Terms of Use

IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW.

ACCEPTANCE OF THESE TERMS:
Rosa’s Café and Tortilla Factory, Ltd. (“Company,” “we,” “us,” or “our”) offers you the ability to connect to our Wi-Fi (“Wi-Fi”) when you are in or around our establishment(s). These Terms of Use (the “Terms”) govern your access to and use of Wi-Fi. PLEASE READ THE TERMS THOROUGHLY AND CAREFULLY. BY ACCESSING, OR OTHERWISE USING THE WI-FI, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS, OR USE THE WI-FI. You accept the Terms by: (A) clicking to accept or agree to the Terms where this option is made available to you; or (B) by using the Wi-Fi. In this case, you understand and agree that Company will treat your use of the Wi-Fi as acceptance of the Terms from that point onward. All references to “you” or “your,” as applicable, mean the person that registers for, accesses, or uses the Wi-Fi in any manner, and each of your heirs, assigns, and successors. If you use or access the Wi-Fi on behalf of an entity, you represent and warrant that you have the authority to bind that entity and your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity.

MODIFICATIONS TO THE TERMS:
We reserve the right, in our sole discretion, to modify the Terms at any time and without prior notice. Your continued access to or use of the Wi-Fi after modifications to the Terms shall constitute your agreement to be bound by the amended Terms. If you do not agree to the modified Terms, you may not access or use the Wi-Fi.

ELIGIBILITY AND REGISTRATION:
Access to and use of the Wi-Fi is available only to individuals who are 13 years of age and older and can form legally binding contracts under applicable law. By accessing or using the Wi-Fi, you represent and warrant that you are eligible. To access and use certain features of our Wi-Fi. You agree to provide accurate, current, and complete information during the registration process, and to update such information to keep it accurate, current, and complete.

LICENSE:
Subject to your compliance with the Terms, we grant you a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to access and use the Wi-Fi solely for your personal use while in our establishment(s). You will not use or otherwise exploit the Wi-Fi except as expressly permitted in the Terms. You agree to not tamper with, interfere, circumvent any security measures, or otherwise impair the Wi-Fi or violate any applicable law or regulation when you use or access the Wi-Fi provided by us. The Wi-Fi is provided AS IS. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by us, our affiliates, or our licensors, except for the licenses and rights expressly granted in the Terms.

ACCEPTABLE CONDUCT:
You agree to comply with all applicable laws, rules, and regulations when registering for, accessing, or using the Wi-Fi. Without limiting the foregoing, when registering for, accessing, or using the Wi-Fi, you agree not to: Post, upload, publish, submit, or transmit any content that: Infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; Violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; Is fraudulent, false, misleading, or deceptive; Is defamatory, obscene, pornographic, vulgar, or offensive; Promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; Is violent or threatening or promotes violence or actions that are threatening to any other person; Is illegal or promotes harmful activities or substances; Impersonates any other person or otherwise misrepresents yourself in any way; Constitutes spam, or competes with our business; Contains any computer virus or other malicious code designed to attack, damage, divert, take over, disable, overburden, or otherwise impair the Wi-Fi; Attempt to scrape or collect any personal or private information from other Wi-Fi users Intercept, monitor, damage, or modify any communication not intended for you; Cause any harm or damage to you or anyone else; Otherwise breach the Terms; or Attempt to do any of the foregoing. We and our third-party partners reserve the right to restrict or block access to certain sites or content, or to block access to the Wi-Fi for any reason or no reason. We have the right to ask you to leave our property if your use of the Wi-Fi becomes disruptive to other patrons or staff, excessive in time, or for any other reason or no reason. You acknowledge that we have no obligation to monitor your access to or use of the Wi-Fi for violations of the Terms, or to review any content you submit to us. However, we have the right to do so for the purpose of operating and improving the Wi-Fi (including, without limitation, for fraud prevention, risk assessment, investigation, and customer support purposes), to ensure your compliance with the Terms, and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency, or other governmental body. You understand that communications over the Wi-Fi may not be encrypted, and you accept all risks associated with unencrypted transmissions over the Wi-Fi. Any sensitive or confidential information (such as credit card numbers or other financial information, medical or other health-related information) transmitted through the Wi-Fi is done at your own risk, and we have no liability for any claims, losses, action, damages, suits or proceedings arising out of or otherwise relating to such actions. We are not responsible for any third-party websites or services you visit while using the Wi-Fi, or for any programs, malicious or otherwise, that you or your device downloads while connected to our Wi-Fi.

