PLEASE READ THIS AGREEMENT CAREFULLY
Splick-it USER AGREEMENT
Splick-it, Inc. (“Splick-it”) is willing to provide you access to and use of its remote restaurant ordering system, technology, and related services described on the splickit.com website (“Services”) only on the condition that you accept all of the terms and conditions contained in this Splick-it User Agreement (“Agreement”).
By checking the box next to “Accept Terms of Service” and clicking on the “Submit” button below, You are signing this Agreement and You acknowledge that You have read this Agreement, understand it and agree to be legally bound by its terms and conditions. If you do not agree to any of the terms below, Splick-it is unwilling to provide the services to you, and you should not check the box or click on “Submit” button, but instead you should leave the website or mobile application to discontinue the registration process. This Agreement shall be effective when you click the “Submit” button below after having checked the “Accept Terms of Service” box (“Effective Date”).
1. Services. Subject to your compliance with the terms and conditions of this Agreement, Splick-it will provide the Services to you.
1.1 Services. You understand that Splick-it is still developing and testing the Services through the alpha and beta testing periods (“Testing Period”), and as such the Services may still have bugs, may not be error free, and may not operate as intended. The Services will allow you to pre-order Products (as defined below), such as different types of coffees, drinks, and/or food items from participating merchants (“Merchants”), in advance of your arrival at the Merchant’s store via the Internet, SMS messaging, or Mobile Application. Splick-it may, in its sole discretion, choose to provide free Products for you from time to time, in which case such Products on your bill will be noted as “no charge.”
1.2 Eligibility. To register for Services, you must be at least 18 years old, be a U.S. resident, and be able to enter into legally binding contracts in the state in which you reside, and you hereby represent you meet those qualifications.
1.3 Registration for Services. In order to access and receive the Services, Splick-it must accept your successfully completed registration for the Services. Once your registration is accepted by Splick-it, you will be able to make use of wireless communication devices, such as SMS enabled cell phones, PDAs, Smartphones and other hand held devices (“Device”), to place orders for the purchase of certain third-party products (each, a “Product”) contained in a menu online, as updated by Splick-it from time to time, on the website (“Product Menu”). The communication standards for the Services include, but are not limited to: SMS, GRPS, and web-based browser technology, provided that in order to use the Services, you must maintain an active account with a carrier of electronic communications through mobile devices (each, a “Carrier”), and you may not use a prepaid cellular phone contract to access the Services. Please remember that standard text message and data charges may apply from your Carrier.
1.4 License; Restrictions. Subject to the terms and conditions of this Agreement, Splick-it grants you a non-transferable, revocable, non-exclusive, non-sublicensable, royalty-free license to access and use the Service for your internal, person, non-commercial purpose of ordering and paying for Products (defined below). In connection with your access to or use of the website or the Services, or in the course of your interactions with Splick-it, you will not: (a) violate any law, statute, ordinance, or regulation; (b) infringe Splick-it’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy; (c) act in a manner that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) provide false, inaccurate or misleading information; (e) refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to Splick-it; (f) take any action that imposes an unreasonable or disproportionately large load on Splick-it infrastructure; (g) transmit or facilitate the transmission of any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Service; (h) reverse engineer the Splick-it software or Service.
1.5 Availability of Services. You acknowledge and agree that (i) the availability of SMS, mobile data networks, and the Internet may affect your ability to use the Services, (ii) delivery of SMS messages and availability of web-based browsing is not guaranteed, (iii) the Services may differ depending on the Carrier with whom you maintain an account and that Carrier’s ability to support the Services, (iv) Splick-it is not responsible for the act or omission of any Carrier (including failure to deliver any communication to Splick-it or a provider of any Product in timely fashion), any limitations imposed by such Carrier, or such Carrier’s ability or inability to support the Services, (v) Splick-it is not responsible for any limitations of the Internet, (vi) Splick-it is not responsible for any error made by you in using the Services, and (vii) Splick-it is not responsible and will not be liable for any inability to access or use the Services, or any errors, non-conformities, or other problems with the Services, arising from, related to, or caused in whole or in part by any event, circumstance, act or omission outside of Splick-it’s control. Because the Service is provided to you during the Testing Period, remember there may be bugs and glitches to work out. So, the Services may not be provided to you error free or as represented.
1.6 Modification of Services. Splick-it reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including by changing features or functions in the Service, or removing, adding, or modifying Products and/or third-party vendors from the Product Menu. Splick-it shall have no liability to you for any modification or discontinuation of the Services. If you object to any such changes, your sole recourse shall be to cease using the Services.
