Kitchen Story, SF | 3499 16th St, San Francisco, CA 94114, USA 94114

TERMS AND CONDITIONS

Effective: 07/15/2022

Please read these Terms and Conditions carefully before using our Service.

DEFINITIONS

The following definitions have the same meaning regardless of whether they appear in singular or plural or in other grammatical forms:

Accountmeans a unique account created for you to access our Service or parts of our Service.

Applicationmeans the software program provided by Smile downloaded by you on any electronic device to place your Orders.

Customermeans a Merchant’s customer.

Smile(also referred as "we") refers to SmilePOS LLC, a Washington limited liability company.

Feedbackmeans feedback, innovations or suggestions sent by you regarding the attributes, performance or features of our Service.

Productsrefer to food, beverages and other items, which are listed on a Merchant’s menu and offered for sale on the Service.

Merchantmeans a restaurant or other business that has signed an agreement or agreements with Smile for Smile’s POS systems and their features and related services.

Ordermeans a request by you to purchase Products through the Service.

Privacy Policymeans the terms which set out, on https://www.smilepos.com/privacy.html, how Smile will deal with personal information received from you via our websites and/or for the Service.

Payment Methodmeans a method of your payment, such as your credit or debit card or other permitted payment method, for your Order.

Payment Transactionmeans a transaction of your payment to Merchants for your Order with an eligible Payment Method.

Servicerefers to our services available through any websites, including https://www.smiledining.com, Application, digital ordering features, or any other ways Smile allows you to engage with us for your Orders directly or through a Merchant that uses Smile.

Terms and Conditions(also referred as "Terms") mean these Terms and Conditions that form the entire agreement between you and Smile regarding the use of the Service.

You(in upper or lower case) means an individual accessing or using the Service or a legal entity on behalf of which such individual is accessing or using the Service, as applicable.

ACKNOWLEDGEMENT

These are the Terms and Conditions governing the use of the Service and the agreement that operates between you and Smile. Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all visitors, users and others who access or use the Service.

By accessing or using the Service, you agree to be bound by these Terms and Conditions. If you disagree with any part of these Terms and Conditions, then you may not access the Service. Smile reserves the right in our sole discretion to revise and update these Terms and Conditions from time to time. Any such changes or modifications will be effective immediately upon posting of the revisions on our website(s), and your continued use of Service after such time will constitute your acceptance of such changes or modifications. If you do not agree with the changes or modifications, you can cancel your Account with us by contacting [email protected] You should from time to time review the Terms and any policies and documents incorporated in them to understand the terms and conditions that apply to your use of the Service.

You represent that you are at least 18 years of age and legally capable of entering into binding contracts. If you are an entity, organization, or company, the individual accepting the Terms on your behalf represents and warrants that he or she has the authority to bind you and you agree to be bound by the Terms. Notwithstanding the above, for placing Orders for alcohol beverages, you must be sufficient legal age for such Orders.

You authorize Smile to process your Order through the Payment Method on behalf of the Merchant from which you ordered.

Your access to and use of the Service is also conditioned on your acceptance of and compliance with our Privacy Policy. Our Privacy Policy describes our policies and procedures on handling personal information, including without limitation, the collection, use, storage, processing, modification, disclosure, and deletion of your personal information, when you use the Service. Please read our Privacy Policy carefully before using our Service.

MERCHANTS

Smile provides technology services to Merchants to enable Customers to place Orders, facilitates Orders with Merchants, and processes Payment Transactions on behalf of each Merchant.

Orders and Payment Transactions you make through our Service are transactions between you and the Merchant only, not with Smile or any of our affiliates. Smile is not the seller of any product or service offered by Merchants and is not a party to any Payment Transaction facilitated through the Service.

You hereby acknowledge and understand that each Merchant is solely responsible and liable for all aspects of its own day-to-day operations and all selling, pricing, packaging, and provision of any products or services offered to its Customers through the Service. Smile makes no representation or warranty regarding whether a Merchant holds any applicable permit, license, registration, or other credential for its business, whether representations by a Merchant are true and accurate, or whether a Merchant complies with applicable law. Smile is not responsible for the quality of the products or services provided by Merchants.

