- Your use of the Tropical Smoothie Cafe® website at www.tropicalsmoothie.com (the “Site”);
- Your use of the Tropical Smoothie Cafe mobile application (the “App”);
- Your placing of orders for Tropical Smoothie Cafe food and beverages (“Orders”);
- Your order of Tropical Smoothie Cafe gift cards through the Site (“Gift Cards”); and
- Any other activities or services offered through any of the foregoing.
We will refer to the Site, App, Orders, Gift Cards and other activities and services offered through any of the foregoing as the “Services.”
By using the Site or any of the Services, you agree to be bound by the terms and conditions contained in these Terms. If you are acting on behalf of your employer or another entity, you represent and warrant that you are authorized to bind such employer or entity to these Terms. If you do not agree with any of these Terms, do not use the Site or any of the Services.
Please note that separate terms and conditions apply to our Tropical Rewards® program. In addition, certain Services are offered through third parties (“Third-Party Service(s)”) and may have their own terms and conditions (“Third-Party Terms”). You agree to abide by the Third-Party Terms in addition to these Terms. As noted below, we are not responsible for acts or omissions of any Third-Party Services.
1. Supplemental Terms
Supplemental terms and conditions or documents that may be posted on the Site or the Services (“Supplemental Terms”) from time to time are hereby expressly incorporated herein by reference. For example, Supplemental Terms may apply to certain Services or promotional or other offers on the Site or Services. If such Supplemental Terms conflict with these Terms, these Terms will prevail, unless the Supplemental Terms expressly state that they prevail.
2. Changes to the Terms and Services
We may change, modify, or revise these Terms (“Modifications”) or change or terminate any of the Services (“Service Changes”) at any time in our sole discretion. Any Modifications or Service Changes will become effective upon posting to the Site or Services, along with the date on which it was most recently updated as indicated by the “Last Updated” notice above or on the Services. It is your responsibility to review the Terms regularly for updates. Any use of the Site or Services after posting of the modifications constitutes your acceptance of the Modifications and Service Changes.
3. Your Use of the Site and Services
The Site and Services include materials, text, images, audio, and video (the “Content”) that you may view and access for your own personal and non-commercial use. We own the Site, Services and Content (except for User Content, as defined below). Except and solely to the extent set forth in these Terms, you may not: (a) reproduce, distribute, publicly display, or publicly perform any Content; (b) make modifications to the Site, Services or any Content; (c) use the Site, Services or any Content for any illegal purpose or in violation of any local, state, national, or international law; (d) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right; (e) interfere with security-related features of the Site or Services, including by disabling or circumventing features that prevent or limit use or copying of any content; (f) engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods; or (f) interfere with the operation of the Site or Services or any user’s enjoyment of the Site or Services, including by interfering with or disrupting any network, equipment, or server connected to or used to provide the Site or Services.
4. Availability and Depiction of Products, Services, and Promotional Offers
The display of a menu item on the Site or Services does not mean that the menu item is available as all items are subject to availability and available while supplies last. Prices are subject to change and may vary from location to location. In addition, promotional and other offers are subject to availability and may be limited to participating locations.
While we endeavor to display and describe the menu items available through the Site and Services accurately and completely, the detail and accuracy of the images and specifications of menu items may vary from how they actually appear or are provided at a particular location. Therefore, we cannot guarantee that the menu items, images, services, or descriptions displayed or described are or will remain accurate or complete in every detail. Furthermore, we may update the menu items, images, available features, services, or specifications from time to time.
5. Independent business ownership and operation of most locations
Most Tropical Smoothie Cafe locations are owned and operated by independent franchisees. Each such independently owned and operated location is solely and independently responsible for its legal and regulatory compliance, for any issues relating to the supply of products and services to you, and for any employment-related matters at the location.
6. License to the App
We provide the App to access certain of the Services. Provided you are in compliance with the Terms, we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the App on wireless electronic devices owned or controlled by you, and to access and use the App on such devices strictly in accordance with the terms and conditions of this mobile application license and the Terms. You shall not: (1) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the App; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the App; (3) violate any applicable laws, rules, or regulations in connection with your access or use of the App; (4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the App; (5) use the App for any revenue-generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the App available over a network or other environment permitting access or use by multiple devices or users at the same time; (7) use the App for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the App; (8) use the App to send automated queries to any website or to send any unsolicited commercial e-mail; or (9) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the App. If you violate these Terms, including but not limited to the provisions of this Section 6, your license to use the App automatically terminates.
