This Venue Agreement (“Agreement”), effective as of the date Venue accepts this Agreement via the method provided below (“Effective Date”), is entered into by and between Peak Reservations, LLC (“Peak”) and the entity entering into this Agreement (“Venue”). This Agreement includes and incorporates the Terms of Service available at https://www.peakreservations.com/terms-of-service (“Terms of Service”). If any provision in the body of this agreement below conflicts with any provision in the Terms of Service, the conflicting provision in the body of this Agreement below will prevail to the extent of such conflict.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS VENUE’S USE OF THE SERVICE (defined below). IF VENUE DOES NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, VENUE MUST NOT ACCEPT THESE TERMS OR ACCESS OR USE THE SERVICE.
VENUE ACCEPTS THIS AGREEMENT BY ACCESSING OR USING THE SERVICE IN ANY WAY OR CLICKING ON THE “I ACCEPT” (OR SIMILAR) BUTTON WHEN COMPLETING REGISTRATION OR SIGNING UP FOR THE SERVICE. VENUE REPRESENTS THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT, AND VENUE HAS THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT.
1. Access to and Use of the Service.
1.1. Provision of the Service. Subject to the terms and conditions of this Agreement and during the Term, Peak will make available Peak’s proprietary service and platform, providing Venue the ability to manage its venues’ seating and offer and manage Reservations to the public and through which Peak will communicate with Guests, including via SMS/MMS or other text messaging, on Venue’s behalf (the “Service”). Venue’s service tier level may determine the features available to Venue. Such tier levels are currently described at https://register.peakreservations.com, and the features for each tier level are subject to change in Peak’s sole discretion upon reasonable advance notice to Venue. Venue may use the Service solely for the internal business operations of Venue. Peak may update the Service and any user manuals, specifications, and policies that describe the Service (“Documentation”) from time to time in its sole discretion as part of its ongoing mission to improve the Service.
1.2. Account Creation. Venue is required to register an account with Peak through the Service. Venue is responsible for all activities that occur under its account, including use by Authorized Users.
1.3. Venue Responsibilities. Venue will: (a) provide any required notices and obtain any permissions and consents required for the provision of Venue Data and Guest Data (as defined below) to Peak and Peak’s use thereof as contemplated herein; (b) be responsible for ensuring that Venue’s employees and/or contractors who are authorized by Venue to access and use the Service on Venue’s behalf (“Authorized Users”) comply with this Agreement; and (c) be responsible for the accuracy, appropriateness, and legality of Venue Data. Venue acknowledges and agrees that in connection with its use of the Service, Peak will contact individuals who have made or purchased a Reservation (“Guests”) via SMS/MMS or other text message in connection with such Reservation or the Guest’s use of the Service. For the avoidance of doubt, and without limiting Venue’s obligations under this Section otherwise, Venue agrees that, prior to providing a Guest’s telephone number or other contact details or information to Peak, it shall (i) provide any notices to, and obtain any consents from, Guests that are required by applicable law to enable Peak to contact the Guest as described in this Agreement and (ii) take any other steps necessary to ensure that Peak’s processing of Guest or Reservation related data, including names and contact information of Guests, the date and time of Reservations, purchases, payment methods, and Reservation details (“Guest Data”) in accordance with this Agreement does not and will not violate applicable law. Venue is solely responsible and liable for (1) all Venue Data and Guest Data, including any data provided by Venue through third-party APIs; and (2) complying with applicable privacy and data protection laws when handling and using any personal data of any individual. Venue will only use the Guest Data for the purpose of fulfilling the Reservation.
1.4. No Service Circumvention. Venue will not, nor will they permit any Authorized User or other third party to engage in any action through the Service to facilitate a transaction for a reservation outside the Service, including promoting external websites or services that facilitate the sales of any reservation listing outside of the Service.
