Terms & Conditions
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY.
These Terms and Conditions of Use, as updated from time to time, (“Terms”) apply to your access to, and use of, all or part of the website (http://aubonpain.com, the “Site”), any other website, and all other online services, tools or programs, including the Au Bon Pain “eClub”, the “Au Bon Pain Gift Card” (our stored value/gift card), mobile applications, and instore kiosks (the Site and all of the foregoing, collectively, the “Services”) provided by ABP OpCo, LLC and/or its subsidiaries and affiliates (collectively, “Au Bon Pain”, “we”, “us” or “our”). By visiting or using the Services, you expressly agree to these Terms. We may change or modify these Terms from time to time. Any changes or modifications will be effective immediately upon posting of the changes or modifications, and you waive any right you may have to receive specific notice of such changes or modifications, and to the extent permitted by law you waive any right you may have to receive specific notice of such changes or modifications. Your continued access to, use of and/or participation in the Services after these Terms have been changed or modified signifies your acceptance of any updated Terms. As a result, you should frequently review these Terms to understand the terms and conditions that apply to your access to, use of and/or participation in the Services. If you do not agree to the changed or modified Terms, do not use the Services.
USE OF THE SERVICES
All content contained on or accessed from the Services, including text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, videos, images, applications, programs, computer code and other information (collectively, the “Content”), including but not limited to the design, layout, “look and feel” and arrangement of such Content, is owned by Au Bon Pain or its licensors and is protected by copyright, trademark and other intellectual property and unfair competition laws.
You may print or download Content from the Services for your own personal, non-commercial, informational or scholarly use, provided that you keep intact all copyright and other proprietary notices. This is the grant of a limited, nonsublicensable license, not a transfer of title, and under this license you may not use the Services or any Content for any commercial purpose or for any public display (commercial or non-commercial).
You may not copy, display, distribute, modify, publish, reproduce, store, transmit, post, translate or create other derivative works from, or sell, rent or license all or any part of the Content, products or services obtained from the Services in any medium to anyone without our prior written permission, except as otherwise expressly permitted under these Terms.
You may not reverse engineer, disassemble, decompile or translated any software in the Content, or otherwise attempt to derive the source code of such software, except to the extent expressly permitted under applicable law, without our prior written permission. You may not engage in systematic retrieval of Content from the Services to create or compile, directly or indirectly, a collection, compilation, database or directory without our prior written permission.
You may not use any robots, spiders, crawlers or other automated downloading programs, algorithms or devices, or any similar or equivalent manual process, to: (a) continuously and automatically search, scrape, extract, deep link or index any Content; (b) harvest personal information from the Services for purposes of sending unsolicited or unauthorized material; or (c) cause disruption to the working of the Services or any other person’s use of the Services. If the Services contain robot exclusion files or robot exclusion headers, you agree to honor them and not use any device, software or routine to bypass them. You may not attempt to gain unauthorized access to any portion or feature of the Services, any other systems or networks connected to the Services or to any of our servers, or any of the products or services provided on, accessed from or distributed through the Services. You may not probe, scan or test the vulnerability of the Services or any network connected to the Services or breach the security or authentication measures on the Services or any network connected to the Services.
You may not use the Services to publish or distribute any information (including software or other content) which (a) is illegal, (b) violates or infringes upon the rights of any other person, (c) is defamatory, abusive, hateful, profane, pornographic, threatening or vulgar, (d) contains errors, viruses or other harmful components or (e) is otherwise actionable at law. We may at any time exercise editorial control over the Content of the Services.
You may not, without our prior written approval, use the Services to publish or distribute any advertising, promotional material, or solicitation to other users of the Services to use any goods or services. For example (but without limitation), you may not use the Services to conduct any business, to solicit the performance of any activity that is prohibited by law, or to solicit other users to become subscribers of other information services. Similarly, you may not use the Services to download and redistribute public information or shareware for personal gain or distribute multiple copies of public domain information or shareware.
We may discontinue, or change from time to time, any Service including any Service terms, without prior notice. We also may discontinue or change specifications on products described and/or displayed through the Services from time to time without prior notice.
