ResDiary General Terms and Conditions of Service

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ResDiary General Terms and Conditions of Service

Last updated: September 2023

Introduction

The ResDiary Site is comprised of various Web pages operated by RestaurantDiary.com Limited, incorporated in Scotland (Number: SC258100) and having its Registered Office at 36 Renfield Street, Glasgow, Scotland, G2 1LU trading as Dish Cult® and its Affiliates (“ResDiary”).
These Terms and Conditions Apply to:

The Services.

1. The ResDiary Application is protected by appropriate security measures.
2. Access to and use is restricted to authorised Users only.
3. Multiple logins from different devices or IP addresses with the same username and password are not permitted.
4. Any attempt to use the Services in a manner not authorised or any attempt to alter, destroy or damage any Content 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.
5. It is strictly forbidden to attempt to access the Services using any third party’s logon identity.
6. Anyone using the Services consents to active monitoring for security policy compliance purposes.

Modification
ResDiary may at any time modify the terms of these Terms and Conditions. Any modifications will become effective by posting the modified terms and conditions on the ResDiary Site.

1. General Terms of Service

ResDiary provides an Application for Customers to manage:

1. reservations
2. table inventory
3. guest contact information

from a web-enabled device and to provide Guests with a fast, friendly way to search and reserve tables from a web-enabled device.

4. ResDiary 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.
5. All Users are subject to the Terms and Conditions and the Privacy Policy.
6. The Services are offered to you the Customer or Guest conditional on your acceptance without modification of the Terms and Conditions, and notices contained herein. Your use of the Services constitutes your agreement to the Terms Conditions, and any notices served thereunder.
7. ResDiary reserves the right to update and change the Terms and Conditions and the Privacy Policy from time to time without notice.
8. Any features added to the current Accounts, including the release of Changes, shall be subject to the Terms and Conditions.
9. Continued use of an Account after any Changes shall constitute consent to such Changes.

2.  Account Terms

To access certain functions of the ResDiary Site, you must create an Account and register as a User by providing information about yourself.

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

1. valid email address
2. password

This will be your User ID.

You also have to give us certain registration information:

3. Name
4. Location
5. Phone number
6. Country
You may not:
7. select or use a User ID of another person with the intent to impersonate that person
8. use a User ID in which another person has rights without such person’s authorisation
9. 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.

2.2 Registration Details
ResDiary will register a Restaurant on the basis of the information supplied by the Customer. Following the successful subscription to the ResDiary Services by completing the Online Order Form ResDiary will send you a series of pages containing all the information required in order to set the Restaurant up. If there is any conflict between the Terms and Conditions and the terms of an Online Order Form, save in the case of manifest error, the terms of the Online Order Form shall have precedence.

2.3 Account agreement

You:

1. shall ensure that the information you submit is truthful and accurate and that you have not misrepresented your identity
2. shall ensure that you will update your contact information if it changes so that we can contact you
3. warrant that your use of the Services does not violate any applicable law or regulation
4. warrant that you are 18 years of age or older.
5. warrant that if you are accepting these Terms and Conditions on behalf of an entity that is a company, partnership, unincorporated association or any other entity that is not an individual, that you have authority to bind that entity.

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

2.4 Account security

1. Sharing of Accounts is not permitted unless expressly authorised in writing by ResDiary.
2. Users must keep Account details confidential and Users should not reveal their username or password to any unauthorised third parties.
3. Passwords must be robust and difficult to break and must be changed frequently.
4. ResDiary accepts no liability for any losses or damages incurred as a result of Account details being shared in breach of the terms of these Terms and Conditions. It is recommended that Users do not save account details in their internet browser.
5. You shall notify ResDiary 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 with respect to the Services or your Account.
6. ResDiary is not liable for any loss that you may suffer through the use of your password by others.
7. You agree to report any violations of this Agreement by others to ResDiary.

2.5 Account usage

1. 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.
2. Any breach of these Terms and Conditions may be grounds for termination of your Account.
3. In the event that ResDiary considers in its sole discretion that you are in breach of these Terms and Conditions, then your Account may be altered or suspended or terminated. You will not be informed in writing of the reasons for such alterations or suspension or termination and ResDiary shall have no liability to you in relation to any such alterations or suspension or termination.
   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 and Conditions and the Privacy Policy. Accounts not meeting these requirements will be terminated.
4. Accounts registered by “bots” or other automated methods are not permitted and will be deleted.

2.6 Liability and responsibility

1. ResDiary does not sell, license or endorse any of the Restaurants participating or listed on the ResDiary Site and does not act as an agent of sale or an agent of any merchant or provider of food, products or services.
2. ResDiary 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 ResDiary Site.
3. You should direct any questions, complaints or claims related to any food, product or service to the appropriate Restaurant.

2.7 Omissions, accuracies, and inaccuracies

1. ResDiary 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.
2. 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.
3. ResDiary 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.
4. ResDiary 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 ResDiary Site.
5. The pages contained in Restaurant 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.

2.8 Changes to the website

1. Any information on the ResDiary Site can change without notice.

2.9 Reservations

1. 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.
2. If a Guest has a dispute with a Restaurant or any third party, all parties release ResDiary (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.

2.10 Notifications, confirmations, bookings and charges

When a Guest makes a reservation at your Restaurant through the ResDiary Widget on your website, our reservation API or through the ResDiary Site 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 Guest may also receive confirmation by email at the same time. SMS confirmations may optionally also be sent at the Restaurant’s cost.

We will apply a single version of the venue branding to confirmation emails. If venues use ‘Areas’ in a diary as a means of managing different dining styles operating from the same kitchen, it will not be possible to apply more than one branding style to confirmation, reminder and cancellation emails. If more than one branding style is required, then a separate diary for each dining style should be implemented.

1. There are no charges for reservations from ResDiary, your website.
2. When a Guest makes a cancellation at your Restaurant via the online options available.
3. You may choose functionality by which you will be automatically notified of that cancellation.
4. Training for online activation is by a suite of short videos and access to these will be enabled for your Account holders.

2.11 Reservation confirmation

1. 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.
2. 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.

2.12 User Content
User Content must not breach the following acceptable usage terms:

1. User Content must not contain obscene or vulgar language;
2. User Content must not contain any material that is unlawful or otherwise objectionable (including that which may be in breach of rules, regulations or legislation in force in the United Kingdom or any other jurisdiction in which your User Content can be lawfully accessed. This does not extend to material which may be automatically blocked in certain jurisdictions but that is lawful in your home country);
3. User Content must not contain any material that is intended to promote or incite violence or any other unlawful conduct against any group, individual or animal. This includes, but is not limited to, the provision of instructions on how to assemble weapons of any kind, bombs, grenades or other explosive devices;
4. User Content must be honest and fair and should not make any unsubstantiated or unsupportable claims;
5. User Content must not contain any material which ResDiary determines, in its sole discretion, is not appropriate for inclusion or sale through the Services.
6. User Content must not infringe the Intellectual Property rights of any third party including, but not limited to, copyright, trademarks, patents and designs;
7. User Content must not contain links to other websites containing any of the above types of material;
8. User Content must not contain any material that may contain viruses or other software or instructions that may damage or disrupt other software, computer hardware or communications networks;
9. User Content must not be used for unauthorised mass-communications such as “spam” or “junk mail”;
10. User Content may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Services;
11. You may not use User Content to impersonate any person or entity including, but not limited to, any employee, agent or sub-contractor of ResDiary;
12. User Content must not be used for phishing purposes;
13. You may not use the Services for the purpose of uploading files solely to have them hosted by ResDiary; and
14. User Content must not be used to intimidate, harass or bully any individual.

