ResDiary General Terms and Conditions of Service

Last updated: May 2018

 

Legal Information

ResDiary is a registered company (company number SC258100).

Registered office:  3rd Floor, 36 Renfield Street, Glasgow, G2 1LU

 

ResDiary General Terms and Conditions of Service
1. General Terms of Service
2. Account Terms
3. Conditions of Service – Consumer Facing-Assets
4. Links to Other Websites
5. Portals / Restaurant Directories – API
6. Intellectual Property
7. Restaurant Accounts, Prices & Billing
8. Termination
9. ResDiary Pre-Orders
10. Websites by ResDiary
11. Stripe Charges and Payment Guarantees
12. ResPhone
13. Copyright & Use
14. Guest Data and Usage
15. GDPR Disclaimer
16. Data processor / controller clauses
17. General
18. Force Majeure
19. Indemnification
20. General Limitation of Liability
21. Disclaimer of Warranties
22. Confidentiality
23. Separate Written Agreement by Contract
24. General Conditions
25. Contact

 

Introduction

The ResDiary WebSite is comprised of various Web pages operated by RestaurantDiary.com Limited (the “Company”) (“ResDiary”).

These ResDiary General Terms and Conditions (this “Agreement”) apply to:

  1. the ResDiary website at https://www.resdiary.com and all affiliated websites owned and operated by ResDiary along with its affiliated companies (collectively, the “ResDiary Site”).
  2. the yield management system made available by ResDiary through the ResDiary Site, any ResDiary-branded application for your mobile or other device (collectively, the “ResDiary Application”), and any other online properties of ResDiary or third parties, as described below (the “Reservation Services”).
  3. the ResDiary Application.
  4. any other services or features made available by ResDiary through the ResDiary Site or any ResDiary Application.

Together, the items in 1 to 4 inclusive are the “Services”.

The ResDiary application is protected by appropriate security measures.

  • Access to and use is restricted to Authorised Users only.
  • Multiple logins from different devices or IP addresses with the same username and password are not permitted.
  • Any attempt to use the system in a manner not authorised or any attempt to alter, destroy or damage any Information contained within it may constitute a breach of the provisions of the Computer Misuse Act 1990 and/or other legislation and shall leave the User liable to both criminal and civil proceedings.
  • It is strictly forbidden to attempt to access the system using any third party’s logon identity.
  • Anyone using the System consents to active monitoring for security policy compliance purposes.

Modification

ResDiary may at any time modify these terms and conditions. Any modifications will become effective by posting the modified terms and conditions on the WebSite.

1. General Terms of Service

The Company provides an Application for restaurant owners who have registered with and paid a fee to the Company (each, a “Restaurant”) to manage:

  • reservations
  • table inventory
  • guest contact information

from a web-enabled device and to provide restaurant consumers (each, a “Guest”) with a fast, friendly way to search and reserve tables from a web-enabled device.

  • The Company does not sell any products and is not a party to any transaction or any agreement a Guest may make with a Restaurant with regard to any food, product or service offered by such Restaurant.
  • All users, whether a Guest, Restaurant or any other party, of the WebSites (each, a “User”), including, but not limited to, vendors who request an Account (“Account” or “Accounts”) are subject to the following terms of service (“Terms of Service”) and the privacy policy located at https://sales.resdiary.com/privacy-statement (the “Privacy Policy”).
  • The Services are offered to you conditional on your acceptance without modification of the terms and conditions, and notices contained herein.  Your use of ResDiary services constitutes your agreement to all such terms conditions, and notices.
  • The Company reserves the right to update and change the Terms of Service and the Privacy Policy from time to time without notice.
  • Any features added to the current Accounts, including the release of new and updated features (the “Changes”), shall be subject to the Terms of Service.
  • Continued use of an Account after any Changes shall constitute consent to such Changes.

2. Account Terms

To access certain functions of the WebSites, you must register as a unique User by providing information about yourself.

Registration Information

As part of the registration process, you will use a:

  • valid email address
  • password

This will be your User ID.

You also have to give us certain registration information:

  • Name
  • Location
  • Phone number
  • Country  

You may not:

  • select or use a User ID of another person with the intent to impersonate that person
  • use a User ID in which another person has rights without such person’s authorisation
  • use a User ID that the Company, in its sole discretion, deems offensive

Failure to provide any requested information may delay or prevent the creation of an Account.

Registration Details
ResDiary will register the Restaurant on the basis of the information supplied by the Restaurant. Following the successful subscription to the ResDiary service by completing the online setup form we will send you a series of pages containing all the information required in order to set the Restaurant up.

Where further information is supplied by the Restaurant, the registration will be carried out accordingly. Where no further information is supplied, the Restaurant will be registered according to ResDiary’s default templates.

Account agreement

You ensure that:

  • the information you submit is truthful and accurate and that you have not misrepresented your identity
  • you will update your contact information if it changes so that we can contact you
  • your use of the WebSites and your use of services available on the WebSites do not violate any applicable law or regulation
  • you are 18 years of age or older.

Failure to comply with the foregoing shall constitute a breach of this Agreement, which may result in immediate termination of your Account.

