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Terms Of Use

IMPORTANT: PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS AND CONDITIONS ("TERMS") BEFORE ACCESSING OR USING ANY WEBSITE, ONLINE SERVICE, MOBILE APPLICATION, DIGITAL PROPERTY, OR PROGRAM OF MTY FRANCHISING USA, INC. (OR AN AFFILAITE/SUBSIDIARY THEREOF), OR WHERE THESE TERMS ARE POSTED, LINKED OR INCORPORATED BY REFERENCE (COLLECTIVELY, “ONLINE SERVICES”).

Introduction

THESE TERMS ARE A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND MTY FRANCHISING USA, INC., AND AS APPLICABLE ITS SUBSIDIARIES AND AFFILIATES SUCH AS KAHALA MANAGEMENT, LLC (COLLECTIVELY “WE”, “US” OR “OUR”). THESE TERMS GOVERN YOUR USE OF THE ONLINE SERVICES, WHICH INCLUDES THE PROGRAMS, OFFERS, CONTENT, INFORMATION AND FEATURES MADE AVAILABLE THROUGH THE ONLINE SERVICES.

IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT USE THE ONLINE SERVICES. IF YOU ARE DISSATISFIED WITH THE ONLINE SERVICES IN ANY WAY, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USINIG THE ONLINE SERVICES.

The Online Services are not intended to be used by, or targeted to, anyone under the age of 13 years old. If you are under 18 years of age (or the legal age of majority if different in your jurisdiction), please be sure to read these Terms with your parent or guardian, as they must understand and agree to these Terms for you to use the Online Services.

While we operate and control the Online Services, we are not responsible for the operation of most sweetFrog restaurants. Most restaurants are instead owned and operated by independent franchisees of ours. Each restaurant is solely and independently responsible for its legal and regulatory compliance, for any issues relating to the supply of the products to you, and for any employment related matters in the restaurant. The Online Services may provide links to job opportunities posted by such restaurants. These opportunities are with that particular restaurant alone and not with us.

Updates And Modifications

We reserve the right at any time, in our sole discretion and without liability to update, change, modify, or revise these Terms or the Online Services. Any changes will become effective upon posting to the Online Services, and to the extent permitted by law you waive any right you may have to receive specific notice of such changes. Your continued access to or use of the Online Services and its programs and offers after any such changes indicates your acceptance of the Terms. It is your responsibility to review the Terms regularly for updates and we recommend you review the Terms frequently.

Use Of Online Services

Subject to your compliance with the Terms, we authorize you to view and download the materials from the Online Services, under the condition that all the information, communications, software, scripting, photos, text, video, graphics, sounds, images and other materials and services found on the Online Services (individually and collectively, "Content") may not be copied, distributed, republished, uploaded, posted, publicly displayed, performed or transmitted, in any way, without our prior written consent, EXCEPT only for your personal, non-commercial use and provided that you retain all copyright and other proprietary notices contained in the original Content on any copies of the Content. For purposes of these Terms, any use of the Content on any other website or networked computer environment for any purpose is prohibited.

You agree to use the Online Services, inclusive of the Content, in accordance with these Terms and all applicable laws and regulations. You agree to remain courteous and respectful toward employees, contractors and agents of ours, of franchisees, and partners and other users of the Online Services.

You agree not to: (i) use the Online Services for any purpose prohibited by the Terms, including for any unlawful, fraudulent, or malicious purposes, or to further or solicit any such activity; (ii) modify, adapt, translate, or reverse engineer any portion of the Online Services; (iii) violate, infringe, or misappropriate the intellectual property, publicity, privacy, or other proprietary rights of ours, or any other person or entity; (iv) use the Online Services or any feature in any way that could disrupt, damage, disable, overburden, or impair it or its systems, servers, or networks; and/or (v) use the Online Services for any purpose that results in the commercial resale of our items without our prior written consent.

We reserve the right in our sole discretion, to prohibit access, use, conduct, communications or content that we deem to be harmful to us, the Online Services, the Content, our franchisees, our users, our brand, or any other person or entity, or that violates these Terms, including applicable law. We further reserve the right to terminate, suspend, or cancel your access, if we believe that you have violated or acted inconsistently with these Terms, including applicable law, or that you have acted in a manner harmful to our interests or our franchisees, or that you may be likely to do so based upon prior communications, conduct, interactions, or similar factors. If we take legal action against you as a result of your violation of these Terms, we will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to us. You agree that we will not be liable to you or to any third party for termination of your access to the Online Services as a result of any violation of these Terms.

Intellectual Property

Unless otherwise noted, all Content and other materials in connection with the Online Services are protected under copyright, trade dress, trademark and/or other intellectual property laws and are owned solely by us, or by other parties that have licensed their material to us. The Online Services are copyrighted and any unauthorized use of such may violate copyright, trademark and/or other laws, in addition to being a material breach of these Terms.

