARTIES AND APPLE HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE QUALITY, SAFETY, OR LEGALITY OF GOODS OR SERVICES PROVIDED BY RESTAURANTS, HOTELS, OR ADVERTISERS, THE TRUTH OR ACCURACY OF ANY RESTAURANTS, HOTELS, OR ADVERTISERS’ CONTENT OR LISTINGS, OR THE ABILITY OF ANY RESTAURANT, HOTEL, OR ADVERTISER TO PERFORM, OR ACTUALLY COMPLETE A TRANSACTION OR SERVICE. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE GUEST INNOVATIONS PARTIES AND APPLE FROM AND AGAINST ANY CLAIM, LOSS, OBLIGATION, DEMAND, DAMAGE, COST, LIABILITY, EXPENSES, AND ATTORNEY’S FEES ARISING TO ANY OF THE GUEST INNOVATIONS PARTIES AND APPLE AS A RESULT OF ANY CLAIM, DEMAND OR PROCEEDINGS BROUGHT OR THREATENED AGAINST THE GUEST INNOVATIONS PARTIES OR APPLE IN CONNECTION WITH (1) YOUR USE OF, ACCESS TO, OR MISUSE OF THE REZKU POS SERVICE AND/OR PRODUCTS PURCHASED FROM OR THROUGH GUEST INNOVATIONS; (2) YOUR BREACH OF ANY OF THESE TERMS OF USE; (3) YOUR VIOLATION OF ANY LAW, REGULATION, OR THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY TRADEMARK, COPYRIGHT, PROPERTY, OR PRIVACY RIGHT; (4) ANY CLAIM THAT ONE OF YOUR USER SUBMISSIONS CAUSED DAMAGE TO AN INDEMNIFIED PARTY OR A THIRD PARTY; (5) ANY TRANSACTION YOU CONDUCT AS A RESULT OF THE CONTACT FACILITATED BY THE REZKU POS SERVICE; OR (6) ANY ACTIVITY RELATED TO YOUR APPLE ID OR OTHER INTERNET ACCOUNT, OR USING YOUR TELEPHONE NUMBER, EMAIL ADDRESS AND/OR PASSWORD BY YOU OR ANY OTHER PERSON ACCESSING THE REZKU POS SERVICE USING YOUR APPLE ID, ACCOUNT, TELEPHONE NUMBER, EMAIL ADDRESS, OR OTHER INTERNET ACCOUNT.
IF THE GUEST INNOVATIONS PARTIES OR APPLE DO TAKE ANY LEGAL ACTION AGAINST YOU AS A RESULT OF YOUR VIOLATION OF THESE TERMS OF USE, THE GUEST INNOVATIONS PARTIES AND APPLE WILL BE ENTITLED TO RECOVER FROM YOU, AND YOU AGREE TO PAY, ALL REASONABLE ATTORNEYS’ FEES AND COSTS OF SUCH ACTION, IN ADDITION TO ANY OTHER RELIEF GRANTED TO THE GUEST INNOVATIONS PARTIES OR APPLE.
YOU AGREE AND CONSENT TO RECEIVE TEXT MESSAGE NOTIFICATIONS, EMAILS, OR OTHER NOTIFICATIONS THAT ARE SENT VIA THE REZKU POS SERVICE. TO THE EXTENT YOU SEND A MESSAGE GOVERNED BY THE TELEPHONE CONSUMER PROTECTION ACT OR THE CAN-SPAM ACT THROUGH THE REZKU POS SERVICE, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE GUEST INNOVATIONS PARTIES FROM AND AGAINST ANY CLAIM, LOSS, OBLIGATION, DEMAND, DAMAGE, COST, LIABILITY, EXPENSES, AND ATTORNEY’S FEES ARISING AS A RESULT OF ANY CLAIM, DEMAND OR PROCEEDINGS BROUGHT OR THREATENED AGAINST THE GUEST INNOVATIONS PARTIES IN CONNECTION WITH YOUR FAILURE TO OBTAIN PROPER CUSTOMER OR POTENTIAL CUSTOMER CONSENT TO INPUTTING PERSONAL INFORMATION INTO THE SERVICE OR SENDING TEXT MESSAGE NOTIFICATIONS, EMAILS, OR OTHER NOTIFICATIONS THAT ARE SENT VIA THE REZKU POS SERVICE, INCLUDING BUT NOT LIMITED TO, CLAIMS ARISING UNDER THE TELEPHONE CONSUMER PROTECTION ACT AND THE CAN-SPAM ACT.
