Welcome to OpenDining.net (the “Site”), a service operated by Open Networks, LLC. The following terms and conditions (the “Terms”) form a binding agreement between You and us. Please review the following Terms carefully. By using the Site, You are agreeing to these Terms, and these Terms will govern Your use of the Site and the Services (defined below). If You do not agree to these Terms, You must cease use of the Site and Services. The terms “Open Dining”, “us”, “we” or “our” refers to Open Networks, LLC., the owner of the Site and Services. The term “You” or “Your” refers to the person accessing or using the Site and Services, or the company or organization on whose behalf that person accesses the Site and Services.
Violation of any of these agreements will result in the termination of your Account. While Open Dining prohibits such conduct and Content on the Service, you understand and agree that Open Dining cannot be responsible for the Content posted on the Service and you nonetheless may be exposed to such materials. You agree to use the Service at your own risk.
Open Dining provides online ordering services (our “Services”) that make it easy for You to share and distribute content via our proprietary platform (the “Open Dining Platform”). In order for us to provide You with the Services, You must (i) allow Open Dining to retrieve, distribute and access Your Content (as defined below) as well as (ii) combine Your Content with our proprietary platform, which may include our sharing, tracking and other capabilities (the “Open Dining API”). One of the basic functions of the Services is to maximize distribution of Your Content, and as such, You agree to allow us to reference Your Content on our Site and other delivery points and distribute Your Content to various delivery points.
By paying a monthly fee and as long as you are a customer of Open Dining, you are granted a right to use the Service subject to the restrictions set forth in this agreement. You agree to pay for the service in accordance with our service fees and to pay the service fee until you cancel your account. You can terminate your account at any time; and Open Dining reserves the right, in its sole discretion, to terminate your account if you violate this Agreement.
We retain all right to determine the features and capabilities included as part of the Site and the Services. We may include features and capabilities that link to third-party services, content, advertisements, applications, widgets or websites from the Site, Services, Open Dining Platform or Open Dining Tools.
Your use of the Service is at your sole risk. The service is provided on an “as is” and “as available” basis. Technical support is only available via e-mail. You understand that Open Dining uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
We reserve the right to modify, suspend, or discontinue the Site and the Services or modify the Terms from time-to-time, with or without notice to You, and we are not liable to You or any third party should we exercise such right. If You object to any such changes, Your sole recourse is to discontinue using the Site and the Services. Continued access and/or use of the Site and/or the Services following notice of any such changes shall indicate Your assent to and acceptance of such changes.
When your application displays any information obtained from our API, you must include a link with the text “Powered by Open Dining” that links back to http://www.opendining.net. This link must be large enough to be visible.
The Open Dining Platform uses data provided by third parties. These third parties will be identified in the “source” field for appropriate API calls. By using this data, you agree to the Terms of Service for the listed third party.
If the “source” field is “openmenu”, you agree to the OpenMenu Terms of Service, as listed at the following URL: http://openmenu.com/tos.php.
The Open Dining API may contain links to third party content, websites, advertising, applications or widgets that are not owned or controlled by Open Dining. We have no control over, and assume no responsibility for, the content, privacy policies, or practices of any third party websites, advertising, applications or widgets. In addition, Open Dining will not and cannot censor or edit the content of any third-party website, advertisement, application or widget. By using the Services, You expressly relieve Open Dining from any and all liability arising from Your use of any third-party content.
Your content, including your menu, may now or in the future include videos, images, audio clips, photos, graphic designs, advertisements, sponsorships and/or other types of content submitted by You or others enabled by You (“Your Content”).
All items listed in your menu must be legal for sale. Open Dining will not be held responsible for any illegal sales.
You shall be solely responsible for Your Content and the consequences of posting or publishing such content. In connection with Your Content, You affirm, represent, and/or warrant that: (i) You own or have the necessary licenses, rights, consents, and permissions to use and authorize Open Dining to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Your Content to enable inclusion and use of the Your Content in the manner contemplated by our Services and these Terms; and (ii) You have the written consent, release, and/or permission of each and every identifiable individual person in Your Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of Your Content in the manner contemplated by our Services and these Terms. For clarity, You retain all of Your ownership rights in Your Content. However, by placing the Your Content in the Open Dining API, You hereby grant Open Dining a worldwide, non-exclusive, royalty-free, sub-licenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform Your Content in connection with our Services and Open Dining’s (and its parent and successor’s) business, including without limitation for promoting and redistributing Your Content (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user accessing Your Content a non-exclusive license to access Your Content, and to use, reproduce, distribute, display and perform Your Content. The foregoing license granted by You terminates once You block access to, remove or delete Your Content.
You agree that this license includes a right for Open Networks to make such Content available to other companies, organizations or individuals with whom Open Networks has relationships for the provision of services, and to use such Content in connection with the provision of those services.
You understand that Open Networks, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Open Networks to take these actions.