Account security

  • You shall be responsible for maintaining the confidentiality of your password.
  • You shall notify the Company of any known or suspected unauthorised use(s) of your Account, or any known or suspected breach of security, including loss, theft, or unauthorised disclosure of your password or other information.
  • You are responsible for maintaining the security of your password.
  • The Company is not liable for any loss that you may suffer through the use of your password by others.
  • You agree to notify the Company immediately of any unauthorised use of your Account or of any other breach of security known to you with respect to the WebSites or your Account.
  • You agree to report any violations of this Agreement by others to the Company.

Account usage

  • You are responsible for all usage or activity on your Account, including use of the account by any third party authorised by you to use your User ID and password.
  • Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your account.
  • Accounts may be issued to individuals who are 18 years of age or older, who are not under any legal disability and who agree to abide by these Terms of Service and the Privacy Policy. Accounts not meeting these requirements will be terminated.
  • Accounts registered by “bots” or other automated methods are not permitted and will be deleted.

Liability and responsibility

  • The Company does not sell, license or endorse any of the Restaurants participating or listed on the WebSites and does not act as an agent of sale or an agent of any merchant or provider of food, products or services.
  • The Company does not have and will not assume any responsibility for, or liability related to, any food, products and services offered, sold or provided by the Restaurants participating or listed on the WebSites.
  • You should direct any questions, complaints or claims related to any food, product or service to the appropriate Restaurant.

Omissions, accuracies, and inaccuracies

  • The Company is not liable for any delays, inaccuracies, errors or omissions with respect to the information or the transmission or delivery of all or any part thereof, for any damage arising therefrom or occasioned thereby, or for the results obtained from the use of the information.
  • You assume the entire risk as to the accuracy, adequacy, completeness, currency, validity and quality of any information relating to the food, products or services provided to you by a Restaurant.
  • The Company does not endorse, warrant or guarantee the food, products or services of any Restaurant, including, without limitation, any prices, promotions, programs, policies, services, or other information posted by any Restaurant.
  • The Company is not responsible or liable for any food, products, services, information or other materials displayed, purchased, or obtained by a Guest from the Restaurant or the Websites.
  • The pages contained in partner websites may contain technical inaccuracies and typographical and other errors. The information in these pages may be updated from time to time and may at times be incorrect or out of date. We accept no responsibility for keeping the information in these pages accurate or up to date or liability for any failure to do so.
Changes to the website
  • Any information on the WebSites can change without notice.
Reservations
  • ResDiary assumes no liability, obligation or responsibility in connection with any transactions between a Guest and any Restaurant(s), including, but not limited to, failure by either party to keep a reservation, a Restaurant’s knowledge (or lack thereof) of any Guest’s food allergies, injuries and/or damages sustained or caused by a Guest at a Restaurant, a Guest’s or any employee’s behaviour at a Restaurant or the quality of the food, service and products at a Restaurant.
  • If a Guest has a dispute with a Restaurant or any third party, all parties release the Company (and its agents and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.

Notifications, confirmations, bookings and charges

When a diner makes a reservation at your Restaurant through the ResDiary Widget on your website, our reservation API or through the ResDiary WebSite we can automatically notify you of that reservation. The notifications are sent as soon as the reservation is made. They are delivered via email. The diner may also receive confirmation by email at the same time. SMS confirmations may optionally also be sent at the Restaurant’s cost.

 

  • There are no charges for reservations from ResDiary, your website or Facebook page.
  • When a diner makes a cancellation at your restaurant through the ResDiary Widget on your website or through ResDiary, you may choose functionality by which you will be automatically notified of that cancellation.
  • For Accounts applied for and registered online only activation is free of charge.
  • Training for online activation is by a suite of short videos and access to these will be enabled for your Account holders.
Reservation confirmation
  • ResDiary may send email or SMS confirmations on behalf of restaurants to confirm or follow up on reservations or to request a review or follow up feedback. These are service communications and not for marketing purposes.
  • ResDiary has the right to append at the bottom of any such email confirmations, and you consent to the placement of, a small branded logo (hyper-linked) promoting ResDiary or a ResDiary partner business or website, this logo to be no larger than 800 pixels by 160 pixels.
User Content
  • The Services may permit Guests to submit reviews, comments, and ratings, send emails and other communications; and submit suggestions, ideas, comments, questions, or other information for publication and distribution to restaurants and other third parties (“User Content”).
  • Any such User Content must not be illegal, threatening, obscene, racist, defamatory, libellous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising or health code violations (e.g. foreign objects in food, food poisoning, etc.).
  • Guests may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. ResDiary reserves the right (but has no obligation) to monitor, remove, or edit User Content in ResDiary’s sole discretion, including if User Content violates any ResDiary Policies, but please note that ResDiary may or may not regularly review submitted User Content.
  • ResDiary takes no responsibility and assumes no liability for any User Content submitted by any User or third party.

3. Conditions of Service – Consumer Facing-Assets

Online Booking Links from Restaurant Websites

Restaurant customers of ResDiary using ResDiary as their back office table management system and which take online bookings from their Restaurant website agree to solely use the ResDiary booking widget or API or re-direct to the restaurant microsite page on www.resdiary.com.

The implementation of another booking system widget on a Restaurant website will be considered breach of contract and will lead to immediate cessation of supply and removal of access to the Restaurant back office account in ResDiary unless the position is rectified.

