TERMS AND CONDITIONS
Last Updated and Effective as of: January 23, 2019
Welcome to Menchie's App (the "App"). This App is maintained and operated by Menchie'sGroup, Inc. ("Menchie's", "we", "our" or "us").
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY, SINCE THEY AFFECT YOUR LEGAL RIGHTS.
YOUR ACCESS AND USE OF THE APP IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS (THE "TERMS AND CONDITIONS") AND ALL APPLICABLE LAWS. BY USING THE PAGES IN THIS SITE, YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THIS APP. THESE TERMS AND CONDITIONS CONTAIN AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
If you are having any trouble accessing these Terms and Conditions or the App, please contact us at 818-708-0316; Our hours of operation are: 9am - 6pm PT.
This App is provided for your personal and non-commercial use and for informational purposes only. Any other use of the App requires the prior written consent of Menchie's. This App is only available for download in the United States and intended for users situated in the United States only. We currently not offer goods and services to the EEA or any other parts of the world via the App.
You may not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute content available on the App. Further, you may not use any such automated means to manipulate the App, such as automating what are otherwise manual or one-off procedures. You may not take any action to interfere with, or disrupt, the App or any other user's use of the App, including, without limitation, via means of overloading, "flooding", "mailbombing" or "crashing" the App, circumventing security or user authentication measures or attempting to exceed the limited authorization and access granted to you under these Terms and Conditions. You may not frame portions of the App within another App. You may not resell use of, or access to, the App to any third party without our prior written consent.
PROPRIETARY RIGHTS AND RESTRICTIONS ON USE
Menchie's (or its related, affiliated, or subsidiary companies) is the owner of or otherwise licensed to all parts of the App, including all copy, software, graphics, designs and all copyrights, trademarks, service marks, trade names, logos, and other intellectual property or proprietary rights contained therein. Some materials on the App belong to third parties who have authorized Menchie's to display the materials, such as certain third party licensors. By using the Service, you agree not to copy, distribute, modify, republish, post, transmit or make derivative works of any materials without the prior written consent of the owner of such materials. However you may download one copy of the material on one computer for your personal, non-commercial home use only, provided you do not delete or change any copyright, trademark, or other proprietary notices. Modification or use of the materials for any other purpose violates our intellectual property rights. The materials on this App are provided for lawful purposes only. All rights not granted under these Terms and Conditions are reserved by Menchie's.
RESTRICTION OF LIABILITY
IN NO EVENT WILL MENCHIE'S BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST DATA, LOST OPPORTUNITIES, COSTS OF COVER, EXEMPLARY, PUNITIVE, PERSONAL INJURY/WRONGFUL DEATH, SPECIAL, INCIDENTAL, INDIRECT OR OTHER CONSEQUENTIAL DAMAGES. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL MENCHIE'S BE LIABLE FOR ANY DIRECT DAMAGES EXCEEDING THE GREATER OF THE FEES YOU PAID TO MENCHIE'S FOR PRODUCTS AND SERVICES IN THE TWELVE MONTHS PRECEEDING THE CLAIM OR ONE HUNDRED UNITED STATES DOLLARS.
SUBMISSIONS AND FEEDBACK
We do not accept any unsolicited ideas via the App from outside the company including without limitation suggestions about advertising or promotions, or merchandising of any products, additions to our services, or changes in methods of doing business. We may already be working on or may in the future work on a similar idea. This policy eliminates concerns about ownership of such ideas. If, notwithstanding this policy, you submit an unsolicited idea via the App, you understand and acknowledge that such idea is not submitted in confidence and we assume no obligation, expressed or implied, by considering it. You further understand that we shall exclusively own all known or hereafter existing rights to the idea everywhere in the world, and that such idea is hereby irrevocably assigned to us. Without limiting the foregoing, to the extent any such assignment is deemed unenforceable, and or to the extent necessary for Company to utilize your submission, you hereby grant Company an irrevocable, perpetual, world-wide license to use the idea and any associated intellectual property in any manner, in any medium now known or hereafter developed, without compensation to you.
TEXTS AND EMAILS
The inclusion of any products or services on the App does not imply or warrant that these products or services will be available at any particular time or that the listed attributes are accurate or complete. In the event a product is listed at an incorrect price due to typographical error or error in pricing or other information, we will have the right to cancel orders of any such product, whether or not the order has been confirmed and/or your credit card or other payment method has been charged. The actual color of products you see will depend in part on your computer system, and we cannot guarantee any color or texture or detail of actual products will be accurate. Further, we do not endorse and have not verified the accuracy or reliability of any opinion or statement made on the App or any other sites by any third party , including but not limited to customers, manufacturers, distributors or suppliers of products and services sold through the Site. In addition, we may make changes to information about price, availability or other product attributes without notice. Your receipt of an order confirmation from us does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. With respect to the shipment of products and services sold through the Site, risk of loss and title for items purchased from the App pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. By placing an order, you represent that the products ordered are legal to possess and use where you intend to possess and use them and will be possessed or used only in a lawful manner, in accordance with all applicable laws, rules and regulations, including copyright law. We may require additional verifications or other information prior to the acceptance and/or shipment of any order. If we reject, limit, or otherwise modify your order, we will attempt to notify you using the e-mail address you provide to us. If we cancel an order or part of an order that we've already charged you for, we'll refund you the full amount of the canceled portion of the order. Please carefully review our Terms of Sale and Return Policy, which are incorporate herein by reference. Use of the App indicates your acceptance of our Terms of Sale and Return Policy.
