PLEASE READ THIS PRIVY TERMS OF SERVICE AGREEMENT BEFORE USING PRIVY SERVICES, SOFTWARE, EQUIPMENT AND DOCUMENTATION (COLLECTIVELY, THE “SYSTEM”). AGREEING TO THE TERMS OF THIS AGREEMENT IS A CONDITION FOR THE UTLIZATION OF THE SYSTEM. BY USING THE SYSTEM, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF A COMPANY, BUSINESS OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS OF THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU MAY NOT USE THE SYSTEM AND YOU SHOULD PROMPTLY RETURN THE SYSTEM TO PRIVY, INC.
LICENSE TO USE THE PRIVY SYSTEM
Ownership of System and Documentation.
(i) The entire right, title in and to the System and any associated documentation (the “Documentation”) and all modifications, enhancements and improvements to the System and the Documentation, whether made by Privy alone or with your or others’ assistance or input, shall be and remain exclusively with Privy, and you agree, if requested, to sign an appropriate document to assign such rights.
(ii) You agree to use the System only for the purposes described herein. Nothing in this Agreement shall be deemed by implication or otherwise to grant you any right or license under any patent, patent application, copyright, invention, trade secrets, or other intellectual property right, except as expressly set forth in Section 1.1 above. The System and the Documentation contain material that is protected by United States and foreign patent, trademark and copyright laws and trade secret laws, and by international treaty provisions. You shall not, nor allow any third person (including individual or business entity), to reverse engineer, copy or otherwise appropriate the technology, design features or characteristics of the System and you shall not sublicense, rent, lease, loan, modify, assign, or otherwise transfer the license of the Systems or the Documentation. All rights not granted to you herein are expressly reserved by Privy. You may not remove any proprietary information of Privy from any copy of the Documentation or the Systems.
Amendments and Modification of the Agreement.
(i) You agree that Privy has the right to modify or amend this Agreement, and any additional terms from time to time, effective upon making the modified provisions available on the Privy website (www.privy.com) and/or by sending an email to you. You understand that you are responsible for regularly reviewing these terms and conditions and the continued use of the System after any such modifications shall constitute your consent to such changes, including changes in fees. It shall be your sole responsibility to ensure that the e-mail address in your profile with Privy is current, and Privy shall not be responsible for any failure of the e-mail to reach you once the e-mail has been sent by Privy.
YOUR RESPONSIBILITY REGARDING THE COUPONS, YOUR BUSINESS AND YOUR CUSTOMERS
- Each coupon must have a specific termination/expiration date. If applicable laws prohibits the expiration date of the coupon based on your terms, the coupon life will be extended to comply with applicable law and will expire on the earliest date which it could be expired under applicable law. Each coupon can be used only one time. Each coupon cannot be used in combination with other promotions unrelated to the coupons administered on the System.
- The customers utilizing the System to purchase coupons on your web site and the coupons you provide on your web site by utilizing our System are your customers and you are directly responsible to them. The coupons are issued by you and you are solely responsible for their accuracy and terms. You are solely responsible for any damages, claims, injuries, liabilities, expenses and costs suffered by a customer pertaining to the coupon, the food and other products you sell as well as for any abandoned or unclaimed property liability arising from unredeemed or partially redeemed coupon.
- The terms of your coupons should be in compliance with applicable law. It is your responsibility to assure that. Any use of your coupons for alcoholic drinks are your sole responsibility. You may not use coupons for purposes of paying tips, taxes, shipping or similar uses. You agree to honor the terms of the coupons posted on your web site using our System.
- Privy will not reimburse you or your customers for any non-use or partial use of the coupon or for any loss coupons. All payments by consumers utilizing the System to acquire a coupon you posted will be paid directly to Privy. All sales of coupons are final sales. All purchases are non-refundable, unless otherwise required by applicable law. Payments due to you will be made in accordance with the payment terms provided with your account.
- You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Privy of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Privy will not be liable for any loss or damage arising from your failure to comply with this Section.
- You represent that you have the legal authority and age (at least 18) to enter into this Agreement, that this Agreement does not conflict with any other agreements to which you are a party and it is enforceable against you in accordance with its terms.
