Merchant Account Terms and Conditions

CITY HIVE MERCHANT ACCOUNT TERMS AND CONDITIONS
(LAST UPDATED 01/01/2018)
By signing up for the City Hive Inc. ("City Hive") Platform, City Hive's Merchant Portal, City Hive's Web and Mobile Content Management System, City Hive's App Engine, City Hive's Engagement Center, City Hive's Payment Center, Hosting and/or Support Services, (collectively referred to as "the Services") of City Hive. You are agreeing to be bound by the following terms and conditions ("Terms of Service") or ("Terms").
The services offered by City Hive under the Terms of Service include various products and services designed to help you advertise, promote and sell goods and services to buyers, whether online ("Online Services"), in store ("In Store Services"), or both; To help you engage with prospective and existing customers for the purposes of customer aquisition, and customer retention. Any such services offered by City Hive are referred to in these Terms of Services as the "Services". Any new features or tools which are added to the current Services shall also be subject to the Terms of Service.
You can review the current version of the Terms of Service at any time at legal.cityhive.net. City Hive reserves the right to update and change the Terms of Service by posting updates and changes to the City Hive website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you.
You must read, agree with and accept all of the terms and conditions contained in this Terms of Service agreement, including City Hive's Acceptable Use Policy ("AUP") and Privacy Policy before you may become a City Hive user.
  1. Acceptance
    1. These Terms are effective on the earlier of the date on which you first access the Merchant Portal through your Sub-Merchant Account or accept the Terms. These Terms will remain in effect unless terminated pursuant to its provisions.
    2. City Hive reserves the right to update and change the Service Terms from time to time to reflect changes to law, functionality or for any or no reason with or without notice.
    3. City Hive will take all reasonable steps to notify you in advance of an upcoming update, including details on what the update includes.
    4. Any new features that augment or enhance the Services, including the release of new tools and resources, shall be subject to the Service Terms.
    5. City Hive may offer certain optional features or functionalities within the Sub-Merchant Account. If you choose to use such features, then you may be required to agree to separate terms that are specific to those features that will be disclosed and available at the time you elect any such option.
    6. You should review these Terms regularly. If at any time you do not agree with these Terms, or do not agree to any modified Terms, you must immediately stop using the services and cease participation in any plan offered by City Hive.
    7. Continued use of the Services after any such changes shall constitute your consent to such changes. The most current version of the Service Terms and Conditions at any time at: legal.cityhive.net.
    8. A breach or violation of any term in the Terms of Service, including the AUP, as determined in the sole discretion of City Hive may result in an immediate termination of your services.
    9. Notwithstanding City Hive's prohibitions on certain conduct and content as specified within these Service Terms, you hereby acknowledge and agree that City Hive shall not be responsible for the content posted on the Services ("Content"). Use of the Service at your own risk.
    10. Unless agreed otherwise in writing with City Hive, these Terms govern your use of the services through a Sub-Merchant Account. In the event of a conflict between these Terms and the terms of a Transaction or an Offer, these Terms shall govern.
    11. You and City Hive may be referred to throughout these Terms individually as a "Party" and collectively as the "Parties".
  2. Representations and Warrants
    1. By Both Parties. Each Party represents and warrants to the other that: (a) it has the power and authority to enter into the Agreement and perform its obligations under these Terms; (b) it is an entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation or formation; and it is duly qualified to do business and is in good standing in each jurisdiction where the conduct of its business, provision of its goods and/or services, or the ownership of its property requires such qualification; (c) these Terms reflect its legal, valid and binding obligation, enforceable against it; and (d) it shall comply with all Laws applicable to its obligations under the Agreement.
    2. You represent that you are of legal age to form a binding contract and have full power, capacity and authority to accept these Terms. If you accepts these Terms on behalf of your employer or another entity, you must represent that you have full legal authority to bind the employer or such entity to these Terms. If you do not have the legal authority to bind the entity, please ensure that only an authorized person from the organization consents to, and accepts, these Terms.
