Einstein Noah Restaurant Group, Inc.
1720 S. Bellaire St. Suite Skybox
Denver, CO 80222
YOUR CONSENT TO OTHER AGREEMENTS
OWNERSHIP, COPYRIGHT, AND TRADEMARK MATTERS
Our Sites, including the software and code that comprise and operate our Sites and all of the content of our Sites, for example, all of the text, images, illustrations, graphics, audio clips, and video clips published on our Sites, are protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws. All of the rights in our Sites, including all of the rights in the content of our Sites, are owned by Operator, its subsidiaries, its franchisees, its or their licensors, and other third parties. The entire content of each Site is copyrighted as a collective work under U.S. and international copyright laws and treaties, and Operator or one of its subsidiaries owns the copyright in the selection, coordination, arrangement and enhancement of the content of each Site.
Individual users of our Sites are permitted to download copies of the information on our Sites for their own personal use. This limited, revocable privilege to use the content in no way constitutes a transfer of any right, title or interest in the material you download. You may not, under any circumstances, (a) modify the content of our Sites or use or exploit it for any commercial purpose, or for any public display, performance, sale or rental; (b) decompile, reverse engineer, or disassemble the any part of our Sites or the content; or (c) remove any copyright, trademark registration, or other proprietary notices from the content. No material from our Sites may be copied, reproduced, republished, uploaded, posted, transmitted, distributed, exploited or used in any manner or form except as expressly provided above without first obtaining written permission from Operator or one of its subsidiaries. The use of any materials from our Sites on any other Web site or networked computer environment is prohibited.
The trademarks and service marks used or displayed on our Sites (“Trademarks”) are registered and unregistered trademarks of Operator, one of its subsidiaries, or third parties. Nothing on our Sites may be construed as granting – by implication, estoppel, or otherwise – any license or right to use any Trademarks displayed on the Site without the prior express written permission of Operator or the trademark owner. In particular, you may not use any trademark displayed on our Sites as a “hot” link without the prior written approval of the trademark owner.
RESPONSIBILITY FOR USER-GENERATED CONTENT POSTED ON OR THROUGH OUR SITES
You are responsible for UGC that you post: Under no circumstances will we be liable in any way for any UGC.
Because we do not control the UGC posted on or through our Sites, we cannot and do not warrant or guarantee the truthfulness, integrity, suitability, or quality of that UGC. You also agree and understand that by accessing our Sites, you may encounter UGC that you may consider to be objectionable. We have no responsibility for any UGC, including without limitation any errors or omissions therein. We are not liable for any loss or damage of any kind you may claim was incurred as a result of the use of any UGC posted, emailed, transmitted or otherwise made available on or through our Sites. The UGC posted on or through our Sites expresses the personal opinions of the individuals who posted it and does not necessarily reflect the views of Operator or any person or entity associated with Operator.
You own UGC, but we may use it: You own the copyright in any original UGC you post. We do not claim any copyrights in UGC. However, by using our Sites you are granting us and our subsidiaries, affiliates, successors and assigns, a nonexclusive, fully paid, worldwide, perpetual, irrevocable, royalty-free, transferable license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, distribute, publicly display and perform, publish, transmit, remove, retain repurpose, and commercialize UGC you post in any and all media or form of communication whether now existing or hereafter developed, without obtaining additional consent, without restriction, notification, or attribution, and without compensating you in any way, and to authorize others to do the same. For this reason, we ask that you not post any UGC that you do not wish to license to us, including any photographs, videos, confidential information, or product ideas.
We may disclose and/or remove UGC: Operator has certain rights. We have the right (but do not assume the obligation) to:
- monitor all UGC;
- require that you avoid certain subjects;
- remove or block any UGC at any time without notice at our sole and absolute discretion;
- terminate your access to and use of our Sites, or to modify, edit or block your transmissions thereto in our sole discretion.
You agree that our exercise of such discretion shall not render us the owners of UGC you post, and that you will retain ownership thereof as described above.