Widget

  • ResDiary will provide a reservation widget or iFrame to enable real-time reservations directly from the Restaurant’s website into the ResDiary Software.
  • This will be customised FOC by ResDiary as will the restaurant’s confirmation emails and communications from ResDiary.
  • Please note that the reservations widget provided will contain the wording “Powered by ResDiary” in small text. This will be hyper-linked to the ResDiary WebSite and this wording and hyper-link may not be removed or altered.
  • ResDiary will also implement the widget on a Restaurant website FOC subject to any landing pages or descriptions being named or renamed to refer to “Book with ResDiary” or similar.

Redirect button

“RD Connect and Online ” Account customers will be provided with a ResDiary branded re-direct button for their website and the conditions are as follows:

  1. Restaurants must either promote their ResDiary microsite as their main Restaurant Website, or have a redirect button to ResDiary.com on their own website.
  2. The Restaurant must not close availability before service until a standard time of 30 minutes before visit but can use normal custom close-outs on a daily basis as required.
  3. The Restaurant must take part in our review / feedback programme (there is control and moderation over displayed output and reviews deemed malicious by the restaurant will be removed should this be requested by the Restaurant).
  4. All communications to dining customers of ResDiary “RD Connect and Online” Accounts will be branded ResDiary.
  5. The maximum limit of monthly bookings is 150 for RD Connect and 75 for RD Online.

Online availability

Your online availability can be controlled directly from the ResDiary back office administration system or the ResDiary smartphone mobile manager APP. All versions have access to the ResDiary Host iPad APP, available on the Apple store and iTunes.

ResDiary Microsite

The ResDiary Microsite is enabled no later than 7 days after initial sign up with ResDiary. The restaurant must ensure that online bookings are enabled for all ResDiary Accounts and booking restrictions should only be limited through yield management and channel parameters not via advance close-outs.

Automated post dining emails

Automated post dining emails must be enabled for all internal and online reservations for all ResDiary Accounts with a unique link provided for the diner to leave a review on resdiary.com. The restaurant can edit, manage the content and branding of this message, but the unique link must be included and “Powered by ResDiary” will be included as a footer on such emails.

Reviews

ResDiary commits to removing any review on request within 48 hours where such request is received from a current Restaurant customer paying for ResDiary Services.

4. Links to Other Websites

Third-Party Websites

  • The WebSites may provide links to third-party web sites (“Third-Party Websites”).
  • This Terms of Service Agreement governs only these WebSites and not any Third-Party Websites.
  • The Company’s decision to link to a Third-Party Website is not an endorsement of the content or services in that linked Third-Party Website.
  • The Company may not own or operate the Third-Party Website, and it has not reviewed, and cannot review, all of the material, including goods or services, made available through Third-Party Websites.
  • The Company expressly disclaims any responsibility for the content, the accuracy of the information and any products or services available on the Third-Party Websites. If you decide to access linked Third-Party Websites, you do so at your own risk.

5. Portals / Restaurant Directories – API

ResDiary is happy to provide its reservation API to directories and portals to enable real time bookings into ResDiary Restaurant Accounts, on the understanding that such directory or portal partners never place their or any affiliate company or entity’s version of a branded widget or API interface on a restaurant’s own website, in which case access to the ResDiary reservation API may be withdrawn at ResDiary’s absolute discretion.

All branded widgets and API’s using the ResDiary widget or API must be branded as “Powered by ResDiary”.

ResDiary may provide its partners with API access / widgets to Restaurant Accounts in instances where the partner acts as a complimentary booking channel. The same applies for partners that offer a complimentary trial period in their offering. Once the trial period has ended, Restaurant Accounts that would like to continue receiving bookings from the partner, will have the opportunity to do so by instructing the partner directly or by contacting ResDiary. If the latter has not been instructed, Restaurant Accounts will be automatically removed from the partners website / portal once the trial has ended.

Where ResDiary has provided a restaurant/booking channel with the use of with its API, the restaurant/booking channel is responsible for ensuring that the integration is compliant with all online regulations regarding the General Data Protection Regulation. ResDiary will not be held accountable for any non-compliant integrations

6. Intellectual Property

The Users acknowledge and agree that any and all Company or Restaurant names and logos related to the Account and the Company or Restaurant and all related product and service names, design marks and slogans, are the property of the Company, the Restaurant or their affiliates or suppliers, as the case may be (collectively, the “Marks”).

Marks

  • By agreeing to these Terms of Service, the Users agree not to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of the Company or the applicable Restaurant.
  • The Users have no title or ownership in the Account, the Software or the Marks (other than their own Marks) and no other rights in the Account, the Software or the Marks.
  • All ownership rights remain in the Company, the Restaurant or their third party suppliers, as the case may be.
  • The Users agree to comply with all intellectual property laws and shall not encumber any interest in, or assert any rights to, the Marks (other than their own). The User may not reverse engineer, reverse assemble, decompile or disassemble, reproduce, modify, transmit, participate in the sale or transfer of, or create derivative works based on any Marks, in whole or in part.

Public Information

The Company reserves the right and the Users agree that any information in an Account designated as “Public” may be used by the Company for promotional uses. External search engines may also index such Public information.

