TERMS & CONDITIONS
FRESHCUP TERMS & CONDITIONS
Freshcup Terms and Conditions (“Freshcup T&Cs”) apply to customers (the “Customers”) of Fresh UP , a company organised under the laws of the Republic of Latvia with its principal office located at Lubānas iela 125A-18,Rīga, LV-1021, Latvija, legal entity code [code], (“Freshcup”), Customers and Freshcup may be referred to herein individually as a “Party” and jointly as the “Parties”.
INTRODUCTION
1.1. Services provided under Freshcup T&Cs shall not be considered as regulated payment services, as Freshcup T&Cs are construed under limited network exclusion established in Article 3(5)(11)(a) of the Law on Payments and Article 3(k)(i) of PSD2. The Customer acknowledges that Freshcup does not hold any license for regulated financial services and that Services provided by Freshcup are not supervised by the Bank of Latvia or any other financial supervisory authority.
1.2. In case Freshcup enables marketing and/or provision of regulated financial services offered by third persons on Freshcup App, Freshcup shall ensure that such regulated financial services are clearly separated (e.g. by using separate interfaces and presenting proper disclaimers) from nonregulated services of Freshcup that fall under limited network exclusion established in Article 3(5)(11)(a) of the Law on Payments and Article 3(k)(i) of PSD2.
DEFINITIONS
2.1. The capitalized terms used in Freshcup T&Cs shall have the following meaning:
2.1.1. “Applicable Law” means all applicable provisions of all laws, treaties, regulations, orders of governmental authorities and all orders and decrees of all courts and arbitrators that are applicable to the Parties.
2.1.2. “Balance” means combined value of Prepayments and any monetary Loyalty Bonuses that the Customer holds in his/her account on Freshcup App.
2.1.3. “Business Day” means a calendar day, except Saturdays, Sundays and official holidays and days off set by the legal acts of the Republic of Lithuania, when financial institutions are normally open for business in Lithuania.
2.1.4. “Customer” means a natural person who enters into an agreement under these Freshcup T&Cs for personal, household or family purposes (i. e. consumer). To become a Customer, a natural person has to download, install Freshcup App on his/her mobile phone and register there accordingly.
2.1.5. “Data Protection Law” means any applicable data protection or privacy laws and regulations including all European Union laws and regulations implemented in the Republic of Lithuania, in particular the European Union’s General Data Protection Regulation (EU) 2016/679 (“GDPR”), and other Applicable Law.
2.1.6. “Force Majeure Event” means any event affecting the performance by a Party of its obligations under Freshcup T&Cs arising directly from an act of God, war, fire, flood, earthquake, epidemics, or storm, disruptions in the power or communication infrastructure, disruptions in payment networks, acts of terrorism, explosion, civil commotion, or industrial dispute affecting an industry or industries as a whole.
2.1.7. “Law on Payments” means the Law on Payments of the Republic of Lithuania (as amended).
2.1.8. “Login Details” mean personalized features that Freshcup provides or makes available to the Customer to access Freshcup App and to verify the validity of its use.
2.1.9. “Loyalty Program(s)” mean consumer engagement and loyalty Programs, offered to the Customer through Freshcup App, which enable the Customer to receive and spend Loyalty Bonuses and/or Participation Bonuses for purchasing Merchant’s products/services in part or in full on the Machines through Freshcup App.
2.1.10. “Loyalty Bonus(es)” mean voluntary monetary, point-based and in-kind obligation, expressed as a financial liability (e.g. bonuses and discounts) given by Merchants / Fresh UP and/or Freshcup to the Customer in exchange for the Customer participating in certain Loyalty Program (e.g. buying a certain set of products/services at a certain time and/or place from a certain Merchant, etc.) or making a marketing action (e.g. inviting a friend to register on Freshcup App, etc.).
2.1.11. “Machine(s)” mean unattended machines operated by Merchants, connected to Fresh UP payment processing system, and participating in Freshcup Network.
2.1.12. “Merchant(s)” mean third party operators of the Machines, which offer products/services, payable for via Freshcup App.
2.1.13. “Freshcup” means SIA Fresh UP, a company organized under the laws of the Republic of Latviawith its principal office located at Antakalnio str. 17, Vilnius 10312, Lithuania, legal entity code [code].
2.1.14. “Freshcup App” means Freshcup vending machine app used by Customers to make purchases at the Machines operated by Merchants of Freshcup Network and participation in Loyalty Programs.
2.1.15. “Freshcup Network” means a limited network of Merchants under direct commercial agreements with Freshcup, construed in accordance with Article 3(5)(11)(a) of the Law on Payments and Article 3(k)(i) of PSD2 (i. e. limited network exclusion).
2.1.16. “Freshcup T&Cs” mean these Freshcup Terms & Conditions concluded between Freshcup and the Customer and any annexes to these Freshcup Terms & Conditions.
2.1.17. “Fresh UP” means a group of companies, operating globally under Fresh UP brand name with a parent company, Fresh UP Ltd., providing smart payment processing solutions to the unattended industry and other related products and services. Freshcup is a part of Fresh UP. Card acquiring, payment processing and settlement services provided by Fresh UP member companies and/or outsourced.