USERS AND ACCOUNTS
In order to participate in certain areas of our Site and other Services, you will need to register for an account. In creating an account, you agree to:
- create only one account;
- provide accurate, truthful, current and complete information;
- keep your information updated and accurate;
- protect your password and access to your account;
- notify us if you discover or otherwise suspect that the security of your account has been compromised or breached; and
- take responsibility for all activities that occur under any account registered to you and accept all risks of unauthorized use of the account.
Some Service options are only available if you utilize corresponding Service features. When you set up an account under any Service, you may be required to choose a user name and password. You may be able to access your account through third party authorization methods (for example, a social media account). If your information changes, you should promptly update your account. If you make a change in your account information for one Service there may be an automatic corresponding change to your account information for another Service. Your Service member cards, account, username, password and PIN are for your personal use only. You may have the ability to choose to have your credit card, Au Bon Pain Gift Card and/or other payment methods associated with your account. You are responsible for maintaining the confidentiality of, and are responsible for all activities that occur under, your member card, account, username and password, Au Bon Pain Gift Cards and any other information that may be used to access your account. If you believe your account has been compromised, please immediately contact us as described in the “Contact Us” section below and take immediate action to remove the credit card, Au Bon Pain Gift Card and/or other payment method information associated with your account. Neither Au Bon Pain nor any franchisee, service provider or supplier is responsible for undeliverable, lost, returned or misdirected emails or other correspondence related to your account, or for use of your member card or rewards, if any, issued under any Service or account without your permission. Au Bon Pain does not represent or warrant that member cards will always be accessible or accepted.
The Services are not intended for use by anyone under the age of 13. Anyone between ages of 13 and 18 may only use the Services under the supervision of a parent or a legal guardian who agrees to be bound by these Terms. When a user discloses personal information on the Services, the user is representing to us that he or she is over 18.
We may make available to you the ability to order online from our participating Au Bon Pain cafés or other locations. These Terms apply only to orders placed through the Services. Minimum order amounts may apply. Any applicable delivery fees, taxes and other amounts due in connection with your order will be identified when you place your order. There may be limits on the dollar values and number of orders that may be placed through the Services. You are responsible for payment of your order by means of a payment option made available through the Services at the time of ordering. We use third party providers and may accept various third party services to process payments. The Au Bon Pain café or other location identified when you place your order is responsible for fulfilling your order and for any questions or other communications regarding your order. Discounts, coupons and other offers may not be able to be combined with online ordering. Every participating location may not have all menu items identified through the Services. The Services may allow you to customize your order. Portion size references (extra, light, etc.) are for convenience only and do not indicate nutrient content information of any kind. Refunds, if any, of amounts paid for cancelled catering orders will be identified at the time of cancellation. Please contact the café responsible for fulfilling your order directly to identify amounts due.
Au Bon Pain reserves the right, without notice and in its sole discretion, to suspend and/or terminate your license to use the Services and/or your account for any reason and to block or prevent your future access to, and use of, the Services if we determine, in our sole discretion, that you have more than one account or that the use of the Service or your account violates these Terms. We also may, in our sole discretion, suspend or cancel accounts that appear to be inactive, and suspend, cancel or combine accounts that appear to be duplicative. We also reserve the right to seek all other remedies available at law and in equity. Upon any such termination, you must destroy any downloaded Content in your possession whether in electronic or printed format.
We do not control, endorse or adopt any websites and content of third parties, including Au Bon Pain branded or co-branded content and/or our franchisees’ content and/or websites (collectively, “Third Party Websites”). Third Party Websites, including the content, advertisements or promotions of any third party, and the inclusion of any link or reference to Third Party Websites does not imply our endorsement, affiliation or adoption of the Third Party Websites. We make no guarantee as to the accuracy or completeness of the Third Party Websites and we are not responsible for updating or correcting false or misleading information on Third Party Websites. When you visit Third Party Websites, or participate in promotions or business dealings with third parties, these Terms and any other policies applicable to the Services no longer apply, and the terms and policies of the Third Party Websites govern. It is your responsibility to determine when you are accessing Third Party Websites and you acknowledge and agree that Au Bon Pain is not responsible or liable in any manner for Third Party Websites. If you have questions or concerns about the website of an Au Bon Pain franchisee, please contact that franchisee directly. Use of any Third Party Website is at your own risk.