- You are responsible to have and maintain all equipment necessary to allow the operation of the System on your web site.
TERM AND TERMINATION
- This Agreement is effective from the date you begin using the System and shall continue for an indefinite period of time, unless or until your use of the System is terminated either by you or by Privy (the “Term”). Privy and you may terminate this Agreement at any time immediately without prior notice. You will honor coupons issued up to the date of termination consistent with their terms and Privy will make payments against actual redemption of those coupons consistent with the payment terms provided with your account.
- Within thirty (30) days upon expiration or termination of the Agreement you shall return the System, unencumbered and in the same condition as when delivered by Privy, reasonable wear and tear alone excepted, to Privy, Inc. 17 Countryside Rd, Newton, MA 02459.
INFORMATION GATHERED ON THE SYSTEM
LIMITED WARRANTY, LIMITATION OF LIABILITY, TECHNICAL SUPPORT, INDEMNIFICATION AND RELEASE
UPON DELIVERY OF THE SYSTEM TO YOU, ALL RISK OF LOSS AND DAMAGE TO THE SYSTEM SHALL PASS TO YOU, PROVIDED, HOWEVER, THAT IF YOU RECEIVED A DEFECTIVE SYSTEM FROM PRIVY, YOU SHALL PROMPTLY NOTIFY PRIVY, AND PRIVY WILL EITHER REPAIR OR REPLACE THE SYSTEM, WHICH SHALL BE THE SOLE REMEDY AGAINST PRIVY FOR SUCH OCCURRENCE. As the sole remedy under the Warranty, Privy shall make appropriate adjustments, repairs, and replacement of the parts of the System that, in its sole discretion, are deemed necessary to keep the System in good working order. The warranty shall not cover adjustments, repairs, and replacements that are due to: accident, impact, theft, neglect, or misuse, exposure to temperature, humidity, electrical, magnetic and/or other extremes; exposure to water, sand, and/or other contaminants; alteration and/or modification of the System, including but not limited to, any deviation from the circuit or structural machine designs of the System, and/or deviations from software programming in the System, but excluding alterations, modifications, and/or deviations approved by Privy and/or performed by Privy; installation, removal, and/or modification of any features, capabilities, and/or parts from the System, maintenance performed by anyone other than authorized by Privy; use of materials or equipment which do not meet Privy’s specification for use with the System; and/or use of the System for purposes and uses other than for which they were designed, and/or intended by Privy. You shall be responsible for notifying Privy immediately if the System does not appear to be functioning properly for whatever reason. Privy and you shall cooperate to determine if any System components need to be returned and replaced. You agree to comply with Privy instructions with respect to the return of any System components.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PRIVY MAKES NO WARRANTIES OF ANY KIND. THE SYSTEM AND THE DOCUMENTATION ARE PROVIDED “AS-IS”, MAY HAVE OR RESULT IN ERRORS AND MAY PRODUCE UNEXPECTED RESULTS. PRIVY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE WITH RESPECT TO THE SYSTEM, RELATED DOCUMENTATION, ITS USE, OPERATION OR SUPPORT.
YOU AGREE THAT ANY USE OF THE SYSTEM SHALL BE ENTIRELY AT YOUR OWN RISK. PRIVY IS UTLIZING COMMUNICATION NETWORKS OF OTHER CARRIERS OF WHICH IT HAS NO CONTROL AND YOU ARE AWARE THAT THE SYSTEM IS DEPENDENT ON THE AVAILABILITY AND FUNCTIONALITY OF THOSE CARRIER NETWORKS. YOU ARE AWARE THAT SYSTEMS CONTAINS ELECTRONIC PARTS THAT MAY CEASE TO WORK.
