Legal Notice: Terms and Conditions of Use
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE DOWNLOADING, ACCESSING, OR USING ANY OF OUR ONLINE SERVICES. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE BE SURE TO READ THESE WITH YOUR PARENTS OR GUARDIAN.
These Terms and Conditions of Use (“Terms and Conditions of Use") apply to your access to, and use of, any MTY Franchising USA, Inc., or its Affiliates, dba Baja Fresh® ("Baja Fresh®") website, mobile application, and online service or program where these Terms and Conditions of Use are posted or linked ("Online Services"). These Terms and Conditions of Use are a legal and binding agreement between you and Baja Fresh®, and, as applicable, its subsidiaries, affiliates, and related entities including, without limitation, Kahala Management, L.L.C. (collectively, "Affiliates") (Baja Fresh® and its Affiliates are referred to herein, as the context may require, as "we", "us", or "our"). These Terms and Conditions of Use govern your use of the Online Services, which includes the programs, offers, content, information, services, and features made available through the Online Services. If you do not agree to these Terms and Conditions of Use, then you should not use the Online Services.
Your use of the Online Services is at your risk. If you are dissatisfied with the Online Services in any way, its programs, offers, contents, features, or these Terms and Conditions of Use, your sole and exclusive remedy is to discontinue accessing and using the Online Services.
Modifications to These Terms and Conditions of Use
We reserve the right at any time to update, change, modify, or revise these Terms and Conditions of Use. Any changes will become effective upon posting to the Online Services, along with the date on which it was most recently updated. Your continued access to or use of the Online Services and its programs and offers after any such changes indicates your acceptance of the Terms and Conditions of Use as modified. It is your responsibility to review the Terms and Conditions of Use regularly for updates.
Use of Online Services
Unless otherwise noted, the Online Services and all content, information, and other materials featured, displayed, contained, and available on the Online Services, including, but not limited to, all text, images, graphics, designs, illustrations, photographs, pictures, audio, software, and video clips, the “look and feel”, pages, screens, content arrangement, and computer programs (collectively, "Materials") are owned in the United States by or licensed to Baja Fresh® and its Affiliates and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property rights and unfair competition laws under the United States. All other names and brands are the proprietary of others and may not be used without their respective owner's permission. Subject to your compliance with these Terms and Conditions of Use, we grant you a personal, non-exclusive, non-transferable, limited right to access, use, display, and download the Online Services for non-commercial purposes only. You may view, display, copy, download, and print the Materials solely for your own personal, non-commercial use. All copyright, trademark, and other proprietary notices contained on the Materials must be retained on all copies thereof. You may not, in any way, otherwise copy, reproduce, distribute, transmit, display, perform, reproduce, publish, license, modify, create derivative works from, sell, or exploit, in whole or in part, the Online Services or its Materials. Except as expressly provided herein, we do not grant any express or implied right to you under any patents, trademarks, copyrights, or trade secret information.
You agree to abide by all additional terms, conditions, and restrictions included within the Online Services, the Materials, and/or the programs, features, and services.
We may at any time, for any reason, and without notice or liability: (1) modify, suspend, or terminate operation of or access to any Baja Fresh® Online Service, or any portion thereof; (2) change, revise, or modify the Online Services, the Materials, or any portion thereof; (3) interrupt the operation of the Online Services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction, or for any other purposes; (4) impose limits on certain programs, feature s, and services, or restrict your access to the Online Services, in whole or in part ; and/or (5) terminate the authorization, rights, and license given above, upon which you shall immediately destroy all Materials.
You agree to use the Online Services, the Materials, and the programs, features and services in accordance with these Terms and Conditions of Use and all applicable laws and regulations. You agree not to:
- modify, adapt, translate, or reverse engineer any portion of the Online Services or the Materials;
- use the Online Services or any Materials, features, or services for any unlawful, fraudulent, or malicious purposes, or to solicit any such activity;
- attempt to gain unauthorized access to any accounts, features, systems, or networks through hacking, password mining, or any other means;
- use the Online Services or any feature in any way that could disrupt, damage, disable, overburden, or impair it or its systems, servers, or networks;
- frame or mirror any portion or feature of the Online Services;
- use the Online Services or any feature for advertisements, chain letters, spamming, junk mail, solicitations, or any other commercial purposes;
- use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm, or methodology, or any similar or equivalent manual process, to: (1) access, acquire, copy, or monitor any portion of the Online Services or the Materials; (2) reproduce or circumvent the navigational structure or presentation of the Online Services or the Materials; (3) obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Online Services;
- use any device, software, or routine to interfere or attempt to interfere with the proper working of the Online Services or with any other person’s use or enjoyment of the Online Services;
- transmit any viruses, worms, defects, Trojan horses, time bombs, cancel-bots, corrupted files, or other items of a destructive nature;
- circumvent or attempt to circumvent any security or authentication measures implemented by or on behalf of Baja Fresh®;
- forge headers or otherwise manipulate identifiers;
- post, transmit, submit, or include any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable content, material, or information of any kind, or any content, material, or information that may give rise to criminal or civil liability;
- submit or post any false or misleading information;
- violate, infringe, or misappropriate the intellectual property, publicity, privacy, or other proprietary rights of Baja Fresh®, its Affiliates, or any other person or entity.
