Merchant Terms of Use

 

CALGORY, LLC

MERCHANT GOODS AND SERVICES PROVIDER TERMS OF USE

 

1. Contractual Relationship

1.1 Application of Terms. These Terms of Use ("Terms") govern your access or use, from within the United States and its territories and possessions as a “Merchant Goods and Services Provider” ( as that term is defined below), of the applications, websites, content, products, and services (the "Calgory Merchant Services," as more fully defined below in Section 3) made available in the United States and its territories and possessions by Calgory, LLC and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "Calgory"). PLEASE READ THESE TERMS CAREFULLY, AS THEY FORM A CONTRACTUAL AND LEGAL AGREEMENT BETWEEN YOU AND Calgory. In these Terms, the words "including" and "include" mean "including, but not limited to." Calgory provides access to a website (the “Site”) which serves as a platform through which certain merchants (“Merchant Goods and Services Providers”) can provide for sale on the web site owned by Calgory located at www.jewpon.me (the “Consumer Site”), vouchers for goods, services or experiences (“Vouchers”), sell travel goods and services (“Excursions”), sell gift cards (“Merchant Gift Cards”), sell goods and services (“Merchant Products”), make available coupons, promotional codes, giveaways, samples, and offers for software downloads (“Coupons”), and sell dining experiences for specific dates and times ("Merchant Reservations") (collectively, “Merchant Goods and Services”). As a Merchant Goods and Services Provider, you are the seller and issuer of the Merchant Goods and Services and you are solely responsible to the purchaser for the care, quality, and delivery of the Merchant Goods and Services provided. These Terms do not apply to any applications, websites, or services which are accessed or products, vouchers, and coupons which are purchased by any individual end user consumer solely for personal, household, or family (and not for commercial use) through www.jewpon.com (“Consumer Site”), it being understood access, use, or purchase through the Consumer Site are governed by the Terms of Use located here %URL TERMS OF USE% and Privacy Policy located here %URL PRIVACY POLICY%.

1.2 Acceptance of Terms. By accessing or using the Calgory Merchant Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Calgory Merchant Services. These Terms expressly supersede prior agreements or arrangements with you. Calgory may immediately terminate these Terms or any Calgory Merchant Services with respect to you, or generally cease offering or deny access to the Calgory Merchant Services or any portion thereof, at any time for any reason.

1.3 IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH CALGORY ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

1.4 Amendment of Terms. Calgory may amend the Terms from time to time. Amendments will be effective upon the posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Calgory Merchant Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If Calgory changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing Calgory written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o Calgory, LLC, 20201 East Country Club Drive, #1510, Aventure, FL 33180 or (b) by email from the email address associated with your Account to: %EMAIL ADDRESS%. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you shall discontinue your use of the Service(s).

1.5 Privacy Policy. Calgory’s collection and use of personal information in connection with the Services is described in Calgory's Privacy Policy located at %WEBSITE URL FOR PRIVACY POLICY%

 

2. Arbitration Agreement

2.1 Notice of Arbitration Provision. By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Calgory on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Calgory, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Calgory by someone else.

2.2 Agreement to Binding Arbitration Between You and Calgory. In the event of any dispute, claim, question, or disagreement arising from or relating to this agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules.

0. Any dispute or claim arising from or relating in any way to these Terms, and your use of the Calgory Services, will be resolved by binding arbitration, rather than in court, except that either party may assert claims in small claims court if the claims qualify. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award, on an individual basis, the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must interpret and apply the terms of these Terms just as a court would. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that You or we may bring suit in court to seek injunctive relief for infringement or other threatened or actual violation of intellectual property rights.

2.3 Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/Arbitration or by calling the AAA at 1-800-778-7879. The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. These Terms shall be governed by, performed within, and interpreted in accordance with the laws of the State of Florida, excluding its choice of law provisions.

2.4 Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the State of Florida and will be selected by the parties from the AAA's roster of commercial dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.