- upload, post, transmit or otherwise make available any UGC that is unlawful, harmful, hateful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, pornographic, profane, racially disparaging, indecent, or invasive of another’s privacy;
- any UGC that constitutes or encourages activity illegal under criminal or civil law;
- any UGC that is false, misleading, or fraudulent;
- any UGC that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- any UGC that violates or infringes upon the rights of others, including UGC which violates the patent rights, copyrights, trademark rights, privacy rights, publicity rights, trade secret rights, confidentiality rights, contract rights, or any other rights of any individual, living or deceased, or any legal entity;
- any UGC that contains the image, name or likeness of anyone other than yourself, unless (i) that person is at least eighteen years old and you have first obtained his/her express permission or (ii) that person is under eighteen years old but you are his/her parent or legal guardian;
- any request for or solicitation of any personal or private information from any individual;
- any request for or solicitation of money, goods, or services for private gain;
- any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
- any UGC that contains advertising, promotions or marketing, or which otherwise has a commercial purpose;
- impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or
- violate any local, state, national or international law, rule or regulation.
REMOVAL OF CONTENT
Violation of copyrights Operator does not knowingly violate or permit others to violate the copyrights of others. We will promptly remove or disable access to material that we know is infringing or if we become aware of circumstances from which infringing activity is apparent.
If you are requesting removal of content because of a violation of your copyrights, please note that the Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your own work, or the work of a third party for whom you are authorized to act, is featured on our Sites or has been otherwise copied and made available on our Sites in a manner that constitute copyright infringement, please notify us immediately. Your notice must be in writing and must include:
- an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on our Sites (including the URL, title and/or item number if applicable, or other identifying characteristics);
- your name, address, telephone number, and email address, and, if you are not the owner of the copyright, the name of the owner; and
- a written statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Your statement must be addressed to the Operator who owns the platform, as follows:
Einstein Noah Restaurant Group, Inc.
1720 S. Bellaire St. Suite Skybox
Denver, CO 80222
Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon us actual knowledge of facts or circumstances from which infringing material or acts are evident.
You do not need to create a user account to place an order; however, each time you place an order from a Site, you must provide your contact information (including a valid email address) and valid payment information as such information is used only for the specific placed order and not for any subsequent orders.
Follow the instructions on a Site to place an order; provide all information required for order placement and payment. You are responsible for payment of your order by providing a valid credit card and related payment information at the time of placement of your order. An Operator (or its third party payment processor designee) will charge, and you authorize an Operator (or its third party payment processor designee) to charge, the credit card you provide at the time of placement of your order. An Operator uses third party providers, and may use and accept various third-party services to process payments; by making a payment, you agree to the terms and conditions of such providers and services. Upon payment for your order, you will receive an email sent to the designated email address you provided in connection with your order detailing your order information. By purchasing items through a Site, you represent and warrant that you are capable of entering into a contract under the applicable law.
The Brand restaurant identified when you place your order (which may be an Operator-owned or franchisee-owned location), is responsible for preparing and fulfilling your order and for any questions or other communications regarding your order. If you are purchasing from a franchisee-owned location, an Operator does not prepare the items you are purchasing from the franchisee and the franchisee (and not an Operator) remains responsible for all items that you purchase.
You understand that: (1) the prices for menu items displayed through the online ordering services on a Site may differ from the prices offered or published for the same menu items at a physical Brand restaurant or through other methods of ordering (for example, an Operator app), (2) the prices for menu items may differ depending on geography and the specific Brand restaurant within any geography, (3) the prices for menu items may differ depending on whether you order for dine-in or pick up, (4) the prices for menu items may differ depending on whether you order from an Operator-owned location, a franchisee-owned location, or through different methods of ordering, and (5) an Operator reserves the right to change the prices displayed through the online ordering services on a Site, and applicable fees or surcharges at any time. Prices for menu items do not include applicable taxes, fees (including service fees), or surcharges, which additional amounts will be added to the amount of your order prior to order placement and payment. Amounts paid for completed orders are final and non-refundable. An Operator and a franchisee has no obligation to provide refunds or credits, but may grant them, in its sole discretion.
Minimum order amounts may apply for orders placed through the online ordering services on a Site. Any applicable taxes, fees (including service fees), or other surcharges due in connection with your order will be identified on the checkout screen before you pay for your order. If you do not agree to the prices charged for the items listed or any other amounts (including fees, service fees or surcharges) identified on the checkout screen, do not proceed with payment. There may be limits on the dollar amounts and number of orders that may be placed through the online ordering services on a Site. Discounts, coupons, promotions and other offers may not be able to be used or combined for orders placed through the online ordering services on a Site.