17. LIMITATIONS ON LIABILITY
IN NO EVENT SHALL THE GUEST INNOVATIONS PARTIES OR APPLE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM THE REZKU POS SERVICE OR THIRD PARTY PRODUCTS OR SERVICES, UNDER THESE TERMS OF USE OR IN CONNECTION WITH THEIR PERFORMANCE OR BREACH, OR IN CONNECTION WITH ANY WARRANTIES HEREUNDER, OR IN CONNECTION WITH THE REZKU POS SERVICE, INCLUDING FOR THEIR NEGLIGENCE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING ANY LOSS OF PROFITS OR SAVINGS OR ANTICIPATED PROFITS OR SAVINGS, LOSS OF DATA, LOSS OF OPPORTUNITY, LOSS OR REPUTATION, GOODWILL OR BUSINESS, EVEN IF THE GUEST INNOVATIONS PARTIES OR APPLE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
THE GUEST INNOVATIONS PARTIES AND APPLE WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITY OR LOSS THAT YOU MAY INCUR, OR TO ANY OTHER UNDESIRABLE CONSEQUENCES, RESULTING FROM: (1) ANY SUSPENSION OR DISRUPTION OF THE REZKU POS SERVICE, INCLUDING WHERE SUCH SUSPENSION OR DISRUPTION RESULTS FROM THE GUEST INNOVATIONS PARTIES’ NEGLIGENCE, (2) ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (3) PERSONAL INJURY, PROPERTY LOSS, OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE REZKU POS SERVICE, (4) UNAUTHORIZED ACCESS TO OR USE OF GUEST INNOVATIONS’ SERVERS AND/OR ANY AND ALL INFORMATION STORED THEREIN, (5) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE REZKU POS SERVICE; (6) INADEQUATE OR FAULTY HARDWARE OPERATING THE REZKU POS SERVICE; (7) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE REZKU POS SERVICE BY ANY THIRD PARTY, (8) USER SUBMISSIONS, THIRD PARTY WEBSITES OR APPS; OR (9) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT, YOUR BUSINESS TRANSACTIONS OR OTHER INTERACTIONS WITH ANY RESTAURANTS, HOTELS, OR ADVERTISERS, WHEREIN SUCH CONTENT OR ADVERTISEMENT IS POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE REZKU POS SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE GUEST INNOVATIONS PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
THE GUEST INNOVATIONS PARTIES AND APPLE WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITY OR LOSS THAT YOU OR ANY OTHER PERSON MAY INCUR, OR FOR ANY OTHER UNDESIRABLE CONSEQUENCES, RESULTING FROM YOUR BREACH OF YOUR WARRANTIES OR OTHER OBLIGATIONS UNDER THESE TERMS OF USE INCLUDING, WITHOUT LIMITATION, THE OBLIGATION TO KEEP YOUR LOG-IN DETAILS AND PASSWORD SECURE OR FROM THE SHARING OF THESE DETAILS WITH ANY OTHER PERSON.
THE GUEST INNOVATIONS PARTIES’ MAXIMUM AGGREGATE LIABILITY FOR ANY SINGLE EVENT (OR A SERIES OF RELATED EVENTS) GIVING RISE TO A CLAIM IN CONNECTION WITH THESE TERMS OF USE OR IN RELATION TO THE REZKU POS SERVICE AND/OR PRODUCTS PURCHASED FROM OR THROUGH GUEST INNOVATIONS, EITHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, MISREPRESENTATION OR NEGLIGENCE WILL BE LIMITED TO $50.00 USD.