Performance of the Wi-Fi:
In order to use the Wi-Fi, you must have a Wi-Fi-capable device that (a) meets U.S. and other applicable technical standards; (b) is compatible with the Wi-Fi; (c) renders web pages in a standard HTML browser application; (d) runs the IP protocol; and (e) is configured to obtain web addresses automatically. The device must be in close enough proximity to the Wi-Fi wireless access points to achieve connectivity with the Wi-Fi network. You acknowledge that the Wi-Fi utilizes public, unlicensed radio-frequency spectrum. As such, the Wi-Fi is subject to external interferences, environmental influences, and other factors and variables beyond our reasonable control. Performance and availability may vary, including but not limited to or affected by, (a) transmission and download speed and accuracy; (b) network congestion; (c) performance, configuration, and functionality of your devices and wireless cards (including, but not limited to memory, storage and other limitations); (d) physical obstructions and distances between your device and the Wi-Fi network; (e) availability of electric power; (f) collocation failures; (g) transmission and equipment limitations, failures, maintenance or repair; and (h) user error. The Wi-Fi may also be interrupted, refused, limited or curtailed for these or other reasons. Company is not responsible for data lost or misdirected due to these and other foreseeable and unforeseeable factors. Network speed is an estimate and is no indication of the speed at which your device or the Wi-Fi will operate. Actual network speed and other performance will vary. In order to maintain acceptable levels of service for all Wi-Fi users and to improve this service, we reserve the right to monitor use of the Wi-Fi and to make such adjustments to the use of such services as necessary to maximize the benefit and enjoyment for all Wi-Fi users. Additionally, the Wi-Fi service may use automated processes to monitor and scan communications over the Wi-Fi network in order to maintain and provide services, improve your experience, ensure the integrity of your communications, and for various other purposes related to the provision of Wi-Fi services. By using the Wi-Fi, you acknowledge and consent to Company‘s automated processing of your communications through the Wi-Fi network, including information such as your IP or MAC address, HTTP requests and other information related to the provision of this service.

WI-FI Subject to Interception and Unauthorized Use:
You acknowledge that communications over the Wi-Fi network may be subject to interception by unauthorized third parties. Your use of the Wi-Fi is AS IS and AS AVAILABLE and we cannot and do not make any general or specific warranties regarding the security, availability, performance or other functionality of the Wi-Fi. You are responsible for implementing your own security protections while using the Wi-Fi. Company expressly disclaims any responsibility or liability for your use of the Wi-Fi and for any lack of security that may result from your use of the Wi-Fi. You agree to hold Company and its affiliates harmless for the loss of any file, data or other information while using the service, and for any unauthorized access to or utilization by any third party of any of your personal, financial, or other sensitive information. You further agree that you will not seek to hold Company or its affiliates responsible in any way for any third-party website content, the operation of any third-party website accessed via the Wi-Fi or for the appearance of any Wi-Fi "watermark" over a portion of any website.

INTELLECTUAL PROPERTY RIGHTS:
The Wi-Fi is protected by copyright, trademark, and other laws of the United States, foreign countries, and international conventions. Except as expressly provided in the Terms, we, our affiliates, and our licensors exclusively own all right, title, and interest into and to the Wi-Fi, including all associated intellectual property rights. All trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of us or their respective owners.

FEEDBACK:
You agree that all feedback, comments, questions, and suggestions (collectively, “Feedback”) you provide to us are the sole and exclusive property of us. You hereby irrevocably assign to us and agree to irrevocably assign to us all your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral, and other proprietary or intellectual property rights therein, and waive any moral rights you may have. We have no obligation concerning Feedback, including but not limited to, no obligation to return any materials or acknowledge receipt of any Feedback. By giving us Feedback, you represent and warrant that you have the right to disclose the Feedback and the Feedback does not violate the rights of any other person or entity. This Feedback section shall survive any termination of your Wi-Fi registration.

ARBITRATION AND CLASS ACTION WAIVER:
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and we agree that the Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You and we agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the other party, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.

