THIS AGREEMENT WAS LAST MODIFIED ON: April 23, 2020
This Mobile Applications License Agreement (“Agreement”) is a binding agreement between you (“Licensee” or “you”) and Sergio’s Franchise Group Inc. and Sergio’s Restaurants Inc. (“Sergio’s”). This Agreement governs your use of our mobile application, via a web application on our website (e.g. on sergios.com or www.sergioscuban.com) or via an app on one of our (including all related documentation, the “Applications”). The Applications is licensed, not sold, to you.
PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT INDICATE YOUR ACCEPTANCE, AND DO NOT USE THE APPLICATION.
BY CLICKING THE “AGREE” BUTTON OR BY DOWNLOADING, INSTALLING OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
Subject to the terms of this Agreement, Sergio’s grants you a limited, non-exclusive and nontransferable license to:
(a) download, install and use the Applications for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Device”) strictly in accordance with the Application’s documentation; and
(b) access, and use on such Device the Applications, strictly in accordance with this Agreement.
You shall not: (a) copy the Applications, except as expressly permitted by this license; (b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Applications; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Applications or any part thereof; (d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Applications, including any copy thereof; (e) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Applications; (f) Use any robot, spider or other automatic device, process or means to access the Applications for any purpose, including monitoring or copying any of the material accessible through the Applications; (g) introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful; (h) Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Applications, the server on which the Applications is stored, or any server, computer or database connected to the Applications. (i) otherwise attempt to interfere with the proper working of the Applications.
3. RESERVATION OF RIGHTS
You acknowledge and agree that the Applications are provided under license, and not sold, to you. You do not acquire any ownership interest in the Applications under this Agreement, or any other rights thereto other than to use the Applications in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Sergio’s and its affiliates and service providers reserve and shall retain their entire respective right, title and interest in and to the Applications, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
Our applications can be downloaded to your mobile phone (smartphone), accessed via a web application on a website (e.g. sergios.com or sergioscuban.com) or via an application on a self-order Kiosk and provide access to restaurant and ordering information. You may also be able to pay for your order using the Applications for some participating restaurants.
Your order information and personal details are transmitted to Sergio’s and/or the participating restaurant and their service provider MENU. When your order is ready to be picked up at the counter, you may be informed either via a push message (for orders placed via the mobile application) or via SMS message (for orders placed via the web application). If the restaurant you are visiting works with guest localization, your table number or your location in the participating restaurant may also be determined by means of table number entry (on the mobile and web application), placed transmitters or antennas (kiosks). In order to receive push messages, you must have push messages activated on your smartphone and to enable the determination of your location via transmitters or antennas you must have Bluetooth activated on your smartphone and give the application permission to determine your location. For orders that you place through the self-order kiosk, a puck may show you when your order is ready for collection at the counter or your order number is displayed on a screen. Your location can also be determined using a puck, which may be distributed to you at the self-order kiosk or at the counter or you may need to enter a number into the screen.
Sergio’s only facilitates the processing of your order to the participating restaurant you order is placed with. All brokering and billing services provided to you by Sergio’s via the Applications are hereinafter referred to as the "Service". Sergio’s is the franchisor of various Sergio’s restaurants and is not responsible for any dispute between you and any individual franchisee or restaurant. The participating restaurants accessible via that Applications do not act in any way for Sergio’s and Sergio’s shall not be liable for any act of such restaurants.
Sergio’s as the franchisor is the platform operator of the Applications and obtains your personal data, such as orders, telephone number, email address, possibly home and / or delivery address and can use them for marketing purposes. Sergio’s franchisees operate the Sergio’s platform in their restaurants and can view their order and payment details for their respective restaurants. As a technology supplier, MENU provides the applications platform Sergio’s and can view your personal data.
We use MENU Technologies AG (“MENU”) as an external service provider for the execution of orders and payment processing.
There is no obligation for you to use the Applications; Sergio’s is also not obliged to offer you the Applications or to provide any Service to you.
6. USER ACCOUNT
In order for you to be able to use the Applications, you must first log in and create a user account. Sergio’s stores your data in your user account. The user account combines information about you so that you and we can better understand and manage your rights and obligations as a user of Sergio’s.
A user account is not transferable.
You are not allowed to have more than one user account.
You guarantee that the information you provide to Sergio’s is correct, complete and current. In particular, you must truthfully provide your own name and, if necessary, a billing address for billing purposes.
You are required to keep your user information correct, complete and up to date at all times. Please use the update functions in your user account to update any changes. If your data is no longer correct, complete and up-to-date, communication with you (and in particular collecting payments) may no longer be possible due to outdated, incorrect or incomplete contact information or for other reasons (especially if the payment method is invalid or has expired), we may no longer be able to offer you a smooth processing of the service on the mobile application and it may be that you no longer have access to the service or can no longer use it or that Sergio’s cancels, suspends or discontinues your account.
You are responsible for all activities on your user account and you are obliged to keep your username and password safe and confidential at all times.
Sergio’s is at any time entitled to check the information you provide and to refuse service or the use of the mobile application without stating any reason.