In the event that a product that is available for ordering online through a Site is mistakenly listed at an incorrect price or with other incorrect information (including taxes, fees, service fees or surcharges), the applicable Brand restaurant at which the order is placed reserves the right to either refuse or cancel the order or to charge you the correct amount(s). A Brand restaurant reserves the right to refuse or cancel any orders for any reason (including for pricing errors as noted above), regardless of whether the order has been paid or confirmed. Neither an Operator or a franchisee is responsible for any inability to fulfill any order. If your credit card has been charged for the purchase and your order is cancelled by a Brand restaurant, you will be issued a credit to your credit card in the amount charged.
You understand that third parties unrelated to a Brand may offer online ordering and/or delivery services through their own websites, apps or other means. Operators and franchisees do not review and are not responsible for any statements, claims (including price representations) made on those third party sites or apps and have no responsibility to you for an order or payment made through a third party. Any issue with or complaint regarding any of these third party services or orders placed through them should be directed to that service and not to a Brand restaurant, Operator or franchisee.
PASSWORD-PROTECTED AREAS OF OUR SITES
Certain areas of our Sites are password protected. You are responsible for maintaining the confidentiality of your passwords. We have the right to assume that anyone accessing our Sites using a password assigned to you has the right to do so. You will be solely responsible for the activities of anyone accessing our Sites using a password assigned to you, even if the individual is not, in fact authorized by you. You agree to notify us promptly at email@example.com if you have reason to believe that your password may have been compromised or used without authorization.
Neither our Sites nor the franchise sales information on our Sites constitute an offer to sell a franchise. The offer of a franchise can only be made through the delivery of a franchise offering circular. Certain states require that we register the franchise offering circular in those states. The communications on our Sites are not directed by us to the residents of any of those states. Moreover, we will not offer or sell franchises in those states until we have registered the franchise (or obtained an applicable exemption from registration) and delivered the franchise offering circular to the prospective franchisee in compliance with applicable law.
OUR SITES, THEIR CONTENTS, AND ALL INFORMATION, PRODUCTS AND SERVICES MADE AVAILABLE THROUGH OUR SITES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, OPERATOR, ITS SUBSIDIARIES, AND ITS FRANCHISEES DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO OUR SITES, THEIR CONTENTS, AND THE INFORMATION, PRODUCTS AND SERVICES MADE AVAILABLE THROUGH THESE SITES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OPERATOR, ITS SUBSIDIARIES AND ITS FRANCHISEES DISCLAIM ALL
REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (C) RELATING TO THE SECURITY OF THESE SITES; (D) THAT THE INFORMATION ON THESE SITES, INCLUDING MENUS AND PRICING INFORMATION, IS ACCURATE, COMPLETE OR CURRENT; OR (E) THAT THESE SITES WILL OPERATE WITHOUT INTERRUPTION OR ERROR.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF CERTAIN WARRANTIES, SO THIS ALL OR PART OF THIS DISCLAIMER OF WARRANTIES MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, SHALL OPERATOR, ITS SUBSIDIARIES, OR ITS FRANCHISEES, OR ANY OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS, LICENSORS OR SUPPLIERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE OUR SITES, ANY CONTENT PUBLISHED ON OUR SITES, OR ANY INFORMATION, PRODUCTS OR SERVICES PROVIDED OR PURCHASED THROUGH OUR SITES.
THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS), WHETHER THE CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF AN AUTHORIZED REPRESENTATIVE OF OPERATOR, ONE OF ITS SUBSIDIARIES, OR A FRANCHISEE HAS
BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND WITHOUT REGARD TO THE EFFECTIVENESS OF OTHER REMEDIES.
IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OPERATOR, ITS SUBSIDIARIES, ITS FRANCHISEES (AND ANY OTHER PERSON OR ENTITY WHOSE LIABILITY WOULD OTHERWISE HAVE BEEN LIMITED) FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED FIVE DOLLARS ($5.00).
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, SO ALL OR PART OF THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
LINKS TO SITES OPERATED BY THIRD PARTIES
Our Sites may provide links to websites operated by third parties. We are not responsible for examining or evaluating, and we do not warrant the products or offerings of, any of these businesses or individuals or the accuracy or content of their websites. We do not assume any responsibility or liability for the actions, product, and content of any such sites. Before you use any site you should review the applicable conditions of use and policies. The inclusion of a link in our Sites does not imply our endorsement of the site. If you decide to access linked third-party websites, you do so at your own risk.
GOVERNING LAW, JURISDICTION AND VENUE