0. 1. 1. 1. 1. 1. 1. 1. 1. 2.5 Location and Procedure. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in Miami, Florida, or at another mutually agreed location. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

2.6 Arbitrator's Decision. The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be

2.7 Changes. Notwithstanding the provisions in Sections 1.4 above, regarding consent to be bound by amendments to these Terms, if Calgory changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change to this Arbitration Agreement by providing Calgory written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, Gregory Castro, Registered Agent, Calgory, LLC, 20201 East Country Club Drive, #1510, Aventura, FL 33180 , or (b) by email from the email address associated with your Account to: %EMAIL ADDRESS%. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Calgory in accordance with the provisions of this Arbitration Agreement as of the later of either (i) the date you first agreed to the Terms (or to any subsequent changes to the Terms) or (ii) the date you agreed to any amendment to the Arbitration Agreement. Your failure to provide such effective notice of rejection within the 30-day period shall be deemed to be an acceptance by you of the change to the Arbitration Agreement.

2.8 Severability and Survival. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision shall be severed from these Terms; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. This provision shall survive the expiration or termination of these Terms.

 

3. The Services

3.1 Description. The Calgory Merchant Services comprise mobile applications and related services (each, an "Application"), which enable users to create, upload, and submit, Coupons and Vouchers for Merchant Goods and Services and to offer Merchant Goods and Services for sale to Merchant Goods and Services Consumers. Unless otherwise agreed by Calgory in a separate written agreement with you, you acknowledge and agree that your use of Calgory Merchant Services are used by you at your sole risk and liability. Calgory shall not be responsible for the Merchant Goods and Services Consumers’ payments to you.

3.2 License. Subject to your compliance with these Terms, Calgory grants you a limited, personal, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Calgory Merchant Services; and (ii) access and use any content, information and related materials that may be made available through the Calgory Merchant Services. Any rights not expressly granted herein are reserved by Calgory and Calgory's licensors. If you wish to download and use the Applications, you must accept the Applications license %HYPERLINK TO APPLICATIONS LICENSE AGREEMENT%.

3.3 Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Site and Calgory Merchant Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site and Calgory Merchant Services except as expressly permitted by Calgory; (iii) decompile, reverse engineer or disassemble the Calgory Merchant Services and Site except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Calgory Merchant Services and Site; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Calgory Merchant Services and Site or unduly burdening or hindering the operation and/or functionality of any aspect of the Calgory Merchant Services and Site; or (vi) attempt to gain unauthorized access to or impair any aspect of the Calgory Merchant Services and Site or its related systems or networks.

3.4 Provision of the Services; Availability of the Site and Services. You acknowledge that portions of the Calgory Merchant Services and the Site may be made available under Calgory's various brands viewing, accessing, and downloading application and brand currently referred to as "Jewpon". " You also acknowledge that the Calgory Merchant Services and the Site may be made available under such brands or request options by or in connection with: (i) certain of Calgory's subsidiaries and affiliates. You acknowledge that there may be interruptions in the Calgory Merchant Services or events that are beyond our control. While we use reasonable efforts to keep the Site and Calgory Merchant Services accessible, the Site and Calgory Merchant Services may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of our control, Site access may be interrupted, suspended or terminated. Calgory retains the right at our sole discretion to deny service, or access to the Site and Calgory Merchant Services to anyone or an account, at any time and for any reason.

3.5 Third-Party Services and Content. The Calgory Merchant Services and the Site may be made available or accessed in connection with third party services and content (including advertising) that Calgory does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content. Calgory does not endorse such third-party services and content and in no event shall Calgory be responsible or liable for any products or services of such third-party providers. Additionally, Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry Limited will be a third-party beneficiary to this contract if you access the Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third-party beneficiary's terms of service.

3.6 Ownership. The Calgory Merchant Services and the Site and all rights therein are and shall remain Calgory's property or the property of Calgory's licensors. Neither these Terms nor your use of the Calgory Services convey or grant to you any rights: (i) in or related to the Calgory Merchant Services except for the limited license granted above; or (ii) to use or reference in any manner Calgory's company names, logos, product and service names, trademarks or services marks or those of Calgory's licensors.

 

4. Access and Use of the Services

4.1 User Accounts. In order to use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to Calgory certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by Calgory. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Calgory Merchant Services and the Site. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Calgory in writing, you may only possess one Account.