We reserve the right to cancel and delete your user account at any time, especially if we can no longer reach you via the email address specified in the user account
7. USE OF THE APPLICATIONS
You will only use the Applications for private, non-commercial purposes and will not pass it on to third parties;
You will not allow or allow third parties to use your user account;
You will not assign, transfer or otherwise make your user account available to another person;
You will not use a third party user account;
You will comply with all applicable laws when you use the service or applications and you will only use the service and Applications for lawful purposes;
You will not use the service or applications to cause trouble, annoyance or inconvenience;
You will not interfere with the correct operation of the network;
You will not try to damage the service or the applications in any way;
You will keep the password for your user account or any identification that we provide to gain access to the service and the applications secure and confidential and keep it secret;
You will provide us with any proof of your identity that we deem appropriate;
You will not use the service or the Applications with a non-compatible or non-approved device.
Sergio’s particularly reserves the right to immediately terminate the service and use of the applications if you do not meet all of the obligations set out above.
You are responsible for the proper installation and functioning of the applications on your devices and the data network access required to be able to use the service and the Applications, as well as any costs that may arise from the use of the service and applications. While accessing and / or using the service and applications, data and connection fees and charges, e.g. from your mobile network provider, may be incurred, and you are solely responsible for paying them.
You are responsible for the procurement and updating of compatible hardware and devices, which are necessary for access to the service and the applications as well as their updates or for the corresponding use. Sergio’s does not guarantee that the service, the applications or parts of it will work on the respective hardware or the relevant devices. In addition, malfunctions and delays can occur in the services and the applications, which are caused by the use of the Internet and electronic communication means.
It is also your responsibility to check and ensure that you always have downloaded the correct applications for your device. This is particularly important when newer versions of the applications are published and Sergio’s is not obliged to maintain older versions or to ensure in any way that such older versions continue to work or are otherwise error-free. You should always update to the latest version of the applications, especially to be able to use new functions.
Sergio’s is not liable if you do not have a working data network access or a compatible mobile device or if you download the wrong applications version to your mobile device. Sergio’s reserves the right to cancel the Service or cancel the availability of the Applications if you use the Service or the applications with an incompatible or impermissible device.
Placing an order via the Applications will result in costs being incurred and you agree to pay for orders placed by you or through your account (including any taxes and late fees, if any, that are associated with your account).
The prices for the offerings of participating restaurants (e.g. meals, drinks) can usually be found in the Applications. These are determined and made available by the participating restaurants and are changed and updated from time to time. It is your own responsibility to find out about the current prices of the corresponding offers from participating restaurants.
Sergio’s will charge you for meals, drinks or other goods displayed on behalf of the participating restaurant through the service or applications. The payments you make via the service or applications will be treated as if you made them directly to the participating restaurant. All prices are payable immediately.
9. USER CONTENT
Sergio’s may, at its sole discretion, allow you to submit, upload, publish, or upload text, audio and / or image content and information from time to time, or otherwise be available through the applications for Sergio’s, MENU, and / or other users to make, such as comments and feedback on the hospitality services, meals and drinks or other menu offers or services, the service, support requests and the submission of contributions ("user content"). As a matter of principle, you remain the owner of all user content submitted or otherwise made available.
You grant Sergio’s and MENU a worldwide, unlimited in time and content, irrevocable, transferable, sublicensable and free license to all user content, in particular for their use, reproduction, distribution, modification, publication, availability, public performance or other use in all formats and across all sales opportunities, regardless of whether they already exist and / or are known or only arise or become known later.
You represent, warrant and covenant that: (i) you are either the sole and exclusive owner of all user content or have all the rights, licenses, consents and exemptions required to provide user content under the above license to Sergio’s and MENU; and (ii) neither the user content nor its transmission, uploading, publication or other disclosure, nor the use of the user content by Sergio’s and / or MENU violate the rights of third parties in intellectual property or other rights of third parties, publication rights or personal or data protection rights of third parties or disregard or violate applicable laws or regulations.
You agree not to post, transmit, upload, communicate, publish, or make available any user content that is offensive, defamatory, mean, violent, obscene, pornographic, otherwise objectionable or unlawful, whatever by Sergio’s and / or MENU is decided at its own discretion; this is irrespective of whether the user content is protected by law or not. Sergio’s and MENU have the right, without notice to you, to review, monitor and remove user content at its sole discretion. However, there is no obligation to check, monitor or remove user content.
10. COLLECT AND REDEEM POINTS
You can collect points by placing food orders. The number of points awardable for each order will be identified in the Applications or in other materials we make available to you. Points may not be used to cover delivery charges, taxes, or retail merchandise and may not be combined with vouchers. It is not possible to pay out points in the form of cash. Points may not be transferred to a third party. Additional restrictions may apply.
To collect points for an order, you must be logged in to the Applications with your user account at the time of ordering. Points not credited to your account at the time your order is placed cannot be added later.
If an order for which you have received points does not materialize, or if the order is subsequently refunded (in whole or in part), cancelled, withdrawn or contested, Sergio’s reserves the right to also cancel the corresponding points credit.
