END USER LICENSE AND PRIVACY AGREEMENT
This End User License and Privacy Agreement (hereinafter, the “Agreement”) sets forth the legally binding terms between Bueno and you, an End User of the Bueno mobile payment system that enables users of Bueno to open, review, pay, and close out their restaurant or bar tab with their compatible mobile device, as well as any other services, technology, content, data, software, and other features made available to you by Bueno pursuant to this Agreement (hereinafter, the “Bueno Platform”). Throughout this Agreement, the terms “Bueno,” “we,” “us,” and “our” shall refer to Bueno LLC, a limited liability company organized under the laws of the State of Minnesota, and our affiliates, successors, and assigns, and the terms “End User,” “you,” “your” and “yours” shall refer to any end user of the Bueno Platform. Bueno and End User shall be collectively referred to as the “Parties.”
BY ACCESSING OR USING THE BUENO PLATFORM IN ANY WAY, YOU, THE END USER, AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE BUENO APPLICATION AND PLATFROM AND SHOULD EXIT IMMEDIATELY. YOUR AGREEMENT WITH US REGARDING COMPLIANCE WITH THE TERMS OF THIS AGREEMENT BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THE BUENO APPLICATION AND PLATFORM. PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF USE BEFORE PROCEEDING.
- Requirements. In order to access or use the Bueno Platform, the End User must: (i) be at least 18 years of age; (ii) not be located in a country that is subject to an embargo by the United States of America, or that has been designated as a “terrorist supporting” country by the United States of America (iii) not be listed on any list of prohibited or restricted parties published by the United States of America; (iv) accept, agree to, and comply with all the terms and conditions of this Agreement; and (v) provide all information requested by Bueno, including, but not limited to, End User’s legal name, email address, mailing address, phone number, and such other information as we may request from time to time. End User represents and warrants that such information will be truthful, accurate, current, and complete.
- Limited License. Subject to the terms of this Agreement, Bueno hereby grants End User a limited, non-exclusive, non-transferable, non-assignable, and revocable right and license to download, install, display, perform, access and use the Bueno Application, including all updates, upgrades, and modifications thereto made available by Bueno, via download or otherwise, from time to time, on a single smart phone, tablet, or other mobile device that you own or control for your personal, non-commercial use solely within the United States for its intended purposes in accordance with this Agreement. End User shall follow Bueno’s instructions with respect to the Bueno Application. Bueno may host elements of the Bueno Platform using its own infrastructure or it may engage a third party to host the Bueno Platform on its behalf. End User is responsible for making all arrangements necessary for End User to access and use the Bueno Application, including obtaining and maintaining necessary hardware, software, communications equipment, and network infrastructure, and for paying all third-party fees incurred to access and use the Bueno Application.
- License Restrictions. End User shall not: (i) copy the Bueno Application or Platform or any element thereof; (ii) modify, translate, adapt, or otherwise create derivative works or improvements of the Bueno Application or Platform or any element thereof; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Bueno Application or Platform or any element thereof; (iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notice from the Bueno Application or Platform; (v) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Bueno Application or Platform or any features or functionality of the same, to any third party for any reason, including making the Bueno Application or Platform available on a network where it is capable of being accessed by more than one device at any time; or (vi) use the Bueno Application or Platform to violate any applicable law, including, but not limited to, any law regarding the purchase or sale of alcoholic beverages. If for some reason these restrictions are prohibited by applicable law or by an agreement we have with one of our licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s).
- Reservation of Rights. End User acknowledges that the Bueno Application is licensed, not sold, to you. Bueno reserves all rights in and to the Bueno Application and Platform not expressly granted to you under this Agreement. You do not acquire any ownership interest in the Bueno Application or Platform under this Agreement. Bueno and its licensors and service providers reserve and retain the entire right, title, and interest in and to the Bueno Application and Platform, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. If you submit comments, suggestions, or other feedback regarding the Bueno Application or Platform, Bueno will be free to use such Feedback for any purpose. The word mark “Bueno”, logos, and all associated marks and logos displayed within the Bueno Application and Platform are our trademarks (unless otherwise noted).
