1. Contractual Relationship
In addition, the Site also provides a platform through which you can purchase products from Calgory (“Calgory Products”) and participate in other available programs.
Certain Merchant Goods and Services, Calgory Products, other available programs and pricing on the Site may change at any time in Calgory’s sole discretion, without notice.
1.2 Acceptance of Terms. By accessing or using the Calgory 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 Services. These Terms expressly supersede prior agreements or arrangements with you. Calgory may immediately terminate these Terms or any Calgory Services with respect to you, or generally cease offering or deny access to the 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 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).
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.
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.
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 Services comprise mobile applications and related services (each, an "Application"), which enable users to view, purchase, download, and print, Coupons and Vouchers for Merchant Goods and Services and purchase Calgory Products, including with third party providers such as Merchant Goods and Services Providers. Unless otherwise agreed by Calgory in a separate written agreement with you, you acknowledge and agree that as between you and Calgory, use of the services provided by the Merchant Goods and Service Providers are used by you at your sole risk and liability. Calgory shall not be responsible for transcripts, retention of exhibits, transcript orders, communications with agencies' attorneys concerning any and all job settings through the Services, payments to Service Providers. IF YOU ARE A PURCHASER OF MERCHANT GOODS AND SERVICES, (“MERCHANT GOODS AND SERVICES CONSUMER”) YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN MERCHANT GOODS AND SERVICES THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH Calgory AS A PROVIDER OF MERCHANT GOODS AND SERVICES. YOU AGREE TO LOOK SOLELY TO THE MERCHANT GOODS AND SERVICES PROVIDER FOR ANY RELIEF AND DAMAGES FROM YOUR USE OR INABILITY TO USE THE MERCHANT GOODS AND SERVICES PROVIDED BY MERCHANT GOODS AND SERVICES PROVIDERS.
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 Services; and (ii) access and use any content, information and related materials that may be made available through the Calgory 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 Calgory 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 Calgory Services except as expressly permitted by Calgory; (iii) decompile, reverse engineer or disassemble the Calgory Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Calgory Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Calgory Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Calgory Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Calgory Services or its related systems or networks.
3.4 Provision of the Services. You acknowledge that portions of the Calgory Services may be made available under Calgory's various brands or request options associated with providing Coupons, Vouchers, Excursions, Merchant Gift Cards, Merchant Products, Merchant Reservations for including the Merchant Goods and Services and Calgory Products viewing, purchasing, and downloading application and brand currently referred to as "Jewpon". " You also acknowledge that the Calgory Services may be made available under such brands or request options by or in connection with: (i) certain of Calgory's subsidiaries and affiliates; or (ii) independent Merchant Goods and Services Providers. You acknowledge and agree that Calgory makes no representation or warranty with respect to the Merchant Goods and Services and Merchant Goods and Services Providers and that it is your responsibility to verify their business status, goods and services quality, reputation, and other characteristics and requirements which may be necessary or desirable for your particular and intended use of the Merchant Goods and Services.
3.6 Ownership. The Calgory Services 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 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 Services. 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 Service 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 unless they are accompanied by you. 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 Services, and you may only access or use the Calgory Services for lawful purposes. You may not in your access or use of the Services 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 Services, 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. If you are a Merchant Goods and Services Consumer or other user of the Merchant Goods and Services, you acknowledge and agree that Calgory makes no representations and warranties with respect to the business status, goods and services quality and availability, and reputation of any Merchant Goods and Services Provider.
4.2.3 Vouchers. Vouchers are redeemable for Merchant Goods and Services through the Merchant Goods and Services Provider identified on the Voucher.
4.4 Referrals and Promotional Codes. Calgory may, in its sole discretion, create referral and/or promotional codes ("Promo Codes") that may be redeemed for discounts on future Calgory Services and/or a Merchant Goods and Services, or other features or benefits related to the Calgory Services and/or a Merchant Goods and Services Provider's services, subject to any additional terms that Calgory establishes. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Calgory; (iii) may be disabled by Calgory at any time for any reason without liability to Calgory; (iv) may only be used pursuant to the specific terms that Calgory establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Calgory reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that Calgory determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of Calgory’s Terms.
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. The Merchant Goods and Services Provider is solely responsible for (a) redeeming the Voucher; (b) the kind, care, nature, and quality of all goods and services it provides to you and for any and all injuries, illnesses, damages, claims, liabilities and costs (“Merchant Goods and Services Provider Liabilities”) it may cause you 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 a Merchant Goods and Services Provider in connection with your use of a Voucher or the goods, services or experiences a Merchant Goods and Services Provider provides in connection with the Voucher.