2.1.18. “Participation Bonuses” mean voluntary obligation, expressed as a financial liability (e.g. cashback), provided by Merchants and/or Freshcup to the Customer in exchange for the Customer making a certain amount of Prepayment or spending a certain amount of Prepayments in a certain geographic area or on certain Machines, buying certain products/services during a given time window or performing a certain promotional activity.
2.1.19. “Party” or “Parties” mean (i) Freshcup; (ii) the Customer; (iii) Freshcup and the Customer as the context permits.
2.1.20. “Prepayments” mean advance payments of the Customer to Freshcup App for products/services sold by Merchants through Freshcup App.
2.1.21. “Privacy Policy” means Freshcup policy governing the processing of personal data, which is placed on Freshcup App. By accepting Freshcup T&Cs, the Customer also accepts and agrees to the provisions of the Privacy Policy, as amended from time to time.
2.1.22. “PSD2” means Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (as amended).
2.1.23. “Services” mean the following services provided by Freshcup to the Customer:
2.1.23.1. enabling the use of Freshcup App;
2.1.23.2. enabling Prepayments to top-up Balance on Freshcup App;
2.1.23.3. enabling payments (spending of Prepayments) for purchases of products/services from Machines of the Merchants of Freshcup Network;
2.1.23.4. enabling the Customer to participate in Loyalty Programs;
2.1.23.5. display of promotional materials, surveys and other feedback-gathering or getting-in-touch tools;
2.1.23.6. additional services related to the services described above (e.g. currency conversion).
2.2. In interpreting these Freshcup T&Cs:
2.2.1. all article, clause, schedule and paragraph headings in Freshcup T&Cs are solely for convenience and shall not affect their interpretation;
2.2.2. unless the context clearly indicates otherwise, words denoting one gender include all genders, words denoting individuals or persons include entities and vice versa, words used in the single include the plural and vice versa, and the words “including”, “included”, “in particular” and of any similar expression shall be construed as being by way of illustration only and not as limiting the generality of any words preceding them.
BINDING EFFECT
3.1. Freshcup T&Cs regulate provision of the Services by Freshcup to the Customer.
3.2. Freshcup T&Cs shall constitute a legally binding agreement between Freshcup and the Customer which enters into force on the date the Customer agrees to be bound under Freshcup T&Cs (by checking the box online or in-app confirming such agreement or otherwise, e. g. by electronic means) and remain in force for an indefinite period of time unless terminated following the provisions set forth herein.
3.3. Any additional terms and conditions which regulate relationship between Freshcup and the Customer, that are not stated in Freshcup T&Cs, as well as any additional services or products that Freshcup and / or Merchants provide or make available to the Customer from time to time, not covered by Freshcup T&Cs, may be subject to a separate agreement or annex executed in addition to Freshcup T&Cs. In case of any conflict between Freshcup T&Cs and separate agreement or annex, the terms of a separate agreement or annex shall prevail.
ABOUT THE SERVICES
4.1. Services provided by Freshcup enable the Customer to use Freshcup App for purchasing products/services from Merchants that belong to Freshcup Network and to participate in Loyalty Programs.
4.2. Services provided under Freshcup T&Cs shall not be considered as regulated payment services, as Freshcup T&Cs are construed under limited network exclusion established in Article 3(5)(11)(a) of the Law on Payments and Article 3(k)(i) of PSD2. The Customer acknowledges that Freshcup does not hold any license for regulated financial services and that Services provided by Freshcup are not supervised by the Bank of Lithuania or any other financial supervisory authority.
4.3. Freshcup App may offer a Machine locator function which helps the Customer find Machines closest to Customer’s location. This function is dependent on Customer’s wireless service, mobile device’s GPS antenna coverage and the wireless coverage within the area in which the Customer is located at that time.
4.4. Services are only available to participating Merchants and Machines that use Freshcup designated devices and may be marked with the “Freshcup” logo.
4.5. Using the Services requires an online (Wi-Fi or cellular data) connection between the Customer’s mobile device and the Internet. The Customer is solely responsible for all costs and expenses of such connection, as specified in the Customer’s subscriber plan or contract with the relevant communication service provider (such as cellular network operator).
AGE RESTRICTION
5.1. Provision of Services is intended and permitted only for Customers of 16 years of age or older. Customers under the age of 16 may not use the Services in any way.
5.2. If the Customer is under the age of 18, then the Customer must obtain permission from Customer’s parent or legal guardian to use the Services and accept Freshcup T&Cs.
5.3. By using, accessing or registering with Freshcup App, the Customer declares that he / she is 16 years of age or older. If the Customer is between the age of 16 and 18, then the Customer also declares that he / she has received parent’s or legal guardian’s permission to use the Services and accept Freshcup T&Cs.
5.4. Freshcup reserves the right to terminate/close Customer’s account on Freshcup App, if Freshcup finds that the Customer is younger than the minimum age specified above. Freshcup may request additional information to confirm the Customer’s age at any time.
REGISTRATION ON FRESHCUP APP
6.1. Use of the Services requires Customer to download and register on Freshcup App. The Customer is prohibited from selling, assigning or transferring his/her Balance on Freshcup App in any way, to any third party.
6.2. When the Customer registers on Freshcup App, Freshcup will ask the Customer to provide Freshcup with certain contact and personal details. Freshcup will also ask the Customer to provide Freshcup with the necessary information to enable the Customer to load Prepayments to Freshcup Wallet (functionality supported by third parties). The Customer must submit only true, accurate and complete details. Provision of false, fraudulently acquired, incorrect or outdated information may prevent the Customer from registering and impair Freshcup’s ability to provide the Customer with the Services, and/or contact the Customer.