4.2 User Requirements and Conduct.

4.2.1 Age Requirements. The Calgory Merchant Services and the Site is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive Calgory Products and Merchant Goods and Services. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Calgory Merchant Services and the Site, and you may only access or use the Calgory Merchant Services and the Site for lawful purposes. You may not in your access or use of the Calgory Merchant Services and Site cause nuisance, annoyance, inconvenience, or property damage, whether to the Merchant Goods and Services Provider, Merchant Goods Services Consumer, or any other party. In certain instances, you may be asked to provide proof of identity to access or use the Calgory Merchant Services and the Site, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.

4.2.2 User Type. You acknowledge and agree that you are a Merchant Goods and Services Provider.

4.3 Text Messages and Telephone Calls. You agree that Calgory may contact you by telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with a Calgory account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any goods or services. You also understand that you may opt out of receiving text messages from Calgory at any time, either by texting the word “STOP” to %TEXT MESSAGE CODE% using the mobile device that is receiving the messages, or by contacting %EMAIL ADDRESS%. If you do not choose to opt out, Calgory may contact you as outlined in its Privacy Policy, located at %WEBSISTE URL FOR PRIVACY POLICY%.

4.4 Unsolicited Ideas. We do not accept or consider, directly or through any Calgory employee or agent, unsolicited ideas of any kind, including without limitation, ideas or suggestions relating to new or improved products, enhancements, names or technologies, advertising and marketing campaigns, plans or other promotions. Do not send us (or any of our employees) any unsolicited ideas, suggestions, material, images or other work in any form (“Unsolicited Materials”). If you send us Unsolicited Materials, you understand and agree that the following terms will apply, notwithstanding any cover letter or other terms that accompany them:

4.4.1 Calgory has no obligation to review any Unsolicited Materials, nor to keep any unsolicited materials confidential; and

4.4.2 Calgory will own, and may use and redistribute Unsolicited Materials for any purpose, without restriction and free of any obligation to acknowledge or compensate you.

 

4.5 Vouchers and Coupons.

4.5.1 Vouchers are redeemable for certain goods, services or experiences offered by, or facilitated through, the Merchant Goods and Services Provider identified on the Voucher. As such, you acknowledge and agree that as Merchant Goods and Services Provider you are solely responsible for (a) redeeming the Voucher; (b) the kind, care, nature, and quality of all goods and services you provides and for any and all injuries, illnesses, damages, claims, liabilities and costs (“Merchant Goods and Services Provider Liabilities”) it may cause the Merchant Goods and Services Consumer to suffer, directly or indirectly, in full or in part, whether related to the use, inability to use, or redemption of a Voucher or not. You waive and release JYDL and its subsidiaries, affiliates, partners, officers, directors, employees and agents from any and all Merchant Goods and Services Provider Liabilities arising from or related to any act or omission of in connection with your provision of a Voucher or the goods, services or experiences which you provide in connection with the Voucher.

4.5.2 By uploading any Voucher, you agree specifically to honor the terms on the Voucher and any additional deal-specific terms advertised in connection with and on the Voucher at the time you offer the Voucher and it is accepted by Calgory to offer for sale on your behalf (the “Voucher Conditions”) regardless of how labeled) and the Consumer Terms of Use found here %URL FOR CONSUMER TERMS OF USE%. These rules apply to all Vouchers that we make available, unless a particular Voucher Conditions states otherwise, and except as otherwise required by law. In the event of a conflict between these Consumer Terms of Use and a Voucher’s Conditions, the Voucher Conditions will control..

4.5.3 The Merchant Goods and Services Provider is the sole issuer of the Voucher.

4.5.4 The Merchant Goods and Services Provider is solely responsible for the sale and shipment of alcoholic beverages. Any offer that features alcohol will contain information about shipping and other restrictions.

4.5.5 Additional terms applicable to traditional Vouchers.

4.5.5.1 A traditional Voucher is any Voucher other than a Coupon, or a Voucher redeemable for ticketed events. A traditional Voucher has two separate values: (a) the amount paid and (b) the promotional value. The promotional value is the additional value beyond the amount paid. For example, if a Merchant Goods and Services Consumer pays $20 for a Voucher that entitles the purchaser to $40 of Merchant Goods and Services, the amount paid is $20 (this amount does not expire until it is used or is refunded) and the promotional value is $20 (this amount expires on the date stated on the Voucher unless expiration of the promotional value is prohibited by law). The Merchant Goods and Services Provider is responsible for permitting the Merchant Goods and Services Consumer to redeem the Voucher for at least the amount paid, even after the promotional value has expired. The amount paid will never expire. The promotional value of a traditional Voucher may not be combined with other offers and no portion of its value is intended to cover tax or gratuity. Traditional Vouchers are not reloadable, meaning that the amount paid of the Voucher cannot be increased; however, traditional Vouchers are fully transferrable.