2. Reservations.
2.1. Reservations. Venue is responsible for fulfilling reservations made or purchased by Guests through the Service (each, a “Reservation”). For each of Venue’s locations enrolled for use with the Service (each, a “Location”), Venue is responsible for determining the number, location, and rules of available Reservations in the Locations and establishing the price for such Reservation (the “Reservation Fees”) within the Service. Venue must describe any and all Reservation Fees and other charges related to each listing.
2.2. Contracting with Guests. When a Guest purchases a Reservation from Venue through the Service, Venue is entering into a contract directly with that Guest and is responsible for honoring the Reservation in accordance with this Agreement at the price specified in Venue’s listing. Any terms or conditions that Venue includes in any supplemental terms with Guests must: (a) be prominently disclosed in Venue’s listing description; and (b) be consistent with this Agreement and the information provided in Venue’s listing.
2.3. Creating and Managing Venue’s Listing. Venue’s listing must include complete and accurate information about the Reservation, Venue’s services, prices and other charges Guests may incur, calendar availability, and seating arrangements, and any rules, requirements or restrictions that apply to Venue’s Guests or the listing.
2.4. Cancellations. In general, if a Guest cancels a Reservation, the amount paid to Venue is determined by this Agreement and any applicable cancellation policy that applies to that Reservation. Venue may not cancel on a Guest without a valid reason under applicable law and if Venue does so, as determined in Peak’s sole discretion, Peak may impose a cancellation fee and other consequences. If a Guest receives a refund after Venue has already been paid, or the amount of the refund and other costs incurred by Peak exceeds the payout, Peak may recover that amount from Venue, including by offsetting the refund against Venue’s future payouts. Venue agrees that if there is a conflict between this Agreement and any applicable cancellation policy, this Agreement shall govern. If Peak reasonably expects to provide a refund to a Guest, Peak may delay release of any Revenue Share for that Reservation until a refund decision is made by Peak. Venue may appeal a decision by Peak by contacting our customer service.
2.5. Booking Modifications. Venue is responsible for any Reservation modifications it agrees to make via the Service or directs Peak customer service to make on its behalf, and agrees to pay any additional amounts, fees or taxes associated with that modification.
3. Fees and Payments.
3.1. Revenue Share. Peak will pay Venue a percentage of the total Reservation Fees collected by Peak as set forth in Venue’s Peak profile (the “Revenue Share”). Except as set forth in the preceding sentence, Peak will have no obligation to pay, and Venue will have no right to receive, any share of revenues paid or payable to Peak at any time by any Guests. Peak will pay any amounts payable under this Section within 30-days following the last day of each calendar month, with each such payment covering the Revenue Shares accrued during the preceding month (each, a “Revenue Share Payment”). Peak will make all payments in U.S. Dollars.
3.2. Taxes. If Peak is required by law to withhold taxes in connection with any sums payable to Venue under this Agreement, Peak may deduct that amount from the Revenue Share Payment.
4. Proprietary Rights.
4.1. Peak Property. Peak owns, all rights, title, and interest in and to the Service, including all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. No rights are granted by Peak hereunder other than as expressly set forth herein.
4.2. Venue Data; Guest Data. As between the parties, Venue owns all right, title and interest in, and is solely responsible for, all data, content, and information submitted by Venue and Authorized Users into the Service, including Location photographs, floor plans, and table configurations (“Venue Data”). If multiple Locations are managed via the Service, Guest Data from each Location will be available to all Authorized Users of all other Locations, subject to the access rights of such Authorized Users. Venue grants to Peak a worldwide, non-exclusive, perpetual license to access, use, copy, distribute, perform, and display Venue Data and Guest Data, including to provide access to third-party service providers acting on Peak’s behalf, such as Peak’s hosting services provider, messaging providers and payment processors, to provide, maintain, update, support, and improve the Service, and to collect, use, and analyze information derived therefrom in de-identified form to create statistical analyses, models, and algorithms, to improve and enhance the Service, and for research and development purposes in connection with the Service or any other Peak offerings (collectively, “Analyses”). Peak retains all right, title, and interest, including all intellectual property rights, in and to Analyses.