    3. You represent and warrant to City Hive that: (a) you and any Third Party Merchant(s), as applicable,(i) are registered for the collection of sales, use and other similar taxes in all states and localities in which goods and/or services will be made available pursuant to the terms and presentation of the voucher; (ii) are registered, licensed and are in good standing with the state liquor authority as applicable for your fulfillment of any Transaction and/or Offer; and (iii) will collect and remit any and all applicable state or local sales, use, and other similar taxes that may apply to the redemption of the vouchers or the supplying of goods or services in connection with a Transaction and/or Offer; (b) your Content, your representations about your business, and your redemption process for vouchers, do not and will not infringe, misappropriate, or otherwise violate any intellectual property right or right of privacy or publicity of any third party; (c) you hold all necessary Regulatory Documents and Authorization Documents, if any, required to make any Offer and provide the goods or services described therein; (d) you will provide the goods and services made available through any Offer in a manner consistent with industry best practices; and (e) you have all rights necessary to grant the licenses set forth in these Terms.
    4. No further representations. Except as expressly set forth in these terms, neither party makes any representations or warranties, express or implied, including without limitation any implied warranty of merchantability, fitness for a particular purpose or non-infringement. City Hive does not warrant or guarantee that (a) any offer or transaction will be error-free; (b) any errors, omissions or misplacements will be corrected, or (c) any offer and/or transaction will result in any revenue or profit for you. City Hive makes no representations or warranties, express or implied, regarding the City Hive portal or any other promotion, distribution or redemption method used or provided by City Hive (including with respect to its uninterrupted or error-free operation) and/or the accuracy, adequacy, reliability, availability, timeliness, completeness, suitability or other characteristics of the information and materials contained on or presented therein. The City Hive portal and other promotion, distribution or redemption methods used or provided by voucher and all related information and materials are provided "As is", without any warranty of any kind, and on an "As available" basis.
  3. Account Terms
    1. You must be 18 years or older or at least the age of majority in the jurisdiction where you reside or from which you use this Service.
    2. To access and use the Services, you must register for a City Hive Sub-Merchant Account ("Account") by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required.
    3. You must advise City Hive as soon as possible as to any changes or updates to such information.
    4. City Hive may reject your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.
    5. Electronic Communications and Notices. You acknowledge that City Hive will use the email address you provide as the primary method for communication. For contractual purposes, you hereby (a) consent to receive communications from City Hive in an electronic form and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that City Hive provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in writing. The foregoing does not affect your statutory rights. Any notice required or permitted hereunder shall be provided in writing, and shall be deemed delivered when (a) delivered by electronic mail to the then-current e-mail address in your Merchant Account, or (b) regardless of whether or not actually received, when deposited in (i) the United States mail, postage prepaid, certified mail, return receipt requested, or (ii) a regional or national overnight courier service, addressed to the applicable Party at the address set forth in your case, in your Merchant Account, and in City Hive's case, to City Hive Inc., Seven World Trade Center, 250 Greenwich 10th Floor, New York, NY 10007, with a copy to the attention of the CEO.
    6. You are responsible for or maintaining the security of your account and password. You agree to immediately notify City Hive of any unauthorized use of your password or Merchant Account or any other breach of security related to the City Hive Platform. City Hive cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account and password. City Hive shall not be liable for any loss or damage arising from your failure to comply with such security obligations.
    7. You are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account ("Materials"). Responsibility includes without limitation to regularly review the accuracy of your license to sell products and other information created on your behalf by authorized City Hive personnel.
    8. Relationship of the Parties. The Parties are independent contractors. Nothing in these Terms shall be deemed or construed by the Parties hereto, nor by any third party, as creating a joint venture, partnership, franchise, or an agency relationship between the Parties. Neither Party has the authority, without the other Party's prior written approval, to bind or commit the other Party in any way. CITY HIVE IS NOT A VENDOR OR CO-VENDOR OF YOUR GOODS AND SERVICES.
  4. Account Activation
    1. City Hive Account Acctivation
      1. Subject to section 4.1.2, the person signing up for the Service will be the contracting party ("Account Owner") for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding account we may provide to the Account Owner in connection with the Service.
      2. If you are signing up for the Service on behalf of your employer, your employer shall be the Account Owner. If you are signing up for the Service on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to our Terms of Service.