4.6 Merchant Products. Certain Merchant Goods and Services Providers allow Merchant Goods and Services Consumers to purchase various products directly from the Merchant Goods and Services Provider. Terms and conditions regarding shipping, delivery, and returns shall be stated in the Merchant Goods and Services Provider’s deal terms. Charges for delivery and applicable sales taxes will be added at checkout. Once the Merchant Goods and Services Consumer presses the “Buy” button, Calgory will notify the Merchant Goods and Services Provider of the requested order. You must respond within 2 hours of receiving such notification to confirm whether you accept the order. If we do not receive a response within 2 hours, you shall be deemed to have accepted the order. Merchant Goods and Services Provider is solely responsible for all Merchant Products purchased by Merchant Goods and Services Consumers.

4.7 Coupons. Coupons are offered by Merchant Goods and Services Providers to Merchant Goods and Services Consumers throughout the Consumer Site, including, without limitation, a portion of the Consumer Site dedicated to Coupons. You agree to honor the terms and conditions as specified in the Coupon and by selling a Coupon through the Consumer Site, you acknowledge and accept the right of the Merchant Goods and Services Consumer to redeem the Coupon.. Any service fee retained by Calgory from the sale of a Coupon, if applicable, is compensation to Calgory for marketing, promoting, advertising and distributing the Coupons on behalf of the Merchant Goods and Services Provider. As the issuer of the Coupon, the Merchant Goods and Services Provider shall be fully responsible for any and all Merchant Liabilities, caused in whole or in part by the Merchant Goods and Services Provider, as well as for any Merchant Liabilities arising from any regulatory action. Coupons have no cash or residual value. Calgory does not make any warranty in relation to the Coupons, including, without limitation, their validity and/or value. Calgory is not a party to any transaction that the Merchant Goods and Services Consumer and you may enter into as a result of the former’s purchase of any Coupon.

4.8 Merchant Gift Cards. Merchant Gift Cards are offered by Merchant Goods and Services Providers to Merchant Goods and Services Consumers subject to the terms and conditions specified by the Merchant Goods and Services Provider on the face of the Merchant Gift Card. By offering a Merchant Gift Card for sale through the Site, you acknowledge and accept the right of the Merchant Goods and Services Consumer to redeem the Merchant Gift Card with the Merchant Goods and Services Provider. Any service fee retained by Calgory from the sale of a Merchant Gift Card is compensation to Calgory for marketing, promoting, advertising and distributing the Merchant Gift Cards on behalf of the Merchant Goods and Services Provider. As the issuer of the Merchant Gift Card, the Merchant Goods and Services Provider shall be fully responsible for any and all Merchant Liabilities, caused in whole or in part by the Merchant Goods and Services Provider, as well as for any Merchant Liabilities arising from any regulatory action. Calgory does not make any warranty in relation to the Merchant Gift Cards, including, without limitation, their validity or value. Calgory is not a party to any transaction that the Merchant Goods and Services Consumer and you may enter into as a result of the former’s purchase any Merchant Gift Card.

4.9 Online Ordering. As a Merchant Goods and Services Providers, you may allow Merchant Goods and Services Consumers to place food delivery orders and take out on the Site. You must clearly provide all restrictions regarding availability of delivery and take out services and include them in the Merchant Goods and Services Provider’s deal terms. Any charges for delivery or takeout, or applicable sales taxes if any must be clearly specified. Once the Merchant Goods and Services Consumer clicks the “Confirm Order” button, Calgory will notify the Merchant Goods and Services Provider of the requested order. You must respond to Calgory within 5 minutes of receiving such notification to confirm whether you accept the order. If we do not receive a response within 5 minutes, you shall be deemed to have accepted the order. Merchant Goods and Services Providers are solely responsible for all delivery and takeout services provided on the Site.