- Third-Party Software. End User acknowledges that (i) the Bueno Application and Platform may contain other software or components that are either owned by a third party or in the public domain (“Third-Party Software”), and (ii) Bueno has no proprietary interest in Third-Party Software and, as such, cannot grant End User a license to use Third-Party Software. Bueno will provide a listing of Third-Party Software to End User upon End User’s written request. End User’s rights in Third-Party Software are governed by and subject to the terms and conditions set forth in the applicable license for Third-Party Software. End User acknowledges and agrees to fully comply with such terms and conditions. THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT APPLY TO BUENO AND ITS LICENSORS WITH REPSECT TO ANY THIRD-PARTY SOFTWARE. BUENO IS NOT OBLIGATED TO PROVIDE SUPPORT SERVICES FOR THIRD-PARTY SOFTWARE.
- End User’s Customer Data and Personal Information.
- Personal Information. Bueno maintains strict confidentiality and privacy policies with regard to End User’s personal information, which includes, but is not limited to, personal identifying information such as social security numbers, account numbers for banks or other financial institutions, and payment processing information such as payment card numbers (“Personal Information”). Payment processing information such as payment card numbers are managed, stored, and maintained directly by a third-party vendor (“Third-Party Processor”); Bueno does not manage, store, or maintain this information. Bueno will never share or sell End User’s Personal Information (other than contracting with Third-Party Processor to manage, store, and maintain this information for the Bueno Application and Platform) without End Users written authorization and direction to do so. END USER EXPRESSLY WAIVES ANY AND ALL CLAIMS AGAINST BUENO FOR UNLAWFUL DISTRIBUTION OR DISSEMINATION OF PERSONAL INFORMATION, AND ANY REMEDIES OF END USER IN THIS REGARD WILL BE SOLELY WITH THE THIRD-PARTY PROCESSOR OR OTHER THIRD PARTY RESPONSIBLE FOR MANAGING, STORING, AND MAINTAINING END USER’S PERSONAL INFORMATION.
- Third-Party Establishments. End User acknowledges and agrees that the Bueno Application is a tool that enables End Users to open, review, pay, and close out their restaurant or bar tab, or complete a similar transaction, with a third-party establishment. End User acknowledges that all such transactions are between the End User and the third-party establishment, and that Bueno is not a party to such transactions. Bueno is not responsible for examining or evaluating the quality, or any other aspect of such products or services, of any third-party establishment and will not have any liability or responsibility to you or any other person therefore. By using the Bueno Application, you agree that any third-party establishment that allows you to use the Bueno Application to close out your tab or transaction retains the right to close out your tab or transaction on your behalf through the Bueno Application, and charge your selected payment method accordingly, in the event you fail to properly close out your tab or transaction from your end of the Bueno Application. Any third-party establishment that allows you to use the Bueno Application to close out any transaction retains the right to request that you authorize such payment by other means including, but not limited to, signing a printed receipt or delivering a final check, bill, or tab to you. You acknowledge that, should you dispute any charge that appears on your credit or debit card statement related to your use of the Bueno Application to pay for a transaction in a third-party establishment, any chargeback or related fee for the disputed charge shall be applied solely to the third-party establishment, and Bueno will not be held responsible in any way for such disputed charges.
- Third-Party Payment Vendors. Bueno is a technology provider. It is not a bank, credit union, payment processor, or other financial institution. This Agreement is not a loan, an agreement for a loan, or an extension of credit. Transactions are processed via a third-party establishment’s payment processor and/or point of sale (“POS”) system vendor (“Third-Party Payment Vendors”). By processing a transaction via the Bueno Application, you authorize an establishment’s Third-Party Payment Vendor to charge your credit card or other payment method. Transactions processed via the Bueno Application may also be subject to the terms and conditions of the applicable Third-Party Payment Vendor. Bueno shall not be held liable for any disputes between you and any Third-Party Payment Vendor.
- Sufficient Funds. End User agrees to pay the full amount of any transaction with a third-party establishment processed through the Bueno Application, and to maintain sufficient funds for this purpose. In the event End User fails to pay the full amount of such a transaction and/or has insufficient funds to do so, End User shall immediately provide an alternative method of payment to the third-party establishment to cover the full amount of the transaction, no later than 48 hours after receiving notice of the payment failure and/or insufficient funds. Bueno shall in no way be responsible to any third-party establishment for any such failure on the part of the End User. Any failure on the part of the End User to pay the full amount of a transaction with a third-party establishment, and maintain sufficient funds therefore, shall be grounds for immediate termination of End User’s access and rights to use the Bueno Application under this Agreement, in Bueno’s discretion.