      3. City Hive will use commercially reasonable efforts to have the Customer's application approved by the appropriate mobile platform provider. Although there is a high likelihood of approval, City Hive are not able to guarantee acceptance. If a Customer's application is denied by the appropriate mobile platform provider the Customer shall be entitled to cancel its account, however any payments received by City Hive prior to notification of non-acceptance by a mobile platform provider shall be non-refundable in accordance with clause 4.1.1
    2. Account Ownership
      1. In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc.
      2. City Hive retains the right to determine, in our sole judgment, rightful Account ownership and transfer an Account to the rightful owner. If we are unable to reasonably determine the rightful Account owner, City Hive reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.
    3. No Exclusivity
      1. We reserve the right to provide our services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that City Hive employees and contractors may also be City Hive customers/merchants and that they may compete with you, although they may not use your confidential information in doing so.
  5. General Conditions
    1. Technical support is only provided to paying Account holders and is only available via email.
    2. You acknowledge and agree that City Hive may amend these Terms of Service at any time by posting the relevant amended and restated Terms of Service on City Hive's website, available at legal.cityhive.net and such amendments to the Terms of Service are effective as of the date of posting. Your continued use of the Services after the amended Terms of Service are posted to City Hive's website constitutes your agreement to, and acceptance of, the amended Terms of Service. If you do not agree to any changes to the Terms of Service, do not continue to use the Service.
    3. You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use City Hive or Cis trademarks and/or variations and misspellings thereof.
    4. You understand and acknowledge that your Materials (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit Card information is always encrypted during transfer over networks.
    5. You acknowledge and agree that your use of the Service, including information transmitted to or stored by City Hive, is governed by its privacy policy at legal.cityhive.net/privacy_policy.html
    6. The Terms of Service may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English Terms of Service and City Hive's Terms of Service available in another language, the most current English version of the Terms of Service at legal.cityhive.net will prevail.
    7. City Hive reserves the right to use your name and/or your business name as a reference for marketing or promotional purposes on City Hive's website and in other communication with existing or potential City Hive customers. You further agree that if you are using the API Services, you will place the City Hive's logo or company name in a visible spot on your website homepage and anyplace where City Hive data is displayed, unless otherwise agreed by separate agreement. To decline City Hive this right you must email info@cityhive.net stating that you do not wish to be used as a reference or do not wish to credit City Hive as a source for API data. Unless otherwise provided in a separate agreement, City Hive reserves the right to terminate your access to the Services for violation of this section.
    8. The Customer hereby acknowledges that City Hive uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Services and that City Hive cannot be held liable for any failure or delay on the part of such third party vendors and hosting partners.
    9. City Hive does not warrant that (i) the service will meet your specific requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the Service will be corrected.
    10. We reserve the right to modify or terminate the Service for any reason, without notice at any time.
    11. We reserve the right to refuse service to anyone for any reason at any time. We may, but have no obligation to, remove Materials and suspend or terminate Accounts if we determine in our sole discretion that the goods or services offered via a store, or the Materials uploaded or posted to a store, violate our Acceptable Use Policy ("AUP") or these Terms of Service.
    12. Verbal, physical, written or other abuse (including threats of abuse or retribution) of any City Hive customer, employee, member, or officer will result in immediate account termination.
    13. City Hive does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from the Service.
    14. Questions about the Terms of Service should be sent to support@cityhive.net.
  6. Limitation of Liability
    1. You expressly understand and agree that City Hive shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; (v) or any other matter relating to the service.
    2. In no event shall City Hive or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with our site, our services or these Terms of Service (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, City Hive partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates by reference (including the AUP), or your violation of any law or the rights of a third party.
    3. Your use of the Service is at your sole risk. The Service is provided on an "as is" and "as available" basis without any warranty or condition, express, implied or statutory. City Hive does not warrant that the Service will be uninterrupted, timely, secure, or error-free. City Hive does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
    4. City Hive does not warrant that the quality of any products, services, information, or other Materials purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.
    5. Under no circumstances shall City Hive's liability under this agreement exceed the amount actually paid to City Hive by the Customer during the 12 months preceding the event which causes such liability to arise.