The App may automatically download and install updates from time to time or require the downloading and installation of updates or new versions for continued use. You acknowledge that in some instances, updates and/or new versions may reduce or remove features and functionality in prior versions of the App. You also may be asked if you want to accept push notifications through the App about our products, services, and promotional offers.
If you download the App from the Apple App Store or Google Play (collectively, the “App Stores”), or if you access the App using an Apple iOS or Android powered device, Apple Inc. (“Apple”) or Google, Inc. (“Google”), and their subsidiaries, respectively, shall be a third-party beneficiary to this contract and you agree that these third-party beneficiaries have the right to enforce these Terms against you. However, these third-party beneficiaries are not a party to these Terms and are not responsible for the provision or support of the App. Apple and Google are not responsible for addressing any claims by you or any third party relating to your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. You further acknowledge that, in no event, shall Apple or Google be responsible for the investigation, defense, settlement and discharge of any third-party claim that the App infringes that third party’s intellectual property rights. Finally, you agree that your access to the App also shall be subject to the usage terms of the applicable App Store when you download the App.
7. Online Ordering and Delivery
When you place an order, you must register a credit card or other payment method with Olo and pay for the order before it can be picked up or delivered. Any applicable taxes and fees, delivery and service fees, or other related surcharges due in connection with your order will be identified when you place your order. There may be limits on the dollar values and number of orders that may be placed through Services, and discounts, coupons, and other offers may not be able to be combined with orders placed through the Services. Please note that you may need to enable location services on your device for the ordering function to work properly.
Once the order is placed with the participating location you selected, the operator of that location is responsible for preparing and fulfilling your order and for any questions or other communications regarding your order. TSC does not prepare the items you are purchasing from the operator of the participating location and that operator remains responsible for all items that you purchase.
Delivery may be available through the online ordering system for qualifying orders placed at participating locations. Delivery may also be available through select third-party delivery services. When ordering through a third-party delivery service, you understand and agree that you are placing the order with that Third-Party Service provider and not TSC or the operator of a particular location. Neither TSC nor the operators of locations have any responsibility or liability for the acts or omissions of the Third-Party Services delivery provider. All orders placed through a third-party delivery service are subject to any terms and conditions provided by that service provider at the time of the order.
If you sign up to receive text or SMS messages from us regarding our products and services, and promotional and other offers, you agree to our Messaging Terms and Conditions
9. Trademarks and Proprietary Rights
Tropical Smoothie Cafe®, Tropical Smoothie®, and other trademarks and associated logos on the Site, App and Services (collectively, the “Tropical Smoothie Cafe Trademarks”) used and displayed on the Site, App and Services are registered and unregistered trademarks or service marks of TSC. Other company, product, and service names located on the Site and/or App may be trademarks or service marks owned by third-parties (the “Third-Party Trademarks,” and, collectively with the Tropical Smoothie Cafe Trademarks, the “Trademarks”). Nothing on the Site, App or in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site, App or Services without the prior written consent of TSC specific for each such use. The Trademarks may not be used to disparage TSC or the applicable third-party, Tropical Smoothie Cafe’s products or services or third-party’s products or services, or in any manner that may damage any goodwill in the Tropical Smoothie Cafe Trademarks. Use of any Trademarks as part of a link to or from any website is prohibited without TSC’s prior written consent. All goodwill generated from the use of any Tropical Smoothie Cafe Trademark shall inure to TSC’s benefit.
10. User Content
Our Site and Services may allow users to upload or post certain content, text, images, photos or information (“User Content”). Users retain ownership of their User Content. However, users grant us a non-exclusive, worldwide, royalty-free and fully transferable license to use, reproduce, display, perform, distribute, and create derivative works of such User Content on the Site and/or App and in connection with the Services. Users shall not provide access to or post any User Content that infringes any intellectual property, privacy, or publicity right, is obscene, defamatory, false or misleading, or which violates any applicable laws. We reserve the right to remove or not provide access to any User Content on our Services in our sole discretion.
