1.1. These Terms and Conditions govern your use of the KioCafé Mobile Application by KioSoft (as defined below) and other electronic communications sent through or in connection with the Application.1.2. By installing, downloading, registering with, accessing or using the Application (as defined below), you are accepting the practices described in these Terms and Conditions (“Terms”) and you agree to be bound by these Terms. If you do not agree to these Terms, please do not use the Application. Please review them carefully before downloading, registering with, accessing or using the Application. These Terms may change from time to time and your continued use of the Application after we make changes is deemed acceptance of those changes.
1.3. You represent and warrant that you are over the age of 18, have the right and authority to enter into this agreement and the Terms and Conditions, are fully able and competent to satisfy the terms, conditions, and obligations herein, and your use of the Application is and will be in compliance with all applicable laws. You represent that you have read, understood, agree with, and will abide by these Terms and Conditions.
2.1. The “Application” or “App” shall collectively mean the mobile platform software, including KioCafé, provided by KioSoft Technologies, LLC (“KioSoft”) to offer services to be used on Apple iOS and Android OS devices and any upgrades from time to time and any other software or documentation which enables the use of the Application.
2.2. “We,” “Us,” “Our” shall mean KioSoft Technologies, LLC
- DATA PROTECTION
- PROPRIETARY RIGHTS AND LICENSE
4.1. All trademarks, copyright, database rights and other intellectual property rights of any nature in the App, including without limitation all of the content featured or displayed on the App, such as text, graphics, photographs, images, moving images, sound, and illustrations (“Content”), together with the underlying software code are owned by KioSoft Technologies, LLC, its licensors, vendors, agents and/or its Content providers. All elements of the App, including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The App may only be used for the intended purpose for which such App is being made available. Except as permitted by intellectual property rights law, you may not modify any of the materials and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any Content, information or work contained on the App. Except as authorized under intellectual property rights laws, you are responsible for obtaining permission before reusing any protected material that is available on the App. You shall comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of the App. The App, Content and all related rights shall remain the exclusive property of KioSoft or its licensors, vendors, agents, and/or its Content providers unless otherwise expressly agreed. You will not remove any copyright, trademark, or other proprietary notices from material found on the App.
4.2. We hereby grant you a limited, non-exclusive, non-transferable, revocable licence to access and make use of the App or its content. This license does not include any resale or commercial use of the App or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the App or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, cookies, or similar data gathering extraction tools. Except as expressly permitted herein, the App may not be reproduced, sold, resold, visited or otherwise exploited for any purpose without KioSoft’s express written consent. Any unauthorized use automatically terminates the permissions and/or licenses granted by us to you.
- ACCOUNT REGISTRATION AND SECURITY.
5.1. You understand that you will need to create an account to have access to the App and to benefit from its content and functions. You will (a) provide true, accurate, current and complete information about yourself as prompted by the App’s registration, sign-in, or subscription page (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
5.2. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the App.
5.3. You are responsible for the security and confidentiality of your password and account. Furthermore, you are responsible for any and all activities that occur under your account. You will not share your account information or your username and password with any third party or permit any third party to logon to the App using your account information. You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware. You are responsible for taking precautions and implementing security measures best suited for your situation and intended use of the App.
- PAYMENTS AND REFUNDS
6.1. You may be required to provide a valid credit card, debit card, or other payment account (“Payment Method”) in order to use certain services within the App. When you add a Payment Method to your App account, you will be asked to provide customary billing information. You must provide accurate, current, and complete information when adding a Payment Method and it is your obligation to keep your Payment Method up to date at all times.
6.2. You represent and warrant to us that you are authorized to use any Payment Method you furnish to the App. You authorize us and any third-party service provider to charge the Payment Method for all fees incurred by you with respect to the App and services provided through the App (or other services offered by us from time to time), including applicable sales, use, and other local government charges. In the event that you use beyond what was manually authorized and the balance on your account is negative, we are allowed to charge the Payment Method on file.
6.3. You agree, understand, and acknowledge that we may engage third party payment processors/gateway service providers to facilitate processing of payments. Accordingly, you may be required to follow any terms and conditions of such third-party payment processors/gateway service providers, as communicated to you, from time to time.
6.4. If you are seeking a refund or otherwise dispute any charge on your account, you must contact the coffee kiosk facility operator (the “Operator”) in which that particular charge was directed. All refunds or returns will be negotiated between you and the Operator. At our discretion, KioSoft may assist with facilitating the initial contact between you and the Operator, but we do not hold any responsibility to manage, initiate, negotiate, or otherwise facilitate refunds or returns. Operators acknowledge and agree that Operators themselves are responsible for facilitating and processing refunds with users directly and are otherwise liable for any dispute of account charges that may arise.
- CONDITIONS OF USE
7.1. You will not, nor allow third parties on your behalf to (i) make and distribute copies of the App (ii) attempt to copy, reproduce, alter, modify, reverse engineer, disassemble, decompile, transfer, exchange or translate the App; or (iii) create derivative works of the App of any kind whatsoever.
7.2. The App is currently made available to you free of charge for your personal, non-commercial use. We reserve the right to amend or withdraw the App, or charge for the App or service provided to you in accordance with these Terms, at any time and for any reason.
7.3. You acknowledge that the terms of agreement with your respective mobile network provider (‘Mobile Provider’) will continue to apply when using the App. As a result, you may be charged by the Mobile Provider for access to network connection services for the duration of the connection while accessing the App or any such third-party charges as may arise. You accept responsibility for any such charges that arise.