6.3. Freshcup will explicitly indicate the fields for mandatory completion. If the Customer does not enter the requisite data in these fields, the Customer will not be able to register on Freshcup App. Freshcup will only use the Customer’s personal details in accordance with the Privacy Policy.
6.4. The Customer must maintain the Login Details to Freshcup App in absolute confidentiality and refrain from disclosing them to others. The Customer is recommended to change Freshcup App password frequently, i. e. at least once every 3 (three) months, or enable additional security measures protecting his/her mobile device from unwarranted access (passphrase, fingerprint-/face-reader, etc.).
6.5. The Customer is fully accountable for any outcome resulting from the failure to provide true, accurate and complete details in the course of the registration and for any use or misuse of Freshcup App as a result of conveying Freshcup App details to someone else.
6.6. If the Customer has reason to believe that Freshcup Wallet has been compromised (such as if the Customer’s mobile phone was lost, stolen, or misplaced), the Customer must notify Freshcup immediately so that Freshcup suspends Freshcup Wallet to prevent unauthorized use of the Balance. In any event, the Customer will not be entitled to any refund for unauthorized purchases made through Freshcup App.
6.7. In case the Customer’s mobile device was stolen, lost or damaged, the Customer may transfer Freshcup App, and its existing Balance, by downloading Freshcup App to a new mobile device and entering the Login Details of Freshcup App. The remaining Balance (if any) in Freshcup App will be transferred to the Customer’s new mobile device.
6.8. Freshcup reserves the right to request additional information regarding Customer’s identity during the registration process, throughout the use of the Services, or when the Customer submits requests related to Freshcup App. If the Customer fails to provide Freshcup with the requested information, Freshcup reserves the right to suspend or terminate/close Freshcup Wallet, pursuant to Freshcup T&Cs.
MAKING OF PREPAYMENTS
7.1. Freshcup App allows the Customer to make Prepayments to the Balance on Freshcup App, for the future use at Machines, subject to Freshcup T&Cs. The Customer may make Prepayments to Freshcup App using one or more of Freshcup’s supported payment methods (the “Payment Methods”), which presently include:
7.1.1. electronic top-up from open-loop payment card or other payment instrument held by the Customer with an external issuer.
7.1.2. other electronic wallets, such as PayPal, Apple Pay, AliPay, Google Pay, etc.
7.1.3. Merchant-specific (closed-loop) payment cards (instruments), which Freshcup may configure for a given geography or merchant.
7.2. Freshcup may, from time to time, and without specific notice to the Customer, add additional Payment Methods, or cease to use previously supported Payment Methods.
7.3. Payment Methods are processed and handled through relevant third parties, such as credit or debit card service providers. Payment Methods are therefore subject to the terms and conditions of such third parties, pursuant to the Customer’s contractual relations with them. The Customer acknowledges that the third parties processing the Payment Method, may charge the Customer commission for making Prepayments on their end of the transaction. Freshcup is not responsible for such commission, which is strictly within the contractual relations between the Customer and the relevant Payment Method provider.
7.4. By associating one or more of the above Payment Methods with Freshcup App, during registration to Freshcup App, or thereafter, the Customer
7.4.1. represents and warrants that the Customer is lawfully permitted to use the selected Payment Method in connection with the Services;
7.4.2. consents to charging selected Payment Method using third party payment acquirer when Customer instructs to execute a Prepayment. As a result of this charge, the Freshcup App balance would be increased by an equivalent amount, available for the Customer for later spending. This action is equivalent to the funding stage of a Digital Wallet Operator as defined by Visa and MasterCard payment card schemes;
7.4.3. consents to reducing the Prepayment and/or Freshcup App balance by the equivalent value of the purchase price of the product/service paid for using Freshcup App and any foreign currency conversion or additional commission fees charged at a time. When the funds used in the payment transaction originated from earlier funding activity, this action is equivalent to the payment stage of a Digital Wallet Operator as defined by Visa and MasterCard payment card schemes;
7.4.4. understands that Freshcup depending on a geographical market, transaction size, payment instrument used and payment acquirers requirements may instead of separate funding and payment stages, as defined in 7.4.2 and 7.4.3 of these T&Cs, chose to re-transmit payment card information to Visa/MasterCard card scheme networks directly. In this case, the Freshcup balance will remain unaffected and the Customer’s payment card will be charged with the specific price a given purchase the Customer initiated on the Machines. This is equivalent to a Pass-Through Digital Wallet activities, as defined by the Visa/MasterCard payment card schemes;
7.4.5. if recurring payments or automatic top-up options are enabled by the Customer in the Freshcup App, consents to automatic charging of selected Payment Method every time an earlier set minimum Freshcup App balance is reached or subscription-based purchase is made by the Customer. Depending on technical factors, external acquiring partners’ and/or Payment Method issuer’s requirements, such consent may be given only once (“card-on-file”), once in a certain period of time or each time the Customer wants to charge the Payment Method. If the Customer gave a one-time consent to repeatedly charge his/her Payment Method upon his/her instruction without any additional authorization, s/he may withdraw his/her consent to charge the selected Payment Method, by removing the Payment Method details from Freshcup Wallet on Freshcup App.