11. Disclaimer of Warranties and Limitation of Liability
THE SITE, SERVICES AND CONTENT ARE PROVIDED TO YOU “AS IS,” “WITH ALL FAULTS” AND ON AN “AS AVAILABLE” BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SITE, SERVICES OR CONTENT ARE CURRENT AND/OR UP-TO-DATE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TSC (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNEES) AND ITS LICENSORS.
THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE SERVICES, OR YOUR USE OF THE SITE OR SERVICES WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE SERVICES, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE SITE OR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SITE. OR SERVICES AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SAME, AND YOUR RELIANCE THEREON.
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER TSC NOR ANY OF ITS AFFILIATED ENTITIES, LICENSORS, FRANCHISEES, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS (“RELATED PARTIES”), NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SITE, SERVICES, AND/OR ANY THIRD-PARTY SERVICES, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. TSC’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). NEITHER TSC NOR ANY OF ITS RELATED PARTIES, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES WILL HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES, EXPENSES, OR OTHER LIABILITY INCURRED BY YOU AS A RESULT OF ANY INACCURACY, INCOMPLETENESS, OR MISREPRESENTATION OF ANY INFORMATION, CONTENT, POSTINGS, OR SUBMISSIONS PROVIDED OR POSTED ON THE SITES, SERVICES, OR THIRD-PARTY SERVICES.
You agree to defend, indemnify, and hold harmless TSC and its Related Parties and their respective officers, directors, employees, agents, and licensees (the “Indemnified Parties”) from any and all liability, claims, losses, property damages, injuries, costs, expenses, or attorney’s fees incurred by the Indemnified Parties arising out of or related to your violation of these Terms, User Content or your use of the Services. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. No settlement that affects the rights or obligations of the Indemnified Parties may be made without TSC’s prior written approval.
14. Links to Third-Party Services
As noted above, our Site or Services may link to or provide access to Third-Party Services, such as Olo for online ordering. We do not control the content or links that appear on these Third-Party Services and are not responsible for the practices employed by the Third-Party Services.
15. Intellectual Property Claims
We respect the intellectual property rights of others and require that users of our Site and Services do the same. In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will review and respond (as appropriate) to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). Our Designated Agent is: Attention: Legal Department (Intellectual Property Claims), Tropical Smoothie Café, LLC, 1117 Perimeter Center West, Suite W200, Atlanta, GA 30338.
To be sure the matter is handled immediately, your written notice must:
• Contain your physical or electronic signature;
• Identify the copyrighted work or other intellectual property alleged to have been infringed;
• Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
• Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);
• Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
• Contain a statement that the information in the written notice is accurate; and
• Contain a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, you may provide our Designated Agent with a written counter-notification that includes the following information:
• Your physical or electronic signature;
• Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
• A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
• Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
We reserve the right, in our sole discretion, to terminate the account or access of any user of the Site and Services who is the subject of repeated DMCA or other infringement notifications.
16. Choice of Law, Dispute Resolution and Class Action Waiver
You and we agree that these Terms and your use of the Services will be governed by the laws of the State of Georgia, United States, without regard to its choice of law principle. The exclusive jurisdiction for any action or dispute arising under or relating to the Terms or Services shall be a federal or state court located in Fulton County, Georgia. You consent to the personal jurisdiction of such courts and waive any objections based on an inconvenient forum.
YOU AND WE EACH AGREE THAT YOU MAY ONLY BRING CLAIMS IN YOUR INDIVIDUAL CAPACITY ON YOUR OWN BEHALF, AND NOT IN ANY REPRESENTATIVE CAPACITY OR ON BEHALF OF ANY CLASS OR PURPORTED CLASS, AND NO PROCEEDINGS COMMENCED HEREUNDER MAY BE JOINED WITH OR INCLUDE ANY OTHER PARTIES, OR CLAIMS BY OTHER PARTIES (WHETHER REPRESENTATIVE, MASS, PRIVATE, ATTORNEY GENERAL, OR CONSOLIDATED ACTION).
18. Contacting the Company