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 of ResDiary’s 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.

ResDiary has the right to edit or remove any User Content which breaches these Terms and Conditions.

The Customer shall indemnify and hold harmless ResDiary and its Representatives from any damages finally awarded against ResDiary (including, without limitation, reasonable costs and legal fees incurred by ResDiary) arising out of any third party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) in connection with the User Content, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the User Content (“Legal Claim”).

ResDiary shall give written notice to the Customer of any Legal Claim no later than 30 days after first receiving notice of a Legal Claim and shall give copies to the Customer of all communications, notices and/or other actions relating to the Legal Claim. ResDiary shall give the Customer the sole control of the defence of any Legal Claim, shall act in accordance with the reasonable instructions of the Customer and shall give the Customer such assistance as the Customer reasonably requests to defend or settle such claim. The Customer shall conduct its defence at all times in a manner which is not adverse to ResDiary’s interests. ResDiary may employ its own counsel to assist it with respect to any such claim. ResDiary shall bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with the Customer or its counsel, or because the Customer fails to assume control of the defence. ResDiary shall not settle or compromise any Legal Claim without the Customer’s express written consent.

3. Conditions of Service – Consumer Facing-Assets

3. Conditions of Service – Consumer Facing-Assets

3.1 Online Booking Links from Restaurant Websites
Customers using ResDiary as their back office table management system and which take online bookings from their Restaurant website agree to solely use the ResDiary Widget or API or re-direct to the Restaurant microsite page on www.dishcult.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 the Services unless the position is rectified.

3.2 Widget
ResDiary will provide the ResDiary Widget to enable real-time reservations directly from the Restaurant’s website into the Software.
Please note that the ResDiary Widget provided will contain the wording “Powered by ResDiary” in small text and/or the ResDiary logo. This wording may not be removed or altered.

3.3 Online availability
Your online availability can be controlled directly from the ResDiary back office administration system.

3.4 ResDiary Microsite
The ResDiary Microsite is enabled no later than 14 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.

3.5 Automated post dining emails
Automated post dining emails must be enabled for all internal and online reservations for all Accounts with a unique link provided for the Guest 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.

3.6 Reviews
ResDiary understands the importance of ensuring Content on its websites and platforms is both fair and transparent.
Guests are entitled to leave reviews based on their experiences of Customers’ establishments.
ResDiary will not remove or moderate a review simply because it is a negative review.
There are situations where reviews or comments can be moderated, removed or blocked, these include but are not limited to:
i) content that fails to comply with the terms of Clause 2.12 User Content, including but not limited to content that is threatening, racist, sexist, homophobic, or offensive.
ii)content that is attributed to an individual, company or organisation that has not been authorised to represent them.
iii)content that is likely to mislead others including deceptive content and false representations.
iv) content designed to manipulate ratings (e.g. the same content posted multiple times or content reviewing the same establishment posted from multiple accounts).
v)content from contributors who falsely claim that they represent or are employed by ResDiary.

Reviews should reflect a Guest’s genuine experience at the location, ResDiary does not consider behaviour as being unacceptable simply because an individual is determined or forceful.
Negative reviews cannot be removed because a Customer deems that the negative event was “dealt with” at the establishment at the time (e.g. providing the diner with a refund or free meal).
If there is a legitimate request for information, (within the Customer’s remit and permitted to by law e.g. a party must not disclose information that would breach data protection laws) it is reasonable for the Customer to respond to the Guest and provide that information and a response to a negative review in an appropriate manner.
The deletion or moderation or any other misleading action by any Customer involving genuine legal, un-biased reviews uploaded onto any of ResDiary’s platforms is prohibited and is a breach of these Terms and Conditions and our Customer Review Policy.

4. Links to Other Websites

4.1 Third-Party Websites

1. The ResDiary Site may provide links to Third-party Websites.
2. These Terms and Conditions govern only the ResDiary Site and not any Third-party Websites.
3. ResDiary’s decision to link to a Third-party Website is not an endorsement of the content or services in that linked Third-party Website.
4. ResDiary 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.
5. ResDiary 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.

6. Intellectual Property

All Content included on the ResDiary Site, including any material contained within User Sites that is not User Content, including, but not limited to, text, graphics, logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code and software and the Database and the Documentation is the property of ResDiary. By continuing to use the Services you acknowledge that such material is protected by applicable United Kingdom and international Intellectual Property and other laws.
You will not systematically copy Content from the ResDiary Site or the Platform with a view to creating or compiling any form of comprehensive collection, compilation, directory or database.

6.1 User Site Intellectual Property
The Intellectual Property rights subsisting in the User Content of User Sites belong to the User to which that/those User Site(s) belong(s) unless it is expressly stated otherwise.
Where expressly indicated, certain Content available through User Sites and the Intellectual Property rights subsisting therein belongs to other parties.
For the avoidance of doubt, the Database shall not be considered User Content.

6.2 Third Party Intellectual Property
Unless otherwise expressly indicated, all Intellectual Property rights including, but not limited to, Copyright and Trademarks, in product images, films, music and other media and descriptions and designs belong to the manufacturers or distributors of such products as may be applicable.
You may not reproduce, copy, distribute, store or in any other fashion re-use such material unless otherwise indicated on the ResDiary Site or unless given express written permission to do so by the relevant manufacturer or supplier.

6.3 Marks

1. Users acknowledge and agree that any and all ResDiary or Restaurant Marks related to the Account and ResDiary or a Restaurant, are the property of ResDiary, the Restaurant or their Affiliates or suppliers, as the case may be.
2. By agreeing to these Terms and Conditions, Users agree not to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of ResDiary or the applicable Restaurant/Customer.
3. Users have no title or ownership or rights of Intellectual Property in the Account, the Services or the Marks (other than their own Marks) and no other rights in the Account, the Services or the Marks.
4. All ownership rights remain in ResDiary, the Restaurant or their third party suppliers, as the case may be.
   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).
5. Users 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.

6.4 Public Information
ResDiary reserves the right and Users agree that any information in an Account designated as “Public” may be used by ResDiary for promotional uses. External search engines may also index such Public information.
By registering and paying for an Account, each Restaurant agrees and grants ResDiary the right to use for the ResDiary Site 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 Marks:

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

7. Subscriptions, Contracts & Billing payments

7.1 Subscription
Packages include the ResDiary Widget for your website, a Micro-site listing on the ResDiary Site and listing on any consumer facing iPhone and Android APPs developed by ResDiary, and support provided by email (support@resdiary.com)
ResDiary will invoice you in advance on the anniversary date of the Term commencement. The charge will always be the same as your first charge unless we notify you otherwise and if we do so ResDiary will notify you of your charge.
Notwithstanding the terms of Clause 2.5, ResDiary 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.

7.1.1 Subscription Reservation Limits
The monthly reservation limits per package can be found here
If a venue exceeds the maximum limit of bookings, ResDiary will automatically upgrade the Account to the next category/level.
If a venue is below the maximum limit of bookings, ResDiary will not automatically downgrade the Account, the venue will have to contact ResDiary directly.

7.2 Contracts
ResDiary is entitled to consider that the person who signs the contract has the apparent authority to do so on behalf of a Company.

7.2.1 Quarterly Contracts
The information below applies to those Customers which have contracted to take Services for a quarterly term, paid on a monthly basis:

1. Contracts are rolling quarterly.
2. Cancellations require 90 days written notice.

7.2.2 Annual Contracts
The information below applies to those Customers which have contracted to take Services for an annual term, paid on an annual basis:

1. Contracts are rolling annually.
2. Cancellations require 90 days written notice prior to the anniversary date.

7.2.3 Offers
Contract length may vary depending on the offer used to sign up and are subject to Clause 7.2.2

7.3 Payment for Accounts

1. Payment for Accounts must be made in advance at the time of registration of the Account.
2. Any other payment arrangements must be made in advance between the Customer and an authorised ResDiary representative.
3. All fees paid to ResDiary for use of an Account are non-refundable.
4. The Customer will be charged a fee for setup on registration and the monthly / annual fee in advance on first registration and thereafter at a regularly recurring monthly / annual billing cycle.
5. ResDiary reserves the right to pro-rata the first subscription charge from the sign up date to the last day of the month to allow billing to subsequently fall on the 1st of the month thereafter
6.  The Customer can only pay by BACS/Electronic Bank Transfer for annual subscriptions, if a Customer who has subscribed to a monthly subscription sets up payment by BACS/Electronic Bank  Transfer, then their subscription will automatically be converted to an annual subscription and an annual fee will be charged.
7. 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% per annum or the maximum rate allowable by applicable law, and for any costs or expenses of ResDiary in collecting any overdue amounts (including legal fees and Value Added and other taxes and all court costs and outlays).
8. By agreeing to these Terms and Conditions, the Customer authorises ResDiary to charge the subscription amount for the Account on the relevant anniversary date in advance of each billing cycle.

7.4 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 resdiary.com and will notify you via email, or by an alternative method.

If ResDiary makes a change to the price or the Terms and Conditions relating to a Service:

1. and you agree to the change, you don’t need to do anything. In the case of a change to our Terms and Conditions, these will apply automatically by you continuing to use the Service. In the case of a change to the price for the Service, this will apply at the end of the period of 10 days beginning on the date you received the notice of the change;
2. and you do not agree to the change then you are entitled to terminate your Account by serving a written cancellation notice to us (in accordance with the terms of Clause 7.5 below). In which case:
   a. You will not have to pay an increased charge if you decide to terminate the Account early;
   b. You will not have to pay the termination period;
   c. Your Account will terminate at the end of the ten day notice period.
   If you don’t cancel within 10 days of receiving notice of the change, then the change will automatically apply at the end of the 10 day notice period and your Account will continue as provided for in these Terms and Conditions.

7.5 Cancellation Notice
Cancellation notice must be received by ResDiary in writing, to support@resdiary.com and/ or contracts@resdiary.com, in accordance with the contract terms detailed in Clause 7.2. Failure to do so will result in an Account renewing automatically.

7.6 Payment Declined

1. In the event that a billing subscription is cancelled by the Customer or authorised person or a payment request is declined for whatever reason, ResDiary reserves the right to levy an administration fee of £25 plus VAT (or local currency / tax equivalent).
2. In instances such as above, ResDiary reserves the right to immediately disable an Account until the administration fee is paid and the recurring charge facility is re-enabled.

7.7 Recovering Monies Owed
ResDiary may pass your Personal Data to third parties who are service providers, agents and subcontractors to us, for the purposes of recovering monies owed to our firm and all within our legitimate interests.

8. Termination

1. Notwithstanding the terms of Clause 2.5, ResDiary, in its sole discretion, has the right to suspend or terminate any Account and refuse any and all current or future use of the Account, or any other service of ResDiary, at any time for any reason, including, but not limited to, violation of these Terms and Conditions.
2. In the event of termination of an Account for any reason by ResDiary due to a breach by a User of these Terms and Conditions (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, Guest Data and User Content in the Account to ResDiary with effect from termination, following which ResDiary may use such data and User Content in its sole discretion in any manner it sees fit, subject to the terms of the Privacy Policy.
3. Cancellation notice must be received by ResDiary in writing, to support@resdiary.com and/ or contracts@resdiary.com, in accordance with the contract terms detailed in Clause 7.2. Failure to do so will result in an Account renewing automatically.
4. Immediately upon issuance of notice of termination, any outstanding invoices including those for the 90 day termination period become due and must be paid.
5. We regret we cannot provide refunds for unexpired portions of a contract, or for periods of time the system has been unused.
6. ResDiary may at its discretion delete any User Content and archived data within 30 days after the date of termination.

8.2 Cancellation procedure for data
In line with the Privacy Legislation, cancelled Restaurant data is to be kept no longer than is necessary. After a Customer has cancelled its contract, and after the cancellation period (depending on your package, the length of this period may vary), User Content and data and Guest Data will be anonymised 30 days after the date upon which the relevant Account has been cancelled.

9. Additional products and integrations

ResDiary offers a range of additional products and integrations.

1. By agreeing to the use of any additional products or integrations you are authorising ResDiary to increase your billing subscription.
2. ResDiary is not responsible for quoting any associated costs of our integrated Partners.
3. To remove an additional product and / or integration from your billing subscription, cancellation notice must be received by ResDiary in writing, to support@resdiary.com and/ or contracts@resdiary.com, in accordance with the contract terms detailed in 7.2. Failure to do so will result in automatic renewal of the additional product and / or integration billing.
4. We regret we cannot provide refunds for unexpired portions of a contract, or for periods of time the system has been unused.
5. ResDiary has the right to turn off any integration that may affect our adherence to local laws and regulations (e.g. the Privacy Legislation) at any time.

9.2 Payment Transactions

1. By submitting your request to take payments and deposits via Stripe you agree to ResDiary levying a charge of between 0.75% and 5% inclusive of applicable taxes, on each processed transaction, in addition to the relevant Stripe fees.
2. 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.

9.3 Reserve with Google

All venues are automatically opted into Reserve with Google.