7.5. Freshcup may require additional information from the Customer before making of Prepayments to Freshcup App.
7.6. Once the Prepayment is completed, the funds on Freshcup App belong to Freshcup in exchange for Freshcup offering the Customer a financial obligation of equal value for products/services sold by Merchants on the Machines via Freshcup Network.
7.7. Prepayments cannot be reversed by the Customer, transferred to another Customer or third party, meaning that the Customer can only spend them for products/services sold by Merchants on the Machines via Freshcup Network.
7.8. If Prepayments were charged/consumed due to technical error on Freshcup part, it will reimburse the Customer by reverting the charge and/or increasing Freshcup App balance with an equivalent amount.
7.9. If applicable rules relating to the Customer’s chosen Payment Method gives the Customer the right to cancel the charge debited to the Payment Method, and the Customer wishes to exercise that right, the Customer must contact the relevant Payment Method provider in order to do so. The Payment Method provider, and not Freshcup is responsible for processing the Customer’s cancellation and refunding the Customer.
7.10. The Customer acknowledges that the funds held on Freshcup App shall not be regarded as a deposit or electronic money and Freshcup does not, in any circumstances, pay any interest on the Balance held on Freshcup App and does not provide any other benefits to the Customer that are typically provided for deposits or electronic money.
7.11. Upon request, the Customer will be entitled to receive the refund or reimbursement for any Balance available in Freshcup App in the event of its closure, even if the remaining Balance is insufficient to cover the price of any purchasable product on any Machine. Freshcup may charge redemption or fund transfer fees, applicable at the time.
7.12. Prepayments loaded to the Balance on Freshcup App will be available for the Customer’s use for a period of 5 (five) years from the last date of any use of Freshcup App. Upon the lapse of this period, the Customer irrevocably relinquishes and waives any rights in and to such Prepayments, and will not be able to use them for any purchase or obtain a refund for them, Freshcup App balance will be nullified.
7.13. Upon uninstallation of Freshcup app and receipt of an explicit Customer’s request, a given Prepayment operation may be reimbursed (reverted) not later than 6 months after its successful execution.
LOYALTY PROGRAMS
8.1. Loyalty Programs are joint Programs that may be offered to Customers by specific Merchants and/or Freshcup through Freshcup App.
8.2. The Customer may check the available Loyalty Programs and the detailed and up-to-date list of Merchants and Machines, where specific Loyalty Programs apply, on Freshcup App.
8.3. Participation in a specific Loyalty Program shall be subject to the rules provided on Freshcup App. Freshcup and/or Merchants may, from time to time, without specific notice to the Customer, change the existing rules of Loyalty Programs.
8.4. The Customer acknowledges that Freshcup and/or the Merchants may choose at any time, without specific notice to the Customer, to discontinue existing Loyalty Programs in full or in part.
8.5. As a result of participating in Loyalty Programs through Freshcup App, Customers may receive Loyalty Bonuses, Participation Bonuses offered by Merchants and/or Freshcup:
8.5.1. Loyalty Bonuses may be expressed in the form of financial, point-based or in-kind obligations of Merchants and/or Freshcup with respect to the Customer (e.g. bonuses or discounts);
8.5.2. Participation Bonuses may be expressed in monetary form as a percentage fraction of the value spent by the Customer on a certain purchase / Prepayment, which would be returned to the Customer (e.g. cashback) after the purchase.
8.6. Monetary Loyalty Bonuses and Participation Bonuses associated with Loyalty Programs may be redeemable for cash through Freshcup App.
8.7. The Customer acknowledges that the monetary value of Prepayments, Loyalty Bonuses and Participation Bonuses may be summed up and shown as a single value in Freshcup App. In-kind and/or point-based Loyalty Bonuses (e.g. “buy 2 and get 1 free” offers, etc.) shall not be summed and can only be utilized on specific Machines operated by specific Merchant(-s).
PAYMENTS AT THE MACHINES
9.1. The Customer may use Balance, Loyalty Bonuses and Participation Bonuses for purchases only at participating Machines of the Merchants of Freshcup Network.
9.2. The Customer is solely responsible for the choice of products/services that the Customer wishes to purchase and the Machine that the Customer wishes to purchase at. The Customer must accurately follow the instructions provided to the Customer by the Merchant, Freshcup App, on or by the Machine.
9.3. By selecting a product/service on a Machine, the Customer agrees to pay the price indicated on the Machine for that product/service. Payment is made using Freshcup App. When the Customer initiates a purchase using Freshcup App, the total sum of Loyalty Bonuses, Participation Bonuses and/or Prepayments is reduced by the equivalent price of the product/service purchased at the Machine of the relevant Merchant of Freshcup Network. Similarly, when the Customer initiates an in-kind purchase (e.g. uses an in kind coupon), the in-kind obligation (coupon) is used-up (terminated) by Freshcup upon release of the purchased product/service at the Machine.
9.4. Loyalty Bonuses and Participation Bonuses have a precedence over Prepayments made by the Customer. When the Customer pays for any products at the Machines of Merchants on Freshcup Network, first any available Loyalty Bonuses and Participation Bonuses are used (spent) and when used up fully, valid earlier made Prepayments are used (spent).