  7. Waiver and Complete Agreement
    1. The failure of City Hive to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision.
    2. The Terms of Service and the documents it incorporates by reference constitute the entire agreement between you and City Hive and govern your use of the Service, superseding any prior agreements between you and City Hive (including, but not limited to, any prior versions of the Terms of Service).
  8. Virtual Point of Sale, Themed Mobile App, Website, eCommerce Storefront
    1. You may establish the appearance of your City Hive Mobile App, Website or E-Commerce stores with a design template by City Hive's. If you use a City Hive Theme, you are licensed to use it and all its component while using the City Hive platform only.
    2. You are free to transfer a Theme to a second one of your own stores if you close your first store. To initiate a transfer of a Theme to a second one of your stores, please email support@cityhive.net.
    3. You are not permitted to transfer or sell a Theme or any of it's components to any other entity on City Hive or elsewhere.
    4. You may modify the Theme to suit your store. City Hive may add or modify the footer that refers to City Hive at its discretion. City Hive may modify the Theme where it contains, in our sole discretion, an element that violates the City Hive AUP or the Terms of Service, even if you received the Theme in that condition. City Hive may modify the Theme to reflect technical changes and updates as required.
    5. All intellectual property rights of the Theme and any of its components remain the property of City Hive. If you exceed the rights granted by using a Theme, City Hive may take administrative action such as modifying your store or closing your store. City Hive may also take legal action against you.
    6. Technical support for a Design of Theme or one of its components is voluntary, and City Hive accepts no responsibility to provide such support. City Hive may be able to help you contact.
    7. It is the responsibility of the user, and not City Hive, to ensure that the installation of a new theme does not overwrite or damage the current or preexisting theme, or UI, of the user.
  9. Services, Payments and Fees
    1. General Conditions
      1. Payment terms governing Services, Transactions, Offers and other services are as set forth and referenced on our website, unless a separate written agreement with City Hive expressly modifying the terms of payment under a particular Service, Transaction or Offer is signed and attached as appendix or ammendment.
      2. You will pay the Fees applicable to your subscription to Online Service and/or any additional subscriptions services ("Subscription Fees") and any other applicable fees, including but not limited to fees relating to the processing of transactions under your Account including "Credit Card Processing Fees" and "City Hive Fees" collectively termed ("Transaction Fees"), and any fees relating to your purchase of any products or services such as Marketing material, Equipment, Shipping Collaterals, Apps, Themes, Domain names or Third Party Services ("Additional Fees"). Together, the Subscription Fees, Transaction Fees and the Additional Fees are referred to as the "Fees".
      3. An amendment ("Pricing Amendment") specifying the Selected Plan, Services and relevant Fees will be amended to these Terms at the time of signup. This amendment will specify the exact Terms, Services and Fees and Conditions that apply to your account and will be sent to you by e-mail to the address provided. Any change to the Pricing plan will be added to these Terms and an Additional Amendment.
      4. You shall pay City Hive all fees for the Services via credit card or debit card, the first such payment due on the date of subscription with subsequent payments to be made at the end of each month thereafter.
      5. Disbursement: For each Transaction and/or Order that you fulfill you will be paid an amount equal to: the amount paid, less the Transaction Fees.
      6. Subscription Fees are paid in advance and will be billed in 30 day intervals (each such date, a "Billing Date"). Additional Fees will be charged from time to time at City Hive's discretion. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged.
      7. Fees will appear on an invoice, which will be sent to the Account Owner via the email provided. The invoice will appear on the Account page of your City Hive administration console. Account Owner has approximately two weeks from the moment they've been notified to bring up and settle any issues with the billing of Subscription Fees.
      8. You must keep a valid credit card on file with us to pay for all incurred and recurring Fees. City Hive will charge applicable Fees to the credit card account that you authorize ("Authorized Card"), and City Hive will continue to charge the Authorized Card (or any replacement card) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
      9. All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future ("Taxes").
      10. You shall not, in any circumstances, be entitled to any refunds or credits for setup fees, partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account.