- Minimum Gratuity. If you use the Bueno Application to close out a transaction with a third-party establishment, or if a third-party establishment closes out a transaction on your behalf, the third-party establishment, not Bueno, may add a required minimum tip or gratuity to the transaction. You acknowledge that Bueno does not determine or mandate any such tip or gratuity amount and you hereby agree to pay any minimum tip or gratuity as a condition to entering into the transaction via the Bueno Application.
- Refunds. End User acknowledges and agrees that Bueno does not provide refunds via the Bueno Application. You hereby agree to seek any refunds of transactions directly from the third-party establishments or your credit card company.
- Application Store Providers. End User acknowledges that this Agreement is between End User and Bueno, and not with Apple, Inc. (“Apple”), Google Inc. (“Google”), or any sponsor or provider of any application marketplace (“App Store Providers”), and that Bueno is responsible for the Bueno Application. YOU ACKNOWLEDGE AND AGREE THAT NEITHER APPLE, GOOGLE, NOR ANY APP STORE PROVIDERS MAKE ANY WARRANTIES OR HAVE ANY RIGHTS OR OBLIGATIONS WHATSOEVER UNDER THIS AGREEMENT OR WITH RESPECT TO THIS AGREEMENT. You acknowledge that Apple, Google, and App Store Providers have no obligation whatsoever to furnish any maintenance and support services with respect to the Bueno Application or for addressing any claims relating thereto or your possession and/or use thereof, including, but not limited to (i) product liability claims; (ii) any claim that the Bueno Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You further acknowledge that Apple, Google, and App Store Providers have no responsibility for the investigation, defense, settlement, or discharge of any third-party intellectual property claims that the Bueno Application or your use thereof infringes intellectual property rights. Your use of the Bueno Application is subject to any applicable rules and permissions set by Apple, Google, or other App Store Providers for your particular mobile device.
- Maintenance. Scheduled system maintenance may take place from time to time, in Bueno’s sole discretion, and during such time, the Bueno Application or elements thereof may be unavailable. Emergency maintenance may be required at other times in the event of system failure. End User specifically acknowledges that outage and downtime may occur. If the Bueno Application is down when you attempt to complete a transaction, you must make alternative arrangements to pay the applicable third-party establishment.
- Updates. Bueno may, but is not required to, develop and provide Bueno Application updates from time to time, which may include upgrades, bug fixes, patches, and other corrections or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features or functionalities. End User aggrees that Bueno has no obligation to provide any Updates or to continue to provide or enable any particular features or functionalities. Based on the settings of your mobile device, when your device is connected to the Internet, the Bueno Application may automatically download and install available Updates, or you will be prompted to download and install available Updates. You acknowledge that the Bueno Application or any of its features may not operate properly if you fail to install Updates and Bueno may, in its sole discretion, cease supporting prior versions of the Bueno Application after an Update is made available. You further agree that all Updates will be deemed part of the Bueno Application and subject to the terms of this Agreement.
- Push Notifications. Bueno may send you “push notifications” if your device supports such communications. By downloading the Bueno Application and clicking to allow push notifications, you “opt-in” to receive these push notifications via the Bueno Application, including notifications that contain commercial messages from Bueno and our third-party partners, merchants, and vendors. Should you wish to stop receiving push notifications via the Bueno Application, you may turn off these notifications through the applicable settings on your device.
- Communications. End User consents to receive communications, including commercial communications (whether by phone, email, or text) from Bueno and our third-party partners, merchants, and vendors, which may include third-party establishments, brands, and other third parties. You acknowledge and agree that your primary phone numbers and email addresses and other information may be used for the purpose of initiating commercial messages. Your consent to receipt of such messages is not, and will not be, a condition to any purchase. If at any time you change your mind regarding your consent to such messages, you must contact Bueno. You may opt out of receiving messages that are primarily commercial in nature, but in order to stop receiving all messages from Bueno (including messages related to transactions and your account), you will need to terminate your account. If the Bueno Application enables you to send or receive SMS messages, standard text messaging rates or other carrier charges may apply to such use.
- Third-Party Promotional Offers. You may from time to time receive promotional offers from third parties through the Bueno Application to which third-party terms and conditions may apply. Third-party terms and conditions will be presented for review and acceptance at the time you undertake such activity within the Bueno Application, and your acceptance of such terms and conditions constitutes an agreement between you and the third party. Bueno will not in any way be responsible for such third-party promotional offers. The Bueno Application may display, include, or make available content, data, information, applications, or materials from third parties or provide links to certain third-party websites. By using the Bueno Application, you acknowledge and agree that Bueno is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such third-party materials or websites. Bueno does not warrant or endorse and will not have any liability or responsibility to you or any other person for any such third-party materials or websites, or any other materials, products, or services of third parties. Third-party materials and links to other websites are provided solely as a convenience to you.
