SnackBar Merchant Terms of Service
For the duration of the Merchant Agreement, CID Solutions LLC, a Delaware corporation, doing business as SnackBar will provide the SnackBar service. In the event of any discrepancy or contradiction throughout terms and conditions of the Merchant Agreement and these Terms and Conditions ("Agreement"), the order of control shall be: (i) Merchant Terms & Conditions, (ii) Merchant Agreement, and (iii) any other exhibits, addendum or attachments to the Terms & Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. Any capitalized terms that are not defined in these Terms and Conditions have the meanings endorsed to them in the Merchant Agreement.
2. Principal Merchant Obligations.
In connection with the SnackBar Service, you agree that you will: Work with SnackBar as we design the SnackBar Service, provide complete and accurate information as may be requested in connection with the SnackBar Service, maintain the accuracy of all such information, and provide prompt approval of any proofs of the SnackBar Service and related advertising materials; Offer a loyalty construct to consumers make a purchase through the SnackBar mobile application/website Honor all prices and offers listed in the mobile application / website displayed to users. Offer the same prices to any user paying with SnackBar as those using any other payment method; Immediately notify us of any unauthorized use or suspected unauthorized use, fraud or suspected fraud, or other breach of security of the SnackBar Service; Accept responsibility for any User complaints and customer service issues that may arise in connection with any User’s order and or delivery of order. Tweet, facebook and/or email your existing customers to let them know about your relationship with Company, making sure to include any details relevant for promotional purposes; During the first sixty (60) days after your SnackBar Service launches, distribute SnackBar promotional materials to every customer. Keep all menu item prices current with their price listed at the venue. SnackBar is not responsible for any discrepancies. For the duration of the SnackBar service leave promotional materials in the settee area. You will not provide any service fees to users for using the SnackBar service. SnackBar will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3. Intellectual Property Rights.
(i) SnackBar owns all rights, title and interest in and to any data provided to SnackBar by your customer or an end user to SnackBar in connection with the SnackBar service ("Customer Data"). (ii) SnackBar owns all right, title and interest in and to the SnackBar Services including, without limitation, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto the service. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, hack or discover any of the SnackBar Services, intellectual property or ideas, algorithms, file formats, service settings, or internal interfaces underlying or such intellectual property. (iii) You do not have any right to sell or redistribute "customer data" in any form.
You: (i) will use the SnackBar Services solely for your internal business purposes, and (ii) will not, for itself, any affiliate of you or any third party (a) sell, rent, lease, license or sublicense, assign, distribute, or transfer the SnackBar Services; (b) modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, hack, or discover any source code of the underlying ideas, algorithms, file formats, service settings, or interoperability interfaces of the SnackBar Services; (c) copy any tangible versions of the SnackBar Services; or (d) remove from any of the SnackBar Services any language or designation indicating the confidential nature thereof or the proprietary rights of SnackBar. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the SnackBar Services where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. SnackBar retains the right to approve, modify, or refuse any SnackBar related communications to end users at anytime.
5. Fees; Pricing and Payment Terms; Taxes.
(i) SnackBar’s current fees for the SnackBar Services and its services are set forth in the Merchant Agreement and contracted terms between SnackBar and the You (The Merchant). SnackBar reserves the right to amend the fees payable for the SnackBar Services at any time upon thirty (30) days prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next Subscription Period. (ii) You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the SnackBar Services. (iii) Not withstanding anything herein to the contrary, SnackBar, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use the SnackBar Services, at any time, upon notice to you, if you have not paid all amounts due on or before the payment due date, or for any other material breaches of the Merchant Agreement, Merchant Terms and Conditions, or any other exhibits, addenda or attachments to the Terms & Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by SnackBar to collect any unpaid amounts owed by you. (iv) SnackBar does not provide installation of its SnackBar Services. SnackBar will provide 1 hour of free technical support during the installation process. In the event that the installation takes longer than 1 hour, SnackBar will bill you per hour of technical support.
Braintree Payments (www.braintreepayments.com) will pay you the Net Sales Proceeds collected as follows: Braintree Payments will pay you all Net Sales Proceeds at a set term defined at the initial sign up of the SnackBar service. If, in our determination, you have not provided goods or services consistent with the Program, we will have the right to not pay any Net Sales Proceeds in connection with the Program, and/or to pay a refund to any User in the SnackBar Program. We reserve the right to adjust the Net Sales Proceeds due for any period to compensate us for any chargebacks, calculation errors, Merchant employee fraudulent use, and any refunds paid to Users whether or not related to the period on which such adjustment is made, or to offset against such Net Sales Proceeds any other claim we may have arising hereunder. You will be solely responsible for payment of, and you agree to pay, all sales taxes, use taxes or other taxes relating to your provision of goods and/or services to Users, and any taxes applicable to this Agreement (other than taxes, if any, on our income).