4.3. Venue Marks. Venue hereby grants Peak a limited, non-exclusive and non-transferable license to use, reproduce and display Venue’s trademarks, service marks, names, and logos that Venue may upload via the Service or otherwise provide to Peak (“Venue Marks”).
5. Limitation of Liability; Indemnification.
5.1. Exclusion of Certain Damages. IN NO EVENT WILL PEAK HAVE ANY LIABILITY TO VENUE OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT PEAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
5.2. Liability Cap. IN NO EVENT WILL PEAK’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO VENUE BY PEAK HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE.
5.3. Indemnification. Venue shall defend, indemnify, and hold harmless Peak and its affiliates and each of our and their officers, directors, employees, representatives, agents, contractors, suppliers, partners, subsidiaries, and/or related companies from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to violation of these terms, including, but not limited to any use or misuse of any data provided by Venue or acquired from Peak under this Agreement.
6. Confidentiality. Each party acknowledges that during the performance of this Agreement, it will have access to certain of the other party’s Confidential Information. “Confidential Information” means all written and oral information disclosed by either party to the other, related to the operations or technology of such party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. All Confidential Information is proprietary to the disclosing party or such third party, as applicable. The receiving party agrees: (i) to use the Confidential Information only for the purposes described herein; (ii) except as permitted herein, to hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) to restrict access to the Confidential Information to such of its personnel, agents and consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (iv) subject to the terms of this Agreement, to return or destroy all Confidential Information of the other party in its possession upon termination or expiration of this Agreement. In the event of any unauthorized disclosure or loss of Confidential Information, the receiving party will notify the disclosing party without undue delay. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (1) to comply with the order of a court or other governmental body or applicable law, provided the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (2) to establish a party’s rights under this Agreement.
7. Term, Termination, and Suspension.
7.1. Term of the Agreement; Termination. The term of this Agreement commences on the Effective Date and, unless earlier terminated in accordance with the terms of this Agreement, will continue for the length of time listed in Venue’s Peak profile (“Initial Term”). Thereafter, this Agreement shall automatically renew for additional periods in length equal to the Initial Term (each, a “Renewal Term,” and all Renewal Terms together with the Initial Term, the “Term”), unless either party gives the other party thirty (30) days’ written notice of non-renewal prior to the expiration of the then-current term. Either party may terminate this Agreement for any or no reason after providing at least 30 days’ written notice to the other party.
7.2. Suspension. Peak may suspend Venue’s or any or all Authorized Users’ access to the Service, in whole in part, if: (a) Venue or any Authorized User is using the Service in violation of this Agreement or any applicable law; (b) Venue’s or any Authorized Users’ systems or accounts have been compromised or unlawfully accessed; (c) suspension of the Service is necessary, in Peak’s reasonable discretion, to protect the security of the Service or the infrastructure of Peak; or (d) suspension is required by applicable law.
7.3. Effects of Termination. Upon any termination of this Agreement, (a) in the event any Revenue Share is accumulated by Venue prior to the effective date of termination but not yet paid to Venue by Peak, Peak will make one final Revenue Share payment covering any such amounts; and (b) any remaining Reservations will be automatically cancelled, and Guests will receive a full refund. Those sections which by their nature should survive termination of this Agreement will survive any termination of this Agreement.
8. General Provisions. Venue agrees that Peak may use Venue’s name and logo to indicate that Venue is a customer of Peak on Peak’s website, marketing materials, investor materials and in communications with existing or prospective Peak customers. Any such attribution will be consistent with Venue’s style guidelines or requirements as communicated to Peak by Venue. Neither party may assign this Agreement to a third party without the other party’s prior written consent. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of New Jersey, without regard to its conflicts of laws rules. The state and federal courts located in the State of New Jersey will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. This Agreement (including, for clarity, the Terms of Service and the information set forth in Venue’s Peak profile with respect to pricing and contract duration) constitutes the entire agreement between the parties with respect to the subject matters hereof and supersedes all prior and contemporaneous agreements with respect to such subject matters. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by each of the parties.