- Limitations on Availability. The Bueno Application is based in the United States and is provided for access and use by persons in the United States. We make no representation that the Bueno Application is available or permitted in any particular location. Use of the Bueno Application is void where prohibited. You use the Bueno Application at your own initiative and are responsible for compliance with any applicable laws. We may also impose limits on the use or access to the Bueno Application as required by law.
- Alcoholic Beverages. End User acknowledges its sole responsibility to comply with all applicable laws and regulations regarding the purchase, serving, possession, and consumption of alcoholic beverages. End User agrees that he or she will not use the Bueno Application in any manner contrary to law, including, but not limited to, purchasing or serving, or attempting to purchase or serve, alcoholic beverages for persons who are not old enough (or are otherwise ineligible) to purchase, possess, or consume alcohol under the applicable law. END USER EXPRESSLY WAIVES ANY AND ALL CLAIMS AGAINST BUENO IN THIS REGARD, AND BUENO SHALL NOT BE HELD LIABLE IN ANY MANNER WHATSOEVER FOR ANY CIVIL OR CRIMINAL PENALITIES IMPOSED UPON END USER OR THIRD PARTIES FOR FAILURE TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS REGARDING THE PURCHASE, SERVING, POSSESSION, AND CONSUMPTION OF ALCOHOL.
- Suspension and Termination. Bueno may, in our sole discretion, suspend, limit, or terminate End User’s access to or use of the Bueno Platform at any time, for any reason, without notice or liability to End User. You may terminate this Agreement by deleting the Bueno Application and all copies of it, full or partial, from your mobile device and ceasing any and all access or use of the Bueno Application. Upon the termination of this Agreement, End User must cease all use of the Bueno Platform and destroy all copies, full or partial, of the Bueno Application; all license and other rights granted to you under this Agreement will terminate. Termination of End User’s access to and use of the Bueno Platform will not affect any of Bueno’s rights or End User’s obligations arising under this Agreement prior to such termination, nor any of Bueno’s rights or End User’s obligations that extend beyond termination of this Agreement as provided herein. You acknowledge that Bueno may restrict, modify, or terminate this Agreement, without liability, for its convenience, or if you violate this Agreement or any applicable law, rule, or regulation.
- Intellectual Property Rights. End User acknowledges and agrees that the Bueno Application and Platform is protected by copyright, trademark, patent, and other intellectual property laws. Except as expressly provided in this Agreement, Bueno does not grant End User any licenses, express or implied, to the Bueno Application and Platform or any of Bueno’s other intellectual property. Bueno retains all right, title, and interest in and to the Bueno Platform, including any updates, upgrades, and modifications thereto, and any associated patents, trademarks, copyrights, mask work rights, trade secrets, and other intellectual property rights. Except as expressly provided by these Terms or with Bueno’s prior written consent, End User may not use, modify, disassemble, decompile, reverse engineer, reproduce, distribute, rent, sell, license, publish, display, download, transmit, or otherwise exploit the Bueno Application or Platform in any form by any means. Without limiting the foregoing, End User may not, and may not permit any third party to, (i) use any robot, spider, scraper, or other automatic or manual device, process, or means to access or copy the Bueno Application or Platform; (ii) take any action that imposes or may impose (in our sole determination) an unreasonable or disproportionately large load on the Bueno Application or Platform or our infrastructure; (iii) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Bueno Application or Platform; (iv) rent, lease, copy, provide access to, or sublicense any portion of the Bueno Application or Platform to a third party; (v) use any portion of the Bueno Application or Platform to provide, or incorporate any portion of the Bueno Application or Platform into, any product or service provided to a third party; (vi) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble, or otherwise attempt to derive the source code of the Bueno Application or Platform; (vii) remove, obscure, or alter any copyright notice, trademarks, logos, trade names, or other proprietary rights notices contained in the Bueno Application or Platform; or (viii) use the Bueno Application or Platform in violation of this Agreement or any applicable law. We may, but are not obligated to, monitor End User’s use of the Bueno Application or Platform. End User may submit comments, information, questions, data, ideas, description of processes, or other information to Bueno from time to time (collectively, “Feedback”). Bueno may freely use, copy, disclose, license, distribute, and otherwise exploit any Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise.
