THIS AGREEMENT WAS LAST MODIFIED ON: March 8, 2023
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 APPLICATIONS.
BY CLICKING THE “AGREE” BUTTON OR BY DOWNLOADING, INSTALLING OR USING AN 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.
WHEN PURCHASING A SUBSCRIPTION OR OTHER OFFERING, SUCH AS A DIGITAL BRAND CARD, IN CONNECTION WITH AN APPLICATION, YOU MAY BE PRESENTED WITH DIFFERENT PLANS OR OPTIONS (EACH A “SERVICE TIER”). DIFFERENT SERVICE TIERS OR OTHER OFFERINGS, MAY BE SUBJECT TO DIFFERENCES IN PRICING, ELIGIBILITY, RESTRICTIONS, FEATURES, AND DEVICE AVAILABILITY.
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 the Applications on such Device strictly in accordance with the terms of this Agreement and any other terms and conditions specific to the Applications.
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; or (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 to you from Sergio’s and/or other third parties through whom Sergio’s products and/or services are made available to you (“Sergio’s Third-Party Providers”), and they are not sold to you. You do not acquire any ownership interest or any other rights in the Applications under this Agreement other than the right to use the Applications in accordance with the license granted, and subject to all terms, conditions and restrictions under this Agreement and the applicable associated documentation. Sergio’s, its affiliates and Sergio’s Third-Party 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 associated therewith or relating thereto.
The Applications can be downloaded to your mobile device and accessed via a web application, the internet, the blockchain, or such other media as Sergio’s may make available.
If you link your credit card or cryptocurrency wallet in connection with the use of an Application, you understand and agree that you are solely responsible for maintaining their security and your control over any wallet-related authentication credentials, private or public cryptocurrency keys, non-fungible tokens or cryptocurrencies that are stored in or are accessible through your wallet. Any unauthorized access to your cryptocurrency wallet by third parties could result in the loss or theft of NFTs and/or funds held in your wallet and any associated wallets, including any linked financial information such as bank accounts or credit cards. Sergio’s is not responsible for managing and maintaining the security of your cryptocurrency wallet or for any unauthorized use or access to your cryptocurrency wallet.
You acknowledge that Sergio’s only facilitates the processing of transactions association with the Applications. All brokering, billing and third-party services provided to you via the Applications are hereinafter referred to as the “Services.” Sergio’s may enter into agreements to offer the Services with other participating restaurants, third-party vendors and merchants. Sergio’s is not responsible for any dispute between you and such parties. The participating restaurants, third-party vendors and merchants whose goods and/or services are accessible via the Applications do not act in any way for Sergio’s and Sergio’s shall not be liable for any acts or omissions of such parties or for any matter arising out of or relating to the goods or services they provide.
Sergio’s and/or Sergio’s Third-Party Providers may obtain your personal data, such as orders, telephone number, email address, home and /or delivery address and can use such information for marketing purposes.
There is no obligation for you to use the Applications nor is Sergio’s obligated to offer you the Applications or to provide any Service to you.
When you buy or sell a Sergio’s NFT via an Application, you agree to pay all applicable fees associated with the transaction and you authorize Sergio’s to automatically charge and collect such fees from your payment. No refunds are permitted except with respect to any statutory warranties or guaranties that cannot be excluded or limited by law.
6. USER ACCOUNT
In order for you to use the Applications, you may be required to first log in and create a user account. Sergio’s and/or Sergio’s Third-Party Providers may store 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 the Applications. Regarding your user account, you acknowledge and agree to the following:
§ 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 current, complete, accurate 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 may verify the information you provide at any time and refuse Service or the use of the Applications in its discretion, with or without cause, at will, and without having to state any reason.
§ Sergio’s reserves the right to cancel and delete your user account at any time, especially if Sergio’s 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 any Applications on to third parties.
· You will not allow any third party 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 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 Applications or any network on which they operate.
· You will not attempt to damage the Service or the Applications in any way.
· You will maintain the password for your user account or any identification that we provide to gain access to the Service and the Applications secure and confidential.
