TERMS OF SERVICE
MyCoffeeHelper, LLC – Kiosk Application
Effective Date: 10/4/2018
Please read these Terms of Service (these “Terms of Service” or this “Agreement”) carefully. By using and/or paying for the services set forth herein, you, as an individual or on behalf of an entity (hereinafter referred to as “you” or the “licensee”), acknowledge and represent that you have the authority to enter into this Agreement and accept the following terms and conditions.
You agree to be bound by all the terms and conditions set forth in this Agreement and you further agree that this Agreement is enforceable as if it were a written negotiated agreement signed by MyCoffeeHelper, LLC (“MyCoffeeHelper”), and you. If you do not agree to the terms of this Agreement, or if you are not authorized to enter into legally binding contracts on behalf of the party you are representing, you must not use the Services, Application or make any payments hereunder.
This Agreement may be periodically updated and the current version will be posted at http://www.mycoffeehelper.com/termsofservice . Your continued use of the Services constitutes your continued acceptance of any updated Terms of Service.
1.1. “Application” means the kiosk-version of the MyCoffeeHelper application that you will be able to use to access and perform the Services.
1.2. “Effective Date” means the date which you create a user account and agree to these Terms of Service.
1.3. “Fee Schedule” means the listing of fees associated with the use of the Application and Services, which may be modified by MyCoffeeHelper from time-to-time. The current version of the Fee Schedule can be found here.
1.4. “Services” means the provision of and use of MyCoffeeHelper’s software, application(s), and website, along with other written files, electronic or on-line materials, and documentation, and any and all copies of such software.
1.5. “Subscription Fee” means the monthly fee payable by you in advance in respect of the provision of the Services, as set forth in the Fee Schedule.
1.6. “Subscription Period” means the period from the Effective Date until this Agreement is terminated in accordance with the provisions herein.
1.7. “Third Party Provider” has the meaning set forth in Section 2.2.
1.8. “Transaction Fee” means the fee per transaction that is collected by MyCoffeeHelper for facilitating the Services, as set forth in the Fee Schedule.
1.9. Other capitalized terms shall have the meaning described elsewhere in this Agreement.
2. GRANT OF RIGHTS; USE OF THE SERVICES; RESTRICTIONS
2.1. License. Subject to the terms and conditions set forth in this Agreement, MyCoffeeHelper shall supply the Services to you and grant you a personal, non-exclusive, non-transferable, limited and revocable license to use the Services and the Application at the business address or addresses contained in your registration (the “Business Location”) beginning on the Effective Date and continuing during the Subscription Period. You must be at least eighteen years of age or older to open an account and use the Services. This license is personal to you and may not be assigned or sublicensed to anyone else without the written consent of MyCoffeeHelper. You may allow your employees, agents or other individuals under your control or working on your behalf (for the purpose of this Agreement, these parties are collectively referred to as “your Employees” and each referred to as an “Employee”) to use the Application and Services under this license at the Business Location for which you’re registered, provided that (a) you are solely responsible for your Employees’ use of the Application and Services; (b) your Employees may only use the Application and Services while they are working on your behalf, at the Business Location; and (c) you will take reasonable measures, including the deactivation of accounts or changing of passwords, to prevent any Employee from accessing the Application or Services after that Employee has been terminated or is no longer working on your behalf (or is otherwise no longer under your control).
2.2. User Account. In order to use the Services, you must create a user account with MyCoffeeHelper through the Application. If you have multiple locations, a separate user account or sub-user account may be created for each business location. At this time, MyCoffeeHelper uses certain third-parties such as Stripe, Tax Jar, and Google (“Third-Party Providers”) to facilitate payment, credit card processing, the collection of sales tax, GPS information and other information and services. You may be redirected to the websites or applications of such Third-Party Providers to create user accounts that work in conjunction with MyCoffeeHelper. You must comply with any flow down terms and conditions provided by any such Third Party Provider, including but not limited to, any end-user license agreements, privacy statements or other agreements entered into with such Third-Party Providers. You hereby agree to release and hold harmless MyCoffeeHelper for any damages or claims arising from your relationship with any Third-Party Provider.
2.3. User Requirements. You agree to use the Services and Application in compliance with the following requirements:
2.3.1. You agree to use the Services in a continuous and consistent manner during the Subscription Period and you further agree to comply with all applicable state, local, and federal laws and regulations.