There are a number of proprietary logos, service marks, trademarks, slogans and product designations (individually and collectively, "Marks") found on the Online Services. By so making the Marks available, we are not granting you a license to use them in any manner. Access to the Online Services does not confer upon you any license under any of our or any third party's intellectual property rights. Use of the Marks is restricted as set forth in these Terms.

The Marks may be used publicly only with our prior written permission. No Mark may be used as a hyperlink without our prior written permission. Fair use of the Marks in advertising and promotion requires proper acknowledgment.

All other names and brands are the proprietary Marks of others and may not be used without their respective owner's permission.

Procedure For Making Claims Of Intellectual Property Infringement

We respect the intellectual property rights of others and expect our users to do the same. We will, upon receiving proper notice, act to remove or disable access to any Content or Communications alleged to infringe the copyright rights of a third party as set forth in the Digital Millennium Copyright Act (17 USC § 512) (DMCA). Any notifications of claimed copyright infringement must be sent to us at the following address: customerservice@kahalamgmt.com. When notifying us of the alleged copyright infringement, please provide complete and sufficient information, including identification of the copyrighted work alleged to have been infringed, the alleged infringing Content or Communications, the address and contact information for the owner of the alleged copyright material, and a statement that the information in the notification is accurate, and, under the penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the alleged copyright.

User Submissions & Unsolicited Ideas

All remarks, suggestions, ideas, innovations, graphics, materials, information, data, concepts, submissions or other communications you transmit or post to or through the Online Services (individually and collectively, "Communications") are given voluntarily by you and are assigned to, and will forever be our property without any further compensation or other benefit to the submitter or any other person. By submitting such Communication you agree you are fully responsible for your Communication, such Communication is not confidential, and you expressly grant us an unrestricted, irrevocable, perpetual, transferable (i.e., fully assignable and sub-licensable), worldwide, royalty-free license to disclose, copy, reproduce, display, publicly perform, transmit, distribute, translate, reformat, incorporate, and otherwise use your Submission along with your name, photograph, voice, likeness and other information, content, or materials embodied therein, in whole or in part, and create derivative works therefrom, in any media now known or hereafter developed, and for any and all commercial or non-commercial purposes without compensation to you or anyone else. We may, without notice to you, refuse or edit Submissions for any reason or no reason, including those Submissions that violate these Terms, are irrelevant or inappropriate, or represent us in a negative way or in any manner not consistent with our brand and/or reputation, as determined by us in our sole discretion. Other than personally identifiable information, which is covered under the Privacy Policy, any Communications will be considered non-confidential and non-proprietary. We will not be liable for any ideas for our business (including, without limitation, product or advertising ideas) and will not incur any liability as a result of any similarities that may appear in future operations of ours. We will have exclusive ownership of all present and future existing rights to the Communications of every kind and nature everywhere.

Text Messaging Program

You may choose to sign up for recurring marketing messages and offers via text message from us dba sweetFrog (which is deemed a part of “Online Services”). By subscribing to this text messaging program, you consent to receiving text marketing messages at the mobile number you provided to us from us or on our behalf (and our agencies and services providers). You understand consent is not a condition of purchasing any property, goods, or services. We may from time to time transition the number/message platform a text is sent from (i.e. a short code, long code, toll-free number, etc.) to another number/message platform. Each time we will promptly disclose all opt-out information and other legally-required information regarding the transition

You can stop receiving text messages at any time. Just text "STOP" (or QUIT, END, CANCEL, or UNSUBSCRIBE) to the number the text was sent from. After you text "STOP" (or QUIT, END, CANCEL, or UNSUBSCRIBE), you will receive a text to confirm that you have been unsubscribed. After this, you will no longer receive sweetFrog text messages from us. Opting out of one form of communication does not mean you’ve opted out of other forms as well. For example, if you opt out of receiving text messages, you may still receive marketing email messages if you’ve opted in to receiving them.

If you want to join again, just sign up as you did the first time and we will start sending text messages to you again. If you are experiencing issues with our messaging program you can reply with the keyword HELP for more assistance, or you can get help directly at support@spendgo.com. Carriers are not liable for delayed or undelivered messages. As always, message and data rates may apply for any messages sent to you from us and to us from you. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. If you have any questions regarding privacy, please read our Privacy Policy. For the avoidance of doubt, our Terms apply to our text messaging program, including the agreement to arbitrate, jury and class action waiver, and limitations on our liability.

Please note these Terms do not apply to any of our franchisees’ text marketing programs. If you receive text messages from our Franchisee, you will need to opt out from them directly. Each franchisee is solely and independently responsible for its legal and regulatory compliance.

Links To Third Party Websites

The Online Services may link to or allow you to use third-party websites, downloadable materials, content, social networks, or other digital services, including the services of our franchisees (collectively, “Third Party Sites”). Third Party Sites are provided on/through the Online Services only for your convenience. These Third Party Sites may have their separate terms and conditions or privacy policies that you should review and understand before using them. We do not endorse or sponsor, and are not associated with, any of these Third Party Sites, and we have no responsibility arising from or related to these Third Party Sites. If you choose to purchase any product or service from Third Party Sites (including, without limitation, from franchisee’s Third Party Sites), your relationship is with that third party alone.