7.4. If you are not the bill payer for the mobile telephone or handheld device being used to access the App, you will be assumed to have received permission from the bill payer for using the App.
8.1. This App is available to handheld mobile devices running Apple iOS and Android OS Operating Systems. We will use reasonable efforts to make the App available at all times. However, you acknowledge the App is provided over the Internet and mobile networks and so the quality and availability of the App may be affected by factors outside our reasonable control.
8.2. We, including without limitation our group of companies and sub-contractors, do not accept any responsibility whatsoever for unavailability of the App, or any difficulty or inability to download or access content or any other communication system failure which may result in the App being unavailable.
8.3. We will not be responsible for any support or maintenance for the App.
- SYSTEM REQUIREMENTS
9.1. In order to use the App, you are required to have a compatible mobile telephone or handheld device, Internet access, and the necessary minimum specifications (‘Software Requirements’).
9.2. The Software Requirements are as follows: Apple iOS devices running iOS 9 or greater, and Android OS devices running Android OS 4.3 or greater; Language: English
9.3. The version of the App software may be upgraded from time to time to add support for new functions and services.
9.4. You agree, understand and acknowledge that the App may require access to certain functions including without limitation the camera, GPS, or Bluetooth on your mobile device to enable technologies such as near field communication technology and QR code scanning. You hereby agree to provide such access and data collection.
10.1. We may suspend or terminate your right to use the App at any time, for any reason or for no reason. We may also block your access to our App in the event that (a) you breach these Terms; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users, or us.
10.2. Upon any termination, (a) the rights and licenses granted to you herein shall terminate; (b) you must cease all use of the App.
- THIRD PARTY LINKS
From time to time, the App may contain links to websites that are not owned, operated, or controlled by us or our affiliates. All such links are provided solely as a convenience to you. If you use these links, you will leave the App. We are not responsible for any content, materials or other information located on or accessible from any other website. Neither we nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located or accessible from any other websites, or the results that you may obtain from using any other websites. If you decide to access any other websites linked to or from this App, you do so entirely at your own risk.
- DISCLAIMER OF WARRANTIES
THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, KIOSOFT TECHNOLOGIES, LLC, ON THEIR OWN BEHALF AND ON BEHALF OF THEIR AFFILIATES AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, KIOSOFT TECHNOLOGIES, LLC PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. ANY DOWNLOAD AND USE OF THIS APPLICATION IS DONE AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO – WITHOUT LIMITATION – ANY MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. SHOULD IT PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR AND/OR CORRECTION. IT IS THEREFORE UP TO YOU TO TAKE ADEQUATE PRECAUTION AGAINST POSSIBLE DAMAGES RESULTING FROM THIS LICENSED SOFTWARE.
- LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KIOSOFT TECHNOLOGIES, LLC, OR THEIR AFFILIATES, OR ANY OF THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR DAMAGES OR LOSSES OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY DIRECT DAMAGES, PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- GOVERNING LAW AND AGREEMENT TO ARBITRATE ON INDIVIDUAL BASIS
This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, counts, claim, or cause of action) between you and the KioSoft Technologies, LLC, and their employees, agents, successors, or assigns, shall exclusively be settled through binding and confidential arbitration. In addition, each party retains 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 copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
There is no judge or jury in arbitration and arbitration procedures are simpler and more limited than rules applicable in court. YOU ACKNOWLEDGE AND AGREE THAT, APART FROM THE NARROW EXCEPTIONS ABOVE, YOU, KIOSOFT TECHNOLOGIES, ARE EACH WAIVING YOUR RIGHTS TO SUE IN COURT, INCLUDING RIGHTS TO RECEIVE A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY-GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.
Arbitration shall be subject to the U.S. Federal Arbitration Act and federal arbitration law, and shall be conducted by Judicial Arbitration Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”) and as modified by this agreement to arbitrate.
You, KioSoft Technologies, LLC must abide by these rules: (a) the arbitration shall be conducted on an individual basis and not in a class, consolidated or representative action and the arbitrator shall not award class-wide relief; (b) KioSoft Technologies, LLC will pay their arbitration costs as required by JAMS rules, and in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, KioSoft Technologies, LLC will pay as much of your arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (d) each side pays his, her or its own attorneys’ fees and costs unless the claim(s) at issue permit the prevailing party to be paid its fees and litigation costs, and in such instance, the fees and costs awarded shall be determined by the applicable law.
With the exception of subpart (a) in the paragraph above, if any part of this arbitration provision is deemed invalid, unenforceable or illegal, then the balance of this arbitration provision shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in the paragraph above is found invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or U.S. federal court in Florida.
You agree to defend, indemnify, and hold KioSoft Technologies, LLC. and their affiliates, licensors, and each of their officers, directors, other users, employees, attorneys, agents, and partners harmless from and against any claims, costs, actions, demands, damages, losses, liabilities, expenses, and settlements including, without limitation, reasonable legal and accounting fees, arising out of or in connection with: (a) your violation or breach of any term of these Terms and Conditions or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party, or (c) your misuse of the App.
In the event that you have a dispute with one or more of the Operators, you release KioSoft Technologies, LLC (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Additionally, in the event that a dispute arising between user(s) and Operator(s), Operators agree to release KioSoft Technologies, LLC (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damagers (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
- CONTACTING US
If you have any comments or questions regarding these Terms, or wish to report any violation of these Terms and Conditions, please contact us at:
2035 High Ridge Road, Box 3, Boynton Beach FL 33426