GOVERNING LAW; JURISDICTION; ARBITRATION
The laws of the State of California shall govern these Terms and Conditions. While we will make reasonable efforts to resolve any disagreements you may have with Menchie's, if these efforts fail you agree that all claims, disputes or controversies against Menchie's arising out of these Terms and Conditions, or the purchase of any products or services ("Claims") shall be exclusively submitted to binding arbitration (except for matters that may be taken to small claims court), no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third- party claims, interpleaders or otherwise; and Claims made independently or with other claims. The party filing arbitration must submit Claims to the American Arbitration Association and follow its rules and procedures for initiating and pursuing arbitration. Any arbitration hearing that you attend will be held at a place chosen by the American Arbitration Association in the same city as the U.S. District Court closest to your then current residential address, or at some other place to which you and Menchie's agree in writing, and the arbitrator shall apply California law consistent with the Federal Arbitration Act. YOU SHALL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS OR TO ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. You may obtain copies of the current rules, and forms and instructions for initiating arbitration by contacting the American Arbitration Association at using the contact information noted below.
American Arbitration Association
A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten (10) years' experience or a retired or former judge, selected in accordance with the rules of the American Arbitration Association. The arbitration will follow the procedures and rules of the American Arbitration Association which are in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with these Terms and Conditions, in which case these Terms and Conditions will prevail. Those procedures and rules may limit the discovery available to you or us. The arbitrator will take reasonable steps to protect your customer account information and other confidential information if requested to do so by you or us. Each party to the arbitration will bear the expense of that party's attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. The arbitrator's award is final and binding on the parties.
ANY CLAIM YOU HAVE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE THE CLAIM ARISES. AS NOTED ABOVE, YOU AND MENCHIE'S HEREBY VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL.
We will not choose to arbitrate any Claim you bring in small claims court. However, if such a Claim is determined by the court to be outside its jurisdiction, the parties agree that the dispute shall then be submitted to arbitration.
THE MATERIALS IN THIS APP ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESSED OR IMPLIED, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW. MENCHIE'S DISCLAIMS ALL WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MENCHIE'S DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MATERIAL WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS APP OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MENCHIE'S DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULT OF THE USE OF THE MATERIAL IN THIS APP IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT MENCHIE'S) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES.
The App may contain links to other Apps not maintained by us. Other Apps may also reference or link to our App. We encourage you to be aware when you leave our App and to read the terms and conditions and privacy statements of each and every App that you visit. We are not responsible for the practices or the content of such other Apps.
Menchie's may terminate this agreement at any time. Menchie's may terminate your Account immediately without notice if, in its sole judgment, you breach any term or condition of this agreement.
All information posted on the App is subject to change at any time. In addition, these Terms and Conditions may be changed at any time; provided, any material modifications will only be applied prospectively. We will make such changes by posting them on the App. You should check the App for such changes frequently. Your continued access of the App after such changes demonstrates your acceptance of those changes. We also reserve the right to take down the App at any time.
These Terms and Conditions will be governed and be interpreted pursuant to the laws of the State of California, United States of America, notwithstanding any principles of conflicts of law. If any part of these Terms and Conditions is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions. Possible evidence of use of this App for illegal purposes will be provided to law enforcement authorities. The failure of Menchie's to partially or fully exercise any rights or the waiver of Menchie's of any breach of these Terms and Conditions by you shall not prevent a subsequent exercise of such right by Menchie's or be deemed a waiver by Menchie's of any subsequent breach by you of the same or any other term of these Terms and Conditions. The rights and remedies of Menchie's under these Terms and Conditions and any other applicable agreement between you and Menchie's shall be cumulative, and the exercise of any such right or remedy shall not limit Menchie's's right to exercise any other right or remedy. Menchie's products and services are available in many parts of the world. However, the Menchie's App is only available for download and use in the US.
The following trademarks used herein are owned by Menchie's and its affiliates: MENCHIE'S, MENCHIE'S (Design), MENCHIE's GUY (Design), Come Smile With Us, Mix Weigh Pay, My Smileage, Smileage, We Make You Smile, What's Your Mix
ADDITIONAL TERMS FOR USERS OF APPLE DEVICES
If you have downloaded the App via the iTunes Store, the following shall apply: You acknowledge and agree that these Terms and Conditions are solely between you and us, not Apple, and that Apple has no responsibility for the App. Your use of the App must comply with Apple's App Store Terms and Conditions, located here. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and Conditions and any law applicable to us as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Terms and Conditions and any law applicable to us as provider of the App. You acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party's intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms and Conditions. You and we acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms and Conditions as relates to your license of the App, and that, upon your acceptance of the these Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions as relates to your license of the App against you as a third party beneficiary thereof. You represent that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and you are not listed on any U.S. Government list of prohibited or restricted parties.
Should you have any questions regarding these Terms and Conditions you may contact us at [email protected]