By registering and paying for an Account, each Restaurant agrees and grants the Company the right to use for these WebSites and other related purposes, all images, menus, logos, content and other information that may be found on the Restaurant’s own web sites.

ResDiary may use the Restaurant’s name and logo:

  • as a client reference
  • in its client list
  • in case studies
  • in other promotional information, including, but not limited to, press releases, brochures, and electronic media such as e-mail or web pages.

7. Restaurant Accounts, Prices & Billing

Monthly charge

The monthly charge is as per the charges shown on sales.resdiary.com (excluding tax). Online, Express, Pro & Ultimate Accounts signed up online are based on a rolling yearly contract, payable monthly in advance, with a 90 day notice period and this includes access to your version of the ResDiary system.

RD Connect is based on a quarterly rolling contract with a 90 days cancellation notice. Packages include a reservations widget for your website (Express, Pro and Ultimate accounts only), a micro-site listing on ResDiary and listing on any consumer facing iPhone and Android APPS developed by ResDiary, and support provided by email (support@resdiary.com) and telephone.

 

The Company will invoice you monthly in advance on the monthly anniversary date of the contract commencement. The charge will always be the same as your first month charge unless we notify you otherwise and if we do so the Company will notify you of your charge at least 10 days before your account is debited.

The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Accounts (or any part thereof) with or without notice.

Payment for Accounts

  • Payment for Accounts must be made in advance by direct debit, credit or debit card at the time of registration of the Account.
  • Any other payment arrangements must be made in advance between the User and an authorised Company representative.
  • All fees paid to the Company for use of an Account are non-refundable.
  • The User may be charged a fee for setup on registration and the monthly fee in advance on first registration and thereafter at a regularly recurring monthly billing cycle.
  • You shall be responsible for interest on all amounts owed ResDiary hereunder which are overdue by more than 30 days at a rate of 5.5% or the maximum rate allowable by applicable law, and for any costs or expenses of ResDiary in collecting any overdue amounts (including legal fees).
  • By agreeing to these Terms of Service, the User authorises the Company to charge the monthly amount by credit card or electronic funds transfer for the Account on the relevant anniversary date in advance of each monthly billing cycle, or the next business day available.

Modifications to the Service

On occasion ResDiary will need to change the charges or the terms and conditions of a service covered by this agreement. We will publish details of all changes online at sales.resdiary.com and will notify you via email, by notice on your invoice or by an alternative method.

If ResDiary makes a change to the price or the terms and conditions of a service you will not have to pay an increased charge if you decide to end the service/contract early. However, once we have told you about such a change, you must let us know that you want to end that service within 10 days.

Cancellation Notice

  • Unless a cancellation notice is received by the Company in writing, or through the account management options on the Site, 90 days prior to the start of the anniversary of the agreement date of the Account, an Account will automatically renew.

Payment declined

  • In the event that a recurring credit charge or direct debit facility is cancelled by the Restaurant or authorised person or a payment request is declined for whatever reason, the Company reserves the right to levy an administration fee of £25 plus VAT (or local currency equivalent).
  • In instances such as above, the Company reserves the right to immediately disable an account until the administration fee is paid and the recurring charge facility is re-enabled.

8. Termination

  • ResDiary, in its sole discretion, has the right to suspend or terminate any User’s Account and refuse any and all current or future use of the Account, or any other service of the Company, at any time for any reason, including, but not limited to, violation of these Terms of Service.
  • In the event of termination of a Restaurant’s Account for any reason [by ResDiary due to a breach by the Restaurant of these Terms of Service (including without limitation non-payment of sums due to ResDiary after proper demand for payment)] this will result in the forfeiture and relinquishment of all data and content in said Account to the Company with effect from termination, following which the Company may use such data and content in its sole discretion in any manner it sees fit, subject to the terms of the Privacy Policy.
  • Unless otherwise specifically agreed in writing, ResDiary offers:
    • a one year rolling contract from the date of the Agreement for RD Online, RD Pro and RD Ultimate Accounts.
    • A quarterly rolling contract for RD Connect packages
  • After the initial one year term, the Restaurant may terminate this Agreement by giving ResDiary 90 days notice of termination using the account management options or by submitting a request in email to support@resdiary.com com – this must be done at least 90 days before the contract anniversary date.
  • Notice must be given by:
    • email to sales@resdiary.com
    • or in writing to ResDiary, 36 Renfield Street, Glasgow, G2 1LU.
  • Immediately upon issuance of notice of termination, any outstanding invoices including those for the 90 day termination period day become due and must be paid.
  • We regret we cannot provide refunds for unexpired portions of a contract, or for periods of time the system has been unused.
  • The Company may at its discretion delete any of a User’s archived data within 30 days after the date of termination.

9. ResDiary Pre-Orders

The ResDiary Pre-Order feature is available in both yearly and monthly rolling contracts:

  • Monthly contract follows a monthly rolling contract with a 90 day cancellation notice period.
  • Yearly contracts are available as rolling yearly contract, with a 90 day notice period.

10. Websites by ResDiary

Websites by ResDiary provide domain hosting and web-building services for ResDiary customers.

All Websites by ResDiary are built on WordPress to be fully responsive, and come with a valid security certificate as standard.