· 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 and Sergio’s Third-Party Providers reserve the right to immediately terminate the Service and use of the Applications if you do not comply with all of rules and obligations set forth 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 to access and use the Service and the Applications as well as any updates therefor. Sergio’s does not guarantee that the Service or Applications will work on the respective hardware or the relevant devices. In addition, malfunctions and delays can occur in the provision of the Services and the use of the Applications, caused by interruptions in Internet access and electronic communications, updates to the Services and Applications, or otherwise. Sergio’s shall have no liability or responsibility for any losses incurred as a result of such delays or unavailability of the Services or Applications.
It is 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. 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 or purchasing goods and/or services 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 associated with your account.
The prices for the offerings of participating restaurants and vendors (e.g. meals, drinks) can usually be found in the Applications. These are determined and made available by the participating restaurants, third-party vendors and merchants and may be changed and updated from time to time. It is your responsibility to verify and determine current prices of any offerings from the participating restaurants third-party vendors and merchants.
Sergio’s and/or Sergio’s Third-Party Providers, as applicable, will charge you for the goods and/or services according to the then-applicant terms of purchase and sale.
If you enroll in a subscription in connection with any Application, your subscription may include enrollment into an ongoing/recurring payment plan. By signing up for a subscription, you agree that your subscription will automatically renew at the end of the disclosed billing period, and unless you cancel your subscription in accordance with the instructions for cancellation, you authorize Sergio’s to charge your chosen payment method for the renewal. Payment will be charged
according to your chosen payment method at confirmation of purchase and at the start of every new billing period, unless cancelled. Your “billing period” is the interval of time between each recurring billing date and corresponds to the term of your subscription. You acknowledge that the timing of when you are billed may vary, including if your subscription began on a day not contained in a given month (e.g., if you have a monthly subscription and became a paying subscriber on January 31, your payment method would be billed next on February 28).
If you cancel your subscription, you will still be obligated to pay other charges incurred by you in the course of using the applicable Applications prior to the date of cancellation. If you subscribed online, we may provide you the option of cancelling the subscription online. When a subscription is cancelled, you will not receive a prorated refund, but may continue to have access to the applicable Applications until the end of the term during which you cancelled the subscription.
Sergio’s reserves the right to change its pricing and pricing policies. In the event of a price change, we will attempt to notify you in advance of the change by sending an email or text or push message to the email address or phone number associated with your account. If you do not wish to accept a price change, you may cancel your subscription in accordance with the instructions included in that communication. If you do not timely cancel your subscription, your subscription will be renewed at the price in effect at the time of the renewal, without any additional action by you, and you authorize us to charge your payment method for these amounts. Sergio’s will not be able to notify you of any changes in applicable taxes. You are responsible for all third-party Internet access charges, taxes and any other applicable fees and charges associated with your use of the Services and Applications.
9. USER CONTENT
Sergio’s and/or Sergio’s Third-Party Providers and Sergio’s participating restaurants, third-party vendors and merchants may, in their sole discretion, allow you to submit, upload or publish content and information, such as comments and feedback on the goods or services obtained through use of the Applications (“User Content”). By providing User Content, you hereby grant to Sergio’s and/or Sergio’s Third-Party Providers and the participating restaurants, third-party vendors and merchants, as applicable, a worldwide, unlimited in time and content, irrevocable, transferable, sublicensable and free license to all such User Content, in particular for its 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.
By providing User Content, you further represent, warrant and covenant that: (i) you are either the sole and exclusive owner of all User Content submitted or have all the rights, licenses, consents and exemptions required to provide User Content under the above license to Sergio’s and/or Sergio’s Third-Party Providers and Sergio’s participating restaurants, third-party vendors and merchants; 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 Sergio’s Third-Party Providers and Sergio’s participating restaurants, third-party vendors and merchants will violate the rights of any third parties, including their intellectual property rights, publication rights, personal or data protection rights, or any other rights, nor will such use violate any applicable laws or regulations.
