In this Agreement, “OpenCabana” and “we” mean OpenCabana, LLC. The terms “User” and “you” mean any user of the Services. This Agreement incorporates OpenCabana’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “OpenCabana Policies”).
By accessing or using the Services or by clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services.
OpenCabana may update or revise this Agreement (including any OpenCabana Policies) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, you must terminate your use of the Services, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by OpenCabana, any use of the Services (as defined herein) is subject to the version of this Agreement in effect at the time of use.
Part I - Services
1. Services. OpenCabana makes available reservation and seating services (the “Services”) through the OpenCabana Sites to User for the purpose of assisting User in securing seating reservations or joining a waitlist at participating third-party Hotels (each, a “Hotel”). In response to a User’s online request for a seat reservation or to join a waitlist through the OpenCabana Sites. The availability of seat reservations, estimated wait time or place in line on a waitlist is determined by the Hotel. Once a seat reservation is made by User through the OpenCabana Sites, OpenCabana will provide confirmation of the seat reservation or waitlist status to User by email or other electronic messages as has been agreed to by User. By using the Services, User agrees to receive seat reservation and confirmations, updates, modifications and/or cancellations by email or other electronic messages.
2. No-Show Policy. OpenCabana is committed to providing superior quality services to Users and Hotels. To assist us in maintaining a consistently high level of service for the Hotels and their patrons, Users must cancel any reservations that they will be unable to honor at least 30 minutes in advance of the reservation. You may cancel your reservation via the OpenCabana Sites or by calling the Hotel directly. You may be required to cancel your reservation in accordance with the Hotel’s cancellation policy, which is disclosed at the time the reservation is made.
If you are unable to keep your seat reservation and you fail to cancel at least 30 minutes in advance of the reservation, OpenCabana will send you an email letting you know that our records indicate that you were a no-show. Upon arriving at the Hotel, it is the User’s responsibility to notify the host that the User has a reservation. By using the Services, User agrees to receive no-show notifications by email after a report that your seat reservation was not honored, whether or not that was in fact the case. Your Account will be suspended if you are a no-show for four seat reservations within a 12-month period. User agrees that all final no-show determinations will be made by OpenCabana in its sole discretion.
Part III – Terms for All Services
7. Your Account. You may (but are not required to) create an account with OpenCabana through the OpenCabana Sites (“Account”) in order to use the Services. When registering for an Account, you must provide true, accurate, current, and complete data about yourself on the OpenCabana registration and profile forms (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify OpenCabana of any unauthorized use of your Account or any other breach of security related to your use of the Services.
10. Modifications to Services. OpenCabana reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the OpenCabana Sites and Hotels. OpenCabana shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
11. Intellectual Property Rights and Grant of Rights to User. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “OpenCabana Content”) are provided to User by OpenCabana or its partners or licensors solely to support User’s permitted use of the Services. The OpenCabana Content may be modified from time to time by OpenCabana in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the OpenCabana Content by User shall constitute a material breach of this Agreement. OpenCabana and its partners or licensors retain all rights in the Services and OpenCabana Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of OpenCabana or any third party is granted under this Agreement.
12. Application License. Subject to the terms and conditions of this Agreement, OpenCabana grants User a non-exclusive, non-transferable, revocable license to use the OpenCabana mobile applications, in object code form only, on User’s compatible mobile devices, solely to support User’s permitted use of the Services.
13. Use Restrictions. The Services and OpenCabana Content are offered solely for User’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. OpenCabana expressly reserves all its rights and remedies under applicable laws (including state, federal, and provincial/territorial laws). OpenCabana reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel reservations, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or OpenCabana Content, except as expressly authorized by OpenCabana; (2) take any action that imposes or may impose (in OpenCabana’s sole determination) an unreasonable or a disproportionately large load on the Services or OpenCabana’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or OpenCabana Content to a third party; (5) use any portion of the Services or OpenCabana Content to provide, or incorporate any portion of the Services or OpenCabana Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to OpenCabana); (7) modify any Services or OpenCabana Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or OpenCabana Content; (9) use the Services or OpenCabana Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or OpenCabana Content or access or use the Services or OpenCabana Content for competitive analysis or benchmarking purposes.
14. United States Government End Users. The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any OpenCabana Sites with only those rights set forth therein.
15. Export Control. You may not use, export, or re-export any OpenCabana Sites or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
16. Termination. OpenCabana may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, OpenCabana may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any OpenCabana Policies). After any suspension or termination, you may or may not be granted permission to use the Services. You agree that OpenCabana shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which OpenCabana will have no liability whatsoever.