No Warranties

THE ONLINE SERVICES, INCLUDING ALL CONTENT, MATERIALS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED "AS IS" AND ‘’AS AVAILABLE” WITHOUT ANY WARRANTIES, EXPRESS OF IMPLIED, OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.

WE DO NOT WARRANT THE ONLINE SERVICES OR THE CONTENT WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED. WE DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD-PARTY SERVICE PROVIDERS, PARTNERS, SPONSORS, LICENSORS, LICENSEES, OR THE LIKE (“PROVIDERS”) IN CONNECTION WITH OR RELATED TO YOUR USE OF THE ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE ONLINE SERVICES.

ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE ONLINE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, COMPUTER SYSTEM AND/OR LOSS OF DATA THAT RESULTS THEREFROM.

Limitation Of Liability

IN NO EVENT SHALL WE OR ANY OF OUR PROVIDERS BE LIABLE TO ANY PERSON FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES (LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, PROGRAMS, OR DATA) RESULTING FROM YOUR USE OF OR INABILITY TO USE THE ONLINE SERVICES OR THE CONTENT, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE ONLINE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT PERMIT THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, IN SUCH JURISDICTIONS ONLY, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.

Indemnification

You agree to indemnify, defend, and hold us harmless, which you acknowledge “us” includes, our parent, affiliates, subsidiaries and each of their respective officers, directors, members, managers, employees, contributors, representatives, agents, successors and assigns, for, from and against any and all claims, actions, demands, threats, judgments, obligations, proceedings, injunctions, penalties, fines, fees, taxes, losses or other damages and costs (including, without limitation, attorneys' fees and expert witness fees), arising directly or indirectly from or in connection with: (i) your breach of these Terms, (ii) your activities in connection with the Online Services, and the Content, programs, offers, features, and services made available through the Online Services.

General Terms

Applicable Laws/Dispute Resolution

We make no representation the Online Services are appropriate or available outside of the United States. If you use the Online Services from another location, you are responsible for compliance with applicable local laws. You may not use or export the Online Services in violation of U.S. export laws and regulations.

Any claim or dispute (whether in contract, tort, or otherwise) you may have with us arising from or related to the Online Services or these Terms will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a single arbitrator using JAMS’s Streamlined Arbitration Rules and Procedures. Any cause of action you may have arising out of or relating in any way to the Online Services must be commenced within one (1) year after the claim or cause of action arises.

You agree:

  1. this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16;
  2. the arbitration shall be held at a location determined by JAMS under its rules and procedures (provided such location is reasonably convenient to you), or at such other location as may be mutually agreed to by you and us;
  3. the arbitrator’s decision shall be based on these Terms and any of the other agreements referenced herein that you may have entered into in connection with the Online Services;
  4. except to the extent that the US Trademark Act of 1946, as amended, applies, the arbitrator shall apply Arizona law, without regard to conflict of law provisions/principles, and consistent with the FAA, and applicable statutes of limitations, and shall honor claims of privilege recognized at law;
  5. no claims shall be arbitrated on a class or representative basis as you and we hereby waive the right to assert claims in any class or representative action; arbitration will therefore only decide the individual claims of you and us; it is agreed that the arbitrator may not consolidate or join the claims of any other person or party to an arbitration between you and us under this provision;
  6. you and we empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these Terms or formation of this contract, including the arbitrability of any dispute and any claim that all or any part of these Terms are void or voidable; and
  7. with the exception of subpart (6) above, 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 provision were not contained herein. If, however, subpart (6) above is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither we nor you shall be entitled to arbitrate their dispute. In such event, you agree to bring any and all claims arising out of or related to these Terms or the Online Services in the state or federal courts of Maricopa, Arizona. Further, both you and we agree to waive any right to a trial by jury. Finally, this arbitration provision is reciprocally binding on all parties, such that both you and we are required to arbitrate their claims against one another.

Privacy

Our Privacy Policy applies to use of the Online Services and programs, offers, and promotions, and its terms are made a part of these Terms by this reference. By accessing and using the Online Services you agree to be bound by our Privacy Policy.

Miscellaneous

Our choice or failure to enforce any part of these Terms shall not constitute a waiver of any of our rights under these Terms, whether for past or future actions on the part of any person. Neither the receipt of any funds by us nor the reliance of any person on our actions shall be deemed to constitute a waiver of any part of these Terms. Only a specific, written waiver signed by an authorized representative of ours may provide a legal waiver.

If any provision of these Terms shall be found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

We may transfer our rights and obligations under these terms to another organization or entity, but this will not affect your rights or our obligations under these terms. You may only transfer your rights or obligations under these terms to another person if we agree in writing.

Contact Information

If you have additional questions or comments, please contact us at customerservice@kahalamgmt.com, or

9311 E. Via de Ventura
Scottsdale, AZ 85258
Phone: 866-452-4252
Fax: 480-362-4812