1.7 Unauthorized Use of Services. You acknowledge and agree that the Services are for your non-commercial (e.g., not for your or any other party’s profit), personal use only. You acknowledge and agree that you may not distribute, sell, resell, interfere with or exploit for any commercial purposes any portion of the Services, or any Products accessible through the Services. Splick-it is not liable for any claims, actions, damages, or other liability incurred as a result of any unauthorized use of your account or the Services, and you agree to be fully liable for any such unauthorized access. You may not attempt, or authorize, encourage, or support others’ attempts, to circumvent, reverse engineer, decrypt, break (e.g. by inputting viruses or other harmful programming routines) or otherwise alter or interfere with the Services.
1.8 Merchants; Product Pricing. Participating Merchants are subject to change, and are not guaranteed to be available at all times. Splick-it does not assume responsibility or liability for the actions, products, locations or content of any Merchant. You acknowledge and agree that Splick-it is not responsible for the pricing of the Products, and the Merchants are solely responsible for setting the prices for Products, and pricing may change at any time without notice.
1.9 Transactions. You may view your recent transactions and your current account balance by logging into your account on the website, going to “my account,” and clicking on the “order history” tab. You may dispute any charges in writing by email to firstname.lastname@example.org. Disputes must be logged within 15 days of the transaction to become eligible for resolution.
1.10 Your Account. You will be responsible for maintaining the confidentiality of your log-in credentials, as well as the information in your account. You will be solely responsible and liable for any and all access to and use of the Service (including all activities, orders, and transactions) by you or any other person, including, but not limited to unauthorized access to your account or unauthorized use of the Service. You must immediately notify Splick-it if you have reason to believe that there has been an unauthorized transaction from your account or unauthorized use of the Services from your account. Splick-it reserves the right to contact you via the email address you provide to Splick-it to send you invoices and to request your comments and feedback regarding the Service.
2.1 Payment, Fees, and Billing. You acknowledge and agree that for each order you place through the Service, the full cost of Products you order (for which prices are subject to change without notice) will be assessed against your account. You acknowledge and agree that a SMS or web browser command originating from your account that orders one or more Products constitutes your authorization for Splick-it to charge you the applicable amount for the Products ordered, along with a $0.25 convenience charge, to your account and you assume all liability for and shall pay any and all charges pursuant to this Agreement. Splick-it will then pay the Merchant the applicable fees pursuant to its agreement with the Merchant. Without limiting the foregoing, you acknowledge and agree that you will pay assessed charges for any and all orders placed from your account, regardless of whether you actually receive the Products. After Splick-it has validated your account and you have paid your bills on time, Splick-it may extend you the right to create a tab. In that event, Splick-it will bill you and continue to do so in increments of the same or approximately the same amount. Splick-it will send all invoices to you at the email address you provide in your registration, so you have a legal obligation to keep your email address current. You must pay all billed amounts within 15 days of delivery of the bill to your email account. In addition to Splick-it’s other remedies, in the event you are past due on paying any bill, Splick-it may immediately suspend your access to and use of the Services. Splick-it will provide you with reasonable notice of any material modification in the fees charged for the Services, which notice may be provided by posting the new fee schedule on the website.
2.2 In addition, standard text rates apply, and you are responsible for paying all fees charged by your Carrier in connection with your use of your Device or the Services. You acknowledge and agree that these rates depend on the applicable Carrier and your personal subscription package with that Carrier.
2.3 Refund Policy. Customer satisfaction is very important to us. If there are any problems with your food order or an incorrect charge on your credit card, call us at 888-775-4254 or email@example.com.
4. Termination. Splick-it may suspend your ability to use the Services or may terminate this Agreement effective immediately and without notice to you if (a) Splick-it receives repeated faulty orders for Products in connection with your account, including but not limited to the use of erroneous or spoof SMS orders or duplicate requests for Products; (b) you fail to make timely payment of any amounts when due; or (c) Splick-it reasonably believes you have violated this Agreement. After any suspension or termination, you may be required to respond to an authenticating message to reactivate your account and/or pay a reactivation fee. YOU AGREE THAT Splick-it SHALL NOT BE LIABLE TO YOU FOR ANY TERMINATION OF THIS AGREEMENT OR OF YOUR ACCESS TO THE SERVICES. You may terminate this Agreement and discontinue your participation in and access to the Services at any time by delivering notice to Splick-it at firstname.lastname@example.org or canceling the Service as described on the splicik•it website. Upon termination of this Agreement for any reason, your right to use the Service shall immediately cease, and you shall stop all use of the Service, and all amounts owed by you to Splick-it as of the effective date of termination will become immediately due and payable. Sections 2, 3, 4, 5 6, 7, 8, 10, and 11 shall survive termination or expiration of this Agreement for any reason. Please keep in mind that all fees paid to Splick-it are nonrefundable.