9.5. In case the Customer does not have sufficient funds in Freshcup App to purchase a desired product, an alert will appear on Freshcup App and/or in Freshcup’s designated device on the Machine. The Customer will not be allowed to purchase a product if the Customer does not have sufficient Balance in Freshcup App. The Customer is not entitled to be extended a credit and may not spend funds in excess of the Balance in Freshcup App.
9.6. Some Merchants may charge the Customer a commission or surcharge that may increase the price of the purchased product. Indication of such commission or surcharge will appear on the Machine’s screen prior to the transaction.
9.7. If applicable consumer protection laws give the Customer the right to cancel the purchase and receive a refund, and if the Customer wishes to exercise that right, the Customer must contact the Merchant in order to do so. The Merchant is responsible for processing the Customer’s cancellation and refunding the Customer. The Customer is not entitled to receive a refund from Freshcup for successful purchases made through Freshcup App.
9.8. The Customer acknowledges that the Services provided by Freshcup in connection with the Merchants and the Machines do not constitute a recommendation by Freshcup of any Merchant, Machine or product/service offered by them, or encouragement to purchase any product/service offered by any Merchant or on any Machine, and that Freshcup is not responsible for the suitability of any particular product to the Customer, or to the quality, merchantability, or fitness for a particular purpose of any product provided by merchants.
9.9. In an event of a damaged product being dispensed or no product dispensed by the Machine after the completion of the purchase process, the Customer must contact the Merchant directly. Freshcup is not responsible for the quality of the products vended or improperly vended through the Machine, and the Customer is not entitled to any refund from Freshcup in connection with any damaged product vended or improperly vended through a Machine.
9.10. The Merchants bear full and sole responsibility with respect to the Machines and their respective products, including without limitation in respect of product liability or consumer protection claims. Any communications, dealings or purchase transactions that the Customer makes through the Machines, or with Merchants, are made strictly between the Customer and such Merchants. Freshcup is not a party and does not assume any responsibility or liability with respect to such communications, dealings or purchase transactions. The Customer hereby releases and agrees to hold Freshcup harmless from any and all causes of action and claims of any nature resulting from the Customer’s activities and communications with the Merchants.
9.11. In case of any malfunction of Freshcup App or Freshcup designated device on the Machines (if any) within Freshcup Network, the Customer must contact Freshcup directly. In the even the Customer were charged as a result of such malfunction, upon completion of an investigation regarding such malfunction, Freshcup shall refund the Customer (if Freshcup satisfies the Customer’s claim for refund) by increasing the total Balance in Freshcup App on Freshcup App and/or providing or restoring the relevant Loyalty Bonuses or Participation Bonuses.
PREPAYMENT AND SPENDING LIMITS
10.1. The Customer, residing in European Economic Area, acknowledges that the total sum of Prepayments, Loyalty Bonuses and Participation Bonuses at any point in time, nor the turnover (total spending amount) of said amounts must not exceed EUR 150 per month or equivalent amount in another currency.
10.2. Freshcup shall also have the right to apply minimum and maximum limits for transactions to be made via Freshcup App, i.e. set minimum/maximum Prepayment amounts and/or minimum/maximum spending amounts per each transaction.
10.3. The Customer may check applicable limits on Freshcup App upon logging into Freshcup App. Freshcup may, from time to time, without specific notice to the Customer, change the existing limits.
CURRENCY EXCHANGE
11.1. The Prepayments, monetary Loyalty Bonuses and Participation Bonuses shall always be denominated and shown on Freshcup App in a local currency of a country, where Customer resides, provided such currency is supported by Fresh UP. If local currency is not supported, when making Prepayments, Customer’s payment instrument shall be credited in United States Dollars (USD) and immediately converted to local currency at the exchange rate as defined in 11.4 of this Agreement. Consequently, the Freshcup app balance would be shown and spend in local currency. Customer’s default Freshcup balance currency shall be further be referred as Customer’s “Base Currency”.
11.2. When a Customer shall make a payment in a country operating a different local currency than Customer’s Base Currency, any such payment shall encompass an automatic currency exchange from the Base Currency to the local currency, in the amount of the purchased product/service price in local currency at the exchange rate as per clause 11.5 of this Agreement.
11.3. Freshcup presently does not charge any commission, currency exchange fee nor additional currency spread for the currency exchange. However, Freshcup reserves the right to introduce currency exchange fees as it deems fit in future.
11.4. When effecting payments (or Prepayments where relevant) involving currency exchange, Freshcup shall utilize the current exchange rate of a given currency available at: [URL of forex API]. Freshcup reserves the right to change / update the currency exchange rate source at any time, as per clause 21.1 of this Agreement.
11.5. Freshcup is not responsible or accountable in any way for any change in value or purchasing power of Freshcup App balance, arising from the change in the exchange rate of any local currency and Customer’s Base Currency or inflation of Customer’s Base Currency.
FEES
12.1. Freshcup shall not charge the Customer any fees for making payments through Freshcup App at the Machines to purchase products/services from the Merchants of Freshcup Network and/or for participation in the Loyalty Programs.
12.2. Freshcup may charge the Customers fees for offering specific Payment Methods for making Prepayments. The Customer may check applicable fees on Freshcup App upon logging into Freshcup App.