2.3.2. You agree that any passwords and log-in details shall be held confidential to you and your Employees and you agree that you shall not share such information with any third parties, other than your Employees. You shall notify MyCoffeeHelper promptly if you become aware of any third party having access to such information.
2.3.3. You agree to process orders that are received through the Application and Services on a prompt basis and in a professional manner. You agree to immediately inform MyCoffeeHelper if you will not be using the Services or Application during any normal business hours.
2.3.4. You agree to provide adequate training to your Employees with respect to the Services and Application.
2.3.5. You acknowledge that it is your sole responsibility to ensure that your menu and the associated pricing is current and accurate at all times. If you fail to update your prices, you agree to honor any orders placed through the MyCoffeeHelper application at the prices made available to your customers through the application at the time of purchase. Under no circumstance will MyCoffeeHelper be responsible to you or your customers for any menu-related or pricing errors. You represent and warrant that your menu and the information contained therein does not infringe upon the copyright, trademark or other intellectual property rights of any third-party.
2.3.6. You agree and understand that there may be certain limitations with respect to the information that a customer may enter using the Application and Services. It is your responsibility to take any lawful and/or standard-industry practice with respect to food preparation, allergies or sensitives that your customers may have. Under no circumstance will MyCoffeeHelper be responsible for any death or injury to any of your customers for failure of the Application or Services to provide information relating to food allergies, insensitivities, or similar health-risks or conditions and, without limiting any other provision herein, you agree to indemnify, defend, and hold harmless MyCoffeeHelper against any third-party claims arising from the foregoing.
2.3.7. MyCoffeeHelper may provide certain GPS tracking information to alert you that a customer is on his or her way to pick up their order. You agree to use such information solely for the purpose of providing coffee-related services and not for any other purpose.
2.3.8. You acknowledge and agree that you are solely responsible for the action, inaction, and omissions of your Employees.
2.3.9. You agree to promptly notify MyCoffeeHelper if you become aware of any error, defect or other problem relating to the Application with respect to receiving timely and accurate orders or any other feature thereunder.
2.3.10. You agree to use and display approved MyCoffeeHelper signage and other promotional items as reasonably requested by MyCoffeeHelper. Any use of the MyCoffeeHelper trademarks shall be at MyCoffeeHelper’s discretion and you agree to only use the MyCoffeeHelper trademarks in strict compliance with MyCoffeeHelper branding guidelines and quality control requirements.
2.4. No Representations. MyCoffeeHelper shall make reasonable efforts to ensure that access to the Services is available at all times, subject to planned and emergency downtime; however, MyCoffeeHelper makes no representations or warranties of the following:
2.4.1. That the Services will be permitted in your jurisdiction;
2.4.2. That the Services will be uninterrupted or error-free;
2.4.3. Concerning any content submitted by any user, including any menu and pricing information;
2.4.4. That MyCoffeeHelper will continue to support any particular feature of the Services;
2.4.5. Concerning sites and resources outside of the Services, even if linked to from the Services.
2.4.6. That customers will pick up their orders or that customer’s payments will be successfully obtained.
2.4.7. The reliability or accuracy of any reports relating to the Customer Data or Sales Data.
2.5. User Restrictions. You hereby agree not to use, upload, or transfer information or content to the Services or the Application that is:
2.5.1. Obscene, libelous, blasphemous, defamatory, inciting hatred, terrorism or any similar offense;
2.5.2. Unlawful or misleading;
2.5.3. Infringing upon any third party’s intellectual property rights (e.g., trademark, copyright, etc.), privacy rights or other similar legal rights;
2.5.4. Determined by MyCoffeeHelper, at its sole discretion, not to be suitable;
2.5.5. Undertaken on behalf of third parties.
2.6. Other Prohibited Actions. You further agree not to reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the Application or Services, nor will you take any measures to interfere with or damage the Application or Services. Any use of the Application or Services that is not expressly provided for herein is prohibited.
2.7. Suspension of Services. MyCoffeeHelper may, without providing notice, immediately suspend the Services and/or terminate this Agreement if you are in breach or, in its reasonable opinion, you are likely to become in breach of this Section 2.
