Terms of service
Terms of Service
(Effective August 1st, 2022)
1. Acceptance of the Terms of Service
These Terms of Service are entered into by and between You and OMG ICEES, LLC, ("OMG ICEES", "we", "us" or “our”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, "Terms of Service"), govern your access to and use of the OMG ICEES website https://omgicees.com (“Website”) or any of our other websites, applications, or services that we place this Terms of Service, including but not limited to [https://omgicees.com](collectively, the "Services”). Our Services include all other location on which we place these Terms of Service. To the extent there is any conflict between these terms of service and the Franchisee terms, the Franchisee terms will control with respect to subject matter of the Franchise agreement.
The Services are available to users who are 18 years of age or older and reside in the United States or any of its territories. You may use the Services on behalf of individuals under 18 only if You are the parent or legal guardian of such individuals. By using the Services, you represent and warrant that you are of legal age to form a binding contract with OMG ICEES and meet all of the preceding eligibility requirements. If you do not meet all of these requirements, you must not access or use the Services. In addition, you understand that certain privacy practices apply to children under the age of 13, and you agree that you have read and understand such privacy practices as they apply to your use of our Services.
2. Changes to the Terms of Service
We may revise and update these Terms of Service from time to time at our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Services. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdictionwill not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Services.
Your continued use of the Services following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page frequently each time you access these Services, so you are aware of any changes, as they are binding on you.
3. Your Privacy
4. The Services
Our Services enable you to make online purchases of our products for a contactless purchase experience with our OMG ICEES franchisee partners (“OMG ICEES”) and to obtain access (or purchase a product) at our events for a specific location and time (“OMG ICEE Event”). You can obtain these services for yourself, your child, or for someone else through our Pay It Forward service (“Recipient”). The Services will be provided based on your purchase for a designated event or place.
BY USING THE SERVICES, YOU ARE REPRESENTING AND WARRANTING THAT YOU HAVE AUTHORIZATION TO ORDER OUR PRODUCT FOR YOURSELF OR A RECIPIENT
IN USING THE SERVICES, YOU AGREE THAT WHETHER YOU ARE THE RECIPIENT OR NOT, YOU ARE THE PERSON FINANCIALLY RESPONSIBLE FOR THE SERVICES.
5. Accessing the Website and Account Security
We reserve the right to withdraw or amend the Services, and any service or material we provide in connection with the Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services or Service Content is unavailable at any time or for any period. Our Services are dependent on Event hours and available OMG ICEES Partners.
You are responsible for both:
- Making all arrangements necessary for you to access the Services, including being present for your event and providing a safe, sanitary, and inviting space for our OMG ICEES Partner, including adhering to CDC guidance.
6. Mobile Device Access
To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain mobile services or applications may be prohibited or restricted by your carrier, and not all mobile services or applications may work with all carriers or devices.
7. Intellectual Property Rights
The Services and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, photographs, video, and audio, and the design, selection, and arrangement thereof) are owned by OMG ICEES, LLC, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
These Terms of Service permit you to use the Services for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the materials on or through the Services, except as follows: (1) your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials; (2) you may store files that are automatically cached by your Web browser for display enhancement purposes; and (3) except for materials owned by third parties and except for materials that may be subject to additional or different terms, you may print or download one copy of a reasonable number of pages of the Services for your own personal, non-commercial use and not for further reproduction, publication or distribution. If we provide social media features with certain content, you may take such actions as are enabled by such features.
You must not:
- Modify copies of any materials from the Website.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Services.
If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Services in breach of the Terms of Service, your right to use the Services will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by OMG ICEES. Any use of the Services not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, and other laws.
9. Respectful Use
You agree to treat OMG ICEES Partners courteously and professionally, and you understand that your right to use the Services will be terminated if the OMG ICEES Partners are not treated appropriately. In turn, you also should expect to be treated courteously and professionally by the OMG ICEES Partners. If you feel you have not been treated appropriately, please contact us to let us know.
You may use the Services only for lawful purposes and in accordance with these Terms of Services. You agree not to use the Services:
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
- To impersonate or attempt to impersonate OMG ICEES, an OMG ICEES employee, an OMG ICEES Partner, or another user or recipient of our beauty services, or any other person or entity (including, without limitation, by using the email addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by us, may harm OMG ICEES or users of the Services, or expose them to liability.