LICENSE
13.1. Subject to Freshcup T&Cs, Freshcup grants the Customer a limited, revocable, non exclusive, personal, non-sub-licensable, non-transferable, non-assignable right, until the termination or expiration of Freshcup T&Cs, to download and install Freshcup App on a mobile device owned or controlled by the Customer, and use the Services through Freshcup App in accordance with Freshcup T&Cs.
13.2. Subject to any fees or commissions that Freshcup may charge the Customer for the use of the Services and to the other provisions of Freshcup T&Cs, the right to download and install Freshcup App, and use the Services, is granted for the Customer free-of-charge. Freshcup may, however, at any time, start charging a fee for downloading, installing Freshcup App, or using the Services or any of its features. In such a case, Freshcup will notify the Customer beforehand and seek the Customer’s consent to those charges. If the Customer does not consent to such fees and charges, Freshcup may block the Customer’s access to the Services, delete/close Freshcup App, and terminate Freshcup T&Cs.
ACCEPTABLE USE OF THE SERVICES
14.1. The following clauses define the acceptable use of the Services. Subject to Freshcup T&Cs, the Customer may use the Services, for own personal and non-commercial purposes only.
14.2. The Customer agrees to abide by the Applicable Law and any usage guidelines that Freshcup may convey from time to time. The Customer further agrees that he/she is solely responsible for all acts or omissions associated with accessing and using of the Services and the access and use of the Services by anyone on the Customer’s behalf.
14.3. When using the Services, the Customer agrees to refrain from wilfully, or negligently:
14.3.1. breaching Freshcup T&Cs or any other applicable rules and instructions that Freshcup may convey with respect to the use of Freshcup T&Cs and any part thereof;
14.3.2. interfering with, burdening or disrupting the functionality of the Services;
14.3.3. breaching the security of Freshcup App or identifying (and attempting to identify) any security vulnerabilities in it;
14.3.4. circumventing or manipulating the operation or functionality of the Services, or attempting to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in Freshcup App;
14.3.5. sending automated or machine generated queries to Freshcup systems or Machines;
14.3.6. using robots, crawlers and similar applications to collect and compile content or information from Freshcup App or send data to Freshcup App including for the purposes of competing with the Services, or in such ways that may impair or disrupt functionality of the Services;
14.3.7. impersonating any person or entity, or making any false statement pertaining to the Customer’s identity or other personal information;
14.3.8. collecting or processing personal information regarding other users of the Services;
14.3.9. violating any Applicable Laws or any usage guidelines that Freshcup may convey from time to time;
14.3.10. using illegally acquired Payment Methods or not own Payment Methods for making Prepayments.
14.4. The Customer may not use the Services for purchases, transactions, or for the commission of activities, that may be considered, may constitute, or may encourage conduct that would constitute, a criminal offense, give rise to civil liability or otherwise violate any Applicable Law.
14.5. Freshcup may employ technological measures to detect and prevent fraudulent or abusive use of the Services. Freshcup may suspend or terminate/close Freshcup App, or block Customer’s access to and use of the Services, without prior notice at Freshcup’s sole discretion, if Freshcup believes that the Customer is using the Services fraudulently or abusively.
FRESHCUP APP SUSPENSION AND TERMINATION
15.1. The Customer may terminate Freshcup T&Cs and Freshcup App at any time, by uninstalling Freshcup App from all mobile devices in the Customer’s possession or control. The Customer agrees and acknowledges that upon termination/closure of Freshcup App and Freshcup T&Cs, the Customer irrevocably waives any and all rights in and to all prepaid and unused Balance, Loyalty Bonuses or Participation Bonuses remaining in Freshcup App after inactivity period as defined in 7.11. In such event, the Customer will not be entitled to any refund or reimbursement of such remaining Balance, Loyalty Bonuses or Participation Bonuses.
15.2. In addition to any remedies that may be available to Freshcup under any Applicable Law, Freshcup may temporarily or permanently deny, limit, suspend, or terminate Freshcup T&Cs and Freshcup App, prohibit the Customer from accessing the Services and Freshcup App, as well as take technical and legal measures to limit and/or prevent the Customer from using the Services and Freshcup App, if Freshcup in its sole discretion determines that:
15.2.1. the Customer has abused his/her rights to use the Services;
15.2.2. the Customer has breached Freshcup T&Cs or has failed to comply with Freshcup’s reasonable requests for information;
15.2.3. the Customer performed any act or omission that violates any Applicable Law;
15.2.4. the Customer performed any act or omission which is harmful or likely to be harmful to Freshcup, or any other third party;
15.2.5. the Customer performed any illegal act, or any act or omission for the purpose of enabling, facilitating, assisting or inducing the performance of such an act;
15.2.6. the Customer has not made any purchase, Prepayment or any other action to increase or reduce his/her Freshcup App Balance, for more than 5 (five) years;
15.2.7. the Customer deliberately submitted false information;
15.2.8. the Customer conveyed the Login Details of Freshcup App to another person or entity; or
15.2.9. the Customer is in debt to Freshcup for more than 1 (one) month.
15.3. Upon termination of Freshcup T&Cs or Freshcup App, for any reason:
15.3.1. Customer’s right to use the Services terminates and the Customer must immediately cease using the Services and uninstall Freshcup App from all mobile devices in the Customer’s possession or control;
15.3.2. Freshcup reserves the right to delete all of Customer’s information and Freshcup App data; and
15.3.3. Freshcup will not be liable to the Customer or any third party for termination of access to the Services or for deletion of Customer’s information or Freshcup App data.