5. Disclaimer of Warranties. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND. Splick-it EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, OR NON-INFRINGEMENT. Splick-it MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. Splick-it MAKES NO WARRANTY REGARDING ANY DEALINGS WITH OR TRANSACTIONS ENTERED INTO WITH ANY OTHER PARTIES THROUGH THE SERVICES.
6. Limitation of Liability. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RISK. SPLICK-IT WILL NOT BE LIABLE FOR ANY PRODUCTS YOU OBTAIN OR FAIL TO OBTAIN THROUGH USE OF THE SERVICES. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL Splick-it OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR RELATED TO YOUR USE OF THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION 6 REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. THE AGGREGATE LIABILITY OF Splick-it TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE WEB SITE OR THE SERVICES IS LIMITED TO ONE HUNDRED DOLLARS ($100). Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under such applicable law.
7. Indemnification. You agree to indemnify, defend and hold harmless Splick-it, its agents, employees, representatives, licensors, affiliates, officers, directors, and partners, from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) resulting or arising from any third-party claim in connection with (a) any information you (or anyone accessing the Services using your password) submit or transmit through the Services, (b) your use of or access to the Services, (c) your violation of this Agreement, or (d) your violation of any rights of any third party.
8. Intellectual Property. The Services and the website contain or comprise intellectual property that is owned by Splick-it and/or its licensors, including without limitation the trademark “Splick-it” and related logos and images. All such material is protected by relevant intellectual property laws, including trademark, copyright and/or trade secret laws. Without limiting anything herein, the material may not be used, copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, publicly performed, publicly displayed, or redistributed in any way without the prior written permission of Splick-it any applicable third-party entity. You must abide by all intellectual property notices, information or restrictions contained in this Agreement, the splickit.com website or attached to any communication between you and Splick-it.
9. Modification of Agreement. This Agreement may be amended from time to time. If Splick-it amends, supplements, or modifies this Agreement, it will provide you notice by email. If you object to any such changes, your sole recourse shall be to cease using the Services and terminate this Agreement within 30 days after the earlier to occur of: (i) delivery of the notice email to your email address, (ii) posting of any such changes to the website, or (iii) having you agree to the changes on the website. Your continued use after that date shall indicate your acknowledgment of such changes and agreement to be bound by the revised Agreement, inclusive of such changes. This version of the Agreement will be effective immediately for any user who registers for the Service on or after that date. The term “Agreement” will include all subsequent amendments.
10. FORCE MAJEURE. Neither party is in breach of this Agreement for any cessation, interruption, or delay in the performance of its obligations hereunder (other than payment obligations) due to causes beyond its reasonable control including, without limitation: earthquake, flood, fire, storm, or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, acts or threats of terrorism, disruption of the public markets, war, or armed conflict.
11. Miscellaneous. This Agreement and the relationship between you and Splick-it shall be governed by the laws of the State of Colorado, without giving effect to any choice of laws or principles that would require the application of the laws of a different country or state. Any legal action, suit, or proceeding arising out of or relating to this Agreement, or your use of the Services, must be instituted exclusively in the federal or state courts located in Denver, Colorado and in no other jurisdiction. You further consent to personal jurisdiction and venue in, and agree to service of process issued or authorized by, any such court. Splick-it may provide you with notices by email or by posting changes on the splickit.com website. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and that the other provisions of this Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The Agreement constitutes the entire, exclusive and final statement of the agreement between you and Splick-it with respect to the subject matter herein, superseding any prior agreements or negotiations between you and Splick-it with respect to the Services. You may not transfer or assign any rights or obligations you have under this Agreement without Splick-it’s prior written consent. Splick-it reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time. You agree that Splick-it may provide notice to you by posting it on our website or emailing it to the email address listed in your account profile. Such notice shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered. Except as otherwise stated in this Agreement, notice to Splick-it must be sent by postal mail to: Splick-it, Inc., 1035 Pearl St, Boulder, CO 80302.
Last Modified: September 10, 2014