Additionally, you agree not to:
- Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party's use of the Service, including their ability to engage in real time activities through the Service.
- Abuse the Services by requesting an unreasonable amount of request that are not reasonably related to purchasing a OMG ICEES shaven ice product for consumption or donation, i.e., requesting numerous omg icees beverages in a single day or time period that are interpreted to be an attempt to overburden the Services.
- Abuse the OMG ICEES Partner, whether through words or actions, including but not limited to, any type of verbal or physical intimidation. Such abuse and intimidation shall include the use of social media.
- Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
- Use any manual process to monitor or copy any of the material on the Services, or for any other purpose not expressly authorized in these Terms of Service, without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Services.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer, or database connected to the Services.
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Services.
Your engaging in a prohibited use may result in the termination of your right to use the Services.
11. Monitoring and Enforcement; Termination
We have the right to:
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
- Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms of Service.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS OMG ICEES, LLC. AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY OMG ICEES, LLC. AND ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER OMG ICEES, LLC, OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review all material before it is posted on the Services and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
12. Reliance on Information Posted
The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor’s use of the Services, or by anyone who may be informed of any of its contents.
13. Changes to the Website
We may update the content on the Services from time to time, but its content is not necessarily complete or up-to-date. Any of the material corresponding with these Services may be out of date at any given time, and we are under no obligation to update such material.
14. Information About You and Your Visits to the Website
15. Links from the Website
If the Services contain links to other websites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those websites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to these Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
16. Geographic Restrictions
The owner of these Services is based in the State of California in the United States. We provide these Services for use only by persons located in the United States. We make no claims that the Services or any of its content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
17. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Services for any reconstruction of any lost data.
WE ARE NOT LIABLE FOR ANY INJURY AN OMG ICEES PARTNER MIGHT CAUSE WHILE ONSITE OR AT YOUR EVENT. YOU AGREE THAT EVENTS MAY CARRY INHERENT RISK, AND BY REQUESTING THE CONTACTLESS PAYMENT SERVICES, YOU CHOOSE TO ASSUME THOSE RISKS VOLUNTARILY.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
THE OMG ICEES PRODUCTS ARE PURCHASED "AS IS" WITH ALL FAULTS. OMG ICEES MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE SHAVED ICE PRODUCTS, INCLUDING ANY WARRANTY OF WHOLESOMENESS, CONDITION, QUALITY, OR SUITABILITY, WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
18. Limitation on Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES AND PURCHASE OF OMG ICEES PRODUCTS REMAINS WITH YOU. NEITHER OMG ICEES, LLC, NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE OMG ICEES, LLC. SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR OMG ICEES WEBSITE, OR THE INABILITY TO USE OR ACCESS A PROFILE OR ANY SPECIFIC PROFILE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OMG ICEES, LLC. HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL OMG ICEES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR OMG ICEES PRODUCT OR WEBSITE EXCEED THE AMOUNTS YOU HAVE PAID FOR THE KONA PRODUCT, IF YOU HAVE MADE ANY PAYMENTS TO KONA ICE, INC., FOR USE OF THE SAME OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OMG ICEES, LLC. AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct or death or bodily injury caused by products you purchase through the Services.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You agree to defend, indemnify, and hold harmless OMG ICEES, LLC, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms of Service or your use of the Services, including, but not limited to, your User Contributions, any use of the Services’ content, services, and products other than as expressly authorized in these Terms of Service, or your use of any information obtained from the Services.
20. Governing Law and Jurisdiction
All matters relating to the Services and these Terms of Service, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Kentucky without giving effect to any choice or conflict of law provision or rule (whether of the State of Kentucky or any other jurisdiction).
Any legal suit, action, or proceeding arising out of, or related to, these Terms of Service or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Kentucky in each case located in the Boone County, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms of Service in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
At OMG ICEES’ sole discretion, it may require You to submit any disputes arising from these Terms of Service or use of the Service, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Michigan law.
22. Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
23.Waiver and Severability
No waiver by OMG ICEES of any term or condition set out in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of OMG ICEES to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.
24. Entire Agreement
25. Your Comments and Concerns
These Services are operated by OMG ICEES, LLC. 22001 Hawaiian Ave, Apt 4, Hawaiian gardens, CA 90716.
All other feedback, comments, requests for technical support, and other communications relating to the Services should be directed to: Info.firstname.lastname@example.org