We reserve the right to prohibit access, use, conduct, communications, or content that we, in our sole discretion, deem to be harmful to the Online Services, the Materials, users, us, our brand, or any other person or entity, or that violates these Terms and Conditions of Use and/or applicable law.
We may, but shall not be obligated to, in our sole discretion, post any Submission on the Online Services and identify you as the submitting party. We may, without notice to you, refuse or edit Submissions for any reason or no reason, including those Submissions that violate these Terms and Conditions of Use, are irrelevant or inappropriate, or represent us in a negative way or in any manner not consistent with our brand and/or reputation, as determined by us in our sole discretion.
You agree that any statements that you make about us or any of our products, services, or programs in any Submission that you make accurately reflect your personal beliefs and experiences with us and our products and services, and that any opinions submitted are true to the best of your knowledge.
You are fully responsible for your Submissions. You agree that your Submissions comply in all respects with these Terms and Conditions of Use and shall not be made on behalf of any person or entity without their prior written consent. You may not include any content (e.g., text, photos, images, quotes, logos, etc.) that is the property of another (e.g., protected by copyright, trademark, or other intellectual property rights), unless you have express, written permission to do so.
Programs and Promotions
Copyright Infringement Notification
The Digital Millennium Copyright Act of 1998 ("DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. Copyright Law. If you believe in good faith that Materials available on the Online Services infringe your copyright, you (or your agent) should send us a notice requesting that we remove the Material or block access to it. If you believe in good faith that someone has wrongly submitted a notice to us under this paragraph, then you should send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details.
If you believe that your work has been improperly copied and posted on the Online Services, then please provide us with the following information: (1) name, address, telephone number, email address, and an electronic or physical signature of the copyright owner or of the person authorized to act on his or her behalf; (2) a description of the copyrighted work that you claim has been infringed; (3) the applicable Baja Fresh® Online Service and a description of where the Material that you claim is infringing is located within such Baja Fresh® Online Service; (4) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. These requirements must be followed to give us legally sufficient notice of infringement.
Notices and counter-notices should be sent to:
MTY Franchising USA, Inc.
ATTN: Marketing Manager
9311 E. Via de Ventura
Scottsdale, Arizona 85258 USA
We suggest that you consult your legal advisor before filing a notice or counter-notice. Please be aware that there may be penalties for false claims under the DMCA.
Login and Registration
Certain programs, offers, features, or services offered on or through the Online Services may require you to complete a registration process and/or setup an account or login. In connection therewith, you agree to (1) provide true, accurate, current, and complete information about yourself, and (2) maintain and promptly update your information to keep it true, accurate, current, and complete. You are entirely responsible for maintaining the confidentiality of the information you hold for your login, including your password. You agree to notify us immediately of any unauthorized use of your login, or any other breach of security. You may be held liable for losses incurred by us or any other Baja Fresh® Online Service user or visitor due to someone else using your login as a result of your failing to keep your login information secure and confidential.
You may not use anyone else’s login at any time without their express written permission. We shall not be liable for any loss or damage arising from your failure to comply with these obligations.
In order to use Online Services made available through a mobile application ("Mobile App") you must have a compatible mobile device. We do not warrant that the Mobile App will be compatible with your mobile device.
If you access the Mobile App using an Apple iOS or Android powered device, Apple Inc. or Google, Inc., 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 and Conditions of Use against you. However, these third-party beneficiaries are not a party to these Terms and Conditions of Use and are not responsible for the provision or support of the Mobile App. You agree that your access to the Mobile App also shall be subject to the usage terms set forth in the applicable third-party beneficiary’s terms of service.