1. The venue is responsible for setting up a Google Maps location
2. Only ‘standard availability’ is bookable
3. Reserve with Google is not available in all Countries
4. You may opt out of Reserve with Google at any time by requesting this in writing to support@resdiary.com

10. Websites by ResDiary

Websites by ResDiary provides domain hosting and web-building services for ResDiary Customers. This service is not available for any new Customers. This service is not available to Customers who have cancelled their ResDiary contract. All Websites by ResDiary are built on WordPress to be fully responsive and come with a valid security certificate as standard. Websites by ResDiary operate on a yearly rolling 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.Websites by ResDiary Users pay a one-off set-up fee, plus a monthly recurring fee. This fee includes website hosting on our server, but not domain hosting. Levels of set up fees and monthly support vary depending on which package has been chosen.

11. Copyright & Use

11.1 Software
Use of an Account does not grant a User any rights of Intellectual Property in the Software, Documentation or Content. The Services provided to the Customer are non-exclusive, non-transferable and are for the Customer’s internal business use only.
Users agree not to, directly or indirectly:

1. 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 the Software, Documentation, Content or data related to the Account
2. remove any proprietary notices or labels from the Account or the Software, modify, translate, or create derivative works based on the Account or the Software or Services ;
3. transfer or sell the Software
4. copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Account or any Software.
5. sell, license, rent or lease the Services;
6. make the Services available to anyone who is not an Account holder;
7. create any derivative works based upon the Services or Documentation;
8. copy any feature, design or graphic in, the Software, the Services or the Documentation, including without prejudice to the foregoing generality any graphical user interface or menu command hierarchy;
9. access the Services (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if the User is an employee or contractor of a ResDiary competitor;
10. use the Services in a way that violates any criminal or civil law;
11. load test the Services in order to test scalability; or,
12. exceed any usage limits.
13. use the Account or the 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 Economic Area, 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.

11.2 License
The Software, these Terms and Conditions and the Services and the Documentation are the copyrighted work of ResDiary and/or its partners and/or suppliers.
ResDiary hereby grants to you, the User, a personal, non-transferable, revocable, royalty based, limited license to use the Services and the Documentation (if any) solely during the Term, and only as strictly required to use the Services pursuant to the terms hereof, and for no other purpose.
By using the Services, you agree to be bound by the terms and conditions of this Agreement.

11.3 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.

12. Guest Data and Usage

ResDiary will collect data, including without limitation, Personal Data from Guests, in accordance with the Privacy Policy. Except as specified in (b) below in relation to Dish Cult or in relation to data from Guests who have signed up to a ResDiary consumer account through the ResDiary Site, or ResDiary Now app, ResDiary will not use any data collected from Guests pursuant to this Agreement to market any other Restaurant to any Guest.
(b) “Dish Cult” is an application and website which allows Guests (called “Diners”, for the purposes of Dish Cult) to find recommended restaurants in their vicinity by the use of GPS location, editorial, and personalised recommendations. The following terms apply to Dish Cult:
1. When a Diner makes a reservation at your Restaurant through the Dish Cult app or website, ResDiary can automatically notify you of that reservation. The notifications are sent as soon as the reservation is made and are delivered via email. The Diner may also receive confirmation by email at the same time.
2. ResDiary will provide the Customer access to certain Personal Data about Diners collected in connection with those Diners’ use of Dish Cult. Such Personal Data may include “Diner intelligence” such as Diner’s preferences. The agreed Stated Purposes for such Personal Data include enabling the Customer to fulfil restaurant bookings and for ResDiary to provide and enhance the Services and, in relation to Dish Cult, generate Diner intelligence.
3. The Customer may only use such Personal Data for the purpose of fulfilling bookings made by those Diners at the Restaurant and not for any other purpose. The Customer must not store or copy such Personal Data in any form.
The Customer must not disclose such Personal Data to, or share such Personal Data with, any person except for the Customer’s Restaurant staff who:
i. need to know such information for the purpose of fulfilling bookings made by those Diners; and
ii. have agreed to not disclose such Personal Data to any other person nor use such Personal Data for any purpose other than fulfilling bookings made by those Diners.

13. Privacy Legislation Disclaimer

The advice given by ResDiary to Customers relating to the Privacy Legislation is for information purposes only. It is not designed to be an exhaustive guide to the requirements of the Privacy Legislation. It is your responsibility to ensure that you comply with the provisions of the Privacy Legislation and related legislation. Each Customer’s responsibilities relating to the Privacy Legislation will vary depending on individual circumstances; accordingly, we will not be liable to you for your reliance on our advice provided to you in relation to the Privacy Legislation.
For more information on Privacy Legislation & terms and conditions relating to data storage, backup and security, data breaches, data retention, and email opt-ins, please visit the Privacy Legislation Terms and Conditions page here.

14. Data processor / controller Privacy Legislation Compliance

14.1 Data processing – Personal Data
The provisions of these Terms and Conditions shall apply to the processing of 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.

The purposes of the transfer to, and processing by, ResDiary as Data Processor are described in Appendix A.

The type of the Personal Data to be transferred and/or processed is found in Appendix A.

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:

1. for the purposes of this Agreement and not for any other purpose;
2. to the extent and in such a manner as is necessary for those purposes; and
3. strictly in accordance with these Terms and Conditions 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 Privacy Legislation and other applicable laws. ResDiary shall act only on such written instructions from the Customer unless ResDiary is required by law to do otherwise in terms of the applicable Privacy Legislation.

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 Privacy Legislation 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 Privacy Legislation.

The Customer hereby warrants, represents, and undertakes that the Personal Data shall comply with the Privacy Legislation in all respects including, but not limited to, its collection, holding, and processing. If the Customer requests ResDiary to process Personal Data that has been obtained by the Customer from a third party or requests ResDiary to transfer Personal Data to a third party, then the Customer hereby warrants, represents, and undertakes that the obtaining and transfer of such Personal Data complies with the Privacy Legislation in all respects and the Customer warrants that all necessary consents from data subjects have been obtained for the transfer and processing of such Personal Data.

ResDiary reserves the right (but has no obligation other than in respect of any duty under the Privacy legislation) to monitor User Sites to ensure compliance with the Privacy Legislation. If ResDiary becomes aware that Personal Data has not been collected in compliance with the Privacy Legislation or that the Customer has committed any other breach of the Privacy Legislation, then, without prejudice to (1) the rights ResDiary may have in relation to the Customer’s breach of the terms of the Agreement and (2) the obligations ResDiary may have to disclose such breach to the Information Commissioner’s Office in terms of the Privacy Legislation, ResDiary shall be entitled, but not bound to:

1. edit or remove User Content which is in breach of the Privacy Legislation, including (without prejudice to the foregoing) adding a compliant data privacy policy or statement to the User Site via the ResDiary Widget or by other means via the Software, Platform or Services;
2. remove the offending User Site;
3. delete any Personal data which has not been collected in compliance with the Privacy Legislation or return such Personal Data to the relevant data subject or data subjects;

ResDiary’s exercise of the foregoing rights shall not be construed so as to absolve the Customer of any of its obligations under the Agreement.