3. PROPRIETARY RIGHTS
3.1. MyCoffeeHelper’s Property. MyCoffeeHelper has sole and exclusive ownership of all right, title, and interest in and to the Application and Services and any software included in the Application and Services, including all copyright and any other intellectual property rights therein. MyCoffeeHelper’s logo and name are trademarks of MyCoffeeHelper. All other marks or trademarks used or referenced by the Services are the property of their respective owners. Nothing contained in or through the Services should be construed as granting, by estoppel, implication, or otherwise, any license or right of use of any trademark displayed or used in conjunction with the Services without the written permission of MyCoffeeHelper or such third party owners. All rights in and to the Services not expressly granted to you are expressly reserved by MyCoffeeHelper.
3.2. Sales Data. MyCoffeeHelper will make reasonable efforts to provide you with access to accurate sales information (“Sales Data”) on a real-time basis and you may download this information at any during the Subscription Period (though MyCoffeeHelper will have no obligation to hold this information or provide you with this information after the Subscription Period has ended). Additionally, MyCoffeeHelper may provide you with periodic sales and/or trend reports (“Reports”). You agree to use any such reports only for the purpose of operating and managing your coffee-based business and not to build or create a competing application or offer competing services.
3.3. Customer Data. In providing the Services, MyCoffeeHelper may gather certain data and information relating to your customers, their purchasing behavior and preferences, local and regional trends, and other related data (“Customer Data”). The Customer Data gathered and held by MyCoffeeHelper, and how it is used, is detailed in MyCoffeeHelper’s Privacy Statement, which can be found here http://www.mycoffeehelper.com/privacy . Unless prohibited by law, between you and MyCoffeeHelper, MyCoffeeHelper will own the Customer Data collected in providing the Services. MyCoffeeHelper may use this Customer Data to improve its services and provide expanded offerings to you and its other clients, as well as for any other purpose permitted by law. To the extent that you own any Customer Data or Sales Data, you grant MyCoffeeHelper a perpetual, worldwide, non-exclusive, royalty-free license and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from, such information for any lawful purpose.
3.4. Information Held by Third-Parties. MyCoffeeHelper utilizes Third-Party Providers to facilitate certain functions of the Services and Application. The Third-Party Provider’s use and ownership of any customer information, including sensitive personal data, will be governed by any end-user license agreements, privacy policies and other agreements between you and any such Third-Party Provider.
3.5. Feedback. You may provide suggestions, enhancement requests, recommendations and other feedback (“Feedback”) to MyCoffeeHelper to improve its Services and Application. MyCoffeeHelper may, but has no obligation to, incorporate your Feedback into its Application and Services. You hereby, and in the future agree to, assign all right, title, and interest in and to any Feedback provided to MyCoffeeHelper and disclaim any ownership in any Feedback provided to MyCoffeeHelper.
4.1. Payment of Fees. In consideration for the provision of the Services and the Application, you shall pay MyCoffeeHelper the Subscription Fee, Transaction Fee, and such other fees set forth in the Fee Schedule.
4.2. Invoices; Collection of Fees. MyCoffeeHelper shall issue electronic invoices and reports with respect to the Subscription Fee and shall collect the Subscription Fee from your credit card monthly in advance. Transaction Fees will be collected automatically from your credit card on a daily basis through Stripe.
4.3. Taxes. The fees charged hereunder are exclusive of VAT or sales tax which, if applicable to you, shall be payable by you at the then prevailing rate. Except with respect to any tax imposed on MyCoffeeHelper’s income or arising from the employment relationship between MyCoffeeHelper and its employees, you shall be solely responsible for the payment of all taxes imposed or incurred in association with the use of the Application and Services.
5. TERM AND TERMINATION
5.1. Subscription Period. This Agreement shall commence on the Effective Date and shall continue in effect for the Subscription Period.
5.2. Termination for Nonpayment. In the event that the Subscription Fee, Transaction Fees or other fees are not collected in accordance with the provisions herein, MyCoffeeHelper may, without notice, suspend services and terminate this Agreement.
5.3. Termination by Convenience. Either party may elect to end the Subscription Period upon providing written notice to the other party. Upon the termination of the Subscription Period this Agreement shall terminate, you shall not be entitled to any proration of Subscription Fees, and you will be responsible for remitting any Transaction Fees or other fees owed and not received by MyCoffeeHelper within five (5) days of such termination.
5.4. Inactivity. If you do not access your account for a period of one hundred and twenty (120) days or more, MyCoffeeHelper may at its own discretion remove and/or purge any data, including Sales Data, Customer Date and Reports and terminate the Services without notice.