      11. If you are resident in the U.S., Taxes may apply to your subscription to or purchase of some or all of City Hive's products and services, including without limitation, your subscription to or purchase of City Hive's Online Services, Mobile Services, Processing services, apps, Themes and domains ("Taxable Offerings"). Any applicable Taxes are based on the rates applicable to the U.S. billing address you provide to us, and will be calculated at the time of purchase of the applicable Taxable Offerings. Such amounts are in addition to the Fees for the Taxable Offerings and will be billed to your Authorized Card. If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such a certificate. To the extent that you are an individual and not a corporation or other legal entity, and your location of usage changes to a place in Canada or the U.S., you must advise us immediately by email to accounting@cityhive.net.
    2. Periodical Subscription Fees
      1. The periodical subscription fee shall be determined by the package selected by the Customer at the time of subscription, subject to any price adjustment made by City Hive in accordance with number of locations and volume pricing adjustment
      2. The Fees for City Hive Services shall be determined based on the number of locations using the Services. Locations are defined by business address and are used for associating orders with a specific business address. Locations are added through the City Hive web administrative console. The number of locations using City Hive Services will also be detected by us and billed accordingly as part of your regular Billing Cycle. In the event of any discrepancy between the number of locations added by you through the City Hive web administrative console and the number of locations detected by City Hive, the number of locations detected by City Hive shall be deemed to be correct.
    3. Transaction Fees
      1. City Hive will charge per Transaction Fees out of each transaction processed through the system that has originated from City Hive Powered Mobile app, City Hive Powered Website or from City Hive's Virtual POS embedded at any of City Hive's channel partners. The Transaction fee includes but is not limited to the Credit Card Fees and will be charged automatically out of consumer's total payments. Exact Transaction Fees will be indicated in the transaction report.
      2. City Hive has contracted a Third Party Credit Card processing company to provide service card processing services. Basic Credit Cards Fees are set at 2.9% +30 cents and will be collected by City Hive and disbursed to the Third Party company.
      3. Volume pricing of Transactions Fees may be available once certain volume of transactios is acheived. City Hive can review Transaction Pricing and chose to imoprove it, but is not obligated to do so.
      4. The terms and conditions relating to the disbursement of your payment are governed by the terms and conditions published by the third party company engaged by City Hive to process credit cards. Such terms are available in your Merchant Account and your use of the Merchant Account is conditional on your acceptance of such terms and conditions.
    4. Other Payments and Fees
      1. Fees relating to your purchase of any products or services such as Marketing material, Equipment, Shipping Collaterals, Apps, Themes, Domain names or Third Party Services will be collected on your monthly billing cycle and will be indicated on your monthly invoice under the Additional Fees and Services section.
    5. Payment Default Terms
      1. In the event a Customer fails to meet payment of the subscription fee due in respect of the Services, the Customer shall be treated as being in default.
      2. In the event of the Customer's default, any information or files on City Hive's host space, may be removed by City Hive at its sole discretion. City Hive shall not be responsible for any loss of data incurred as a result of the removal of the service, nor shall it have any liability is respect of such removal.
      3. Removal of the Customer's material from City Hive host space does not relieve the Customer of the obligation to pay any outstanding charges assessed to the Customer's account.
      4. Checks returned for insufficient funds, or electronic payments returned unpaid will incur a return charge of $25 each and the Customer's account will immediately be considered to be in default until full payment is received by City Hive in cleared funds.
      5. Customers with accounts in default agree to pay City Hive's reasonable expenses, including legal fees and costs for collection by third-party agencies, incurred by City Hive in enforcing these Service Terms and Conditions.
  10. Modifications to the Service and Prices
    1. City Hive may, from time to time, issue an update to the City Hive platform that may add, modify, and/or remove features from the differnt applications. These updates may be pushed out automatically with little or no notice, although City Hive will take all reasonable steps to notify the Customer in advance of an upcoming update, including details on what the update includes.
    2. City Hive reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) in all cases with or without notice.
    3. Prices for using the Services are subject to change upon 30 days notice from City Hive. Such notice may be provided at any time by posting the changes to the City Hive Site (cityhive.net) or the administration menu of your City Hive Merchnat Portal via an announcement.
    4. City Hive shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
  11. Intellectual Property and Content Rights
    1. We do not claim any intellectual property rights over the Materials you provide to the City Hive service. All Materials you upload remains yours. You can remove your City Hive App, Storefront or any other gateway at any time by deleting your Account.