Binding Arbitration: Except for claims for by Company to enforce our or our affiliates' intellectual property rights, including without limitation those relating to any registered or unregistered trademarks or copyrights that Company or our affiliates own, and except as otherwise qualified below, any dispute between you and Company, or any of our or your affiliates, arising under, out of, in connection with or in relation to (i) your use of the Wi-Fi; (ii) the Terms (including its formation, performance, and breach); (iii) the parties’ relationship with each other; or (iv) any other claim or cause of action related to the Wi-Fi or the Terms must be submitted to binding arbitration under the authority of the Federal Arbitration Act. Unless the parties agree otherwise, there shall be a single arbitrator appointed to administer and rule on the dispute. The arbitrator must have at least five years of experience as a judge or arbitrator. Discovery will be limited to the exchange of exhibits and the names of witnesses, which will take place at least three weeks prior to the start of the arbitration hearing. No party may consolidate its claims with that of any other, and no class arbitration will be permitted. The arbitration must take place in Fort Worth, Texas, or at such other place as may be mutually agreeable to the parties. The decision of the arbitrator will be final and binding on all parties to the dispute; however, the arbitrator may not under any circumstances (i) assess punitive or exemplary damages; or (ii) make any award which extends, modifies or suspends any lawful term of the Terms. To file an Arbitration, you must first write a demand for arbitration that includes a description of the claim and the amount of damages that you seek to recover and send a written copy to us at 5000 Overton Plaza, Suite 300, Fort Worth, TX 76109, Attention: Legal Department. You must provide such written notice at least seven days prior to filing an arbitration. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If the arbitrator finds the arbitration to be non-frivolous, we will split actual filing and arbitrator fees for the arbitration. You and we agree to submit to the personal jurisdiction of any federal or state court in Fort Worth, Texas, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. Arbitration shall take place in Fort Worth, Texas and you and we agree to submit to the personal jurisdiction of any federal or state court in Fort Worth, Texas, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

Class Action Waiver:
The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.

Changes to this Section:
We will provide sixty (60) days’ notice of any changes to this section. Changes will become effective on the sixtieth (60th) day and will apply prospectively only to claims arising after the sixtieth (60th) day. If a court or arbitrator decides that this subsection on “Changes to this Section” is not enforceable or valid, then this subsection shall be severed from the Section entitled Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Wi-Fi.

Survival: This Arbitration and Class Action Waiver section shall survive any termination of your Wi-Fi registration.

GOVERNING LAW:
The Terms and the relationship between you and us shall be governed in all respects by the laws of the State of Texas, without regard to its conflict of law provisions. You agree that any claim or dispute you may have against us that is not subject to arbitration must be resolved by a state or federal court located in Fort Worth, Texas, except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located within Fort Worth, Texas for the purpose of litigating all such claims or disputes that are not subject to arbitration. You hereby waive any and all jurisdictional and venue defenses otherwise available.

DISCLAIMERS:
OUR WI-FI SERVICE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE WI-FI WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY THAT WE WILL CONTINUE TO OFFER OR MAKE AVAILABLE THE WI-FI, AND WE RESERVE THE RIGHT TO CHANGE OR TERMINATE THE WI-FI WITHOUT NOTICE TO YOU. WE MAKE NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE WI-FI OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE WI-FI. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE WI-FI, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS MADE THROUGH THE WI-FI.

LIMITATION OF LIABILITY:
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE WI-FI REMAINS WITH YOU. NEITHER WE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE OR CONTENT 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, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE 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 OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE TERMS OR FROM THE USE OF OR INABILITY TO USE THE WI-FI EXCEED THE AMOUNT YOU HAVE PAID FOR USE OF THE WI-FI OR $100, WHICHEVER IS HIGHER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US 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.

INDEMNITY: You agree to defend, indemnify, and hold us, our subsidiaries and affiliates, and our officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Wi-Fi, or your violation of the Terms.

GENERAL:
No Third-Party Beneficiaries: You agree that, except as otherwise expressly provided in the Terms, there shall be no third-party beneficiaries to the Terms.

Entire Agreement: The Terms, together with the Privacy Policy and any other legal notices or additional terms and conditions or policies applicable to you through access to or use of the Wi-Fi, shall constitute the entire agreement between you and us concerning the Wi-Fi service. If any provision of the Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms, which shall remain in full force and effect.

Waiver: No waiver of any provision of this the Terms shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under the Terms shall not constitute a waiver of such right or provision.

Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Wi-Fi offered therein must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

Section Headings: The section headings and Tips sections in the Terms are for convenience only and have no legal or contractual effect.