USER ACCOUNTS

When you use the Service, you can choose whether you would like to register and create an Account. If you create an Account, you may save your personal information to make future Orders faster and easier. You may place Orders without creating an Account, but you will not be able to save any personal information or preferences for future Orders.

When you create an Account, you must provide us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of your Account.

You are responsible for safeguarding your login information that you use to access the Service and for any activities or actions under your login information. You agree not to disclose your login information to any third party. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your Account.

APPLICATION

The Application enables you to place Orders with Merchants. In order to use the Application, you must download the Application to your device. Smile does not warrant that the Application will be compatible with your device. You may use data in connection with the Application and incur additional charges from your wireless provider for the Service. You agree that you are solely responsible for such charges. Smile hereby grants you a non-exclusive, non-transferable, revocable license to use the Application for one Account on a device owned or leased by you, for your personal use.

PLACING ORDERS FOR PRODUCTS

Your Information

If you wish to place an Order for Products available on the Service, you may be asked to supply certain information relevant to your Order, including, without limitation, your name, email, phone number, credit card number, credit card expiration date, your billing address, and delivery information.

You represent and warrant that: (i) you have the legal right to use any credit or debit card(s) or other payment method(s) in connection with your Order; and that (ii) the information you supply to us is true, correct and complete. By submitting such information, you grant us the right to provide the information to payment processing third parties for purposes of facilitating the completion of your Order.

Order

Smile makes available the Service and, either directly or through a third-party service provider, processes your Payment Transactions for your Orders on behalf of Merchants through the payment networks. When you make an Order, you authorize Smile, as agent for the Merchant, to submit the charge in the amount of the Order (including any gratuities, fees and taxes) to your Payment Method issuer as well as any credits in connection with chargebacks, reversals, refunds or adjustments. Smile, as the agent of the Merchant, will assist the Merchant in submitting the Payment Transaction to the payment network and processing the Payment Transaction. Upon either Smile or a third-party service provider receiving the proceeds of the transaction, your payment obligation to the Merchant will be deemed completed (except in the case of a later chargeback or reversal).

You must provide a valid Payment Method to pay for your Order made through any of the Service. You authorize Smile to confirm your Payment Method is in good standing with the issuing financial institution. You agree that Smile, on behalf of the Merchant, may resubmit a Payment Transaction for processing to a payment network in the event a prior Payment Transaction was declined or returned.

If you choose to store Payment Method information with Smile via the Service for your convenience and use in future transactions, you agree that Smile may receive up-to-date information on your Payment Method information (such as card number or expiration date) through services available from the card networks and may update your Payment Method credentials stored with Smile (if you choose to store your Payment Method credentials) from time to time.

We may establish limitations concerning use of the Service, including without limitation, individual or aggregate transaction limits on the dollar amount or number of Payment Transactions you may make within certain time periods. We may decline to process any Payment Transaction without any notice to you. We may delay processing of or hold or cancel processing of any Payment Transaction upon the direction of the Merchant or if we believe, in our sole discretion, that the transaction is invalid, suspicious, involves misconduct or fraud, or otherwise violates applicable law and rules, these Terms and Conditions, or any other policies. Payments made through the Service are also subject to the terms of your agreement with your Payment Method issuer. You are solely responsible for any charges or fees that may be imposed by your Payment Method issuer as a result of using the Service.

Order Changes, Cancellation, and Refunds

Merchants each set their own cancellation and refund policies. Once an Order has been made through the Service, you will need to contact the Merchant directly to inquire if you can make a change to or cancel the Order or whether you may receive a refund.

You authorize Smile to communicate with the Merchant regarding the change or cancellation of your Order. Reimbursement will be made upon confirmation by Smile that the change or cancellation of your Order can be made. We will use the same means of payment as you used for the Order.

For questions or customer service regarding an Order or the product or service provided by a Merchant, please contact the Merchant directly. Smile is not responsible for any Merchant product or service issues or content errors or inaccuracies related to a Merchant’s website, menu, or other materials.

Smile reserves the right to refuse or cancel your Order at any time for certain reasons, including the following:

There is an error in your Order.

Fraud or an unauthorized or illegal transaction is suspected.

Availability, Errors and Inaccuracies

Merchants may update their Products, including their prices, from time to time. The Products available on our Service may be mispriced, described inaccurately, or unavailable, and we may experience delays in updating information regarding the Products on the Service and other websites.