BY ACCESSING THE REZKU POS SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Any claims relating to use of the Rezku POS Service and/or products purchased by or thorugh Guest Innovations must be bought within one (1) year from the date the cause of action arose. Claims brought after such period are VOID. The Rezku POS Service is controlled and offered by Guest Innovations from its facilities in the United States of America. Those who access or use the Rezku POS Service do so at their own volition and are responsible for compliance with local and all other applicable laws, restrictions, and regulations.
A party will not be in breach of these Terms of Use, nor liable for any failure or delay in performance of any of its obligations under these Terms of Use where such failure or delay arises from or is attributable to acts, events, omissions or accidents beyond its reasonable control including an act of God, fire, flood, earthquake, windstorm or other natural disaster, explosion or accidental damage, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, terrorist attack, civil war, civil commotion or riots, shortage of raw materials or supplies, industrial action or strike, power cuts, or electronic or communication network breakdowns (“Force Majeure Events”). In the event of a Force Majeure Event affecting the provision of the Rezku POS Service by Guest Innovations, Guest Innovations will use reasonable efforts to notify users through the Rezku POS Service or through its website or by email communication.
18. POST, ARTICLES, AND BLOGS
YOU ACKNOWLEDGE THAT ALL CONTENT, ARTICLE(S), AND POST(S) ON THE REZKU POS SERVICE AND LINKING BLOG POST(S) ARE NOT TO BE CONSIDERED BUSINESS, LEGAL, OR ACCOUNTING ADVICE. YOU FURTHER AGREE TO HOLD THE GUEST INNOVATIONS PARTIES HARMLESS FROM ANY AND ALL CLAIMS RESULTING FROM OUR CONTENT, ARTICLE(S), OR BLOG POST(S) OR ANY ACTIONS YOU OR ANY OF YOUR AGENTS TAKE AFTER READING ANY OF OUR CONTENT, ARTICLE(S), OR BLOG POST(S) OR PORTIONS THEREOF.
19. ASSIGNMENT
The Terms of Use, and any rights and licenses granted hereunder, may be transferred or assigned by You only with Guest Innovations’ prior written consent, but may be assigned by Guest Innovations without restriction and without notice to You.
20. CLASS ACTION WAIVER
ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION. YOUR ACCESS AND CONTINUED USE OF THE REZKU POS SERVICE SIGNIFIES YOUR EXPLICIT CONSENT TO THIS WAIVER.
21. DISPUTE RESOLUTION
Guest Innovations wants to address Your concerns without the need for a formal legal case. Before filing a claim against Guest Innovations, You agree to try to resolve the dispute informally by contacting dispute@rezku.com and providing a description of the dispute and supporting documentation. We will try to resolve the dispute informally by contacting You via email. If a dispute is not resolved within 15 days of submission, You or Guest Innovations may bring a formal proceeding.
All claims and disputes, including all statutory claims and disputes, arising out of or relating to these Terms of Use or Your use of the Rezku POS Service will be finally resolved by binding arbitration on an individual basis, except that You and Guest Innovations are not required to arbitrate any dispute in which either party seeks equitable relief for alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. This means that, except for the equitable relief described in the previous sentence, neither Guest Innovations nor You will sue in court before a judge or jury, unless You opt out of arbitration as provided below. Guest Innovations and You are also agreeing that no dispute subject to the terms of this Section will be resolved as a class. Instead, one neutral arbitrator will decide the dispute, and the arbitrator’s decision will be final, except for a limited right of appeal under the Federal Arbitration Act (“FAA”). The arbitrator may award declaratory or injunctive relief only for the individual claims between Guest Innovations and You.