Sergio’s will credit the points you have collected to a points account managed for you. The maximum possible point balance in the points account managed for you is currently 1500. You can view your current points at any time via the Applications in your profile. In addition, Sergio’s can send you messages about your current points. Objections to the correctness or completeness of a notified points must be made in writing or in text form (e.g. by email) within one month of receiving the notification. Failure to make timely assertion is considered approval of the notified score.
If your account is deactivated or deleted, you can no longer collect new points and you may will not be able to redeem points that existed in your points account.
12. DISCLAIMER OF WARRANTY
YOU UNDERSTAND AND AGREE THAT THE APPLICATION IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU EXPRESSLY AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK.
TO THE FULLEST EXTENT PERMISSIBLE UNDER THE APPLICABLE LAW, SERGIO’S AND ITS AFFILIATES DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, NEITHER SERGIO’S NOR ANY OF ITS AFFILIATES, NOR ANY OF THEIR OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES REPRESENT OR WARRANT (i) THAT THE APPLICATION, INCLUDING CONTENT THEREON, WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, COMPLETE, RELIABLE, OR ERROR FREE; OR (ii) THAT THE APPLICATION WILL ALWAYS BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, OR SECURE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
13. LIMITATION OF LIABILITY
SERGIO’S IS NOT LIABLE FOR ANY DAMAGE RESULTING FROM THE USE (OR INABILITY TO USE) OF THE APPLICATIONS OR SERVICE, INCLUDING DAMAGES CAUSED BY MALWARE, VIRUSES OR ANY ERRORS OR INCOMPLETENESS OF INFORMATION. SERGIO’S IS ALSO NOT LIABLE FOR ANY ACTS OF A THIRD PARTY, INCLUDING ITS FRANCHISEES.
IN NO EVENT SHALL SERGIO’S, OR ANY OF ITS AFFILIATES, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, INFORMATION PROVIDERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (REGARDLESS OF THE FORM OF ACTION) ARISING OUT OF USE OF THE APPLICATION BY ANY PERSON. SOME JURISDICTIONS DO NOT ALLOW THESE LIMITATIONS OR EXCLUSIONS SO THEY MAY NOT APPLY TO YOU.
14. CHANGES TO THIS AGREEMENT
SERGIO’S MAY MODIFY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AT ANY TIME. NOTICE OF MATERIAL CHANGES TO THIS AGREEMENT WILL BE MADE AVAILABLE TO YOU BEFORE THEY BECOME EFFECTIVE. YOU ARE RESPONSIBLE FOR REVIEWING ANY APPLICABLE CHANGES.
YOU AGREE THAT WE MAY PROVIDE NOTICES, DISCLOSURES AND AMENDMENTS TO THIS AGREEMENT, AND OTHER INFORMATION RELATING TO THE APPLICATION PROGRAM BY ELECTRONIC MEANS, INCLUDING POSTING SUCH INFORMATION AND MATERIALS ONLINE AT WWW.SERGIOS.COM.
IF THIS AGREEMENT IS MODIFIED, THEN THE DATE OF THE MODIFICATION WILL APPEAR IN THE FIRST SECTION OF THIS AGREEMENT, ABOVE.
YOU AGREE THAT YOUR CONTINUED USE OF THE APPLICATION FOLLOWING ANY CHANGES TO THIS AGREEMENT AND AFTER THE CHANGES TAKE EFFECT WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES.
IF YOU DO NOT AGREE TO ANY CHANGE TO THIS AGREEMENT, DO NOT CONTINUE TO USE THE APPLICATION AFTER THE EFFECTIVE DATE OF SUCH CHANGE.
15. MISCELLANEOUS PROVISIONS
Applicable Law; Jurisdiction and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any principles of conflicts of laws, and you hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the Southern District of Florida.
This Agreement constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.
If any provision of this Agreement shall be deemed unlawful, invalid, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining terms.
Sergio’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Sergio’s right to subsequently enforce such provisions or any other provisions of this Agreement. No waiver of any provision of this Agreement shall be effective unless in writing.
16. ADDITIONAL TERMS FOR APPLE APP STORE DOWNLOADS
Acknowledgement: The parties acknowledge that this Agreement is between Sergio‘s and Licensee and not with Apple and Apple shall have no responsibility for the Application or its content. Nothing herein is intended to abrogate the Apple’s Usage Rules or App Store Terms of Service.
Scope of License: The license granted to you herein includes the right to use the mobile Application on any iPhone or iPod touch that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that the Application may be accessed and used by other accounts associated with your Apple account via Family Sharing or volume purchasing.
Maintenance and Support: The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
Warranty: In the event of any failure of the Application to conform to any applicable warranty in this Agreement, you may notify Apple, and Apple will refund the purchase price for the Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, or for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty in this Agreement.
Product Claims: The parties acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Application or of your possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Intellectual Property Rights: The parties acknowledge that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claim.
Legal Compliance: You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using the Application, for example, terms required by our service providers.
Third Party Beneficiary: The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof, as it relates to the rights and benefits conferred upon Apple hereunder.