7. Term; Termination; Survival.
The Agreement will remain in full force specified in the Merchant Agreement. At the end of any Subscription Plan, unless you select a new Subscription Plan, your Subscription Plan will automatically convert to a month-to-month Subscription Plan. This will be ongoing until you select a new Subscription Plan or provide at least thirty (30) days written cancelation notice, at which time you may be charged a restocking fee. Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. (iv) if, after thirty (30) days from the Installation Date and prior to the subsequent Subscription Period, You desire to terminate the SnackBar Service, You agree to pay an early cancellation fee equal to six (6) months of your monthly subscription fee via the credit card or ACH on file. If you subscribe to a variable subscription fee plan, your early cancellation fee is equal to (6) months at the most recent monthly billed rate. SnackBar will cease to collect the monthly subscription fee at the point in time in which SnackBar has received your returned SnackBar Kit. In the event of a termination, all items in the SnackBar Kit must be returned to SnackBar in the same or similar packaging provided to you by SnackBar. If you were not previously provided with specified return packaging, SnackBar provide you with instructions on how to return the SnackBar kit, if you would like SnackBar to provide you with packing materials, it will be billed to your account. You are responsible for all return shipping charges and for any damage incurred in the shipping process. If any item in the SnackBar Kit is not returned, SnackBar will charge you for the cost of the item not returned. Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect.
8. Representations and Warranties; Disclaimer.
(i) SnackBar warrants that SnackBar has the authority to enter into this Agreement. (ii) You represent and warrant to SnackBar that: (a) you have the authority to enter into this Agreement; and (b) you will only use the SnackBar Services for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party. (iii) Except as specifically provided in this section 8, each party expressly disclaims all warranties of any kind, express or implied, to the maximum extent permitted by applicable law, including without limitation the implied warranties of quality, accuracy, merchantability, fitness for a particular purpose and non-in-fringement. to the maximum extent permitted by applicable law, you expressly agree that the use of SnackBar services or services and the internet is at your sole risk. SnackBar services and services are provided on an "as is" and "as available" basis.
9. Confidential Information.
Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of SnackBar. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to such disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.
10. User Complaints.
If we receive any User complaints related to the SnackBar Service, you will cooperate with us as we investigate such complaints. While we will seek to resolve complaints to the satisfaction of all parties, we might not be successful in doing so, and so we reserve the right to refund payments to Users who paid with the Method and adjust the Net Sales Proceeds owed to you correspondingly.
11. Hardware Replacement.
When applicable, SnackBar may provide you with hardware to perform a portion of the functionality of the Program (“Hardware”). If any piece of said Hardware should malfunction or break, you will be responsible for shipping the malfunctioning piece back to SnackBar. You agree to package the item appropriately, to send the damaged Hardware back to SnackBar within 30 days. Failure to do so will result in a fee equal to the cost of replacing the broken piece of hardware, which shall be charged to your merchant account.
12. Dispute Resolution; Governing Law.
In the event of a reward dispute or mistake between a Merchant and User, SnackBar may in its sole discretion unilaterally make adjustments to User reward points. To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. This Agreement is governed by the State of Illinois and you expressly agree to the exclusive jurisdiction for any claim or dispute with SnackBar in the federal and state courts within the jurisdiction of the United States District Court for the Northern District of Illinois. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
You will defend, indemnify, and hold SnackBar and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your material breach of this Agreement, your unauthorized use or misuse of the SnackBar Services or any unauthorized combination of the SnackBar with any hardware, software, products, data or other materials not specified or provided by SnackBar.
14. Limitation of Liability.
SnackBar’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to SnackBar under the Agreement during the twelve (12) months preceding the date on which the claim occurred. To the maximum extent permitted by applicable law, in no event will SnackBar be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services, however caused and regardless of theory of liability. In addition, SnackBar will not be liable for damage (physical or otherwise) incurred by the merchant upon any asset or property from the installation or removal of any SnackBar product or add-on in-store and will not be responsible for replacement or cost of repair if damages occur. This limitation will apply even if such damages were foreseeable and you have been advised or are aware of the possibility of such damages.
Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to the contact person listed on the Order Information as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally.
You may not, without the prior written consent of SnackBar, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.
17. No Third Party Beneficiaries.
The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
18. Amendment; Waiver.
This Agreement may be changed only by written agreement signed by both SnackBar and you. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.
If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.
21. Force Majeure.
If either party is prevented from performing any of its obligations under the Agreement due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to SnackBar provided prior to the force majeure event.
22. Independent Contractor.
The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
23. Compliance with Laws.
Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.
24. Entire Agreement.
The Agreement will constitute the entire agreement between SnackBar and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.