All remarks, suggestions, ideas, graphics, or other information communicated to us through the Services (each, a “Submission”), including without limitation all intellectual property rights and other rights in and to a Submission, will forever be the property of Au Bon Pain. Au Bon Pain will not be required to treat any Submission as confidential, and will not be liable for any ideas for its business (including without limitation, product or advertising ideas) and will not incur any liability as a result of any similarities that may appear in future Au Bon Pain operations. Each Submission will be deemed a grant of a royalty free, non-exclusive right, license and consent to use, reproduce, modify, display, transmit, adapt, publish, translate, create derivative works from and distribute such Submission worldwide in any medium and through any methods of distribution, transmission and display whether now known or hereafter devised, in each case without acknowledgement or compensation to you. You warrant that all so-called “moral rights” have been waived in connection with each Submission.
AU BON PAIN GIFT CARDS
Au Bon Pain may allow you to purchase stored value/gift cards (“Au Bon Pain Gift Cards”) through the Services. These Terms, together with the Au Bon Pain Gift Card Terms and Conditions set forth on our Site, apply to your purchase and use of Au Bon Pain Gift Cards. Please refer to the Au Bon Pain Gift Card Terms and Conditions for more information about the terms, conditions and policies that apply.
AU BON PAIN ECLUB
You can enroll in the Au Bon Pain eClub (“eClub”) via our Services to receive emails with the latest news and offers. The term “Member”, as used in this section, refers to a guest who creates an eClub profile by providing their name, username, password, valid email address, zip code of their primary residence and date of birth. Eligibility for eClub program participation includes only those United States residents who are over 18 years of age. Eligible guests are responsible for keeping their eClub profile information (e.g., email address) up-to-date to ensure they receive eClub news, offers and coupons as outlined in these Terms. We are not responsible for any eClub news, reward-earning opportunity, or coupon delivery sent to an incorrect or incomplete address if that address is the address for the enrolled Member at the time of mailing or offering. We are not responsible for any lost, late, misdirected, damaged or illegible mailings. We reserve the right to correct and not honor errors made in our communications with you. From time to time we may make special offers available to Members. These special offers may have specific terms and conditions outlined in the offer. Enrollment in the eClub does not guarantee receipt of eClub news and offers or guarantee participation in any promotional offer. eClub terms and conditions are subject to change or termination without notice. Continued participation in the eClub constitutes acceptance of the thencurrent version of these Terms.
You agree to defend, indemnify and hold harmless Au Bon Pain and its subsidiaries, affiliates, franchisees and suppliers and its and their respective officers, directors, employees, shareholders, members and/or agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (a) your use of the Services; (b) your Submissions; (c) your violation of these Terms; (d) your violation of any rights of another; or (e) your conduct in connection with the Services.
DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE
If you believe that any material available on or via the Services infringes a copyright you own or control, you may file a notification of such infringement with our Designated Agent as set forth below:
Au Bon Pain
3304 Essex Drive
Richardson, Texas 75082
Attention: Legal Department
Tel: (469) 917-3800
Please refer to 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Please note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
If a notice of copyright infringement has been filed against material posted by you on the Services, you may make a counter-notification with our Designated Agent identified above. Please refer to 17 U.S.C. § 512(g)(3). If we receive a valid counter-notification, it may reinstate the disabled or removed material in accordance with the DMCA. We may terminate, in appropriate circumstances and in our sole discretion, users who are deemed to be repeat infringers and may limit access to the Services and/or terminate the accounts of any user who may infringe the intellectual property rights of others, whether or not there is any repeat infringement.
REVISIONS AND ERRORS
The Content appearing on our Services could include technical, typographical, or photographic errors. We do not warrant that any of the Content on our Services is accurate, complete or current. We may make changes to the Content on our Services at any time without notice, however, we do not make any commitment to update the Content.
DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES AND ALL CONTENT PROVIDED ON OR THROUGH OUR SERVICES ARE PROVIDED “AS IS”. AU BON PAIN MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND HEREBY DISCLAIMS AND NEGATES ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS, USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE OR DATA ACCURACY. FURTHER, AU BON PAIN DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY, LIKELY RESULTS OR RELIABILITY OF THE USE OF THE CONTENT PROVIDED ON OR THROUGH THE SERVICES OR OTHERWISE RELATING TO SUCH CONTENT OR ON ANY SITES LINKED TO THE SERVICES.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL AU BON PAIN, ITS SUPPLIERS AND FRANCHISEES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS AND/OR AGENTS, AND ANY OTHERS INVOLVED IN CREATING THE SERVICES AND ITS CONTENTS BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF INCOME, PROFITS, GOODWILL, DATA, CONTRACTS, USE OF MONEY, OR LOSS OR DAMAGES ARISING FROM OR CONNECTED IN ANY WAY TO BUSINESS DISRUPTION, WHETHER IN TORT, CONTRACT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE CONTENT ON ANY OF THE SERVICES, EVEN IF AU BON PAIN OR AN AU BON PAIN AUTHORIZED REPRESENTATIVE HAS BEEN NOTIFIED ORALLY OR IN WRITING OF THE POSSIBILITY OF SUCH DAMAGE. THIS INCLUDES BUT IS NOT LIMITED TO DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OR PERFORMANCE, UNAUTHORIZED USE OF THE SERVICES, LINE FAILURE, COMPUTER VIRUS OR OTHER HARMFUL COMPONENT. IN NO EVENT SHALL AU BON PAIN’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY OR TORT, (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCTS LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES, EXCEED YOUR ACTUAL OR DIRECT DAMAGES, OR $100, WHICHEVER IS LESS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, OR LIMITATIONS OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THESE LIMITATIONS MAY NOT APPLY TO YOU.
GOVERNING LAW AND JURISDICTION
Access to and use of the Services and these Terms are governed by U. S. federal law and/or the laws of the Commonwealth of Massachusetts, without resort to conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. Any legal action or proceeding relating to your access to or use of the Services or these Terms shall be instituted only in a state or federal court located in Suffolk County, Massachusetts. You and Au Bon Pain agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not impact the validity and enforceability of the remaining provisions. Only a specific, written waiver of any of the provisions of these Terms, signed by an authorized representative of Au Bon Pain, shall have any legal effect. You may not transfer any of your rights or obligations under these Terms, in any way. All of Au Bon Pain’s rights and obligations under these Terms are freely assignable for any reason, including without limitation, in connection with a merger, acquisition, sale of assets, by operation of law or otherwise. Headings contained in these Terms are inserted for convenience of reference only and shall not in any way define or affect the meaning, construction or scope of any of the provisions contained in these Terms.
INTELLECTUAL PROPERTY RIGHTS
Unless otherwise noted, all Content is protected as the copyrights, trademarks and/or other intellectual properties owned by Au Bon Pain or by other parties that have licensed their material to Au Bon Pain. Additionally, the Site and the other Services are protected by copyright as a collective work and/or compilation. Certain activities provided via the Services may be covered by U.S. Patent 6,585,516.
VISITORS OUTSIDE OF THE UNITED STATES
Au Bon Pain makes no representation that the information available through the Services is appropriate or available for use outside of the United States. Those who choose to access the Services from outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws.
Certain Content describes and refers to the Au Bon Pain franchise system. They do not constitute an offering for the sale of a franchise. Such offering is only commenced in accordance with the Federal Trade Commission Rules and various state laws regulating the sale of franchise opportunities. You may use the Services for the purpose of learning about the Au Bon Pain franchise system. If you are interested in pursuing a relationship with us as a prospective franchisee, you may submit a Franchising Information Request.
FRANCHISING INFORMATION REQUEST
NOTICE TO CALIFORNIA RESIDENTS
Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information:
The provider of the Sites is ABP OpCo, LLC, 3304 Essex Drive, Richardson, Texas 75082.
To file a complaint regarding the Services or to receive further information regarding use of the Services, send a letter to the above address (referencing “California Resident Request”) or contact Au Bon Pain via e-mail (with “California Resident Request” as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento CA 95834 or by telephone at 800.952.5210.
Please feel free to contact us with any comments, questions or suggestions you might have regarding the information described in the Services. You may contact us at:
Au Bon Pain
3304 Essex Drive
Richardson, Texas 75082
Attention: Guest Services
Phone: 1.800.TALKABP or 1.800.825.5227