Upon sign-up to Websites by ResDiary, the Customer site will be built within two months, provided the required auto-build form is returned within 14 days along with the login details for switching over the domain. This form includes requests for images, text, menus, contact information, opening times, and other information essential for the building of the website.

Websites by ResDiary operate on a yearly contract, with a 90 day cancellation period. Should the Customer wish to cancel their ResDiary website, they will not be eligible to keep the website code, but can obtain the content from the site within 90 days of their contract end.

UK Clients

Websites by ResDiary users pay a one-off set-up fee, plus a monthly recurring fee. This includes hosting for the first 12 months. When these 12 months are over, clients pay a monthly hosting fee.

NZ Clients

Websites by ResDiary users pay a one-off set-up fee, plus a monthly recurring fee for hosting for the duration of their contract.

11. Stripe Charges and Payment Guarantees

  • By submitting your request to take payments or ResDiary Guarantees via Stripe Inc. or any of its subsidiaries or affiliates (“Stripe”) and the ResDiary system, you agree to ResDiary levying a charge of 1% (plus any applicable sales taxes) on each processed transaction.
  • Unprocessed tokenization guarantees will not incur any charge.
  • Stripe charges also apply to processed transactions and can be found at the following URL https://stripe.com/gb/pricing.
  • Please note that if choosing to take payment or ResDiary Guarantees you must use https (hypertext transfer protocol secure) for the system to work effectively.
  • ResDiary is not responsible for any changes in pricing from Stripe at any time, which are at Stripe’s discretion.
  • You may opt out of using Stripe as a payment method at any time by deleting the link from your diary manually, or by requesting this in writing to support@resdiary.com.

12. ResPhone

ResPhone is a reservations line provided by ResDiary.

  • By signing up online and paying by monthly recurring charge you are committing to a yearly ResPhone account (RD Online, RD Express, RD Pro and RD Ultimate). RD Connect customers will follow a quarterly rolling contract, with 90 days notice required.
  • Please note that ResPhone provides an availability search only, and will not register promotions and deposit requirements in your diary.
  • If Stripe Connect is enabled in your diary, ResPhone does not register this credit card requirement and will make the reservation based on availability only.
Cancellation

This account is charged monthly in advance and can be cancelled by providing confirmation of cancellation and a 90 day notice period in writing at least 90 days prior to the yearly anniversary of the agreement. If the account is cancelled outwith the agreement anniversary date, a final invoice will be raised for the remainder of the contract period including the 90 day notice period.

Call flow personalisation

Your Restaurant name will be personalised in the call flow: this is the only portion of the call flow that can be changed.

Unused system refunds

We regret we cannot provide refunds for unexpired portions of a contract, or for periods of time the system has been unused.

Direct Debit

Existing customers that select the option to pay by Direct Debit are authorising ResDiary to increase the monthly Direct Debit amount.

Installation

ResPhone will take up to 15 working days to be installed once payment is received.

Other charges

Other charges may occur with your phone line supplier, please contact your supplier to find out divert costs before signing up.

13. Copyright & Use

Software

Use of an Account does not grant a User a license to any software contained in, or used by, the Account.

Users agree not to, directly or indirectly:

  • reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at, or through, the Account or any software, documentation, or data related to the Account
  • remove any proprietary notices or labels from the Account or any Software, modify, translate, or create derivative works based on the Account or any Software;
  • transfer or sell the Software
  • or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Account or any Software.

The Account shall be used for a User’s business or personal purposes only, as the case may be, and a User shall not use the Account or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party. If a User is using the Account in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect a User’s rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.

License

The ResDiary software and any other software or WebSites that are made available to you by ResDiary in connection with this Agreement (“Software”) are the copyrighted work of ResDiary and/or its affiliates, partners and/or suppliers.

ResDiary hereby grants to you, the User, a personal, non-transferable, revocable, limited license to use the Software solely during the term hereof, solely as required to use the products and provided under this Agreement (“Services”) pursuant to the terms hereof, and for no other purpose.

By using the Software, you agree to be bound by the terms and conditions of this Agreement.

Copyright

Please note that all Software, including without limitation all HTML code, controls and other scripts and all intellectual property rights of any kind contained therein, and any improvements or modifications thereto, is owned by ResDiary and/or its partners or suppliers and is protected by copyright laws and international treaty provisions.

Law expressly prohibits any other reproduction or redistribution or use of the Software other than as expressly authorized herein.

14. Guest Data and Usage

ResDiary will collect data, including without limitation from the Guest, in accordance with ResDiary’s Privacy Policy https://sales.resdiary.com/privacy-statement/. Except in relation to data from Guests who have signed up to a ResDiary consumer account through the ResDiary Website portal, or ResDiary Now app, ResDiary will not use any data collected from Guests pursuant to this Agreement to market any other restaurant to any consumer.

15. GDPR Disclaimer

The detail given by us relating to the GDPR (General Data Protection Regulation) is for information purposes only. It is not designed to be an exhaustive guide to the requirements of the GDPR. It is your responsibility to ensure that you comply with the provisions of the GDPR and related legislation. Each company’s responsibilities relating to the GDPR will vary depending on individual circumstances; accordingly we will not be liable to you for your reliance on our advice provided in relation to the GDPR.