15.4. The end of Freshcup T&Cs will not affect the validity of the terms of Freshcup T&Cs if according to their nature these terms are to be in force even after the end of Freshcup T&Cs.
LINKS AND COMMERCIAL INFORMATION ON FRESHCUP APP
16.1. Freshcup may incorporate advertisements and/or information of commercial nature on Freshcup App. The source of such information may originate from Freshcup, the Merchants or other third parties. If such information originates from the Merchants or other third parties, Freshcup cannot guarantee its reliability or accuracy. The Customer acknowledges that the advertising of commercial content by Freshcup does not constitute a recommendation or encouragement by Freshcup to procure the products/services advertised. Freshcup may allow advertisers to use Freshcup App to conduct surveys and/or approach Customers with questions of commercial nature.
16.2. Freshcup App may contain links to content published on other websites, applications or external sources, provided by third parties. Freshcup does not operate, or monitor these websites and content. The Customer may find them or the information and content posted therein to be annoying, improper, unlawful or immoral. By linking to a certain website or content, Freshcup does not endorse, or sponsor its content, or confirm its accuracy, credibility, authenticity, reliability, validity, integrity, or legality. Freshcup assumes no responsibility or liability for such third party websites or content, or their availability.
DATA PROTECTION
17.1. For more details regarding data protection and processing, please refer to the Privacy Policy.
INTELLECTUAL PROPERTY
18.1. The Customer acknowledges and agrees that any and all titles, interests and Intellectual Property Rights that exist now, and all such titles, interests and rights subsequently acquired by Freshcup to Freshcup App in its entirety, including without limitation to all information, content and material contained therein, are owned or licenced by Freshcup and are protected by intellectual property laws and / or international treaty provisions.
18.2. Nothing in Freshcup T&Cs grants the Customer any legal rights to Freshcup App in its entirety other than as necessary to enable the Customer to obtain the Services.
18.3. The Customer acknowledges that, under no circumstances, the Customer will acquire any title or interest to any part of Freshcup App or its contents. The Customer may not reproduce, store, share, distribute or use any of the information, content and material contained on Freshcup App, either in whole or in part, without Freshcup’s or the respective owner’s prior written consent.
18.4. Freshcup name and logos are trademarks of Freshcup and / or its affiliates. Other marks, graphics, icons, names and logos used or displayed on or through Freshcup App and the described or offered products or services are trademarks, trade dress and / or service marks of the Merchants, Freshcup, its affiliates or otherwise are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Freshcup.
18.5. The Customer must not copy or use any of the abovementioned trademarks, trade dress and / or service marks, in whole or in part, without Freshcup’s and the respective owner’s prior written consent.
CHANGES IN FRESHCUP APP
19.1. Freshcup may, but is not obligated to, maintain Freshcup App with periodic releases of bug fixes, code updates or upgrades. Freshcup will determine, at its own discretion, the frequency and scope of such releases and the Customer will have no claim or demand against Freshcup, for any of these releases or the lack thereof.
19.2. The Customer grants Freshcup his/her express consent to remotely send and automatically install on the Customer’s mobile device, without any prior or additional notice, updates, upgrades, code modifications, enhancements, bug fixes, improvements and any other form of code or settings changes in or to Freshcup App, which, among other things, may change Freshcup App’s settings, layout, design or display.
19.3. Freshcup may also, at any time and without prior notice, change the layout, design, scope, features or availability of Freshcup App.
19.4. Such changes, by their nature, may cause inconvenience or even malfunctions. The Customer agrees and acknowledges that Freshcup does not assume any responsibility with respect to, or in connection with the introduction of such changes or from any malfunctions or failures that may result therefrom.
19.5. Freshcup may, at any time, at its own sole discretion, discontinue or terminate the operation of Freshcup App, or any part thereof, temporarily or permanently, for all users, or for certain users, and without any liability to the Customer. Freshcup may also suspend the provision of the Services, in whole, or in part, for all users, or for certain users, for periodic maintenance or similar purposes, without any liability to the Customer. The Customer’s only resource, in each of these events, is to terminate Freshcup T&Cs.
19.6. The Customer acknowledges that Freshcup App code may contain bugs and/or security vulnerabilities, unknown to or not fixed at the time by Freshcup, which may render the Freshcup App functioning improperly or presenting a way for a maleficent third party to illegally access (hack into) Customer’s mobile phone, gain access, retrieve, encrypt, change, damage or misuse his/her personal data as well as cause direct and indirect damage to Customer. The Customer hereby agrees to not hold Freshcup accountable for any damage caused by third parties.
SERVICE SUPPORT, AVAILABILITY AND QUALITY
20.1. Freshcup may, but is not obligated to, offer technical support in connection with the Customer’s use of Services, in the format, frequency, scope and scheme that Freshcup, at its sole discretion, determines from time to time. The Customer will have no claim or demand against Freshcup in any matter related to provision of technical support, or for the lack thereof.
20.2. The availability, quality and functionality of the Services depends on various factors, including software, hardware, communication networks and quality of cellular network connectivity, which are provided by third parties, at their responsibility. These factors are not fault-free and do not necessarily provide the best possible throughput or quality of service. Freshcup does not warrant that the Services will operate without disruptions, errors or interruptions and/or that Services will accessible or available at all times.