Smile cannot and do not guarantee the accuracy or completeness of any information of the Products, including their prices, images, specifications and availability, and Merchants’ services. We reserve the right to change or update information and to correct errors, inaccuracies, or omissions on the Service at any time without prior notice.

Payments

All Products purchased are subject to a one-time payment. Payment can be made through various payment methods we have available, such as Visa and MasterCard.

Payment cards (credit cards or debit cards) are subject to validation checks and authorization by your card issuer. If we do not receive the required authorization, we will not be liable for any delay or non-delivery of your Order.

Shipping and Delivery

Product shipping, delivery, and preparation timelines are estimated by each Merchant. Merchants and their shipping or delivery service providers, where applicable, are responsible for ensuring that appropriate insurance policies are in place for the shipping and delivery of the Products to Customers. Smile will not be responsible for any damage caused to Products during shipping or delivery or any loss or damage caused in connection with the supply of Products.

INTELLECTUAL PROPERTY

The Service and its original contents (excluding contents provided by you or other users), features and functionality (including derivative works, modifications, and additions thereto) are and will remain the exclusive property of Smile and its licensors. The Service is protected by copyright, trademark, and other applicable laws.

Our intellectual property, including copyright and trademark, may not be used in connection with any product or service without the prior written consent of Smile.

YOUR FEEDBACK TO US

You assign all rights, title and interest in any Feedback you provide Smile. If for any reason such assignment is ineffective, you agree to grant Smile a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify and exploit such Feedback without restriction.

LINKS TO OTHER WEBSITES

Our Service may contain links to third-party websites or services that are not owned or controlled by Smile. Smile has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or services. You further acknowledge and agree that Smile shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or services. We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you visit.

TERMINATION

We may limit, suspend, or terminate your Account immediately, without prior notice or liability, for any reason whatsoever, including without limitation, if you breach these Terms and Conditions. Upon termination, your right to use the Service will cease immediately. If you wish to terminate your Account, you may simply discontinue using the Service or send an email to [email protected] requesting to terminate your Account.

Termination of your Account does not relieve you of the obligation to pay for any Orders made as well as related fees and charges already incurred. In the event of closure of your Account, we will not provide any refunds for amounts previously paid through the Service.

In certain cases, we may not allow you to close your Account, including but not limited to:

to evade an investigation;

you have open or pending Orders or Payment Transactions; or

if you owe money to Smile or a Merchant due to your use of the Service.

LIMITATION OF LIABILITY

Notwithstanding any damages that you might incur, the entire liability of Smile and any of its suppliers under any provision of these Terms and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by you through the Service.

To the maximum extent permitted by applicable law, in no event shall Smile or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, or business interruption, arising out of or in any way related to the use of or inability to use the Service, third-party software, and/or third-party hardware used with the Service or otherwise in connection with any provision of these Terms), even if Smile or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.

Some jurisdictions do not allow the limitation of liability for certain kinds of damages, so some of these limitations may not apply to you. In such a case, Smile's liability will be limited to the minimum amount enforceable under applicable law.

“AS IS” AND “AS AVAILABLE” DISCLAIMER

The Service is provided to you “AS IS” and “AS AVAILABLE” and with all faults and defects, if any, without warranty of any kind. To the maximum extent permitted under applicable law, Smile, on its own behalf and on behalf of its respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Service, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, Smile provides no warranty or undertaking, and makes no representation of any kind that the Service will meet your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected. Without limiting the foregoing, neither Smile nor any of Smile's provider makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Service, or the information, content, and materials or products included thereon; (ii) that the Service will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Service; or (iv) that the Service, its servers, the content, or e-mails sent from or on behalf of Smile are free of malware or other harmful components.

Any material downloaded or otherwise obtained through the use of the Service is done at your own discretion and risk and you are solely responsible for any damage to your computer system or device or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by you from Smile or a third party through or from the Service will create any warranty not expressly stated in these Terms.

Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some of the above exclusions or limitations may not apply to you. In such a case, the exclusions and limitations set forth in this section shall be applied to the minimum extent required by law.

FORCE MAJEURE

Smile will not be liable for any failure or delay resulting from any condition beyond its reasonable control, including but not limited to governmental action or acts of terrorism, earthquake, fire, pandemic, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

GOVERNING LAW

The laws of the State of Washington govern these Terms and your use of the Service without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.