  • You warrant, represent, and undertake to us that Personal Data shall comply with the GDPR in all respects including, but not limited to, its collection, holding, and processing.
  • You shall be liable for, and shall indemnify (and keep indemnified) us in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by, us and any of our Sub-Processors arising directly or in connection with:
    • any non-compliance by you with the GDPR or other applicable legislation;
    • any Personal Data processing carried out by us and any of our Sub-Processors in accordance with instructions given by you that infringe the GDPR or other applicable legislation.

For more information on GDPR & terms and conditions relating to data storage, backup and security, data breaches, data retention, and email opt-ins, please visit the GDPR Terms and Conditions page here.

16. Data processor / controller clauses

The following words and phrases shall have the meanings set opposite them:

  • “Data Controller”, “Data Processor” and “Personal Data” “processing”, and “data subject” shall have the meanings ascribed to them in the GDPR;
  • “GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679);
  • “ICO” means the UK’s supervisory authority, the Information Commissioner’s Office;
  • “Platform” means the hardware and software environment in which the ResDiary online restaurant booking service operates, which comprises one or more server computers (whether virtual or not), mirroring/duplicating/back-up and storage systems and relative hardware operating software, virtual machine software (where relevant), operating system software, database software, anti-virus and security software, switches, power supplies and telecommunications infrastructure;
  • “Privacy Policy” means ResDiary’s GDPR compliant Privacy Policy annexed;
  • “Sub-Processor” means a sub-processor appointed by ResDiary to process the Personal Data;
  • “Sub-Processing Agreement” means an agreement between ResDiary and a Sub-Processor governing the Personal Data processing carried out by the Sub-Processor.
  • “User” means the Customer and any of its employees or  any person to whom the Customer has outsourced services, that has permission to accesses the Platform as a named user and is not employed by ResDiary and acting in the course of their employment;
  • “User Content” means any text, graphics, images, audio, video, software, data compilations and any other form of information capable of being stored in a computer that appears on, is uploaded to a computer to be used with or forms part of the Platform and has been uploaded by a User;  

ResDiary shall use reasonable endeavours to comply with the principles of the GDPR in accordance with the Privacy Policy. For the purposes of the GDPR, ResDiary will be a Data Processor and the Customer will be the Data Controller of User Content.

Data Processing

The provisions of this Agreement shall apply to the processing of the Personal Data carried out for the Customer by ResDiary and to all Personal Data held by ResDiary in relation to all such processing whether such Personal Data is held at the date of this Agreement or received afterwards.

This Agreement shall continue in full force and effect for so long as ResDiary is processing Personal Data on behalf of the Customer.

ResDiary is only to process the Personal Data received from the Customer:

  • for the purposes of this Agreement and not for any other purpose;
  • to the extent and in such a manner as is necessary for those purposes; and
  • strictly in accordance with the Agreement or otherwise with the express written authorisation and instructions of the Customer (which may be specific instructions or instructions of a general nature or as otherwise notified by the Customer to ResDiary).

All instructions given by the Customer to ResDiary shall be made in writing and shall at all times be in compliance with the GDPR and other applicable laws. ResDiary shall act only on such written instructions from the Customer unless ResDiary is required by law to do otherwise (as per Article 29 of the GDPR).

ResDiary shall promptly assist the Customer (where the Customer cannot do this itself via the Platform) in complying with a legitimate data subject request to amend, transfer, delete, or otherwise dispose of Personal Data. Where permitted to do so by law, ResDiary may charge a reasonable fee for providing such assistance.

Both Parties shall comply at all times with the GDPR and other applicable laws and shall not perform their obligations under this Agreement or any other agreement or arrangement between themselves in such way as to cause either party to breach any of its applicable obligations under the GDPR.

The Customer hereby warrants, represents, and undertakes that the Personal Data shall comply with the GDPR in all respects including, but not limited to, its collection, holding, and processing.

ResDiary agrees to comply with any reasonable measures required by the Customer to ensure that its obligations under this Agreement are satisfactorily performed in accordance with any and all applicable legislation from time to time in force (including, but not limited to, the GDPR) and any best practice guidance issued by the ICO.

ResDiary shall provide all reasonable assistance (at the Customer’s cost) to the Customer in complying with its obligations under the GDPR with respect to the security of processing, the notification of personal data breaches, the conduct of data protection impact assessments, and in dealings with the ICO.

Processing of data

When processing the Personal Data on behalf of the Customer, ResDiary shall:

  • not process the Personal Data outside the European Economic Area (all EU member states, plus Iceland, Liechtenstein, and Norway) (“EEA”) without the prior written consent of the Customer and, where the Customer consents to such a transfer to a country that is outside of the EEA, to comply with the obligations of Data Processors under the provisions applicable to transfers of Personal Data to third countries set out in Chapter 5 of the GDPR by providing an adequate level of protection to any Personal Data that is transferred;
  • not transfer any of the Personal Data to any third party without the written consent of the Customer and, in the event of such consent, the Personal Data shall be transferred strictly subject to the terms of a suitable agreement;
  • process the Personal Data only to the extent, and in such manner, as is necessary in order to comply with its obligations to the Customer or as may be required by law (in which case, ResDiary shall inform the Customer of the legal requirement in question before processing the Personal Data for that purpose unless prohibited from doing so by law);
  • implement appropriate technical and organisational measures, and take all steps necessary to protect the Personal Data against unauthorised or unlawful processing, accidental loss, destruction, damage, alteration, or disclosure;
  • make available to the Customer any and all such information as is reasonably required and necessary to demonstrate ResDiary’s compliance with the GDPR; and
  • inform the Customer immediately if it is asked to do anything that infringes the GDPR or any other applicable data protection legislation.
  • ResDiary shall, at the Customer’s cost, assist the Customer in complying with its obligations under the GDPR. In particular, the following shall apply to data subject access requests, complaints, and data breaches.