14.2 Processing of Data

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

1. not process Personal Data outside (1) the European Economic Area (all EU member states, plus Iceland, Liechtenstein, and Norway) (“EEA”) (except the United Kingdom which is permitted) in relation to European Union and/or United Kingdom Personal Data), or (2) the Commonwealth of Australia in relation to Australian Personal Data, 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, or United Kingdom or the Commonwealth of Australia (as the case may be), to comply with the obligations of Data Processors under the provisions applicable to transfers of Personal Data to third countries set out in the applicable Privacy Legislation by providing an adequate level of protection to any Personal Data that is transferred;
2. not transfer any Personal Data to any third party without the written consent of the Customer and, in the event of such consent, Personal Data shall be transferred strictly subject to the terms of a suitable agreement;
3. process 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);
4. implement appropriate technical and organisational measures, and take all steps necessary to protect Personal Data against unauthorised or unlawful processing, accidental loss, destruction, damage, alteration, or disclosure as currently detailed in in Appendix B;
5. make available to the Customer any and all such information as is reasonably required and necessary to demonstrate ResDiary’s compliance with the Privacy Legislation; and
6. inform the Customer immediately if it is asked to do anything that infringes the Privacy Legislation or any other applicable data protection legislation.
7. ResDiary shall, at the Customer’s cost, assist the Customer in complying with its obligations under the Privacy Legislation. 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:
8. a subject access request from a data subject; or
9. 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:
10. providing the Customer with full details of the complaint or request;
11. providing the necessary information and assistance in order to comply with a subject access request;
12. providing the Customer with any Personal Data it holds in relation to a data subject (within the timescales required by the Customer); and
13. 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.

14.3 Customers Privacy Legislation Obligations

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:

1. any non-compliance by the Customer with the relevant Privacy Legislation or other applicable legislation;
2. any Personal Data processing carried out by ResDiary or Sub-Processor in accordance with instructions given by the Customer that infringe the Privacy Legislation or other applicable legislation; or
3. any breach by the Customer of its obligations under this Agreement,
4. except to the extent that ResDiary or a Sub-Processor is liable.                                                                                                                                The said RestaurantDiary.com Limited or where applicable and in substitution, the relevant Affiliate of the said RestaurantDiary.com Limited with whom the Client has a contract 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 these Terms and Conditions:
5. only to the extent that the same results from ResDiary’s or a Sub-Processor’s breach of this Agreement; and
6. 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.

Nothing in this Agreement 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 relevant Privacy Legislation. Furthermore, ResDiary hereby acknowledges that it shall remain subject to the authority of the ICO and shall cooperate fully therewith, as required, and that failure to comply with its obligations as a Data Processor under the relevant Privacy Legislation may render it subject to the fines, penalties, and compensation requirements set out in the relevant Privacy Legislation.

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

1. 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 these Terms and Conditions; and ensure that the Sub-Processor complies fully with its obligations under the Sub-Processing Agreement and the relevant Privacy Legislation.

The list of ResDiary’s current Sub-processors can be found in Appendix C.

15. Data Sharing Provisions

In certain circumstances, ResDiary and a Customer may require to share data which includes Personal Data for example (1) to enable Guests to create a profile with ResDiary and thereafter make restaurant bookings with the Customer via the Platform and (2) to improve and enhance a Guests’ dining experience with the Customer and (3) to obtain relevant marketing and other appropriate information from ResDiary.

The Parties shall not process the Shared Personal Data for any purpose or in any way that is incompatible with the Stated Purposes.

The Shared Personal Data shall be disclosed by one Party to another only to the extent reasonably necessary for the Stated Purposes.

15.2 Data Protection Compliance
Each Party shall appoint a data protection officer and/or at least one other of its Representatives as a point of contact for all issues relating to the sharing of the Shared Personal Data and the Privacy Legislation (including, but not limited to, compliance, training, and the handling of personal data breaches).

Both Parties shall at all times during the Term comply with their obligations as Data Controllers, the rights of data subjects, and all other applicable requirements under the Privacy Legislation. These Terms and Conditions are in addition to, and do not relieve, remove, or replace either Party’s obligations under the Privacy Legislation. Any material breach of the Privacy Legislation by either Party shall, if not remedied within 14 days of written notice from the other Party, give the other Party grounds to terminate this Agreement with immediate effect.

15.3 The Shared Personal Data
The extent of the Shared Personal Data, including any applicable restrictions relating to will be agreed between the Parties and set out in writing.

Each Party shall ensure that the Shared Personal Data is accurate and up-to-date prior to its disclosure to the other Party.
The Parties shall use compatible technology for the processing of the Shared Personal Data in order to preserve accuracy.

15.4 Shared Personal Data – Fair and Lawful Processing
Both Parties shall at all times during the Term process the Shared Personal Data fairly and lawfully.

Both Parties shall ensure that they have legitimate grounds for processing the Shared Personal Data under the Privacy Legislation.

Both Parties shall ensure that they have in place all required notices and consents in order to enable the sharing of the Shared Personal Data under this Agreement. In particular, the Parties shall ensure that data subjects are provided with clear and sufficient information about the following:

1. the purposes for which their personal data is to be processed;
2. the legal basis upon which it is relying for such purposes;
3. the fact that their personal data is to be transferred to a third party and sufficient detail about the transfer to enable the data subject to understand the purpose of the transfer and any risks associated therewith; and
4. in the event that their personal data is to be transferred outside of the EEA, the fact that such a transfer is to take place and sufficient detail about the transfer to enable the data subject to understand the purpose of the transfer and any risks associated therewith. Details of international personal data transfers can be found in Appendix D; and
5. all other information required under the relevant Privacy Legislation.

15.5 The Rights of Data Subjects

The Parties shall assist one another in complying with their respective obligations and the rights of data subjects under the Privacy Legislation. Such assistance shall include, but not be limited to:

1. consulting with the other Party with respect to information and notices provided to data subjects relating to the Shared Personal Data;
2. informing the other Party about the receipt of data subject access requests and providing reasonable assistance in complying with the same;
3. not disclosing or otherwise releasing any Shared Personal Data in response to a data subject access request without prior consultation with the other Party, whenever reasonably possible;
4. assisting the other Party at the cost of the other Party in responding to any other data subject request.

Each Party shall maintain records of all data subject requests received, the decisions made in response, and any information provided to the data subject(s) concerned. Such records shall include copies of the request, details of any data accessed and shared, and, if applicable, details of any further correspondence, telephone conversations, or meetings relating to the request.

15.6 Data Retention and Deletion and/or Disposal
Each Party shall hold and process the Shared Personal Data only for so long as is necessary for the fulfilment of the Stated Purposes.

In the event that any statutory or similar retention periods apply to any of the Shared Personal Data, the relevant personal data shall be retained by the relevant Party in accordance therewith.