    2. By uploading Materials, you agree: (a) to allow other internet users to view the Materials you post publicly to your store; (b) to allow City Hive to store, and in the case of Materials you post publicly, display, your Materials; and (c) that City Hive can, at any time, review all the Materials submitted to its Service, although City Hive is not obligated to do so.
    3. You retain ownership over all Materials that you upload to a City Hive Platform; however, by making your store public, you agree to allow others to view Materials that you post publicly to your store. You are responsible for compliance of the Materials with any applicable laws or regulations.
    4. Unless otherwise specified in writing, you hereby grant City Hive a non-exclusive, worldwide, transferable, irrevocable, perpetual and sub-licensable license to use, copy, distribute, display, perform reproduce or simulate any trademarks, photographs, graphics, artwork, videos, sound clips, text, and other content or materials that you provide to City Hive, in your Merchant Account or otherwise use to describe your Offer ("Your Content") in any and all media or formats in connection with City Hive's fulfillment of its rights and obligations under these Terms, including the promotion of Offers and distribution of vouchers.
    5. We will not disclose your confidential information to third parties, except as required in the course of providing our services. Confidential information includes any Materials or information provided by you to us which is not publicly known. Confidential information does not include information that: (a) was in the public domain at the time we received it; (b) comes into the public domain after we received it through no fault of ours; (c) we received from someone other than you without breach of our or their confidentiality obligations; or (d) we are required by law to disclose.
    6. City Hive shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with your store to promote the Service.
    7. City Hive may, in its sole discretion, include you in any press release regarding the Offers or Transactions described herein or identify you as a merchant.
    8. All intellectual property rights (including source code, data, creative and promotional materials) arising out of the creation and development of the Services by City Hive shall be and shall remain the sole property of City Hive.
    9. You acknowledges that City Hive owns all right, title, and interest, including all intellectual property rights, in the City Hive Portal, the City Hive Widget, trade name, logos, trademarks, and service marks, and any content, data, images, software, technology, tools, or business methods used by City Hive to develop, promote, market, sell, generate, or process Apps, Transactions and distribute Offers and vouchers and otherwise perform under these Terms (collectively the "City Hive IP").
    10. With respect to any Transaction and/or Offer, you may use City Hive's name, trademarks, and logos solely to publicize to your customers and potential customers the fact that you are fulfilling the Transaction and/or featuring that Offer.
    11. Notwithstanding the above, you shall not use or display the City Hive IP in any manner that states or implies that City Hive has endorsed or approved the Offer or your products or services. Any use of City Hive IP shall comply with any City Hive usage guidelines posted on your Merchant Account or provided to you from time to time. All goodwill and improved reputation in respect of and associated with the City Hive IP shall inure to the sole benefit of City Hive. Except as expressly set forth in these Terms, you have no right, license, title or interest in or to any City Hive IP, and shall not use, distribute, transfer, copy, download, display, modify, perform or create derivative works of the City Hive IP without the express written consent of City Hive. You shall not translate, reverse engineer, decompile or disassemble the City Hive IP. City Hive has the right to revoke the rights sets forth in this Section upon written notice to you reserves all rights not specifically granted.
    12. City Hive has the authority, but not the obligation, to remove Content and Customer accounts containing Content that City Hive determines in its sole discretion to be actually or potentially unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or actually or potentially in violation of any party's intellectual property rights or these Service Terms and Conditions.
  12. Severence From Hosting Platform
    1. The Customer may elect to sever its Content from City Hive's platform ("Severance"). provided their account is not in default and subject to the payment by the Customer of a resubmission fee.
    2. In the event of Severance, City Hive shall cease to have any obligations under these Service Terms and Conditions, and the Customer's Content and App shall cease receiving updates and improvements to the Services. Accordingly, in such circumstances, it is likely that the functionality and performance of the Customer's Content and App shall deteriorate over time. City Hive shall have no liability in respect of any such deterioration or loss of performance nor in respect of any losses arising, directly or indirectly, out of such deterioration.