4.10 User Provided Content. Calgory may, in Calgory's sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Calgory through the Calgory Merchant Services textual, audio, and/or visual content and information, including commentary and feedback related to the Calgory Merchant Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to Calgory, you grant Calgory a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Calgory Merchant Services, the Site, the Consumer site, and Calgory's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Calgory the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor Calgory's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Calgory in its sole discretion, whether or not such material may be protected by law. Calgory may, but shall not be obligated to, review, monitor, or remove User Content, at Calgory's sole discretion and at any time and for any reason, without notice to you.

4.11 Network Access and Devices. You are responsible for obtaining the data network access necessary to use the Calgory Merchant Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Calgory does not guarantee that the Calgory Merchant Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Calgory Merchant Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

 

5. Payment

You understand that use of the Calgory Merchant ervices may result in charges to you. ("Use Fees"). Use Fees shall be made by credit card. Calgory may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar Calgory Merchant Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Calgory Merchant Services. You may elect to cancel your use of the Calgory Merchant Services at any time.

You further understand that use of goods or services provided by Merchant Goods and Services Providers shall result in charges to Merchant Goods and Services Consumers (“Merchant Goods and Services Provider Charges”) and collection of payment for Merchant Goods and Services Provider Charges shall be made in accordance with arrangements established between Merchant Goods and Services Consumers and Merchant Goods and Services Providers. The provision of Merchant Goods and Services and all Merchant Goods and Services Provider Charges and payments for Merchant Goods and Services Provider Charges are the responsibility of the Merchant Goods and Services Providers and Merchant Goods and Services Consumers. Merchant Goods and Services Provider Charges may be inclusive of applicable taxes where required by law and must be separately enumerated. Merchant Goods and Services Provider Charges may include other applicable fees, and/or surcharges including a booking fee and/or cancellation fee. These charges may be imposed by the Merchant Goods and Services Provider in their sole discretion, provided that they are separately enumerated and Calgory has no control over such Merchant Goods and Services Provider Charges.

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6. Disclaimers; Limitation of Liability; Indemnity.

6.1 DISCLAIMER OF WARRANTIES.

THE CALGORY MERCHANT SERVICES AND THE SITE ARE PROVIDED "AS IS" AND "AS AVAILABLE." CALGORY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, CALGORY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE CALGORY MERCHANT SERVICES OR ANY SERVICES OR GOODS, INCLUDING MERCHANT GOODS AND SERVICES, REQUESTED THROUGH THE USE OF THE CALGORY MERCHANT SERVICES, THE SITE, OR THE CONSUMER SITE, OR THAT THE CALGORY MERCHANT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CALGORY DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS, INCLUDING MERCHANT GOODS AND SERVICES PROVIDERS. FURTHER, CALGORY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING PAYMENT FOR ANY SERVICES OR GOODS, INCLUDING MERCHANT GOODS AND SERVICES, OFFERED AND REQUESTED THROUGH USE OF THE CALGORY MERCHANT SERVICES, THE SITE, AND THE CONSUMER SITE. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE CALGORY MERCHANT SERVICES, AND ANY SERVICE OR GOOD, INCLUDING MERCHANT GOODS AND SERVICES, OFFERED OR REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

6.2 LIMITATION OF LIABILITY.

CALGORY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE CALGORY MERCHANT SERVICES AND THE SITE, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF CALGORY, EVEN IF CALGORY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

CALGORY SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE CALGORY SERVICES OR YOUR INABILITY TO ACCESS OR USE THE CALGORY MERCHANT SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD-PARTY , INCLUDING MERCHANT GOODS AND SERVICES CONSUMERS, EVEN IF CALGORY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CALGORY SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND CALGORY'S REASONABLE CONTROL.

THE CALGORY MERCHANT SERVICES AND THE SITE MAY BE USED BY YOU TO CREATE, UPLOAD, AND OFFER FOR SALE COUPONS WHICH MAY BE REDEEMED FOR MERCHANT GOODS AND SERVICES PROVIDED BY YOU, BUT YOU AGREE THAT CALGORY HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY OF THE FOREGOING SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OR ACQUIRED BY MERCHANT GOODS AND SERVICES CONSUMERS, OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.

THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, CALGORY’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON CALGORY’S CHOICE OF LAW PROVISION SET FORTH BELOW.

6.3 Indemnity.

You agree to indemnify and hold Calgory and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of, attempt to use, or inability to use the Calgory Merchant Services, or other services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Calgory's use of your User Content; (iv) your violation of the rights of any third party, including Third Party Providers; and (v) your offer and sale of the Merchant Goods and Services, and arising from your relationship with, the Merchant Goods and Services Consumers, including their use of, attempt to use, or inability to use your Merchant Goods and Services.

6.4 Basis of the Bargain; Failure of Essential Purpose.

You and Calgory acknowledge that Calgory has set its prices and entered into this Agreement in reliance upon the limitations of liability, the disclaimers of warranties and damages provisions set forth herein, and that the same form an essential basis of the bargain between You and Calgory. You and Calgory agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if any limited remedy is found to have failed of its essential purpose.

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7. Other Provisions

7.1 Choice of Law.

These Terms are governed by, performed within, and construed in accordance with the laws of the State of Florida, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above.

7.2 Claims of Copyright Infringement.

Claims of copyright infringement should be sent to Calgory's designated agent. Please read the important information below for the claim procedure as well as the designated contact and additional information for submitting a claim.

7. 2. 1. 1. Digital Millennium Copyright Act. If you are a copyright owner or an agent thereof and believe that any content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

a. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

b. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

c. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;

d. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;

e. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

f. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

7.2.1.2 DMCA Notice. You may direct copyright infringement notifications to our DMCA Notice Agent at Calgory, LLC, ATTN: Copyright Agent, 20201 East Country Club Drive, #1510, Aventura, FL 33180 , %WEB URL ADDRESS%, %EMAIL ADDRESS%; %FAX NUMBER%. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Calgory customer service through %WEB URL ADDRESS%, %EMAIL ADDRESS%, %FAX NUMBER%, or Calgory, LLC, ATTN: CUSTOMER SERVICE, 20201 East Country Club Drive, #1510, Aventura, FL 33180 You acknowledge that if you fail to comply with all of the requirements of this Section 7.2.1.1 above, your DMCA notice may not be valid.

7.2.1.3 Counter-Notice. If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice containing the following information to the Copyright Agent:

a. Your physical or electronic signature;

b. Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

c. A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and

d. Your name, address, telephone number, and e-mail address;

If a counter-notice is received by the Copyright Agent, Calgory may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Calgory’s sole discretion.

7.3 General Notice.

Calgory may give notice by means of a general notice on the Calgory Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to Calgory, with such notice deemed given when received by Calgory, at any time by first class mail or pre-paid post to our registered agent for service of process, Gregory Castro, Registered Agent, Calgory, LLC, 20201 East Country Club Drive, #1510, Aventura, FL 33180.

7.4 Account Termination Policy.

7.4.1 We reserve the right to modify the Calgory Services or your access to the Calgory Services for any reason without notice, at any time, and without liability to you.

7.4.2 Calgory will terminate a user's access to the Calgory Service if, under appropriate circumstances, the user is determined to be a repeat infringer or violates these Terms.

7.4.3 Calgory reserves the right to decide whether content violates these Terms for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length. Calgory may at any time, without prior notice and in its sole discretion, remove such content and/or terminate a user's account for submitting such material in violation of these Terms of Use.

7.4.4 The present Terms are applicable to the relationship between you and Calgory until termination of your account by you or by Calgory.

7.4.5 You may terminate your account at any time by either: a) closing your account; b) provide us a notification that your account should be terminated at the following email address: %EMAIL ADDRESS%

7.5 Entire Agreement. These Terms, inclusive of any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, covenants, arrangements and discussions with respect thereto.

7.6 Severability. If any provision of these Terms is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from these Terms, and all other provisions of these Terms shall remain in full force and effect.

7.7 General.

You may not assign these Terms without Calgory's prior written approval. Calgory may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Calgory's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Calgory or any Merchant Goods and Services Provider as a result of this Agreement or use of the Calgory Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Calgory's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Calgory in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.

 

Rev. 260117