The Parties shall delete (or otherwise dispose of) or at a Party’s option anonymise the Shared Personal Data (or the relevant part thereof) and any and all copies thereof or, on the written request of the other Party, other than in the case of anonymised data, return it to the other disclosing Party, subject to any legal requirement to retain any applicable personal data, in the following circumstances:

• upon the termination or expiry of this Agreement; or
• once the Stated Purposes have been fulfilled and it is no longer necessary to retain the Shared Personal Data (or the relevant part thereof) in light of the Stated Purposes;

whichever is earlier.

All Shared Personal Data to be deleted or disposed of or anonymised under this Agreement shall be deleted or disposed of using an agreed method.

Following the deletion and/or disposal or anonymisation of the Shared Personal Data (as applicable), the Party deleting or disposing of the data shall notify the other Party of the same in writing, confirming that the Shared Personal Data has been deleted or disposed of or anonymised using the method(s) set out above.

15.7 Shared Personal Data Transfers

For the purposes of this Clause the transfer of Shared Personal Data shall refer to any sharing of the Shared Personal Data by a Party with a third party. Such sharing shall include, but not be limited to, the appointment of a third-party Data Processor and sharing the Shared Personal Data with a third-party Data Controller.

In the event that a Party wishes to appoint a third-party Data Processor, it shall remain liable to the other Party for any acts and/or omissions of the third-party processor and it shall comply with the Privacy Legislation.

Neither Party shall transfer any of the Shared Personal Data outside of the EEA or the United Kingdom in relation to European Union and/or United Kingdom Personal Data), or the Commonwealth of Australia in relation to Australian Personal Data unless:

1. that Party complies with the provisions of the relevant Privacy Legislation (where the third party is a joint controller); and
2. that Party ensures that the transfer is to a country that offers an adequate level of data protection, pursuant to the relevant Privacy Legislation; there are appropriate safeguards in place pursuant to the relevant Privacy Legislation; or one of the derogations for specific situations set out in the relevant Privacy Legislation applies.

15.8 Shared Personal Data Security

A Party shall transfer the Shared Personal Data to the other Party using a secure method.

Both Parties shall ensure that they have in place appropriate technical and organisational measures as reviewed and approved by the other Party, to protect against the unauthorised or unlawful processing of, and against the accidental loss or destruction of, or damage to, the Shared Personal Data, having regard to the state of technological development and the cost of implementing any such measures.

When putting appropriate technical and organisational measures in place, both Parties shall ensure a level of security appropriate to the nature of the Shared Personal Data which is to be protected, and to the potential harm resulting from the unauthorised or unlawful processing of, the accidental loss or destruction of, or damage to, the Shared Personal Data.

All technical and organisational measures put in place by both Parties shall be reviewed regularly by the respective Party, updating such measures upon the agreement of the other Party as appropriate throughout the Term of this Agreement.

15.9 Training

Both Parties shall ensure that any and all of their Representatives by whom the Shared Personal Data is to be handled and processed are appropriately trained to do so in accordance with the Privacy Legislation and with the requisite technical and organisational measures.

The Parties shall further ensure that any of their respective Representatives to whom the Shared Personal Data is to be disclosed are subject to contractual obligations in relation to confidentiality and data protection that bind those Representatives and that are same as the obligations imposed upon the Parties by this Agreement.

15.10 Resolution of Disputes with Data Subjects or the Supervisory Authority

In the event of a dispute or claim brought by a data subject or the ICO concerning the processing of Shared Personal Data against either or both Parties, the Parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
The Parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the supervisory authority. If they do participate in the proceedings, the Parties may elect to do so remotely (such as by telephone or other electronic means). The Parties also agree to consider participating in any other arbitration, mediation, or other dispute resolution proceedings developed for data protection disputes.

16. 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.

17. 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.

18. Indemnification

All Users agree to indemnify and hold ResDiary, its Representatives, 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 Services, 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. ResDiary assumes no responsibility or liability whatsoever for such content or actions.

19. General Limitation of Liability

Under no circumstances will ResDiary be liable for any injuries, death, loss or damage caused by your use of the Services, including the Software, materials, Content, food, products and/or services provided or use or reliance on information obtained through the Services.
It is your responsibility to evaluate the accuracy, completeness, or usefulness of the Services and the resources, materials, content and software provided therein.

In no event shall ResDiary be liable for any direct, indirect, punitive, incidental, special or consequential damages arising out of or relating to the Services or this Agreement, whether based on warranty, contract, tort, delict 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 Services is to stop using the Services.

20. Disclaimer of Warranties

1. You acknowledge and agree that the Services are provided on an “as is” and “as available” basis.
2. None of ResDiary or its Representatives guarantees the accuracy, completeness, timeliness, reliability, suitability or usefulness of any portion of the Services.
3. None of ResDiary or its Representatives warrant that the Services 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.
4. You expressly agree that the entire risk as to the quality and performance of the Services and the accuracy, timeliness or completeness of the Content or Services is assumed solely by you.
5. None of ResDiary or its Representatives make any, and hereby specifically disclaim any and all, representations, endorsements, guarantees, and warranties, expressed or implied, regarding the Services and any of the information, Content 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.
6. You understand and agree that any Content, Software, materials and/or data downloaded or otherwise obtained through the use of the Services 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.
   Users expressly understand and agree that neither ResDiary 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 ResDiary has been advised of the possibility of such damages), resulting from:
7.  the use or the inability to use the Services;
8.  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 Services;
9. unauthorised access to or alteration of the Users’ transmissions or data;
10.  statements or conduct of any third party on the Services;
11. termination of the Users’ Account; or
12. any other matter relating to the Account.

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

21. Confidentiality

The Services, Software and Documentation contain valuable Confidential Information that are the sole property of ResDiary, and the Customer agrees to use reasonable care to prevent third parties from learning of this Confidential Information. The Customer shall take reasonable care to prevent unauthorised access to or duplication of the Services, Software and Documentation. The Customer shall use reasonable endeavours to ensure that their Representatives are bound by the same duty of confidentiality to ResDiary in terms of this clause.
The User Content may include Confidential Information that is the sole property of the Customer. ResDiary shall take reasonable care to prevent third parties from learning of these trade secrets. ResDiary shall use reasonable endeavours to ensure that their Representatives are bound by the same duty of confidentiality to the Customer in terms of this clause.

The foregoing does not apply to any information that (i) is now, or subsequently becomes, through no act or failure to act on the part of the Receiver, generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.

Both Parties shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement.
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.
The duties of confidentiality contained in this Agreement shall subsist for a period of five (5) years after the termination of this Agreement.

22. Separate Written Agreement by Contract

These Terms and Conditions supersede all previous agreements entered into between ResDiary and the Customer prior to 1st September 2017. Where Resdiary and the Customer 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 of any prior contract.