  13. Cancellation and Termination
    1. You may cancel your Account at anytime by emailing support@cityhive.net and then following the specific instructions indicated to you in City Hive's response. A 30 day cancellation period will commence on the same day a cancellation occurs.
    2. Cancellations requested by phone or sent to any other email address shall not be effective.
    3. Upon termination of the Services by either party for any reason:
      1. City Hive will cease providing you with the Services and you will no longer be able to access your Account;
      2. All Customer Content may be deleted. This information cannot be recovered once the Customer's account is cancelled.
    4. Any outstanding balance owed to City Hive for your use of the Services through the effective date of such termination will immediately become due and payable in full; and
    5. If at the date of termination of the Service, there are any outstanding Fees owing by you, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.
    6. Unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any Fees, pro rata or otherwise;
    7. If the Customer is in default and submits a cancellation request, such cancellation will not be effected until all overdue amounts are received by City Hive in cleared funds. Until such time as City Hive has received all outstanding sums due, the monthly fee in respect of the Services will continue to accrue notwithstanding any cancellation request.
    8. We reserve the right to modify or terminate the City Hive Service or your Account for any reason, without notice at any time.
    9. Termination: Without limiting any other remedies, City Hive shall be entitled to cancel provision of the Services, without notice and without any obligation to refund any amount paid in respect of the month of termination, in the event that the Customer:
      1. Is in default in respect of payment of any invoices or subscription fees;or
      2. Violates redemption obligations with respect to any Transaction and/or any Offer made by costumers through City Hive's platform and services;
      3. Fails to redeem or cause the redemption of any voucher to fail for any reason, including but not limited to the sale or dissolution of your business, a violation of or a higher than expected number of purchasers.
      4. Violates or is in breach of any of the conditions set out in either clause 2, 3 or 9 or any of the material terms of these Terms or any other agreement you have with City Hive.
      5. Otherwise misuse, repeatedly abuse any service guidelines or standards that have been communicated to you by City Hive in advance., or in any way engage in conduct, which in City Hive's sole discretion, is unfair, misleading, deceptive or otherwise in bad faith, and without regard to whether such conduct is actually adverse to the interests of City Hive or any City Hive's customers.
    10. Suspension of an Offer. Notwithstanding anything herein to the contrary, you or City Hive may cancel or suspend an Offer, Product or Service through your Merchant Account for any or no reason.
  14. Indemnification
    1. Customer at her sole cost and expense, shall defend, indemnify and hold City Hive, its affiliated and related entities, and any of their respective officers, directors, agents and employees, harmless from and against any third party claims, lawsuits, actions, proceedings or investigations (collectively, "Claims") from and against any fees, costs, sanctions, penalties, damages, losses or expenses (including but not limited to attorney's fees and costs) (collectively, "Losses") arising out of or relating to any of the following: (a) your or any Third Party Merchant's (i) fraud, willful misconduct, or gross negligence or (ii) breach or alleged breach of these Terms; (b) any claim for state sales, use, or any other similar tax obligations (including any penalties, interest or other additions to tax) arising from the sale and subsequent redemption of a voucher; (c) to the extent applicable, any claim by any local, state or federal governmental entity for any unclaimed property regarding vouchers, including but not limited to, any claims for penalties and interest; (d) the goods and/or services provided by you, including but not limited to, any claims for false advertising, injuries, illnesses, damages, or death; (e) any Offer, including your provision of incomplete or inaccurate or information applicable to such Offer; or (f) your Content; and (g) any infringement, misappropriation, or other violation, of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by you, your Content, or the use thereof.
    2. City Hive, at its sole cost and expense, shall defend, indemnify and hold harmless Customer and Customer officers, directors, agents and employees, from and against any and all Claims brought against any of you arising out of or in connection with (a) City Hive's material breach of these Terms or (b) any infringement, misappropriation or other violation of any trademark or copyright of any third party by City Hive (excluding City Hive's use of materials provided or authorized for City Hive's use by, you.)