- Representations and Warranties. In addition to any other representations and warranties set forth in this Agreement, End User expressly represents and warrants to Bueno that End User has all requisite right, power, and authority to accept and agree to this Agreement and perform his or her obligations hereunder.
- Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BUENO APPLICATION AND PLATFORM IS PROVIDED TO END USER HEREUNDER STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND BUENO HEREBY DISCLAIMS ANY AND ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF END USERABILITY, TITLE, ACCURACY OF DATA, NON-INFRINGEMENT, NON-INTERFERENCE, AND FITNESS FOR A PARTICULAR PURPOSE.
WITHOUT LIMITING THE FOREGOING, BUENO MAKES NO WARRANTY THAT (I) THE BUENO APPLICATION AND PLATFORM WILL MEET END USER’S REQUIREMENTS; (II) THE BUENO APPLICATION AND PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE BUENO APPLICATION AND PLATFORM WILL BE ACCURATE OR RELIABLE; OR (IV) ANY ERRORS IN THE BUENO APPLICATION AND PLATFORM WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BUENO OR ANY OF OUR AUTHORIZED REPRESENTATIVES WILL CREATE ANY WARRANTY.
END USER HEREBY EXPRESSLY RELEASES BUENO, OUR AFFILIATES AND ASSIGNS, AND OUR OR THEIR EMPLOYEES, OFFICERS, DIRECTORS, AND AGENTS, FROM ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE BETWEEN END USER AND ANY THIRD PARTIES.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BUENO, OUR AFFILIATES AND ASSIGNS, OR OUR OR THEIR EMPLOYEES, OFFICERS, DIRECTORS, OR AGENTS, BE LIABLE TO END USER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, INCLUDING DAMAGES OR COSTS INCURRED AS A RESULT OF A LOSS OF TIME, SAVINGS, PROPERTY, PROFITS, BUSINESS, CONTRACTS, REVENUE, ANTICIPATED SAVINGS, DATA, OR GOODWILL, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE BUENO APPLICATION OR PLATFORM, EVEN IF BUENO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, BUENO’S AGGREGATE LIABILITY TO END USER FOR ANY CLAIM WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION WILL BE LIMITED TO THE GREATER OF: (I) THE TOTAL AMOUNT OF FEES (IF ANY) ACTUALLY PAID BY END USER FOR THE BUENO APPLICATION FOR THE 12-MONTH PERIOD PRIOR TO WHEN THE CLAIM WAS BROUGHT, OR (II) FIFTY DOLLARS ($50.00).
IN ADDITION TO AND WITHOUT LIMITING ANY OF THE FOREGOING, BUENO WILL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, ACTS OF TERRORISM, LABOR CONDITIONS, POWER FAILURES, INTERNET DISTURBANCES, OR SERVICES OR SYSTEMS CONTROLLED BY THIRD PARTIES.
THE PARTIES AGREE THAT THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS IN THIS AGREEMENT ARE ESSENTIAL ELEMENTS OF THIS AGREEMENT AND REPRESENT A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES. IN PARTICULAR, END USER UNDERSTANDS THAT BUENO WOULD BE UNABLE TO PROVIDE THE BUENO APPLICATION AND PLATFORM TO END USER EXCEPT ON THESE TERMS AND AGREES THAT THESE TERMS WILL SURVIVE AND APPLY IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
- Indemnity. End User must indemnify, hold harmless, and (at our request) defend Bueno, our affiliates and assigns, and our and their respective employees, officers, directors, and agents, from and against all damages, claims, suits, costs, fines, penalties, liabilities, and expenses (including reasonable attorneys’ fees) that arise from a third party’s claim arising out of, or on account of, or resulting from: (i) End User’s failure or alleged failure to pay for any food, beverages, or other products and services; (ii) End User’s breach or alleged breach of this Agreement; (iii) End User’s violation of applicable law; (iv) infringement of any third-party intellectual property rights by End User; (v) End User’s payment and tax obligations; and (vi) the gross negligence, fraud, or willful misconduct of End User, or any other actions or omissions resulting in liability to us. Bueno reserves the right to assume the exclusive defense and control of any matter subject to indemnification by End User, in which event End User will cooperate in asserting any available defenses.