22. ARBITRATION PROCEDURE
The arbitrability of disputes arising under these Terms of Use, including any and all disputes related to the advertising, provision, or use of the Rezku POS Service, shall be governed by the FAA, not state law, and the arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with its rules of practice and procedure (the “Rules”), except to the extent they conflict with these Terms of Use. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The AAA Consumer Arbitration Rules are available online at www.adr.org, or by calling AAA at 1-800-778-7879. Any claims or disputes involving less than US $25,000 may be resolved through binding non-appearance-based arbitration. For claims or disputes where the amount sought is US $25,000 or more, the right to an in-person oral hearing will be determined by the Rules. The arbitrator will be bound to follow applicable federal and state laws and regulations in deciding all issues and in rendering any award. Guest Innovations and You will be entitled to invoke the rules of discovery applicable to state court proceedings. The arbitration proceedings will be conclusive and not appealable, and any party to any award rendered in any arbitration proceeding will be entitled to have judgment entered on that award. The number of arbitrators shall be one, selected in accordance with the Rules, and the language of the arbitration will be English. The parties agree that digital and faxed signatures will be accepted as valid.
Unless non-appearance arbitration is elected, the arbitration will be held in Sacramento County, California, provided that, if You notify Us in writing within 30 days after the initial notice of arbitration is delivered by a party, the arbitration may be held in Sacramento County, California. If non-appearance arbitration is elected, the arbitration will be conducted by written submissions, and the arbitration will not involve a personal appearance by parties or witnesses, unless the parties mutually agree otherwise. Guest Innovations and You will pay administrative and arbitrator’s fees in accordance with the Rules. Attorney’s fees and costs may be awarded to the prevailing party. The arbitrator may not award or assess punitive damages against either party.
No part of the procedures will be open to the public or the media. All evidence discovered or submitted at the hearing is confidential, and may not be disclosed, except by written agreement of the parties, pursuant to court order, or unless required by law. Notwithstanding the foregoing, no party will be prevented from submitting to a court of law any information needed to enforce this arbitration agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
GUEST INNOVATIONS AND YOU AGREE THAT ANY PROCEEDINGS TO RESOLVE ANY DISPUTE, INCLUDING ARBITRATION AND LITIGATION IN COURT, WILL BE CONDUCTED INDIVIDUALLY ONLY. Neither Guest Innovations nor You will seek to have any dispute heard as a class action, a class-wide arbitration, a private attorney-general action, or any other proceeding in which either of Guest Innovations or You act(s) or propose(s) to act as a representative for others. Guest Innovations and You also agree that no arbitration or other proceeding will be combined with another arbitration or proceeding without the written consent of Guest Innovations, You, and every other party to that arbitration or proceeding. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, and, notwithstanding anything else to the contrary in these Terms of Use, neither You nor We are entitled to arbitration; instead, all claims and disputes will be resolved in a court as set forth in Section 25 of these Terms of Use. Any disputes related to the interpretation, enforceability, or scope of this class action or class-wide arbitration waiver are to be decided by a court of competent jurisdiction, as set forth in Section 25, and not the arbitrator, who shall have no power to decide issues of class arbitrability.
You may opt out of the arbitration and class action waiver set forth above by sending a written notice of Your decision to opt out in accordance with this Section. If You do so, neither You nor Guest Innovations can force the other to arbitrate. To opt out, You must notify Guest Innovations in writing no later than thirty (30) days after first becoming subject to these Terms of Use. Your notice must include Your name, address, telephone number, and email address You used in connection with the Rezku POS Service, and an unequivocal statement that You want to opt out of this arbitration. Send Your notice to: Guest Innovations, Inc., 1740 Creekside Oaks Drive, Suite 175, Sacramento, CA 95833. In the event of a dispute between You and Guest Innovations, to invoke Your opt-out right, You must retain a copy of Your opt-out notice, as well as proof of mailing of Your opt-out notice within the prescribed period.
If You elect to opt out, each of You and Guest Innovations irrevocably (i) consents to the exclusive jurisdiction and venue of the state and federal courts in Santa Clara County, California, in connection with any matter arising out of these Terms of Use, (ii) waives any objection to such jurisdiction or venue, (iii) agrees not to commence any legal proceedings related hereto except in such courts, (iv) consents to and agrees to accept service of process to vest personal jurisdiction over it in any such courts, and (v) waives any right to trial by jury in any action in connection with these Terms of Use.
This Section may be amended from time to time in accordance with Section 1 of these Terms of Use. If You did not opt out of mandatory arbitration as provided above, You may reject any change We make to this Section by sending Us notice within thirty (30) days after first becoming subject to the amended Terms of Use. Send Your notice rejecting changes to this Section to: Guest Innovations, Inc., 1740 Creekside Oaks Drive, Suite 175, Sacramento, CA 95833. In the event of a dispute between You and Guest Innovations, to invoke Your right to apply an earlier version of this Section, You must retain a copy of Your rejection notice, as well as proof of mailing of Your rejection notice within the prescribed period.
In the event of termination of the Rezku POS Service, this mandatory arbitration provision and corresponding class action waiver shall survive.
23. SUBPOENA FEES
If Guest Innovations has to provide information in response to a subpoena related to Your account, then We may charge You for Our costs. These costs may include attorney and employee time spent retrieving records, preparing documents, and participating in a deposition.
24. EXPORT CONTROL
Software and the transmission of applicable technical data, if any, in connection with the Rezku POS Service may be subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States and the country in which You reside.
25. GENERAL
These Terms of Use and the Order Form constitute the entire agreement between the parties and supersede all other agreements, statements, and other arrangements between the parties in relation to the subject matter hereof. If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction, to be invalid, void, or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use shall remain in full force and effect. Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive and remain in effect in accordance with its terms upon the termination of this Agreement, including, without limitation, any provisions regarding payment of Fees to Us, Our use of User Submissions, Your waivers under the Agreement and indemnification of the Guest Innovation Parties, Our ownership of the Rezku POS Service; disclaimer of warranties and limitation of liability, confidentiality, governing law, dispute resolution, arbitration, and continuing unlimited guaranty provisions. Each party acknowledges that it has not relied on or been induced to enter these Terms of Use by a representation other than those expressly set out in these Terms of Use. Except as to Apple as described in the Apple required terms below, Guest Innovations and You do not intend to confer, and these Terms of Use will not be construed as conferring, any right, remedy, obligation or liability of any kind on any person other than Guest Innovations, You, and their successors and assigns. No modification, alteration or waiver of any of the provisions of these Terms of Use will be effective unless in writing and signed on behalf of each of the Parties. No waiver of any of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and Guest Innovations’ failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision. You agree that the Rezku POS Service shall be deemed solely based in California, United States of America and the Rezku POS Service shall be deemed a passive Rezku POS Service that does not give rise to personal jurisdiction over the Guest Innovations Parties in jurisdictions other than California. These Terms of Use are governed by United States and Delaware law, without regard to conflict of law provisions, and the Parties submit to the exclusive jurisdiction of the courts of Sacramento County, California, in relation to any dispute between them arising out of the subject matter of these Terms of Use.
Apple required terms:
- Acknowledgement: Guest Innovations and You acknowledge that the Terms of Use are concluded between Guest Innovations and You only, and not with Apple, and Guest Innovations, not Apple, is solely responsible for the Rezku POS Service and the content thereof.
- Scope of License: The license granted to You for the Rezku POS Service is limited to a non-transferable license to use the Rezku POS Service on any Apple branded products that You own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that the Rezku POS Service may be accessed, acquired, and used by other accounts associated with You via Family Sharing or volume purchasing.
- Maintenance and Support: As between Apple and Guest Innovations, Guest Innovations is solely responsible for providing maintenance and support services, if any, with respect to the Service, as specified in the Terms of Use, or as required under applicable law. Guest Innovations and You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.