AMENDMENTS TO THE TERMS
21.1. Without prejudice to other provisions of Freshcup T&Cs, Freshcup reserves the right to unilaterally change Freshcup T&Cs at any time. Changes to Freshcup T&Cs are subject to at least 10 (ten) Business Days’ notice before their proposed date of application. If the Customer does not terminate his/her account and uninstall the Freshcup App before the proposed date of their entry in force, the Customer will be deemed to have accepted such changes and be bound by the updated or amended Freshcup T&Cs. Such changed Freshcup T&Cs notice may be delivered (shown) to the Customer in the Freshcup App and/or published on Freshcup website.
21.2. In the event that the Customer disagrees with the proposed changes to Freshcup T&Cs, the Customer has the right to terminate Freshcup T&Cs free of charge and with effect at any time until the date of their proposed date of entry into force by uninstalling Freshcup App.
21.3. The Customer is not entitled to unilaterally change, amend or alter provisions of Freshcup T&Cs.
LIABILITY
22.1. Without prejudice to other provisions of Freshcup T&Cs that exclude or limit Freshcup’s liability, Freshcup shall not be liable:
22.1.1. for any indirect damages;
22.1.2. for the products/services that the Merchant sells, supplies, provides or receives, including without limitation for the quality, performance, safety and legality of such products/services, as well as for their actual delivery;
22.1.3. for damages occurred due to unauthorised access to Freshcup App, in case Freshcup has evidence that such unauthorised access was caused by dishonesty, or gross negligence, or fraud of the Customer;
22.1.4. for any viruses or other malware suffered by the computer or other system, software or equipment therefrom the Customer accesses and uses Freshcup App;
22.1.5. damages the Customer incurs due Freshcup App malfunction or failure to operate;
22.1.6. for damages the Customer incurs due to his/her failure to comply with the Applicable Law;
22.1.7. for damages caused to the Customer as a result of hacking or any illegal misuse of the Freshcup App by third parties.
22.2. To the extent permitted by Applicable Law, Freshcup shall be liable only due to its wilful misconduct.
22.3. The Party shall be exempted from liability for non-performance of obligations under Freshcup T&Cs if it can prove that non-performance of obligations is caused by Force Majeure Event. The Parties shall give notice to each other as soon as reasonably practicable after becoming aware of the Force Majeure Event and of its failure or likely failure to perform any of its obligations under Freshcup T&Cs.
LANGUAGE
23.1. The formal language of Freshcup T&Cs, information and documents to be provided by the Customer under Freshcup T&Cs, as well as communication between the Parties shall be English. The provisions of Freshcup T&Cs in English shall prevail over any other language that may be used in the communication with the Customer (where so required). Using in communication with the Customer of any other language is exclusively for informal purposes and in no way shall alter, change or modify Freshcup T&Cs.
GOVERNING LAW AND JURISDICTION
24.1. Freshcup T&Cs are governed by and shall be construed in accordance with the laws of the Republic of Lithuania without regard to any choice or conflict of laws rules.
24.2. Any dispute or claim, whether contractual or non-contractual, arising out of or in connection with Freshcup T&Cs, or the breach, termination or invalidity thereof, or any other issue which shall arise in relation of Freshcup T&Cs, shall be referred to and finally settled by the courts of the Republic of Lithuania.
NO WAIVER
25.1. Failure or delay by Freshcup to exercise any right, power or remedy under Freshcup T&Cs or to require or enforce strict performance by the Customer of any provision of Freshcup T&Cs and any supplemental or incorporated documents or policies shall not be regarded as a waiver or relinquishment of any such right, power or remedy.
NO ASSIGNMENT
26.1. The Customer may not novate, assign, transfer, sub-contract or otherwise grant any rights, obligations, claims or legal interest under Freshcup T&Cs.
26.2. Freshcup reserves the right to assign the rights and obligations under Freshcup T&Cs to any subsidiaries, affiliates or any third parties at any time without the Customer’s consent, provided that such an assignment will be in compliance with the requirements of Applicable Law.
SEVERABILITY
27.1. The invalidity of one or more provisions of Freshcup T&Cs does not affect the validity of the remainder of Freshcup T&Cs. The Parties shall endeavor to replace the invalid provision with one that most closely approximates the economic purpose of the invalid provision.
CONTACT DETAILS
28.1. Notifications, statements, reports and any other communications related to the Services shall be transmitted to the Customer by posting on Freshcup App and/or by e-mail or phone at the Customer’s verified e-mail address or phone number.
28.2. Customer may contact Freshcup through:
28.2.1. E-mail: support@Freshcup.lv
28.2.2. Chat Support and other contact methods available in Freshcup App.
28.3. Freshcup will notify the Customer about changes in the contact details of Freshcup and contact tools available to the Customer.
28.4. The Customer is required to check Freshcup App and the Customer’s verified e-mail address and/or phone number regularly in order to timely be acquainted with any notifications and other communications provided to the Customer. The Customer accepts that the Customer’s failure to comply with this requirement may result in loss of notifications that may impact the Customer’s rights and obligations under Freshcup T&Cs. Freshcup shall not be liable for any losses or damages arising out of the Customer’s failure to comply with the above requirement.
28.5. All communications sent by electronic means (via the Internet) and/or phone number will be done in English language and shall be deemed to be made in writing.