SEVERABILITY AND WAIVER

Severability

If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

Waiver

Except as provided herein, the failure to exercise a right or to require performance of an obligation under these Terms shall not effect a party's ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute a waiver of any subsequent breach.

TRANSLATION INTERPRETATION

These Terms and Conditions may have been translated if we have made them available to you on our Service. You agree that the original English text shall prevail in the case of a dispute.

CHANGES TO THESE TERMS AND CONDITIONS

We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material, we will make commercially reasonable efforts to provide, in a reasonable time and manner (including email), any new terms taking effect. What constitutes a material change will be determined at our sole discretion.

By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, in whole or in part, please stop using our websites and the Service.

CONTACT US

If you have any questions about these Terms and Conditions, please contact us at [email protected]

Last modified: 02/22/2022

Introduction

SmilePOS, LLC ("Company" or "We") respect your privacy and are committed to protecting it through our compliance with this policy. We provide point of sales systems and related products and services (collectively "Product" or "Products") that help our restaurant customers better manage their business.

This policy describes the types of information we may collect from you or that you may provide when you visit the websites, Smilepos.com and SmileDining.com (collectively, "Websites") or through our Products and our practices for collecting, using, maintaining, protecting, and disclosing that information.

This policy applies to information we collect:

On the Websites.

In email, text, and other electronic messages between you and the Websites.

Through mobile and desktop applications you download from the Websites, which provide dedicated non-browser-based interaction between you and the Websites.

through our Products used or accessed by us or our Product users.

It does not apply to:

information collected by us offline or through any other means not described in this policy;

information collected by any third party, including through any application or content (including advertising) that may link to or be accessible from the Websites or Products; or

Any third-party websites, products, or services (including those of Product users and their vendors) even if they link to our Websites or Products, and we encourage you to review the applicable privacy policy of those third parties to learn how your information will be collected and used.

Please read this policy carefully to understand our policies and practices regarding your information and how we will treat it. If you do not agree with our policies and practices, your choice is not to use our Websites or Products. By accessing or using the Websites or Products, you agree to this privacy policy. This policy may change from time to time (see Changes to Our Privacy Policy). Your continued use of the Websites or Products after we make changes is deemed to be acceptance of those changes, so please check the policy periodically for updates.

Information We Collect About You and How We Collect It

We collect several types of information from and about users of our Websites and Products (including users of our Websites and Products and customers of our Products users), including information:

By which you may be personally identified, such as name, postal address, e-mail address, telephone number (“Personal Information”);

About your internet connection, the equipment you use to access our Websites or Products, and usage details.

We collect this information:

Directly from you when you provide it to us.

Automatically as you navigate through the Websites. Information collected automatically may include usage details, IP addresses, and information collected through cookies, web beacons, and other tracking technologies.

From third parties, for example, our business partners.

Information You Provide to Us

The information we collect on or through our Websites and Products may include:

Information that you provide by filling in forms on our Websites or provided by our Product users. This includes information provided at the time of registering to use our Websites or Product user’s merchandise, subscribing to our Products, or requesting further Products. We may also ask you for information when you report a problem with our Websites or Products, including, without limitation:

Records and copies of your correspondence (including email addresses) if you contact us.

Your responses to surveys for research purposes.

Details of transactions you carry out through our Websites or Products and of the fulfillment of your orders. You may be required to provide financial information before placing an order through our Websites or Products.

Your search queries on the Websites.

Information We Collect Through Automatic Data Collection Technologies

As you navigate through and interact with our Websites, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions, and patterns, including:

Details of your visits to our Websites, including traffic data, location data, logs, and other communication data and the resources that you access and use on the Websites.

Information about your computer and internet connection, including your IP address, operating system, and browser type.

The information we collect automatically does not include Personal Information. It helps us to improve our Websites and to deliver a better and more personalized service, including by enabling us to:

Estimate our audience size and usage patterns.

Store information about your preferences, allowing us to customize our Websites according to your individual interests.

Speed up your searches.

Recognize you when you return to our Websites.