PRIVY SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, THE USE OF THE SYSTEM, OR ANY OBLIGATION RESULTING THEREFROM. IN NO EVENT SHALL PRIVY BE LIABLE FOR ANY DAMAGES, HOWEVER DESIGNATED, FOR FAILURE TO PERFORM UNDER THIS AGREEMENT TO THE EXTENT SUCH FAILURE TO PERFORM WAS THE RESULT OF ANY ACT, BREACH OR OMISSION TO ACT BY YOU, YOUR EMPLOYEES, AGENTS OR REPRESENTATIVES. IN NO EVENT SHALL PRIVY’S DAMAGES EXCEED THE AMOUNT OF PAYMENTS FOR WHICH YOU WERE ENTITLED TO RECEIVE FROM PRIVY FOR THE ACTUAL REDEMPTION OF THE COUPONS BY YOUR CUSTOMERS DURING THE 6 MONTHS PRECEDING THE CAUSE OF ACTION ALLEGED.
PRIVY SHALL NOT BE LIABLE TO YOUR CUSTOMERS AND OTHER USERS OF YOUR WEB SITE FOR THE CONTENT AND TERMS OF YOUR WEB SITE AND THE COUPON YOU ISSUED UTILIZING OUR SYSTEM, YOUR ACCEPTANCE OR REJECTION OF SUCH COUPONS, THE FOOD AND OTHER PRODUCTS YOU SELL, AND ANY OTHER INCIDENTS WHICH MAY OCCUR ON YOUR PREMISES.
PRIVY SHALL NOT BE LIABLE FOR FAILURES DUE TO CAUSES BEYOND ITS CONTROL, INCLUDING, BUT NOT LIMITED TO, ACTS OF GOD, ACTS OF GOVERNMENT, FIRE, FLOOD, STRIKES, TERRORISM, WAR, OR ACTS OR OMISSIONS OF CARRIERS.
- Technical Support. For questions related to technical support you may call (888) 602-0205 Monday-Friday. Privy reserves the right to change its technical support to its customers.
Indemnification and Release.
You agree to indemnify and hold Privy, its officers, directors, employees, consultants, agents and advisors harmless against any and all claims and expenses, including reasonably attorneys’ fees, arising out of or related to this Agreement and any coupons, services, web site or products of yours which you, your customers or any third party utilized.
To the fullest extent permitted under applicable law, you hereby release Privy from any and all claims or liability related to your coupons, services, web site or products of yours or which you licensed or utilized in connection with this Agreement and the System, including any claim by a customer or any governmental or administrative entity for your failure to comply with the terms of a coupon, or failure to comply with applicable law. This release is intended to serve as a general release. You hereby waive California Civil Code Section 1542 and any similar provision which may be applicable in a different jurisdiction which states that: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
- UPON DELIVERY OF THE SYSTEM TO YOU, ALL RISK OF LOSS AND DAMAGE TO THE SYSTEM SHALL PASS TO YOU, PROVIDED, HOWEVER, THAT IF YOU RECEIVED A DEFECTIVE SYSTEM FROM PRIVY, YOU SHALL PROMPTLY NOTIFY PRIVY, AND PRIVY WILL EITHER REPAIR OR REPLACE THE SYSTEM, WHICH SHALL BE THE SOLE REMEDY AGAINST PRIVY FOR SUCH OCCURRENCE. As the sole remedy under the Warranty, Privy shall make appropriate adjustments, repairs, and replacement of the parts of the System that, in its sole discretion, are deemed necessary to keep the System in good working order. The warranty shall not cover adjustments, repairs, and replacements that are due to: accident, impact, theft, neglect, or misuse, exposure to temperature, humidity, electrical, magnetic and/or other extremes; exposure to water, sand, and/or other contaminants; alteration and/or modification of the System, including but not limited to, any deviation from the circuit or structural machine designs of the System, and/or deviations from software programming in the System, but excluding alterations, modifications, and/or deviations approved by Privy and/or performed by Privy; installation, removal, and/or modification of any features, capabilities, and/or parts from the System, maintenance performed by anyone other than authorized by Privy; use of materials or equipment which do not meet Privy’s specification for use with the System; and/or use of the System for purposes and uses other than for which they were designed, and/or intended by Privy. You shall be responsible for notifying Privy immediately if the System does not appear to be functioning properly for whatever reason. Privy and you shall cooperate to determine if any System components need to be returned and replaced. You agree to comply with Privy instructions with respect to the return of any System components.