The Mobile 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 Mobile App.
Links To Third Party Sites and Social Media Pages
The Online Services may contain links to other third-party websites, including the franchised operators of Baja Fresh® businesses ("Operators"), and social media platforms, such as Facebook, Twitter, or Foursquare (all links to third-party websites and social medial platforms are collectively referred to herein as "Linked Sites"). Linked Sites are provided only for your convenience and do not constitute or imply an endorsement, sponsorship, recommendation of or affiliation with the third party or its products and services. If you decide to visit any Linked Site, you do so at your own risk. We have no responsibility or liability for any Linked Sites, or the content, policies, or actions thereof. If you choose to purchase any product or service from a Linked Site (including, without limitation, from an Operator Linked Site), your relationship is with that third party. You agree that we are not responsible for the quality of third-party products or services, or fulfilling any of the terms of your agreement with the seller, including, but not limited to, the delivery of products and services and warranty obligations related to products and services. Links do not imply that we sponsor, endorse, are affiliated with or associated with, or are legally authorized to use any trademark, trade name, service mark, design, logo, symbol, or other copyrighted materials displayed on or accessible through such Linked Site.
Trademark Information and Ownership of Intellectual Property
Baja Fresh® is a registered trademark of ours in the United States. The absence of a trademark notice or legend indicating our registration or ownership anywhere in the text of the Online Services does not constitute a waiver of our trademark or other intellectual property rights concerning that trademark or service mark used or referenced on the Online Services.
The Online Services, the Materials, and the trademarks, logos, service marks, and all other source identifying indicia displayed on the Online Services (collectively, the "Baja Fresh® Intellectual Property") are owned by or licensed to Baja Fresh®, or others with all rights reserved unless otherwise noted. We do not permit third parties to use Baja Fresh® Intellectual Property in any manner, including advertising, as an endorsement for any product or service, in association with contests or promotions, or for any other purpose, commercial or otherwise, without our prior express written permission.
Nothing contained on the Online Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use Baja Fresh® Intellectual Property without our prior express written permission. You are strictly prohibited from using any Baja Fresh® Intellectual Property except as expressly provided in these Terms and Conditions of Use. You are also advised that we and/or our licensee(s) will aggressively enforce its intellectual property rights to the fullest extent of the law, including seeking criminal prosecution.
When you visit the Online Services or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Online Services. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms and Conditions of Use.
Franchise Legal Notices
The information contained in this website is not intended as an offer to sell, or the solicitation of an offer to buy, a franchise. It is for information purposes only. As explained below, any offer to sell a franchise by us will be made only after individuals have completed an application and qualified to receive a Franchise Disclosure Document. Other qualifications will apply in determining whether you will be offered an Baja Fresh® franchise.
Through this website, you can submit to us a form for an Baja Fresh® franchise opportunity. If you submit such form, we will not be obligated to offer you a franchise opportunity. Rather, we will review and evaluate the information you submit to determine if you meet our preliminary criteria for candidate consideration. If we decide that you meet our preliminary criteria, you may be given the opportunity to fill out a more formal application.
Some States regulate the offer and sale of franchises: California, Hawaii, Illinois, Indiana, Maryland, Michigan, Minnesota, New York, North Dakota, Rhode Island, South Dakota, Virginia, Washington and Wisconsin. If you are a resident of one of these states, are receiving this message in one of these states, or intend to operate a franchise in any of these states, we will not offer you a franchise unless and until we have complied with any applicable pre-sale registration and/or disclosure requirements in the applicable jurisdiction.
California Transparency in Supply Chains Act of 2010 Disclosure
Baja Fresh® is committed to legal compliance and ethical conduct for itself and expects the same of its vendors. Thus, Baja Fresh®’s policy is to only do business with vendors who have shown to Baja Fresh® that their business practices are lawful and ethical, and Baja Fresh® expects its vendors to take steps to ensure the same of their own supply chains. Specifically, Baja Fresh® will not conduct business with vendors employing persons under the age of 14, or in/under prison, indentured or bonded labor, or slave labor; benefitting from human trafficking; using corporal punishment or other forms of mental and physical coercion as a form of discipline; or providing or supplying goods or services tainted by any of the foregoing practices.