- Export Controls. End Users shall not use or otherwise download, export, or re-export the Bueno Application or elements thereof except as expressly authorized by this Agreement, United States law, and the laws of the jurisdiction in which the Bueno Application was accessed or obtained. You are responsible for ensuring your compliance with these terms and the applicable law.
- Dispute Resolution.
- Mandatory Arbitration. The Parties hereby expressly agree that any dispute arising out of or relating to this Agreement, or the formation, breach, termination, or validity thereof (a “Dispute”), will be resolved by mandatory and binding arbitration before a single, neutral arbitrator in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration proceedings will be located in Minneapolis, Minnesota. The arbitrator is not empowered to award damages in excess of compensatory damages of each Party, nor in excess of the limitations of liability set forth in Section 24 of this Agreement, and the Parties hereby irrevocably waive any damage in excess of compensatory damages. Judgment upon any arbitration award may be entered into any court of competent jurisdiction in the State of Minnesota. The arbitrator’s decision shall be final and binding. Neither Party shall have the right to litigate a Dispute in court.
EACH PARTY EXPRESSLY WAIVES ITS RIGHT TO TRIAL BY JURY, AND HEREBY ACKNOWLEDGES ITS FULL UNDERSTANDING OF SUCH RIGHTS AND THE CONSEQUENCES OF WAIVER THEROF.
- Class Action Waiver. The parties hereby expressly agree that neither Party shall have the right to participate in a representative capacity or as a member of any class pertaining to any Dispute or other claim arising under this Agreement. Any such Dispute or claim shall be arbitrated on an individual basis as provided in Section 27(a) of this Agreement. Neither Party shall have the right or authority to arbitrate a Dispute or claim on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, card members, other End Users, or other persons similarly situated.
- Additional Terms. End User may be subject to certain additional terms, rules, policies, and conditions, including, but not limited to, platform specifications and Updates, and modifications to this Agreement in conjunction with access to and use of the Bueno Application and Platform (“Additional Terms”). Such Additional Terms are hereby incorporated by reference into this Agreement. In the event of a conflict between this Agreement and the Additional Terms, the Additional Terms will control unless otherwise agreed in writing by the Parties.
- Notices. All notices or other communications required or permitted to be given to Bueno under this Agreement shall be in writing and addressed as follows:
Attn: Ro Shirole
17510 County Road 101 West
Wayzata, MN 55391
Notices shall be deemed effective upon delivery to Bueno.
- Assignment. End User shall not transfer or assign this Agreement, nor any of his or her rights or obligations hereunder, without the express written consent of Bueno.
- Agreement Binding on Successors. This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective personal representatives, successors, and assigns.
- Amendments and Waiver. No amendment, modification, or waiver of any condition, provision, or term of this Agreement will be valid or of any effect unless made in a writing signed by the Party or Parties to be bound, or a duly authorized representative, and specifying with particularity the extent and nature of such amendment, modification, or waiver. Any waiver by any Party of any default of another party will not affect or impair any right arising from any subsequent default. Except as expressly and specifically stated otherwise, nothing herein will limit the remedies and rights of the Parties hereto in, under, and pursuant to this Agreement.
- Governing Law. This Agreement will be controlled by the laws of the State of Minnesota. Any arbitration proceeding or other action brought as a result of any Dispute, claim, demand, or cause of action arising under the terms of this Agreement must be brought in an appropriate venue in the State of Minnesota.
- Severability. Each provision, section, sentence, clause, phrase, and word of this Agreement is intended to be severable. If any provision, section, sentence, clause, phrase, or word hereof is held be invalid or unenforceable for any reason whatsoever, such invalidity or unenforceability will not affect the validity and enforceability of the remainder of this Agreement.
- Grammatical Construction. Whenever the singular number is used in this Agreement, the same will include the plural where appropriate, and the words of any gender will include any other genders where appropriate.
- Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions.
- Entire Agreement. This Agreement is a fully integrated agreement that sets forth the entire agreement between the Parties. All agreements, covenants, representations and warranties, express or implied, oral or written, of the Parties with regard to the subject matter hereof are contained herein, and the documents referred to herein or implementing the provisions hereof. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made by either party to the other with respect to the subject matter of the Agreement. All prior and contemporaneous conversations, negotiations, possible and alleged agreements and representations, covenants, and warranties with respect to the subject matter hereof are waived, merged herein and superseded hereby.