Terms of Use

Terms and conditions governing your use of OPEN™ mPOS and related service(s) (collectively, the “Service”):

1. Use

• You are responsible for the content and accuracy of all mPOS and other information submitted by you to Open, LLC (“Open”) or entered into the Service (the “Submitted Materials”). Open shall not be responsible for verifying facts contained in Submitted Materials.
• Open reserves the right (i) to reject or edit Submitted Materials, provided that substantive edits to the Submitted Materials will not be done without your consent; and (ii) to remove any mPOS from its website, pull any mPOS from distribution to handheld devices (e.g., iPhone®, iPad®, etc.) or (iii) deny approval to any mPOS. Open can only remove Submitted Materials from its network, and Open makes no representation or warranty regarding the removal of Submitted Materials from sites outside of the Open network.
• Open endeavors to disseminate Submitted Materials to customers’ devices promptly and accurately. Any inadvertent errors by Open will be corrected promptly upon discovery, without additional charge, and such obligation to correct shall constitute the sole obligation and liability of Open in this regard.
• All Submitted Materials transmitted by Open will contain a user-supplied contact name, physical address of the food venue, phone number and e-mail address that may be verified by Open.
• Open does not warrant specific placement of any mPOS, but will deliver mPOS’s via its distribution methods to make such content available to third parties.
• Where Submitted Materials include images, you grant to Open an exclusive revocable license to use, copy, distribute, transmit, display and publish such images in connection with your mPOS. You also expressly agree not to display, transmit or use these images in any way in connection with any services competing with Open.
• You agree to use the Service for its intended purpose and not for any illicit purposes including, but not limited to, the reverse engineering of the site and/or its processes and the inclusion of such processes or services in a derivative service. You shall not query, spider or access any Open systems without the express written consent of Open.
• Client agrees that they are solely responsible for connectivity within their premises. Unless installation was performed by Open.

2. Suspension, Termination

• Open may suspend or terminate your account at any time at its sole discretion should you violate Section 1.F. of the present Terms of Service or revoke Open’s license, Open shall terminate your account and suspend access to the Service within 30 days from the date of the violation/revocation. Notwithstanding the foregoing, if you breach any material term or condition herein, then, in addition to any of its other rights or remedies, Open reserves the right to suspend your access to the service.

3. Billing

• You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You must provide Open with valid credit card information to use the Service. Open reserves the right to modify its fees and charges and to introduce new charges at any time.
• All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Open’s income. If you believe your bill is incorrect, you must contact us in writing within 30 days at the following address: Open, LLC – 3363 NE 163rd Street, Suite 606, North Miami Beach, Florida 33160. Failure to do so will confirm the bill received by you is correct.
• You agree to provide Open with complete and accurate billing and contact information. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Open reserves the right to terminate your access to the Service in addition to pursuing any other legal remedies.
• Unless otherwise agreed to by Open, amounts will be billed in U.S. dollars.

4. Warranties; Limitation of Liability

• You represent and warrant to Open that (i) you have the right to deliver the Submitted Materials to Open, (ii) you will comply with all applicable laws, rules and regulations, (iii) Submitted Materials will not contain any content that is obscene, libelous, slanderous or otherwise defamatory, false or misleading or which violates any copyright, trademark, right of privacy or publicity or other right of any person; (iv) Submitted Materials will not contain any viruses, scripts, macros, or programs or links to macros, scripts, programs, or any code that alters, destroys, infiltrates or inhibits the operation of computer systems including, but not limited to the Service or data stored within such computer systems including, but not limited to the Service; and (v) Open shall not be liable for any damages or causes of actions stemming from any network downtime or any other connectivity issues.
• OPEN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE REGARDING THE SERVICE. OPEN DOES NOT WARRANT OR REPRESENT THAT THE SERVICE WILL BE FREE FROM ERRORS, INCLUDING OMISSIONS, INTERRUPTIONS, DELAYS, LOSSES OR DEFECTS, WHETHER HUMAN OR MECHANICAL.
• You understand and agree that Open’s entire liability for damages for any claims arising under or in connection with your use of the Service, regardless of the cause of action, whether in contract or in tort, including without limitation, breach of warranty and negligence claims, shall be limited to your actual direct damages, not to exceed the amounts actually paid by you for your use of the Service during the three (3) months immediately preceding the month in which the cause of action arose. IN NO EVENT SHALL OPEN HAVE ANY LIABILITY TO YOU FOR ANY CLAIMS OR DEMANDS OF THIRD PARTIES OR ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5. Indemnification

• You shall indemnify (“Indemnitor”) and hold harmless Open (“Indemnitee”), its affiliated companies and its third party vendors, including distributors, from and against any and all claims, losses, damages, liabilities, costs and expenses (including reasonable attorney’s fees) arising out of or relating to any breach by you of any representations and/or warranties contained herein or otherwise arising out of or relating to the Submitted Materials.