23. General Conditions

1. Users agree that their use of the Accounts is at their sole risk. The Services are provided on an “as is” and “as available” basis.
2. Users must not modify, adapt or hack the Accounts or modify another User Site so as to falsely imply that it is associated with the Accounts, ResDiary, or any other ResDiary service.
3. Users agree 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 ResDiary.
4. Users understand that the technical processing and transmission of the Accounts, including their Content and User 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.
5. ResDiary 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 Users through the Services will meet their expectations
   5.any errors in the Accounts will be corrected.
6. The failure of ResDiary to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision.
7. The Terms and Conditions constitutes the entire express agreement between the Users and ResDiary and govern the use of the Accounts, superseding any prior agreements between a User and ResDiary (including, but not limited to, any prior versions of the Terms and Conditions).
8. Unless otherwise provided, the Terms and Conditions shall be governed by the laws of Scotland without effect to its conflict of laws provisions.
9. The Terms and Conditions and all of its terms and provisions are binding upon the heirs and personal representatives of the Users and the successors and assignees of ResDiary; provided, however, no assignment by the Users of their rights and/or interests in and to this Agreement shall be permitted without ResDiary’s prior written consent of ResDiary.
10. Please note calls may occasionally be recorded for quality and training purposes.

24. Contact

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

25. Definitions

In these Terms and Conditions the following words and phrases shall have the meaning set opposite them:

1. “Account” means an account created by a User when applying to use the Services;
2. “Affiliate” means an entity which controls, is controlled by, or is under common control with, a party, and control means the ability to vote 50% or more of the voting securities of any entity or otherwise having the ability to influence and direct the polices and direction of an entity;
3. “Agreement” means the contract entered into between ResDiary and a Customer constituted by the relevant Online Order Form and the Terms and Conditions and the Privacy Policy and any amendment to the Online Order Form agreed in writing by the Parties;
4. “API” means an application programming interface;
5. “APP” means a mobile application computer program or software application designed to run on a mobile device such as a phone/tablet or watch;
6. “Changes” means any amendments, or modification or extension to/of the Services including Updates and Upgrades made from time to time by ResDiary;
7. “Confidential Information” means all information (in whatever form, including in written, oral, visual or electronic form) which is first disclosed by the Discloser to the Recipient during the Term and which relates to information that includes but is not limited to:                 1. the existence and terms of this Agreement;
   2. any information that would be regarded as confidential by a reasonable business person relating to:
   1. the business, affairs, technical data, financial data, customers, clients, suppliers, plans, intentions, or market opportunities of the Discloser;
   2. the operations, processes, product information, know-how, designs, trade secrets or software of the Discloser; and
   3. Intellectual Property.
   3.any information or analysis derived from Confidential Information;
   4.and provided that it is of a nature such that the Recipient knows or should know that it is confidential;
8. “Content” means any text, graphics, images, audio, video, software, data compilations including, but not limited to, text, graphics, logos, icons, sound clips, video clips, data compilations, page layout, underlying code and software and any other form of information capable of being stored in a computer that appears on, is uploaded to or forms part of the Services or the Platform; BUT excluding User Content;
9. “Customer” means the person, corporation or other legal entity / you/Restaurant, which is entering into this Agreement with the said RestaurantDiary.com Limited or its applicable Affiliate (as the case may be);
10. “Database” means the database stored on the Platform which contains inter alia User Content;
11. “Data Controller”, “Data Processor”, “Personal Data” “processing”, “special category personal data” “appropriate technical and organisational measures” and “data subject” shall have the meanings ascribed to them in the Privacy Legislation;(without prejudice to the foregoing, Data Controller shall have the same meaning as “Controller” and Data Processor” shall have the same meaning as “Processor” as defined in Article 4 of the UK GDPR);
12. “Discloser” and “Recipient” refer respectively to the party disclosing or receiving a specific item of Confidential Information;
13. “DPA” means the Data Protection Act 2018 and any modification, amendment or re-enactment thereof;
14. “Documentation” means user documentation provided electronically by ResDiary for use with the Services, as periodically updated;
15. “Feedback” means all comments, suggestions, requests, requirements, improvements, feedback, or other input the Customer provides regarding any ResDiary products or Services;
16. “GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679);
17. “Guest” means a customer of a Restaurant;
18. “Guest Data” 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 the Platform by a Guest;
19. “Intellectual Property” means all intellectual property, including patents, trademarks, trade name, service mark, copyright, trade secrets, know-how, process, technology, development tool, ideas, concepts, design right, domain names, moral right, database right, methodology, algorithm and invention, and any other proprietary information (whether registered, unregistered, pending or applied for);
20. “Marks” means Intellectual Property in the form of trademarks, trade names, service marks, copyright in logos and registered or unregistered designs;
21. “Online Order Form” means the form located on the ResDiary Site which is completed by a Customer in order to purchase Services;
22. “Party” means either ResDiary or the Customer as the case may be and “Parties” shall mean both of them;
23. “Platform” means the hardware and software environment in which the software element of the Services 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;
24. “Privacy Laws” means all applicable laws, rules and regulations and, where applicable, guidance and codes of practice issued by any relevant data protection supervisory authority or authorities relating to the Processing of Personal Data and data privacy or data protection that may exist in any relevant jurisdiction of the Customer, including, without prejudice to the foregoing, (1) the Australian Privacy Act 1988; (2) the GDPR and laws implementing or supplementing the GDPR; (3) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector in the European Union; (4) in respect of the United Kingdom, the UK GDPR and the Data Protection Act 2018; (5) applicable laws and regulations of the United States of America (both federal and state law) relating to the processing of personal data and privacy; (6) the laws of the United Arab Emirates relating to the processing of personal data and privacy including without prejudice to the foregoing, Article 31 of the Constitution of the United Arab Emirates, Federal Law No. 5 of 1985: The Civil Code as amended by Federal Law No. 1 of 1987 and the Federal Law No. 3 of 1987: The Penal Code; (7) New Zealand’s Privacy Act 2020; (8) applicable laws and regulations of Canada (federal, provincial and territorial) relating to the processing of personal data and privacy; and (9) The Republic of Singapore’s Personal Data Protection Act 2012; in each case, as may be amended, superseded or replaced;
25. “Privacy Policy” means ResDiary’s policy relating to User Content and Guest Data and compliance with (amongst others) the Privacy Legislation from time to time, the current version of which is located here;
26. “Representative” means, in relation to either Party, its officers and employees, professional advisers or consultants engaged to advise that Party, contractors or sub-contractors engaged by that Party;
27. “ResDiary means the said RestaurantDiary.com Limited and its Affiliates;
28. “ResDiary Application” the yield management system made available by ResDiary through the ResDiary Site and/or any ResDiary-branded application for your mobile or other device;
29. “ResDiary Guarantees” “tokenization” means the ability of Restaurants to store Guest debit and credit card details securely, in security of a penalty payment should the Guest not attend the Restaurant and complete a booking/reservation;
30. “ResDiary Microsite” means a micro site or sub domain of the ResDiary Site which is specific to a particular Restaurant;
31. “ResDiary Now” is an APP which allows Guests to find ResDiary recommended restaurants in their vicinity by the use of GPS location;
32. “ResDiary” Pre Order Feature means an online system for Restaurants taking pre orders of meals from set menus by groups of Guests;
33. “ResDiary Site” means the ResDiary website at https://www.resdiary.com and all affiliated websites owned and operated by ResDiary;
34. “ResDiary Widget” means a web widget or an applet or iFrame intended to be used within web pages which creates a form to be completed in a web page by Guests for use in connecting to a ResDiary diary or diaries which will be used to enter reservations into that diary or diaries;
35. “Reservation” the reservation of a table or table or services by a Guest in a Restaurant via the Services/ the Platform;
36. “Reservation Services” the yield management system made available by ResDiary through the ResDiary Site and the ResDiary Application and any other online properties of ResDiary or third parties, as described in these Terms and Conditions;
37. “Restaurant” means a restaurant business or restaurant businesses owned by a Customer;
38. “Services” means the ResDiary Application and the Reservation Services and the ResDiary Site and the Software and Platform and any other services or features made available by ResDiary through the ResDiary Site or any ResDiary Application;
39. “Shared Personal Data” means the personal data and special category personal data to be shared between Resdiary and the Customer under these Terms and Conditions;
40. “SMS” means short message service delivering text messages;
41. “Software” means the ResDiary™ proprietary operating software and the third party software written in object and source code residing on and used for operating the Platform and the Services as Updated and Upgraded from time to time;
42. “Stated Purposes” means the purposes agreed between ResDiary and a Customer in writing in terms of which ResDiary and a Customer will share Personal Data;
43. “Stripe” means Stripe, Inc. 185 Berry Street, Suite 550, San Francisco, CA 94107, United States, being a technology company whose software allows individuals and businesses to receive payments over the Internet, or any of its subsidiaries or Affiliates;
44. “Stripe Connect” is a product of Stripe which allows users to accept money and pay out to third parties. Stripe Connect provides a complete set of functionality to support virtually any business model, including on-demand businesses, e-commerce, crowdfunding, fintech, and travel and events;
45. “Sub-Processor” means a sub-processor appointed by ResDiary to process the Personal Data;
46. “Sub-Processing Agreement” means an agreement between ResDiary and a Sub-Processor governing the Personal Data processing carried out by the Sub-Processor;
47. “Term” means the period of time during which ResDiary is required to provide the Customer with the Services in terms of this Agreement;
48. “Terms and Conditions” means these terms and conditions including any amendments, or modification or extension thereof made from time to time by ResDiary;
49. “Third Party Websites” means websites which are not owned by ResDiary;
50. “UK GDPR” means the retained EU law version of the GDPR, as it forms part of the law of England and Wales, Scotland, and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018;
51. “Update” means any update, update rollup, service pack, feature pack, critical update, security update, or hotfix that is used to improve or to fix a software product;
52. “Upgrade” means a software package that replaces an installed version of a product with a newer version of the same product, typically leaving existing customer data and preferences intact while replacing the existing software with the newer version;
53. “User” means (1) a Customer and any of its employees, or a person to whom the Customer has outsourced services, that has permission to accesses the Services as a named user and is not employed by ResDiary and acting in the course of their employment and (2) a Guest;
54. “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 or forms part of a User Site or the Services and has been uploaded by a User;
55. “User Site” means a partition/tenancy on the Platform created by ResDiary for a User or Users accessing the Services which shall contain User Content and shall be hosted on the Platform;
56. “Working Day” means any day upon which the clearing banks in London, Glasgow and Edinburgh are open for business;
57. “you”, “your” means the Customer, the Customer’s;