- Warranty: As between Apple and Guest Innovations, Guest Innovations is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Rezku POS Service to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the relevant App to You. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Guest Innovations’ sole responsibility.
- Product Claims: Guest Innovations and You acknowledge that Guest Innovations, not Apple, is responsible for addressing any claims by You or any third party relating to the Rezku POS Service or Your possession and/or use of that Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Rezku POS Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights: Guest Innovations and You acknowledge that, in the event of any third party claim that the Rezku POS Service or Your possession and use of the Rezku POS Service infringes that third party’s intellectual property rights, to the extent a warranty of non-infringement is not validly disclaimed, Guest Innovations, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Legal Compliance: You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
- Developer Name and Address: Guest Innovations may be contacted at 844-697-3958 or info@rezku.com in connection with any questions, complaints or claims with respect to the Service.
- Third Party Beneficiary: Guest Innovations and You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Terms of Use, and that, upon Your acceptance of the Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Use against You as a third party beneficiary thereof.
26. Continuing Guaranty.
This Section (“Continuing Guaranty”) applies to each person who signs this Agreement as a Guarantor (each a “Guarantor”). To induce Us to enter the Agreement, each Guarantor jointly and severally guarantees the prompt and full payment of all Obligations (defined below) when due.
- Obligations. The word “Obligation” is used in its most comprehensive sense. It includes all indebtedness, debts, and liabilities (including but not limited to, principal, interest, late charges, collection costs, attorneys’ fees, and the like) that You owe Us, whether You created the obligation alone or with others, and whether You are primarily or secondarily responsible. Obligations can be secured or unsecured, absolute or contingent, liquidated or unliquidated, and direct or indirect. Obligations can be evidenced by note, draft, a guaranty agreement, or otherwise. Obligations can exist now or arise in the future. It includes all payment obligations, indemnification obligations, and indebtedness You owe Us arising from or related to the transactions or Services under this Agreement.
- Promise. Guarantor promises to pay any Obligation that You have not promptly paid when due. Guarantor promises to pay irrespective of Our actions or inactions regarding the Obligations, or whether We have enforced any security interest created under this Agreement. Guarantor further promises to pay irrespective of the invalidity, insufficiency, or unenforceability of any Obligation. Guarantor's obligations shall not be affected, modified or impaired by any counterclaim, set-off, deduction or defense based upon any claim the Guarantor may have against You (the restaurant) or Us, except payment or performance of the Obligations.
- Notice, Changes, Defenses, Setoff and Security Interest. Guarantor waives notice of any acceptances of this Continuing Guaranty. Guarantor waives presentment, demand, protest, notice of protest, and notice of dishonor or other nonpayment of any Obligations. Further, Guarantor waives notice of sale or other disposition of any collateral or security We now hold or later acquire. The duties of Guarantor shall not be released, discharged, or modified by: (i) Our extending the time for payment (for You or Guarantor); or (ii) Our delay or omissions in exercising any rights, taking any actions, or pursuing any remedies against You or Guarantor. Guarantor agrees that We may release or modify any collateral, security, or other guaranties without notice or consent from Guarantor and without modifying Guarantor’s duties to Us. This is a guaranty of payment and not of collection. We have no obligation to demand or pursue any rights against You, anyone else (including another Guarantor), or to exhaust any rights or remedies related to any collateral, security, or other guaranties before demanding payment from Guarantor. Guarantor waives all defenses based on suretyship or impairment of collateral. Following a default under this Agreement, We may apply and/or setoff against amounts due to Us any deposits, account balances, or other credits of Guarantor in Our possession. Guarantor grants Us a security interest in the items just described.
- Joint and Several Liability, Successor and Assigns, Other Terms. The obligations of any Guarantor shall be joint and several with You and any other Guarantor(s) under this Agreement. The property described in any collateral security documents Guarantor provides, whether previously, contemporaneously, or in the future, secures this Continuing Guaranty. This Continuing Guaranty shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors, transferees and assignees.