NESTLÉ CUSTOMER PORTAL TERMS OF SERVICE
Last Updated: 1/15/2020
Please read these Terms of Service (“Terms”) carefully, because the Terms constitute a binding legal agreement between you, an individual, as well as the entity you represent and on whose behalf you are agreeing to these Terms (“Customer”) (individually and collectively, as the context requires, “you”) and Nestlé USA, Inc. (“Nestlé” or “we”). The Terms apply to your access to and use of the websites, portals, and mobile applications, including without limitation, https://www.NestleCoffeePartnersSL.com (collectively, the “Site”), pursuant to which we make available our foodservice and equipment products (“Products”) and training and other customer services (collectively, with the Site and the Products, the “Services”) provided by Nestlé. By clicking “I Accept” or by using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 17, on behalf of yourself and the Customer, and you represent that you are authorized by Customer to agree to these Terms on behalf of yourself and such Customer. If you or the Customer do not agree to these Terms, do not use our Services.
We may supply different or additional terms in relation to some of our Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
If you have any questions about these Terms or our Services, please contact us by calling 1-800-344-1575.
Please refer to our Privacy Notice for information about how Nestlé collects, uses and discloses information about our customers.
The Services are not targeted towards, nor intended for use by, anyone under the age of 18. By accessing or using the Services, you represent and warrant that you (a) are 18 of age or older; (b) have not been previously suspended or terminated from the Services; and (c) have full power and authority to agree to these Terms on behalf of Customer and that, in doing so, you will not violate any other agreements to which you or Customer are a party.
3. Accounts and Account Security
Each Customer must register for at least one account to access some or all of our Services, and a Customer may have multiple accounts for separate divisions of its business (e.g., a Customer may have an account for its hospitality group and another account for its catering group). If you register for an account on behalf of Customer or a division of its business, you may only do so with the authorization of Customer to function as its account administrator, and you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of the account and promptly notify us if you discover or suspect that someone has accessed the account without permission. If others are permitted to use the Customer or Customer division account credentials, you represent that you and Customer are responsible for the activities of such users that occur in connection with the account.
4. Terms of Sale
4.1 Orders. Orders for Products (“Orders”) may be placed through the Site. All orders are subject to the terms of the Customer Agreement between Nestlé and Customer, and such Customer Agreement is hereby incorporated by this reference with respect to Orders made on the Site. If you place an Order, you represent that you are duly authorized by Customer to place such Order. All Orders are final and may not be cancelled or returned unless otherwise agreed by Nestlé in writing.
4.2 Payments & Pricing. You will provide accurate and up-to-date payment information at the time you order any Product. You will have sufficient funds or credit available upon placement of any such order to ensure that the purchase price will be collectible by us. The Site may contain information regarding the availability of Products. In rare cases, a Product may be in stock when you place the Order, and sold out by the time we attempt to process the Order. Should this happen, we will notify you and cancel the item from your Order. Orders are not confirmed until an Order confirmation is sent via email. Unless otherwise specified, prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery; and (b) value added tax and any other tax or duty which (where applicable) must be added to the price payable. You will pay for taxes, shipping or carriage of the Products as such costs are specified in the Customer Agreement.
4.3 Delivery. We strive to ensure deliveries in the timing shown on the delivery option selected and set out in the order confirmation, but we do not guarantee delivery times. Your order will be delivered to the United States address that you specify when placing your order. The Product(s) ordered will be at your risk when the Product(s) are shipped.
5. Prohibited Conduct and Content
5.1 You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
Sell, resell or otherwise receive compensation from others to use our Services;
Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
Develop or use any applications that interact with our Services without our prior written consent;
Bypass or ignore instructions contained in our robots.txt file; or
Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
5.2 Enforcement of this Section 5 is solely at Nestlé’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 5 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
6. Ownership; Limited License
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Nestlé or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
The trademarks, logos, characters, our product or service names, our slogans and the look and feel of the Services belong to Nestlé and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us. Nestlé will aggressively enforce its intellectual property rights to the fullest extent of the law, including criminal prosecution.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Nestlé or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Nestlé’s sole discretion. You understand that Nestlé may treat Feedback as nonconfidential.
9. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Nestlé’s designated agent as follows:
Designated Agent: Legal Department / DMCA Notices
Address: Nestlé USA, Inc.
1812 N. Moore
Arlington, VA 22209
Telephone Number: (818) 549-6000
E-Mail Address: DMCA.Notice@us.nestle.com
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Nestlé for certain costs and damages.
10. Third-Party Content
We may provide information about third-party products, services, activities, trainings or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Nestlé does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
You may access trainings, whether offered by Nestlé through the Services or as Third-Party Content made available on the Site (collectively, “Trainings”). Pursuant to Sections 12 and 13 of these Terms, your access to and use of the Trainings is at your own risk, and Nestlé bears no liability for your access to or use of the Trainings or the information you obtain through such Trainings. You may also assign Trainings to other users authorized by Customer, and if you do so, you are responsible for the activities of such users in connection with their access to and use of the Trainings or the information you obtain through such Trainings.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Nestlé and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Nestlé Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You will promptly notify Nestlé Parties of any third-party Claims, cooperate with Nestlé Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the Nestlé Parties will have control of the defense or settlement, at Nestlé's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Nestlé or the other Nestlé Parties.
Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Nestlé does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Nestlé attempts to make your use of our Services and any content therein safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
14. Limitation of Liability
To the fullest extent permitted by applicable law, Nestlé and the other Nestlé Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Nestlé or the other Nestlé Parties have been advised of the possibility of such damages.
The total liability of Nestlé and the other Nestlé Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the amount paid by you to use our Services in the twelve months prior to the first event that gave rise to a Claim.
The limitations set forth in this Section 14 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Nestlé or the other Nestlé Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release Nestlé and the other Nestlé Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties.
16. Transfer and Processing Data
In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
17. Governing Law and Venue
Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of Delaware, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Delaware and the United States, respectively, sitting in New Castle County, Delaware.
18. Modifying and Terminating our Services
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
The failure of Nestlé to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically.