THESE TERMS CONTAIN AN AGREEMENT BY YOU TO RESOLVE DISPUTES THROUGH BINDING ARIBITRATION ON AN INDIVIDUAL BASIS. PLEASE REVIEW THE ARBITRATION SECTION BELOW SINCE YOU ARE GIVING UP CERTAIN RIGHTS, SUCH AS THE RIGHT TO A JURY TRIAL AND THE RIGHT TO SUE SMOOTHIE KING IN A CLASS ACTION LAWSUIT.
3. Site Information. We provide the information on the Site for general, informational purposes. While we use good faith efforts to keep the information on the Site accurate, we do not guarantee it is accurate, up-to-date, or applicable to you.
4. Account. To use certain features of our Site, you may be required to complete a new user registration form to create a Smoothie King account (“Account”). You will also be required to create a username and password. You are responsible for maintaining the confidentiality of your username and password. Do not share your username and password with any other person.
5. Text Messaging; Data Rates; Functionality. If you elect to receive marketing text messages from us, either via our Site or by sending a text message indicating your consent, you are providing your prior express written consent to receive recurring marketing or promotional SMS text messages from us (each, a “Text Message”) sent through an automatic telephone dialing system. This service is optional and is not a condition for purchase. You can opt out of receiving any further Text Messages from us at any time by replying “STOP” to any Text Message you receive from us. For help, email email@example.com.
In addition to any fee of which you are notified, your mobile provider’s standard message and data rates may apply to our confirmation Text Message and all subsequent Text Message correspondence according to your individual rate plan provided by your wireless carrier. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving Text Messages. Under no circumstances will we or our affiliates be responsible for any SMS messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number. If your carrier does not permit SMS messages, you may not receive the Text Messages.
By signing-up to receive Text Messages, you are representing that you own or have the exclusive right to use the phone number you provide to us. If you change or deactivate the phone number you provided, you have an affirmative obligation to update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive our standard marketing Text Messages unless you also unsubscribe via the above procedures.
6. Offers. We may offer certain services and products and product rentals through the Site. All offers set forth on this Site are void where prohibited and are subject to additional terms pertaining to the offers. The actual services and products may differ from those displayed or listed on the Site, are subject to availability, availability may be limited in certain areas, and we may change services, products, and rentals in our sole direction. Prices listed on the website are subject to change and may be changed by us at any time.
9. Intellectual Property Rights. The Site and Content are protected by copyright, trademark, and other intellectual property laws. Any unauthorized use of any trademarks, trade dress, copyrighted materials, or any other intellectual property belonging to Smoothie King or any third party is strictly prohibited and may fully be prosecuted of the law.
10. Copyright Policy. We respect the intellectual property rights of others and we ask that you do the same. We strive to expeditiously remove any infringing material from the Site if we become aware of it.
11. Compliance with Laws. In connection with your access to and use of the Site, you are responsible for complying with all applicable laws, regulations, and rules of all relevant jurisdictions, including all applicable rules regarding online conduct.
12. Feedback and Other Content Submitted by You. If you submit comments or feedback to us regarding the Site or its Content, or any other comments, questions, requests, content or information that is not personal information ("Feedback"), we may use any comments and feedback that you send us in our discretion and without attribution or compensation to you.
13. Children's Information. The Site is not directed at children under the age of thirteen (13) years old. If you are under thirteen (13) years old, you must immediately stop using the Site.
- You may not copy, duplicate, sell, publish, post, license, rent, distribute, modify, translate, adapt, reverse-engineer, or create derivative works of the Site or Content without Smoothie King’s prior written consent.
- You may not use the Site for unlawful purposes.
- You may not submit inaccurate, incomplete, or out-of-date information via the Site, commit fraud or falsify information in connection with your use of the Site.
- You may not engage in data mining or similar data gathering or extraction activities from the Site. You may not use the Site to harvest email addresses, names, or other information of the users of the Site or to spam other users of the Site.