ResDiary shall notify the Customer without undue delay if it receives:

  • a subject access request from a data subject; or
  • any other complaint or request relating to the processing of the Personal Data.

ResDiary shall, at the Customer’s cost, cooperate fully with the Customer and assist as required in relation to any subject access request, complaint, or other request, including by:

  • providing the Customer with full details of the complaint or request;
  • providing the necessary information and assistance in order to comply with a subject access request;
  • providing the Customer with any Personal Data it holds in relation to a data subject (within the timescales required by the Customer); and
  • providing the Customer with any other information requested by the Customer.

If ResDiary becomes aware of any form of Personal Data breach, it shall inform the customer within 48 hours of gaining knowledge of the breach. This includes any unauthorised or unlawful processing, loss of, damage to, or destruction of any of the Personal Data.

Sub-processors

The Customer shall be liable for, and shall indemnify (and keep indemnified) ResDiary in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by, ResDiary and any Sub-Processor arising directly or in connection with:

  • any non-compliance by the Customer with the GDPR or other applicable legislation;
  • any Personal Data processing carried out by ResDiary or Sub-Processor in accordance with instructions given by the Customer that infringe the GDPR or other applicable legislation; or
  • any breach by the Customer of its obligations under this Agreement,
  • except to the extent that ResDiary or Sub-Processor is liable under sub-Clause 3.16.

ResDiary shall be liable for, and shall indemnify (and keep indemnified) the Customer in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by, the Customer arising directly or in connection with ResDiary’s Personal Data processing activities that are subject to this Agreement:

  • only to the extent that the same results from ResDiary’s or a Sub-Processor’s breach of this Agreement; and
  • not to the extent that the same is or are contributed to by any breach of this Agreement by the Customer.

The Customer shall not be entitled to claim back from ResDiary or a Sub-Processor any sums paid in compensation by the Customer in respect of any damage to the extent that the Customer is liable to indemnify ResDiary or Sub-Processor under sub-Clause 3.15.

Nothing in this Agreement (and in particular, this Clause 3) shall relieve either party of, or otherwise affect, the liability of either party to any data subject, or for any other breach of that party’s direct obligations under the GDPR. Furthermore, ResDiary hereby acknowledges that it shall remain subject to the authority of the ICO and shall co-operate fully therewith, as required, and that failure to comply with its obligations as a data processor under the GDPR may render it subject to the fines, penalties, and compensation requirements set out in the GDPR.

In the event that ResDiary appoints a Sub-Processor, ResDiary shall:

  • enter into a Sub-Processing Agreement with the Sub-Processor which shall impose upon the Sub-Processor the same or similar obligations as are imposed upon ResDiary by this Agreement; and ensure that the Sub-Processor complies fully with its obligations under the Sub-Processing Agreement and the GDPR.

17. General

The laws of Scotland govern this Agreement. You hereby consent to the exclusive jurisdiction of the Scottish courts in all disputes arising out of or relating to this Agreement.

ResDiary may, and you may not, assign, convey, subcontract or delegate rights, duties or obligations hereunder. You agree that the parties hereto are independent contractors, and no joint venture, partnership, employment, or agency relationship exists between you and ResDiary as a result of this Agreement.

18. Force Majeure

Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations (other than your payment obligations) are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such party.

19. Indemnification

All Users agree to indemnify and hold the Company, its subsidiaries, affiliates, officers and employees, and service providers harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of a User’s use of the Sites, the User’s violation of this Agreement, or the User’s infringement of any intellectual property or other right of any person or entity.

Even though prohibited, people may provide information that is offensive, false, harmful, or deceptive. The Company assumes no responsibility or liability whatsoever for such content or actions.

20. General Limitation of Liability

Under no circumstances will the Company be liable for any injuries, death, loss or damage caused by your use of the sites, including any software, materials, content, food, products and/or services provided or use or reliance on information obtained through the WebSites.

It is your responsibility to evaluate the accuracy, completeness, or usefulness of the WebSites and the resources, materials, content and software provided therein.

In no event shall the Company be liable for any direct, indirect, punitive, incidental, special or consequential damages arising out of or relating to the sites or this Agreement, whether based on warranty, contract, tort, or any other legal theory.

Because some jurisdictions do not allow the exclusion or limitation of liability for negligence, consequential, incidental or other damages, in such jurisdictions the company’s liability is limited to the greatest extent permitted by law. Your sole remedy for dissatisfaction with the WebSites is to stop using the WebSites.