In connection with Your Content, You further agree that You will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to post the material and to grant Open Dining all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Open Dining or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) impersonate another person. Open Dining does not endorse any of Your Content or any opinion, recommendation, or advice expressed therein, and Open Dining expressly disclaims any and all liability in connection with Your Content. Open Dining does not condone copyright infringing activities and infringement of intellectual property rights throughout its Service, and Open Dining will remove Your Content if properly notified that Your Content infringes on another’s intellectual property rights. Open Dining will also suspend and/or terminate a user’s access to our Service, if they are determined to be a repeat infringer. A repeat infringer is a user who has been notified of infringing activity more than twice and/or has Your Content removed more than twice. Open Dining also reserves the right to decide whether Your Content is appropriate and complies with these Terms for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to obscene or defamatory material. Open Dining may remove Your Content and/or suspend or terminate a user’s access for uploading such material in violation of these Terms at any time, without prior notice and at its sole discretion.
In particular, if You are a copyright owner or an agent thereof and believe that Your Content or other content infringes upon your copyrights, You may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in the form of a written notification (pursuant to 17 U.S.C., section 512(c)) must be provided to Open Dining’s designated Copyright Agent:
Please note that, pursuant to 17 U.S.C., section 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by Open Dining in connection with the written notification and allegation of copyright infringement.
Open Dining’s designated Copyright Agent to receive notifications of claimed infringement can be reached:
By e-mail: firstname.lastname@example.org
For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Open Dining customer service. You acknowledge that if You fail to comply with all of the requirements of this Section, Your DMCA notice may not be valid.
In order to provide certain Services, You must allow us to use raw data related to the use and distribution of Your Content (“Data”) that will be collected as part of the Services. You hereby grant Open Dining a non-exclusive, perpetual, worldwide and irrevocable right and license to utilize the Data to track, extract, compile, synthesize, aggregate, and analyze such Data, including, but not limited to, the creation of anonymous and promotional tracking data (“Tracking Data”). We reserve the right to use, reproduce, distribute and display Tracking Data, in our sole discretion.
THE SITE, SERVICES, AND OPEN DINING PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OPEN DINING, ITS PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND SYSTEM INTEGRATION. OPEN DINING, ITS PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES MAKE NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, QUALITY, OR TIMELINESS OF THE SITE, OPEN DINING PLATFORM, OR SERVICES, OR THAT PROBLEMS WITH THE FOREGOING WILL BE CORRECTED, OR THAT THE SITE IS FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SITE AND OPEN DINING PLATFORM, AND TO PROVIDE THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. IN NO EVENT WILL OPEN DINING, ITS PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, NOR LOST PROFITS, ARISING IN CONNECTION WITH THE SITE, SERVICES OR THESE TERMS, INCLUDING, FOR EXAMPLE, DAMAGES RESULTING FROM LOST DATA, LOST EMPLOYMENT OPPORTUNITIES, OR BUSINESS INTERRUPTIONS, OR RESULTING FROM THE USE OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SERVICE, SITE, OR THE CONTENT. OPEN DINING, ITS PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD PARTY MERCHANTS OR FOR ANY INFORMATION APPEARING ON MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE.
THESE LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE NATURE OF ANY CLAIM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT OPEN DINING IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT YOUR SOLE REMEDY FOR ANY CLAIMS ARISING IN CONNECTION WITH THESE TERMS IS TO DISCONTINUE USING THE SITE AND SERVICES. IN THE EVENT THAT A COURT DETERMINES THAT THE PRECEDING SENTENCE IS UNENFORCEABLE, THE AGGREGATE LIABILITY OF OPEN DINING TO YOU FOR ALL CLAIMS ARISING IN CONNECTION WITH THESE TERMS WILL NOT EXCEED THE GREATER OF (A) ALL AMOUNTS PAID BY YOU UNDER THESE TERMS WITHIN THE LAST TWELVE (12) MONTHS, AND (B) FIFTY DOLLARS (U.S. $50.00).
You agree to defend, indemnify and hold harmless Open Dining, affiliates, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Your use of and access to the Site, Services, or Open Dining Platform; (ii) Your violation of any term of these Terms; (iii) Your violation of any third party right, including without limitation any copyright, property, or privacy right; (iv) the distribution of Your Content; or (v) any claim that Your Content or Data caused damage to a third party. This defense and indemnification obligation will survive these Terms and Your use of the Open Dining Platform and/or Open Dining API.
You and we are independent contracts, and nothing in these Terms creates a partnership, employment relationship or agency. There are no third-party beneficiaries of these Terms. You may not assign these Terms, in whole or in part, to any third party without our prior, written consent, and any attempt by You to do so will be invalid. Should any part of these Terms be held invalid or unenforceable, that portion will be construed consistent with applicable law and the remaining portions will remain in full force and effect. Our failure to enforce any provision of these Terms will not be considered a waiver of the right to enforce such provision. Our rights under these Terms will survive any termination of these Terms. You agree that: (i) the Site, Services and Open Dining Platform shall be deemed solely based in Ohio; and (ii) the Site shall be deemed a passive website that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Ohio. These Terms will be governed by the laws of the State of Ohio. You agree that the state and federal courts located within the State of Ohio will have exclusive jurisdiction over any dispute between You and us. However, You agree that we may seek equitable relief in any jurisdiction when appropriate. YOU AND OPEN DINING AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE, SERVICES OR OPEN DINING PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. These Terms constitute the entire and only agreement between You and us, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings that relate to the subject matter of these Terms.