4.5.2 By purchasing, viewing a mobile version, printing, accepting, using or attempting to use any Voucher, you agree specifically to the terms on the Voucher and any additional deal-specific terms advertised in connection with and on the Voucher at the time of purchase (the “Voucher Conditions”) regardless of how labeled) and these Terms. 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 Terms and a Voucher’s Conditions, the Voucher Conditions will control. Any attempt to redeem a Voucher in violation of these Terms (including, without limitation, the Voucher Conditions) will render the Voucher void.
4.5.3 The Merchant Goods and Services Provider is the sole issuer of the Voucher. Vouchers are not redeemable for cash, unless required by law. Unauthorized or unlawful reproduction, resale, modification or trade of Vouchers is prohibited. Pricing relating to certain Merchant Goods and Services and Calgory Products on the Site may change at any time in Calgory’s discretion, without notice.
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.
18.104.22.168 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 you pay $20 for a Voucher that entitles you 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 you 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 Calgory Products. Calgory Products that you purchase through the Site are subject to the terms below:
4.6.1 Orders. When you purchase a Calgory Product, clicking the “Complete Order” button constitutes an offer to buy the Calgory Products. Your purchase is not complete until we email you to confirm the transaction. We reserve the right to reject your offer and not conclude a contract with you. If you wish to cancel your order before delivery or change the quantity of the Calgory Products purchased or the delivery address, please contact us within 2 hours of placing your order. Once that window closes, we cannot make changes to your order, although you may be eligible to make returns as outlined in these Terms, the Calgory Products Return Policy and the offer’s deal terms.
4.6.2 Shipping and Delivery. Shipment and tracking options and applicable charges will be stated in the deal terms and will vary by offer. Shipment may be limited to specific geographic locations. Shipping and delivery estimates are only estimates; they are not guaranteed delivery times and should not be relied upon as such. We may have to cancel an order before your Calgory Products are delivered; if this happens, we will attempt to notify you at the email address that is registered with your account. When Calgory Products are delivered to the delivery address provided at checkout, risk of loss and legal title to those Calgory Products will transfer to the recipient (i.e., the Calgory Products will become the recipient's personal property and therefore the recipient will be responsible for damage and/or loss). It is your responsibility to ascertain and obey all applicable local, state, provincial, territorial, federal and international laws (including, without limitation, minimum age requirements) relating to the receipt, possession, use and sale of any Calgory Product.
4.6.3 Returns. Most Calgory Products may be returned to us, subject to the Calgory Products Return Policy, but certain Products are final sale and may not be returned unless defective, as set forth in the Return Policy and the offer’s deal terms. Calgory takes legal title to returned Calgory Products only after the Calgory Products arrive and are processed at the designated returns destination. Calgory reserves the right, but has no obligation, to issue a refund without requiring a return. In the later situation, Calgory does not take title to the returned Calgory Products. For purchases that qualify for a refund, Calgory will issue a refund within 14 days after processing of a properly returned shipment. If stated, applicable shipping charges and restocking fees may be deducted from your refund. Calgory reserves the right to refuse to issue a refund and to recover the cost of the return delivery from you in the event that any Calgory Products you return: (a) are not eligible for return, in accordance with the Calgory Products Return Policy or the offer’s deal terms, or (b) are found to have suffered damage after delivery to you or have been misused or used other than in accordance with the Calgory Product directions or instructions.
4.6.4 Pricing, Products, and Accuracy; Restrictions. Calgory Products shipped within the U.S. and Canada are subject to applicable taxes, customs, and duties depending on your country of residence and will be added at checkout. Advertised prices may include shipping and delivery charges. If delivery charges are not included in the advertised price, such costs will be calculated and added at checkout. The "value" price identified in an offer may be based on a survey of other online merchants, tied to a particular merchant’s current or former price or suggested by either the manufacturer or our supplier; they are not necessarily representative of current prices of other online merchants or the prevailing retail price in every area. There may be an error or omission related to the pricing of advertised Calgory Products. We will use reasonable efforts to correct any pricing errors or omissions as soon as practicable after learning of them. We reserve the right to change, modify, substitute, suspend or remove without notice any pricing information related to Calgory Products for sale. If there was a pricing error or omission and you have already purchased a Calgory Product: (a) if the actual price of the Product is less than the stated price at the time of purchase, we will charge you the lower price; or (b) if the actual price of the Product is higher than the stated price, we will contact you and allow you the option to pay the correct (higher) price or cancel your order and receive a refund. Unless stated otherwise in the offer's deal terms, all Calgory Products are sold AS IS, without any warranties. See the Disclaimer of Warranties in Section 6.1 of these Terms. While we work to ensure that the Calgory Product description and information on the Site is correct, we cannot guarantee that Calgory Product descriptions are accurate or complete. All information is provided for informational purposes only and we encourage you to read all information presented on labels, warnings and directions that accompany the Calgory Products before use. If a Calgory Product is not as described, your sole remedy is to return it to Calgory in unused condition. We have taken reasonable steps to display as accurately as possible the colors and other details of Calgory Products we sell. However, the colors and details you see on the Site will depend on the equipment you use to view the Site. We cannot guarantee that the display of any color or other details on your television, mobile device, computer or other device will exactly reflect the color or details of the actual Calgory Products. Certain Calgory Products you purchase through the Site may be subject to export control laws and regulations if shipped outside the United States. It is your responsibility to ensure that any export or re-export complies with all applicable restrictions and regulations, including, without limitation, the Export Administration Regulations (“EAR”) administered by the Department of Commerce, the International Traffic in Arms Regulations administered by the Department of State, and all sanctions programs administered by the Treasury Department’s Office of Foreign Assets Control (“OFAC”). You further agree that no Calgory Products sold through this Site will be exported or re-exported to Cuba, Iran, North Korea, Sudan, Syria, or any country subject to a comprehensive embargo administered by OFAC, and you agree that no Calgory Products sold through this Site will be exported or re-exported to any person or entity on the Specially Designated Nationals List administered by OFAC, the Entity List or Denied Persons List of the EAR, or any similar list of prohibited parties administered by the United States government.