In accordance with the California Transparency in Supply Chains Act of 2010, Baja Fresh® makes the following disclosures:
Baja Fresh® requires its vendors to certify that their business practices are lawful and ethical (including those provisions relating to human trafficking and slavery) and in compliance with Baja Fresh®’s principles, and that they take steps to ensure the same of their own supply chains. To ensure accountability, Baja Fresh® reserves the right to terminate its business relationship with any vendor who fails to provide such certifications or whose business practices, or the business practices of its own suppliers and subcontractors, are not lawful or ethical or in compliance with Baja Fresh®’s principles. Baja Fresh® also reserves the right to terminate its business relationship with vendors who fail to provide written confirmation to Baja Fresh® that they have a program in place to monitor their suppliers and subcontractors for compliance with law, good ethics, and Baja Fresh®’s principles. Baja Fresh® reserves the right to conduct verification and audits (including third-party verification and audits) of its suppliers regarding human trafficking and slavery. Baja Fresh® has conducted general audits of certain of its suppliers, and has not observed violations with respect to human trafficking or slavery issues. Baja Fresh® provides company employees and management who have direct responsibility for supply chain management with training on Baja Fresh®’s business practices, vendor requirements, including those provisions relating to mitigating risks of human trafficking and slavery. Employees and management failing to meet Baja Fresh® standards regarding slavery and trafficking are subject to disciplinary action.
We make no representations or warranties regarding the Online Services and the Materials.
WE DO NO WARRANT THAT OUR ONLINE SERVICES OR THE MATERIALS WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED.
WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE USE OF OUR ONLINE SERVICES OR THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH OUR ONLINE SERVICES, OR THE RESULTS OBTAINED THEREFROM, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, TIMELINESS, RELIABILITY, OR OTHERWISE.
OUR ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH OUR ONLINE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. WE DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD PARTY SERVICE PROVIDERS, PARTNERS, SPONSORS, LICENSORS, LICENSEES, OR THE LIKE (“PROVIDERS”) IN CONNECTION WITH OR RELATED TO YOUR USE OF OUR ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH OUR ONLINE SERVICES.
Limitations of Liability
IN NO EVENT SHALL WE, WHICH FOR AVOIDANCE OF DOUBT INCLUDES ANY OF OUR AFFILIATES, OR ANY OF OUR PROVIDERS BE LIABLE TO ANY PERSON FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES (LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, PROGRAMS, OR DATA) RESULTING FROM YOUR USE OF OR INABILITY TO USE OR THE RESULT OF YOUR USE OF OUR ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH OUR ONLINE SERVICES, INCLUDING, WITHOUT LIMITATION, LINKED SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE CONTENT, INFORMATION OR SERVICES FROM OUR ONLINE SERVICES RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. BECAUSE SOME STATES DO NOT PERMIT THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, IN SUCH JURISDICTIONS, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
You agree to indemnify, defend, and hold harmless Baja Fresh®, its Affiliates, its Providers, and its and their officers, directors, employees, and agents from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and expenses that arise directly or indirectly out of or from: (1) your breach of these Terms and Conditions of Use; and/or (2) your activities in connection with the Online Services, and the Materials, programs, offers, features, and services made available through the Online Services.
International Users and Choice of Law
No Agency Relationship
Neither these Terms and Conditions of Use, nor any Materials, programs, offers, features, or services of the Online Services, create any partnership, joint venture, employment, or other agency relationship between Baja Fresh®, its Affiliates, and you. You may not enter into any contract on our behalf or bind us in any way.
You agree that Baja Fresh® may, in its sole discretion and without prior notice, block and/or terminate your access to any or all of the Online Services if we determine that you have violated these Terms and Conditions of Use or other agreements or guidelines that may be associated therewith. You also agree that any violation, or threatened violation, by you of these Terms and Conditions of Use constitutes an unlawful and unfair business practice, and will cause irreparable and unquantifiable harm to us, at minimum. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.
If we take legal action against you as a result of your violation of these Terms and Conditions of Use, we will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to us. You agree that Baja Fresh® and its Affiliates will not be liable to you or to any third party for termination of your access to the Online Services as a result of any violation of these Terms and Conditions of Use.
Entire Agreement, Claims Limitations, and Severability
If you have any questions about Online Services or these Terms and Conditions of Use, or to report violations of these Terms and Conditions of Use, please contact us at:
MTY Franchising USA, Inc.
9311 E. Via de Ventura
Scottsdale, AZ 85258 USA
480-362-4800, (866) 4-KAHALA
© 2018 MTY Franchising USA, Inc. All rights reserved.