- You may not access, use, or copy any portion of the Site or Content, through the use of indexing agents, spiders, scrapers, bots, web crawlers, or other automated devices or mechanisms.
- You may not use the Site to post, transmit, input, upload, or otherwise provide any information or material that contains any viruses or malware.
- You may not engage in activities that aim to render the Site or associated services inoperable or to make their use more difficult.
- You may not frame, mirror, or circumvent the navigational structure of any part of the Site.
- You may not upload, distribute, transmit, or post anything to or through the Site that: (i) is fraudulent, libelous, obscene, pornographic, indecent, violent, offensive, hate speech, harassing, threatening, defamatory, harms another person, or the like; (ii) invades the privacy of another or includes the confidential or proprietary information of another without their written consent, or (iii) is protected by intellectual property rights without the express prior written consent of the owner of such intellectual property rights.
- You may not engage in any conduct while using the Site that Smoothie King considers inappropriate, unauthorized, or contrary to the intended purpose of the Site.
15. NO WARRANTY. THE SITE AND CONTENT ARE PROVIDED ''AS IS,'' AND WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMOOTHIE KING EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SITE AND CONTENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE.
SMOOTHIE KING MAKES COMMERCIALLY REASONABLE EFFORTS TO PROVIDE ACCURATE AND RELIABLE CONTENT ON THE SITE, BUT NEITHER ACCURACY NOR RELIABILITY ARE GUARANTEED. SMOOTHIE KING DOES NOT WARRANT OR GUARANTEE THE QUALITY, COMPLETENESS, TIMELINESS, OR AVAILABILITY OF THE SITE OR CONTENT. SMOOTHIE KING DOES NOT WARRANT OR GUARANTEE THAT THE SITE OR CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS IN THE SITE OR CONTENT WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL CONDITIONS OR COMPONENTS.
THE LAWS OF CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR CONDITIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
16. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SMOOTHIE KING OR ITS OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES. AGENTS OR PROFESSIONAL ADVISORS (COLLECTIVELY, THE ''SMOOTHIE KING PARTIES'') BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THE SITE OR CONTENT, OR YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SITE OR CONTENT, REGARDLESS OF THE FORM OF ACTION, WHETHER THE CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR OTHERWISE, AND EVEN IF A SMOOTHIE KING PARTY HAS EXPRESS KNOWLEDGE OF THE POSSIBILITY OF THE LOSS OR DAMAGE.
YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP ACCESSING AND USING THE SITE OR CONTENT.
WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE SMOOTHIE KING PARTIES’ AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THE SITE OR CONTENT, OR YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SITE OR CONTENT EXCEED $100 U.S.D., EVEN IF ANY REMEDY PROVIDED FAILS OF ITS ESSENTIAL PURPOSE.
THE LAWS OF CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN DAMAGES OR LIMITATIONS OF LIABILITY. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
17. INDEMNIFICATION. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE SMOOTHIE KING PARTIES FROM AND AGAINST ALL LOSSES, CLAIMS, LIABILITIES, DEMANDS, COMPLAINTS, ACTIONS, DAMAGES, JUDGMENTS, SETTLEMENTS, FINES, PENALTIES, EXPENSES, AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) THAT ARISE OUT OF OR IN CONNECTION WITH (A) YOUR VIOLATION OF APPLICABLE LAWS, (B) YOUR MISUSE OF THE SITE OR ANY CONTENT, (C) YOUR BREACH OF THESE TERMS OR ANY OTHER TERMS ON THE SITE, AND (D) YOUR INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS. WE RESERVE, AND YOU GRANT TO US, THE EXCLUSIVE RIGHT TO ASSUME THE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU.
19. Linking to the Site. You are prohibited from linking to this Site on your website or elsewhere without the prior express written consent of Smoothie King. If Smoothie King grants you a right to link to this Site, certain terms may apply, and Smoothie King reserves the right to revoke such consent at any time. You are responsible for any costs incurred by Smoothie King in enforcing its rights under this Section.