4.7 Merchant Products. Through the Site, certain Merchant Goods and Services Providers allow you to purchase various products directly from the Merchant Goods and Services Provider. Terms and conditions regarding shipping, delivery, and returns will vary by Merchant Goods and Services Provider and will 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 you click the “Buy” button, Calgory will notify the Merchant Goods and Services Provider of your requested order. Your purchase is not complete until you receive an email from Calgory confirming whether or not the Merchant Goods and Services Provider has accepted your order. Merchant Goods and Services Provider is solely responsible for all Merchant Products purchased through the Site.
4.7 Coupons. Coupons are offered by Merchant Goods and Services Providers to Merchant Goods and Services Consumers throughout the Site, including, without limitation, a portion of the Site dedicated to Coupons. Coupons are subject to the terms and conditions as specified by the Merchant Goods and Services Provider. By obtaining or purchasing a Coupon through the Site, you acquire the right to redeem the Coupon with the Merchant Goods and Services Provider. 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 Provider and you may enter into as a result of you purchasing 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 obtaining or purchasing a Merchant Gift Card through the Site, you acquire the right 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 Provider and you may enter into as a result of you purchasing any Merchant Gift Card.
4.9 Online Ordering. Certain Merchant Goods and Services Providers allow you to place and pay for food delivery orders and take out on the Site. Restrictions regarding availability of delivery and take out services will vary by Merchant Goods and Services Provider and will be stated in the Merchant Goods and Services Provider’s deal terms. Any charges for delivery or takeout, or applicable sales taxes will be added at checkout. Once you click the “Confirm Order” button, Calgory will notify the Merchant Goods and Services Provider of your requested order. Your purchase is not complete until you receive an email from Calgory confirming whether or not the Merchant Goods and Services Provider has accepted your 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 Services textual, audio, and/or visual content and information, including commentary and feedback related to the Calgory 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 Services 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 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 Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You understand that use of the Calgory Services 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 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 Services. You may elect to cancel your use of the Calgory 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 you (“Merchant Goods and Services Provider Charges”) and 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. As between you and Calgory, 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. 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 and their sole discretion and Calgory has no control over such Merchant Goods and Services Provider Charges.
6. Disclaimers; Limitation of Liability; Indemnity.
6.1 DISCLAIMER OF WARRANTIES.
THE CALGORY SERVICES AND CALGORY PRODUCTS 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 SERVICES OR ANY SERVICES OR GOODS, INCLUDING MERCHANT GOODS AND SERVICES, AND CALGORY PRODUCTS REQUESTED THROUGH THE USE OF THE CALGORY SERVICES, OR THAT THE CALGORY 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, REQUESTED THROUGH USE OF THE CALGORY SERVICES. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE CALGORY SERVICES, AND ANY SERVICE OR GOOD, INCLUDING MERCHANT GOODS AND SERVICES, 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 SERVICES, 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 SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD-PARTY PROVIDER, INCLUDING MERCHANT GOODS AND SERVICES PROVIDERS, 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 SERVICES MAY BE USED BY YOU TO VIEW, PURCHASE, AND DOWNLOAD COUPONS WHICH MAY BE REDEEMED FOR MERCHANT GOODS AND SERVICES PROVIDED BY MERCHANT GOODS AND SERVICES PROVIDERS, 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, INCLUDING MERCHANT GOODS AND SERVICES PROVIDERS, 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.
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 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 use of, attempt to use, or inability to use the goods and services of, and arising from your relationship with, the Merchant Goods and Services Providers.
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.
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.
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.
22.214.171.124 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 126.96.36.199 above, your DMCA notice may not be valid.
188.8.131.52 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.
7.4.4 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.
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.