The technologies we use for this automatic data collection may include:

Cookies (or browser cookies). A cookie is a small file placed on the hard drive of your computer. You may refuse to accept browser cookies by activating the appropriate setting on your browser. However, if you select this setting you may be unable to access certain parts of our Websites. Unless you have adjusted your browser setting so that it will refuse cookies, our system will issue cookies when you direct your browser to our Websites.

Flash Cookies. Certain features of our Websites may use local stored objects (or Flash cookies) to collect and store information about your preferences and navigation to, from, and on our Websites. Flash cookies are not managed by the same browser settings as are used for browser cookies. For information about managing your privacy and security settings for Flash cookies, see Choices About How We Use and Disclose Your Information.

Web Beacons. Pages of the Websites and our e-mails may contain small electronic files known as web beacons (also referred to as clear gifs, pixel tags, and single-pixel gifs) that permit the Company, for example, to count users who have visited those pages or opened an email and for other related website statistics (for example, recording the popularity of certain website content and verifying system and server integrity).

Children Under the Age of 13

Our Websites or Products are not intended for children under 13 years of age. No one under age 13 may provide any information to the Websites or Products. We do not knowingly collect Personal Information from children under 13. If you are under 13, do not use or provide any information on the Websites or through our Products. If we learn we have collected or received Personal Information from a child under 13 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 13, please contact us at [email protected]

How We Use Your Information

We use information that we collect about you or that you provide to us, including any Personal Information:

To present our Websites and its contents to you.

To provide you with information or Products that you request from us.

To fulfill any other purpose for which you provide it.

To provide you with notices about your account/subscription, including expiration and renewal notices.

To carry out our obligations and enforce our rights arising from any contracts entered between you and us, including for billing and collection.

To notify you about changes to our Websites or any Products we offer or provide though it.

To allow you to participate in interactive features on our Websites.

In any other way we may describe when you provide the information.

For any other purpose with your consent.

We may also use your information to contact you about our Products and third-parties' goods and services that may be of interest to you. If you do not want us to use your information in this way, or if you want to change your information with us, adjust your user preferences or change your information in your account profile, or contact us as stated in Contact Information. You may also delete your information by clicking the delete button in your account profile or contacting us as stated in Contact Information. For more information, see Choices About How We Use and Disclose Your Information and Contact Information.

Disclosure of Your Information

We may disclose aggregated information about our users and information that does not identify any individual, without restriction.

We may disclose Personal Information that we collect, or you provide as described in this privacy policy:

To our subsidiaries and affiliates.

To contractors, service providers, and other third parties we use to support our business and who are bound by contractual obligations to keep Personal Information confidential and use it only for the purposes for which we disclose it to them.

To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of Company’s assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which Personal Information held by Company about our Websites and Product users is among the assets transferred.

For any other purpose disclosed by us when you provide the information.

With your consent.

We may also disclose your Personal Information:

To comply with any court order, law, or legal process, including to respond to any government or regulatory request.

To enforce or apply our terms of use and other agreements, including for billing and collection purposes.

If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of the Company, our customers, or others. This includes exchanging information with other companies and organizations for the purposes of fraud protection and credit risk reduction.

Choices About How We Use and Disclose Your Information

We strive to provide you with choices regarding the Personal Information you provide to us. We have created mechanisms to provide you with the following control over your information:

Tracking Technologies and Advertising. You can set your browser to refuse all or some browser cookies, or to alert you when cookies are being sent. To learn how you can manage your Flash cookie settings, visit the Flash player settings page on Adobe's website. If you disable or refuse cookies, please note that some parts of this site may then be inaccessible or not function properly.

Data Security

Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your Personal Information, we cannot guarantee the security of your Personal Information transmitted to our Websites or through our Products. Any transmission of Personal Information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Websites or the Products.

Changes to Our Privacy Policy

It is our policy to post any changes we make to our privacy policy on this page. If we make material changes to how we treat our users' Personal Information, we will notify you by email to the email address specified in your account or through a notice on the Websites. The date the privacy policy was last revised is identified at the top of the page. You are responsible for ensuring we have an up- to-date active and deliverable email address for you, and for periodically visiting our Websites and this privacy policy to check for any changes.

Contact Information

To ask questions or comment about this privacy policy and our privacy practices, contact us at:

SmilePOS, LLC, PO Box 2653, Lynnwood, WA 98036 or [email protected]

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