5.5. Post-Termination. Upon termination of this Agreement: (a) the rights and licenses granted to you herein shall terminate; (b) you shall cease all use of the Application and Services; and (c) MyCoffeeHelper shall at its own discretion remove and/or purge your data and account from the system.
5.6. Survival. The following provisions will survive the termination of this Agreement: Sections 1, 2.6, 3.3, 3.4, 3.5, 4.3, 6, and 7.
6. WARRANTIES AND LIABILITY
6.1. NO WARRANTY. WITHOUT LIMITING SECTION 2.4, THE SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.2. REMEDY FOR BREACH. YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED IN THE AGGREGATE TO THE GREATER OF THE SUBSCRIPTION FEES PAID BY YOU TO MYCOFFEEHELPER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY OR THE TRANSACTION FEES PAID BY YOU TO MYCOFFEEHELPER DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
6.3. LIMITATIONS ON DAMAGES. IN NO EVENT SHALL MYCOFFEEHELPER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND GOODWILL, BUSINESS OR BUSINESS BENEFIT, OR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES BY YOU EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; ANY DELAY OR FAILURE TO PROVIDE THE SERVICES THAT IS DUE TO THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, INTERNET SERVICE PROVIDERS, DATA CENTERS, SERVER HOSTING COMPANIES AND TELECOMMUNICATIONS COMPANIES; OR CREDIT CARD FRAUD COMMITTED AGAINST YOU BY ANY THIRD PARTY PROVIDER OF CREDIT CARD SERVICES. YOU HEREBY AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS MYCOFFEEHELPER AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, FROM AND AGAINST ALL THIRD PARTY ACTIONS, INCLUDING CLAIMS BROUGHT AGAINST YOU BY YOUR EMPLOYEES AND CUSTOMERS THAT: (I) ARISE FROM YOUR ACTIVITY AND USE OF THE APPLICATION AND SERVICES; (II) ASSERT A VIOLATION BY YOU OF ANY TERM OF THIS AGREEMENT OR ANY STATE, LOCAL OR FEDERAL LAW OR REGULATION, INCLUDING ANY FAILURE TO PAY APPLICABLE SALES OR OTHER TAXES; OR (III) ASSERT THAT ANY INFORMATION OR CONTENT THAT YOU UPLOAD, TRANSFER, OR STORE USING THE SERVICES OR THE APPLICATION VIOLATES ANY LAW OR INFRINGES UPON ANY THIRD PARTY RIGHT, INCLUDING ANY INTELLECTUAL PROPERTY OR PRIVACY RIGHT.
7. MISCELLANEOUS PROVISIONS
7.1. Governing Law. This Agreement shall be governed by the laws of the State of Oregon, United States of America, without regard to principles of conflicts of law.
7.2. Disputes; Mandatory Arbitration. Any action arising out of or relating to this Agreement will be subject to mandatory arbitration. Any dispute will be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in Eugene, Oregon. The AAA rules will govern payment of all arbitration fees. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, and trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Eugene, Oregon to resolve your claim. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed.
7.3. Interpretation; Severability; Waiver; Remedies. Headings are for convenience only and shall not be used to construe the terms of this Agreement. If any term of this Agreement is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from this Agreement. No failure or delay by MyCoffeeHelper in exercising any right hereunder will waive any further exercise of that right. MyCoffeeHelper’s rights and remedies hereunder are cumulative and not exclusive.
7.4. Successors; Assignment; No Third Party Beneficiaries. This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign this Agreement without MyCoffeeHelper’s prior written consent. You acknowledge that MyCoffeeHelper can transfer this Agreement to a third party at any time without notice.
7.5. Notices. You consent to receive all communications including notices, agreements, disclosures, or other information from MyCoffeeHelper electronically. MyCoffeeHelper may provide all such communications by e-mail or by posting them in the Application. You may send notices of a legal nature to MyCoffeeHelper at the following address:
P.O. Box 2417
Eugene, OR 97402
Nothing herein shall limit MyCoffeeHelper’s right to object to subpoenas, claims, or other demands.
7.6. Third-Party Beneficiaries. Nothing in this Agreement shall give, directly or indirectly, any third party any enforceable benefit or any right of action against MyCoffeeHelper and such third parties shall not be entitled to enforce any term of this Agreement against MyCoffeeHelper.