6. Miscellaneous

• Open facilities are governed by Federal and State regulations.
• OPEN™ is a trademark of Open, LLC, and no right or license is granted to use them. Certain content available through and used to operate the Service is protected by copyright, trademark, patent, or other proprietary rights of Open and its affiliates, licensors, and/or service providers. You shall not (i) use any of the trademarks, service marks, logos or other content accessible through the Service other than as set forth herein or as approved by Open; or (ii) modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available by Open in connection with the Service. All rights not expressly granted to you herein are reserved by Open, Inc.
• You shall not hold yourself out as in any way as sponsored by, affiliated with, or endorsed by Open or its subsidiaries or affiliates. You agree not to (i) defame or disparage Open, its trademarks or service marks, or the Service; or (ii) adapt, translate, modify, decompile, disassemble, or reverse engineer the Service or any software or programs used in connection with the Service.
• You consent to receive communications from Open concerning the Service electronically by email to the email address you provided in connection with your account. You also consent to
  receive communications by telephone or by postal mail sent to the postal address you provided in connection with your account. You may change the email or postal address to which Open sends communications by notifying Open in writing (which may be by email).
• By registering for the Service or submitting Submitted Materials, you agree to be bound by these terms and conditions. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions. Should you violate these terms and conditions or any other rights of Open, Open reserves the right to pursue any and all legal and equitable remedies against you, including, without limitation, terminating any and all user accounts.
• You are responsible for all activity occurring under your account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service. Your obligations shall be binding on your heirs, successors, agents, employees, contractors and assigns.
• Open reserves the right to modify these terms and conditions or its policies relating to the Service at any time, effective upon posting of an updated version on the Service. You are responsible for regularly reviewing these terms and conditions. Continued use of the Service after any such changes shall constitute your consent to such changes.
• You acknowledge and agree that you and Open are independent contractors, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party has authority to enter into agreements of any kind on behalf of the other, and neither party shall be considered the agent of the other.
• This Agreement shall be governed by and construed under the laws of the State of Florida exclusive of its conflict of laws provisions. Any suit hereunder will be brought in the federal or state courts located in the State of Florida, and you submit to the personal jurisdiction thereof.

7. Open Diner Terms of Service

Effective: May 11, 2020

• The following Terms of Service (“Terms”) are a legal agreement between you and Open LLC. (“Open” “we,” “us” or “our”) and govern your access to and use of our services, which include any websites, applications, digital ordering features, or any other ways Open allows you to engage with us directly or through a Restaurant that uses Open (collectively, the “Services”). Our Services include, but are not limited to, our website located at https://www.opencodepos.com (our “Website”); and related websites and services (“Open Kiosk/Menu”); any digital ordering feature that Open offers to Restaurants (“Online Ordering”); and Payment Transactions facilitated on the Open point of sale (“Point of Sale”).
• By accessing and/or using any of the Services, you agree to these Terms and any other policies or terms referenced within or posted throughout the Services, including but not limited to promotion terms, guidelines, as well as any rules or terms applicable to particular features or promotions, which are hereby expressly incorporated into these Terms by reference. You also acknowledge that you have read and understand the Privacy Statement.
• If you are an individual, you must be at least 18 years of age, a U.S. resident, and legally capable of entering into contracts. If you are an entity, organization, or company, or acting on behalf of one, you represent and warrant that you are an authorized representative of such entity, and that you have the authority to and agree to bind it to these Terms. You represent that you will not use the Services, directly or indirectly, for any fraudulent undertakings. When you pay for a Purchase made through Point of Sale, the Open app, or Online Ordering, you authorize participating restaurant to charge your credit or debit card or other permitted payment method (“Payment Method”) on behalf of the participating restaurant (“Restaurant”) from which you are making a purchase.
• Open reserves the right to modify any portion of these Terms at any time in its sole discretion. The revised version of these Terms will be effective when we post it, unless otherwise noted. If our changes reduce your rights or increase your responsibilities, we will provide you with reasonable notice by email or through the Open app, in accordance with any notification preferences you have provided. By continuing to use Open Services, you agree to abide and be bound by those changes. If you do not agree to any changes to these Terms, you must cease your use of the Services.

7.1. Services

• Open provides technology services to Restaurants to enable dining customers (“Diners”) to place orders for food, beverages, and related products and services provided by the Restaurants (“Purchases”) and provides technology for payment acceptance by Restaurant payment processor to the Restaurants by the Diners for those purchases with an eligible Payment Method (“Payment Transactions”).

7.1.1 Opening and Accessing a Open Digital Ordering Account

• When you use Open’s Online Ordering services on a Restaurant website, you can choose whether to order as a guest, or to register and create a Open Digital Ordering Account (hereinafter “Open account” or “account”). You may make Purchases as a guest, but you will not be able to save any personal information or preferences for future Purchases
• Open may, in its sole discretion, terminate or refuse to approve registrations for Open Digital Ordering Accounts with or without cause or notice, other than any notice required by Applicable Law. At this time, Open Services are offered only to users residing in the United States.

7.1.2 Confidentiality.

• Only you have the right to access and use your account. You are responsible for ensuring that your login information and Payment Method information remain confidential at all times. Open will assume that if your login or Payment Method are used to access the Services, the user has the legal authority to use such login or Payment Method. If you become aware of unauthorized use of your login or Payment Method, you agree to notify Open immediately by email at support@opencodepos.com. You remain liable for any activity on your account until such time as Open has been notified and has had an opportunity to take appropriate action.

7.1.3 Open is not a Party to Payment Transactions

• Purchases and Payment Transactions you make through our Services are transactions between you and the Restaurant only, not with Open or any of our affiliates. Open is not the seller of any product or service offered by Restaurants and is not a party to any Payment Transaction facilitated through the Services.

7.1.4 Online Ordering.

• Online Ordering allows you to make Purchases from a participating Restaurant’s website.