21. Disclaimer of Warranties

  • You acknowledge and agree that the websites are provided on an “as is” and “as available” basis.
  • None of the company, its affiliates, subsidiaries or its or their officers, directors, employees or agents (collectively the “company parties”) guarantees the accuracy, completeness, timeliness, reliability, suitability or usefulness of any portion of the sites.
  • None of the company parties warrant that the websites will be uninterrupted or error free, that any specific information that is requested will be provided or that the websites or their server(s) are or will be free of computer viruses or other harmful elements.
  • You expressly agree that the entire risk as to the quality and performance of the sites and the accuracy, timeliness or completeness of the content or services is assumed solely by you.
  • None of the company parties make any, and hereby specifically disclaim any and all, representations, endorsements, guarantees, and warranties, expressed or implied, regarding the websites and any of the information, software and other materials therein, including without limitation, the implied warranties of merchantability and fitness for a particular purpose, title and non-infringement of third-party rights.
  • You understand and agree that any content, software, materials and/or data downloaded or otherwise obtained through the use of the websites is used at your own risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such content, materials and/or data.

The Users expressly understand and agree that neither the Company nor its affiliates shall be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if the Company has been advised of the possibility of such damages), resulting from:

  1. the use or the inability to use the service;
  2. the cost of procurement of substitute food, goods and services resulting from any food, goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service;
  3. unauthorised access to or alteration of the Users’ transmissions or data;
  4. statements or conduct of any third party on the service;
  5. termination of the Users’ Accounts; or
  6. any other matter relating to the Accounts.

In the event that, notwithstanding the foregoing, the Company is found liable to a User for damages from any cause whatsoever, and regardless of the form of the action (whether in contract, tort (including negligence), product liability or otherwise), the liability of the Company to the User will be limited to the amount that the User paid for his/her/its Account.

22. Confidentiality

In the performance of this Agreement, ResDiary may disclose, or the Restaurant may have access to, confidential or proprietary information owned by ResDiary (“Confidential Information”).

Confidential Information includes, but is not limited to any data or information, oral or written, that relates to:

  • ResDiary
  • its business activities
  • technology
  • developments
  • software
  • methods
  • trade secrets
  • or clients.

Restaurants shall maintain the Confidential Information in strict confidence and shall not disclose to any third party, publish or copy any part of the Confidential Information.

Both parties shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement.

Confidential Information does not include information that:

  • is publicly available or in the public domain at the time disclosed
  • is rightfully communicated to the Restaurant by persons not bound by confidentiality obligations
  • is already in the Restaurant’s possession free of any confidentiality obligations
  • is required to be disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Restaurant gives reasonable prior notice to ResDiary to contest such order or requirement.

Upon the termination or expiration of this Agreement, or at any time upon request, both parties shall return to the other, or certify the destruction of, all Confidential Information or certify the destruction of, all Confidential Information.

23. Separate Written Agreement by Contract

These terms and conditions supersede all previous agreements entered into between ResDiary and a Restaurant prior to 1st September 2017. Where Resdiary and a Restaurant enter into a formal written contract after 1st September 2017 the terms and conditions of that contract will over-ride any inconsistent terms and conditions for an online agreement as above.

24. General Conditions

  • The User agrees that their use of the Accounts is at their sole risk. The Service is provided on an “as is” and “as available” basis.
  • The User must not modify, adapt or hack the Accounts or modify another website so as to falsely imply that it is associated with the Accounts, the Company, or any other Company service.
  • The User agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Accounts, use of the Accounts, or access to the Accounts without the express written permission of the Company.
  • The Company may, but have no obligation to, remove content, and Accounts containing content, that it determines in its sole discretion to be unlawful, offensive, threatening, libellous, defamatory, pornographic, obscene or otherwise objectionable or violates any intellectual property rights or these Terms of Service.
  • Verbal, physical, written or other abuse (including threats of abuse or retribution) of any Company customer, employee, member, or officer will result in immediate Account termination.
  • The User understands that the technical processing and transmission of the Accounts, including their content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
  • The User must not upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages.
  • The User must not transmit any worms or viruses or any code of a destructive nature.
  • The Company does not warrant that
    1. the Accounts will meet the User’s specific requirements,
    2. the Accounts will be uninterrupted, timely, secure, or error-free,
    3. the results that may be obtained from the use of the Accounts will be accurate or reliable,
    4. the quality of any food, products, services, information, or other material purchased or obtained by the Users through the Sites will meet their expectations
    5. any errors in the Accounts will be corrected.
  • The failure of the Company to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision.
  • The Terms of Service constitutes the entire agreement between the Users and the Company and govern the use of the Accounts, superseding any prior agreements between the Users and the Company (including, but not limited to, any prior versions of the Terms of Service).
  • Unless otherwise provided, the Terms of Service shall be governed by the laws of Scotland without effect to its conflict of laws provisions.
  • The Terms of Service and all of its terms and provisions are binding upon the heirs and personal representatives of the Users and the successors and assignees of the Company; provided, however, no assignment by the Users of their rights and/or interests in and to these Terms of Service shall be permitted without the prior written consent of the Company.
  • Please note calls may occasionally be recorded for quality and training purposes.

25. Contact

Questions about the Terms of Service should be communicated to support@resdiary.com or in writing to ResDiary, 36 Renfield Street, Glasgow, G2 1LU.