17. Reviews, Comments, Communications, and Other Content. The Services may permit you to submit reviews, comments, and ratings; send emails and other communications; and submit suggestions, ideas, comments, questions, or other information for publication and distribution to Hotels and other third parties (“User Content”). Any such User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising, or health code violations (e.g., foreign objects in food, food poisoning, etc.). Your User Content should be unbiased and objective. You may not submit reviews, comments or ratings of your own Hotel, or any Hotel of your employer, friend, relative or a competitor. You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. The name you provide associated with User Content you submit may be displayed publicly with such User Content. OpenCabana reserves the right (but has no obligation) to monitor, remove, or edit User Content in OpenCabana’s sole discretion, including if User Content violates this Agreement (including any OpenCabana Policies), but you acknowledge that OpenCabana may not regularly review submitted User Content. If you do submit User Content, and unless we indicate otherwise, you grant OpenCabana a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media, and, where applicable, you hereby waive any moral or other rights you may have in the User Content you submit in favor of OpenCabana. OpenCabana takes no responsibility and assumes no liability for any User Content submitted by you or any other User or third party.
18. Your Representations and Indemnity. You represent and warrant that you own or otherwise control all of the rights to any User Content submitted by you; that all User Content submitted by you is accurate; and that exploitation of such User Content by OpenCabana and its other Users, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at OpenCabana’s request) defend OpenCabana, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “OpenCabana Parties”) from and against all claims resulting from (1) any User Content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement.
19. Liability Limitations. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, IN NO EVENT SHALL THE OPENCABANA PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT (INCLUDING ANY CHANGES THERETO), (2) ANY USE OF THE OPENCABANA SITES, SERVICES, THE OPENCABANA CONTENT, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF ANY OF THE SERVICES), OR (4) YOUR VISIT TO ANY HOTEL OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY HOTEL OR MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE OPENCABANA SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE OPENCABANA CONTENT. OPENCABANA IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY HOTEL FOR WHICH A USER HAS MADE A RESERVATION, CLAIMED AN OFFER OR PROMOTION. IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT ENFORCEABLE AT LAW, YOU EXPRESSLY AGREE THAT OUR LIABILITY TO YOU (FOR AY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50). You and OpenCabana understand and agree that the disclaimers, exclusions, and limitations in this Section 19 and in Section 20 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that OpenCabana would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
20. Disclaimer of Warranties. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND OPENCABANA CANNOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES, ALL OPENCABANA CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. OPENCABANA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. OPENCABANA DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT OPENCABANA WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. OPENCABANA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF OPENCABANA. THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
21. Third-Party Websites, Applications and Services. The Services may contain hypertext links to websites and applications operated by parties other than OpenCabana. Such hypertext links are provided for User’s reference only, and OpenCabana does not control such websites and is not responsible for their content. OpenCabana’s inclusion of any hypertext links to such websites or applications does not imply any endorsement of the material on such websites or applications or any association with their operators. OpenCabana assumes no liability whatsoever for any such third-party websites, applications or any content, features, products, or services made available through such third-party websites or applications. Additionally, Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry Limited will be a third-party beneficiary to this contract if you access the Services using applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third party beneficiary's terms of service, including any license transferability and other usage rules therein.
22. Release. Hotels are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you as a result of your (or such recipient’s) interaction with or visit to any Hotel or from any promotion, offer, product or service of any Hotel. Users must resolve all disputes directly with Hotel.
23. Notify Us of Infringers. If you believe any of the Services violate your copyright, notify our copyright agent in writing. The contact information for our copyright agent is at the bottom of this Section. In order for us to take action, you must do the following in your notice: (a) provide your physical or electronic signature; (b) identify the copyrighted work that you believe is being infringed; (c) identify the item that you think is infringing your work and include sufficient information about where the material is located so that we can find it; (d) provide us with a way to contact you, such as your address, telephone number, or email; (e) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used in connection with the Services; and (f) provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury) you are authorized to act on behalf of the copyright owner whose work is being infringed.
Here is the contact information for our copyright agent: Copyright Enforcement OpenCabana, LLC. 1616 SE 8th St. Fort Lauderdale, FL 33316 copyright@OpenCabana.com Again, we cannot take action unless you give us all the required information.
24. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
25. Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by OpenCabana.
26. Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
27. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. If you are a resident of the United States (including its possessions and territories) or Canada, you agree that any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the OpenCabana Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state or provincial/territorial arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). In the case of arbitration and where permitted by law, you are thus agreeing to GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT. In the case of arbitration and where permitted by law, you and OpenCabana must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR OPENCABANA MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, OpenCabana will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) OpenCabana also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law. Notwithstanding the foregoing, either you or OpenCabana may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Broward County, Florida. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Broward County, Florida in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Broward County, Florida for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate. With the exception of OpenCabana Parties (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor OpenCabana shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration (including any claims brought by parties outside the United States or Canada), the dispute shall be exclusively brought in state or federal court located in Broward County, Florida.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
28. Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Florida, U.S.A, consistent with the Federal Arbitration Act (to the extent permitted by applicable law), without giving effect to any principles that provide for the application of the law of another jurisdiction. You may also be entitled to certain consumer protection rights under the laws of your local jurisdiction and/or country of residency.
REVISION DATE: August 1, 2017