20. Use in the United States. The Site is intended for use in the United States only. We do not guarantee that use of the Site will be available or permitted in any location other than the United States. If you choose to access the Site from a location other than the United States, you do so at your own risk.
THE EXISTENCE OF THE SITE OR ANY CONTENT SHALL NOT BE CONSTRUED AS COMPANY OR THE COMPANY PARTIES OFFERING SUCH SITE OR CONTENT TO PERSONS IN JURISDICTIONS WHERE THE PROVISION OF SUCH SITE OR CONTENT IS PROHIBITED BY LAW.
- Discontinuing the Site or Content. Smoothie King may suspend or terminate the Site or any Content, in whole or in part, at any time in its sole discretion for any reason.
- No Liability for Suspension or Termination. Smoothie King will not be liable to you or anyone else for any damages arising from or related to Smoothie King’s suspension or termination of your access to the Site or the Content, or in the event Smoothie King modifies, discontinues or restricts the availability of the Site or the Content (in whole or in part).
22. Cooperation with Law Enforcement. Smoothie King will cooperate with law enforcement if you are suspected of having violated applicable laws. YOU WAIVE AND HOLD THE SMOOTHIE KING PARTIES HARMLESS FOR ANY COOPERATION WITH, OR DISCLOSURE OF YOUR INFORMATION TO, LAW ENFORCEMENT RELATING TO YOUR SUSPECTED VIOLATION OF APPLICABLE LAWS.
- WAIVER. YOU UNDERSTAND THAT BY AGREEING TO BINDING ARBITRATION, YOU ARE GIVING UP YOUR RIGHT TO A TRIAL BY JURY. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO BINDING ARBITRATION ON AN INDIVIDUAL BASIS, YOU MAY NOT BRING A CLAIM AGAINST SMOOTHIE KING IN A CLASS ACTION LAWSUIT, AND THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN ONE OR MORE PERSON’S OR PARTY’S CLAIMS IN A CLASS OR PROCEEDING. In the event a court determines that the foregoing is unenforceable, then such claim must be severed from the arbitration and brought in court, subject to Smoothie King’s right to appeal.
- Rules. You and Smoothie King agree that arbitration will be conducted by the American Arbitration Association (''AAA'') in accordance with its Consumer Arbitration Rules, then in effect and as amended herein (''Rules''). The Rules can be found at: https://www.adr.org/Rules. You and Smoothie King agree that this agreement to arbitrate involves a transaction of interstate commerce and therefore the Federal Arbitration Act will govern the interpretation and enforceability of this agreement to arbitrate.
- Initiating a Claim. The party desiring to initiate arbitration must provide the other party a Demand for Arbitration in accordance with the Rules and the parties will thereafter mutually agree upon the arbitrator. If the parties cannot agree upon the arbitrator within ten (10) days, an arbitrator will be appointed in accordance with the Rules.
- Location. You agree that arbitration shall take place exclusively in Dallas, Texas. However, where the disclosed claims or counterclaims do not exceed $25,000, the dispute may be resolved by the submission of documents only/desk arbitration (see the Rules for more details). Either party may, however, ask for a hearing, or the arbitrator may decide a hearing is necessary.
- Confidentiality. The parties will not make any comments or announcements to the public about the subject matter or outcome of any arbitration.
- Changes to this Agreement to Arbitrate. If Smoothie King modifies this arbitration provision, you may reject that change by sending Smoothie King written notice within thirty (30) days of our posting of the change, in which case you must immediately stop using the Site.
- Costs and Expenses. Each party shall pay their own expenses and fees, including their own attorneys’ fees, arising from arbitration, unless the arbitrator determines that your claims were improper or frivolous, in which case the arbitrator may require you to reimburse us for certain fees and expenses in accordance with the Rules.
- Exceptions. Notwithstanding anything to the contrary in this Section, you and Smoothie King each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s intellectual property rights.
28. Contact Us. Please direct any questions and concerns regarding these Terms to us at:
Smoothie King Franchises Inc
Attn: Chief Legal Officer
9797 Rombauer Road, Suite 150
Coppell, TX 75019