You agree not to post, transmit, upload, communicate, publish, or make available any User Content that is deemed, in the sole discretion of Sergio’s and/or Sergio’s Third-Party Providers and Sergio’s participating restaurants, third-party vendors and merchants, to be offensive, defamatory, mean, violent, obscene, pornographic, otherwise objectionable or unlawful. You acknowledge and agree that Sergio’s and/or Sergio’s Third-Party Providers and Sergio’s participating restaurants, third-party vendors and merchants have no obligation to publish User Content and have the right, without notice to you, to review, monitor and remove User Content in their sole discretion. Notwithstanding the foregoing, you also acknowledge that Sergio’s, Sergio’s Third-Party Providers and Sergio’s participating restaurants, third-party vendors and merchants have no obligation to check, monitor or remove User Content.
10. Collect and Redeem Points
Sergio’s and/or Sergio’s Third-Party Providers and Sergio’s participating restaurants, third-party vendors and merchants may provide you with coupons or the ability to collect points that can be redeemed for rewards. The redemption and use of such coupons and points shall be subject to the terms and conditions of this Agreement and such other terms and conditions that may accompany any such offers, including expiration and cancellation terms. If your points account is deactivated or deleted, you may no longer be able to collect points with that account and you may not be able to redeem points that existed in your account prior to such deactivation or deletion.
12. DISCLAIMER OF WARRANTY
YOU UNDERSTAND AND AGREE THAT THE APPLICATIONS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU EXPRESSLY AGREE THAT USE OF THE APPLICATIONS ARE AT YOUR SOLE RISK.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SERGIO’S, SERGIO’S THIRD-PARTY PROVIDERS AND SERGIO’S PARTICIPATING RESTAURANTS, THIRD-PARTY VENDORS AND MERCHANTS AND THEIR RESPECTIVE 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, SERGIO’S THIRD-PARTY PROVIDERS, SERGIO’S PARTICIPATING RESTAURANTS, THIRD-PARTY VENDORS AND MERCHANTS, NOR ANY OF THEIR RESPECTIVE AFFILIATES, NOR ANY OF THEIR OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES, REPRESENT OR WARRANT (i) THAT THE APPLICATIONS, INCLUDING CONTENT THEREON, WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, COMPLETE, RELIABLE, OR ERROR FREE; OR (ii) THAT THE APPLICATIONS 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
NEITHER SERGIO’S, SERGIO’S THIRD-PARTY PROVIDERS NOR SERGIO’S PARTICIPATING RESTAURANTS, THIRD-PARTY VENDORS AND MERCHANTS SHALL BE LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE USE OF (OR INABILITY TO USE) THE APPLICATIONS OR SERVICES, INCLUDING DAMAGES CAUSED BY MALWARE, VIRUSES OR ANY ERRORS OR INCOMPLETENESS OF INFORMATION. SERGIO’S SHALL NOT BE LIABLE FOR ANY ACTS OR OMMISSIONS OF ANY THIRD PARTIES, INCLUDING SERGIO’S THIRD-PARTY PROVIDERS AND SERGIO’S PARTICIPATING RESTAURANTS, THIRD-PARTY VENDORS AND MERCHANTS.
IN NO EVENT SHALL SERGIO’S, SERGIO’S THIRD-PARTY PROVIDERS OR SERGIO’S PARTICIPATING RESTAURANTS, THIRD-PARTY VENDORS AND MERCHANTS, OR ANY OF THEIR RESPECTIVE AFFILIATES, OR ANY OF THEIR 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 APPLICATIONS OR SERVICES 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 APPLICATIONS AND SERVICES BY ELECTRONIC MEANS, INCLUDING POSTING SUCH INFORMATION AND MATERIALS ONLINE AT WWW.SERGIOS.COM OR SUCH OTHER WEBSITES AS SERGIO’S MAY DESIGNATE.
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 APPLICATIONS 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 APPLICATIONS 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. The prevailing party in any dispute arising out of or relating to this Agreement shall be entitled to recover its reasonable attorney’s fees and costs.
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
(a) 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.
(b) Scope of License: The license granted to you herein includes the right to use the mobile Applications 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.
(c) Maintenance and Support: The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.