Appendix

APPENDIX A– DESCRIPTION OF THE PROCESSING

Subject matter and duration of the Personal Data Processing
Booking system. This is valid during the term of the Service Agreement.
Nature and Purpose
ResDiary is a table reservation system that processes reservations.
Type of Personal Data Processed
Email, name, address, post code.
Categories of Data Subjects
When a booking is made via the ResDiary.com portal, ResDiary is the data controller and is responsible for tracking your marketing preferences.When bookings are made for a restaurant using ResDiary technology on any other digital platforms, then the restaurant, or partner, is responsible for tracking marketing preferences. We are not responsible for any restaurant’s use of information for which it is an owner or controller. To learn more about how a restaurant may use such personal information, you should review its privacy notice.
Data Retention Period
18 months.

APPENDIX B – DESCRIPTION OF THE TECHNICAL AND ORGANISATIONAL SECURITY AND CONFIDENTIALITY MEASURES

Data is stored securely in Microsoft Azure data centres throughout the world. Data will be held in the data centre nearest to the location of your venues e.g. for EU this will be held in London, AU – New South Wales, China – HK, Asia – Singapore, North America – Illinois. Data is encrypted at rest and is also encrypted in transit with all communications over HTTPS. No data leaves the production environment and only qualified personnel have access to the Azure data centres. And no data on our UK server is transferred outwith the EEA.

In terms of security, access to security logs are strictly controlled within our development team, we follow advice from Microsoft as to when security patches should be applied, and we use Cloudflare to monitor for unauthorised intrusion attempts. Authorised support and sales executives have access to your diary; a smaller set of ResDiary staff have administrator access to our network and server infrastructure. Data is backed up automatically every day. Data cleansing is the responsibility of the Restaurant operator. Data-retention policies will be put in place as part of the Privacy Legislation work that is currently underway. All access to diaries is controlled by username and password. Each diary may set its own level of password complexity, as required – the minimum password length is 6 characters and the restaurant operator can specify the level of complexity required. Data can be deleted upon request either by you or by us. Data can only be deleted by ResDiary if a Guest booked on resdiary.com or the ResDiary Now app. If a Guest booked via social media/a Restaurant’s widget/website, then the Restaurant must delete that Guest’s data. A Guest can contact ResDiary at privacy@resdiary.com to delete their record. We’ve agreed our data retention period will be 18 months.

In the event of a data breach, the point of contact from ResDiary is Scott Simpson, who is also our Data Protection Officer. He will invoke the data control procedure with the CEO, Colin Winning, as required. Then we will report the breach to the relevant supervisory authority within 72 hours of the organisation becoming aware of it. We will notify affected venues within 48 hours of becoming aware of the breach.
See more here

APPENDIX C – LIST OF SUBPROCESSORS

Data held in a diary may be passed into third party application on the instructions of the Customer only; for instance, if the Customer has asked that a diary be linked to a POS system, then diner details may pass from the diary into the POS system.
Available integrations can be seen here.
ResDiary doesn’t share data externally, however, if a Customer opts to take bookings from a third party (e.g Time Out), the Guest data will be shared with the nominated 3rd party booking provider.
Partners that we take bookings from are listed here.
Subprocessors and the nature of the services
Stripe
Process payments. When a diner submits credit or debit card information via our Sites, all information is captured via secure web forms served directly from our third-party payment service providers. This is Stripe in the UK and Europe. ResDiary are never privy to identifiable card information and instead store a non-sensitive token, generated by Stripe, which can be used to take payment through our sites to the extent permitted by local law.
PayPal
Process payments.
SendGrid
Process email notifications and marketing emails.
Silverstreet
Process SMS notifications.
Clickatell
Process SMS notifications.

Appendix D