PURCHASE AND SALE TRANSACTIONS
Privy charges a fee to register for and access the Service and will charge other certain fees for various transactions made possible through the Service, in addition to certain premium features made available through the Services. Unless otherwise stated, all fees are quoted in U.S. Dollars. To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Privy information regarding your credit card (as further described below) or other payment instrument. You represent and warrant to Privy that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Privy the amount that is specified in the payment plan you agreed to through email in accordance with the terms of such plan and the Terms of this Agreement. Privy may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Privy thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to late fees as described in the Fee Policy.
Credit Card Transactions.
To the extent you effect any transactions using a credit card, you must have a valid credit card on file. Your credit card information (including expiration date and billing address) will be verified and by agreeing to pay for a transaction with your credit card, you authorize us and/or our third party providers to charge your credit card. If Privy is unable to secure funds from your credit/debit card(s) or your bank for any reason, including, but not limited to, insufficient funds in its credit/debit card or bank account or insufficient or inaccurate information provided by you when submitting its electronic payment, Privy may undertake further collection action, including application of fees to the extent permitted by law.
We reserve the right to change or discontinue, temporarily or permanently, some or all of the fees for the Service (including to lower fees for promotional events), and such changes are effective when we post information about the fee change through the Service. Additionally, we may change our Fee Policy at any time and in our sole discretion, and any changes to the Fee Policy are effective upon the posting of such changes to the Fee Policy. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount.
- Fees; Transactions.
GOVERNING LAW, JURISDICTION, VENUE.
(i) Governing Law. This Agreement and any dispute related directly or indirectly to this Agreement shall be interpreted and governed by the laws of the Commonwealth of Massachusetts without regard to its principles of conflict of laws.
(ii) Choice of Forum – Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof (collectively, the “Claim”), shall be settled exclusively by arbitration administered by the American Arbitration Association before a single arbitrator in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be held in Boston, Massachusetts. Each party shall be responsible for its own costs and expenses. You acknowledge that upon breach of Section 1, Privy shall be entitled to equitable relief to protect its interests, including preliminary and permanent injunctive relief, in addition to any other remedy available to it under applicable law.
(iii) If the submission of a Claim to arbitration pursuant to Section 6.2(ii) is adjudicated by a competent legal authority to be illegal and invalid under applicable law, then the parties agree as an alternative, to submit the case to the exclusive jurisdiction of the federal and state courts located within the Commonwealth of Massachusetts.
(iv) WAIVER OF JURY. BY AGREEING TO BINDING ARBITRATION, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM. FURTHERMORE, WITHOUT INTENDING IN ANY WAY TO LIMIT THIS AGREEMENT TO ARBITRATE, TO THE EXTENT ANY CLAIM IS NOT ARBITRATED, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF SUCH CLAIM. WHETHER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW.
- Severability. In the event that any provision of this Agreement shall be held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement should remain in full force and effect and be interpreted as if such invalid or unenforceable provision had not been a part hereof. Provided, however, that if any particular portion of this Agreement shall be adjudicated invalid for any reason, this Agreement shall be deemed amended to diminish such unenforceable provision such that the remaining provisions shall be the broadest permitted under applicable law.
- Export Control. You agree not to export, re-export, transfer or otherwise transmit any part or portion of the System into any country or to use the System in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations.
- Interpretation. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa. Whenever the words “include” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.
- Survival. The provisions of this Agreement intending by their terms to survive the expiration or termination of this Agreement shall so survive, including, without limitation, provisions regarding intellectual property rights, limitation of liabilities, exclusions and disclaimers, and the general provisions of Sections 5 and 6.
- Independent Contractor. The relationship between you and Privy is one of an independent contractor. This Agreement does not constitute a partnership or joint venture, or either party as the franchisee, agent or legal representative of the other. You have no authority and you shall not bind Privy by statements or agreements of any kind, make a representation or warranty on behalf of Pricy nor incur any legal or financial liability on behalf of Privy. Each party shall be responsible for its own taxes consistent with its status as an independent contractor.