    3. Indemnification Process. The Party seeking indemnification under this Section 7 shall promptly notify the other Party in writing of any Claim for which it seeks indemnification; provided that such indemnified Party's failure to timely provide such notice shall not relieve the indemnifying Party of its indemnification obligations unless it can demonstrate actual prejudice as a result of such failure. In the event City Hive is the indemnifying Party, City Hive shall have the right to, upon written notice to you, elect to assume control of the defense and settlement of any such Claim, and you will have the right to participate and be represented in the defense of such Claim by your own counsel and at your own expense. You shall not settle any Claim for which you are to be indemnified hereunder without City Hive's prior written consent, which consent shall not be unreasonably withheld or delayed.
  15. Compliance With Law and Authorizations
    1. General. You will ensure that the terms of any Offer, any Fine Print, and your activities under the Agreement, including your redemption of the vouchers, comply with any and all state, federal and local laws, rules regulations, and orders, including the applicable state's liquor laws, Credit Card Accountability, Responsibility, and Disclosure Act of 2009 and all laws that govern false, unfair and deceptive practices, vouchers, gift cards, coupons, and/or gift certificates (collectively "Laws"). You understand and agree further that your compliance with Laws is a basic requirement, and that you must also comply with all of City Hive's requirements and product -specific policies applicable to vouchers ("Rules"), which Rules may require you to do more than the Laws alone might mandate.
    2. Health and Safety. You represent and warrant that all good or services provided in connection with any Offer and/or Transaction are safe and comply with all applicable Laws regarding health and safety, fire, and hygiene standards (collectively, "Health Laws"). At City Hive's request, you will promptly provide copies of any applicable facility operating license(s), or similar credentials or documents evidencing your and your facility(ies) compliance with the Health Laws and/or liquor laws. You shall ensure that your facilities and operations remain in compliance with all applicable Health Laws and liquor laws during the term of these Terms. City Hive reserves the right to immediately terminate its relationship with you, and to refuse to promote your Offer, if it believes you do not fully comply with any or all applicable Health Laws or liquor laws.
    3. Authorization Documents. You hereby represent and warrant that you have all rights and permissions necessary to provide or use any goods, services, or brands that you do not independently own as part of any Offer and/or Transaction and to grant the rights to your Content granted under these Terms. Even if City Hive has accepted a particular DR for your Offer, City Hive shall have no obligation to promote or to continue to promote, any Offer if it has any concerns about the integrity of said Offer. You shall immediately notify City Hive if, at any time during the term of the Agreement, you no longer have all necessary rights and permissions required to make the Offer available on the Site through the City Hive services.
    4. Regulatory Documents. You hereby represent and warrant that you have all obtained all governmental licenses, approvals, and authorizations necessary to provide the goods or services included as part of such Offer, including but not limited to all necessary authorization from the applicable state liquor authorities. If requested, you shall provide City Hive with copies of licenses, proof of authorization or other appropriate documentation evidencing such regulatory permissions ("Regulatory Documents"). Even if City Hive has accepted the DR for your Offer, City Hive shall have no obligation to promote or continue to promote your Offer if it has any concerns regarding the existence, integrity or veracity of Regulatory Documents it reasonably is relying on you to have and maintain. You shall immediately notify City Hive if, at any time during the term of the Agreement, you no longer have all rights and Regulatory Documents required to make the Offer available on the Site and through the City Hive services.
  16. Consumer and Customer Date
    1. Customer acknowledges that City Hive owns all data collected by, or on behalf of, City Hive pursuant to these Terms, including all information and data of individuals who may or do purchase products, services and vouchers ("Consumer Data").
    2. City Hive represents that individual consumer information and data collected through Customer branded gateways will not be shared with anyone other than the Customer unless agreed upon by the customer ahead of time and in writing.
    3. Subject to applicable Laws and in accordance with City Hive's policies and procedures, City Hive shall provide customer with access to consumers'; data to (i) the extent such specific data is necessary for you to redeem and/or verify the validity of the vouchers, and, (ii) to the extent that such data is valuable is maintain and increasing loyalty and engagement of consumer to customer's activity and offering through City Hive's provided platform. (iii) to the extent that any potential purchaser is made aware by statements in the Fine Print, that providing or sharing certain information is required to redeem the voucher, if such sharing would not be implicit in the type of good or service being offered.
    4. Except to the extent required by Laws or otherwise authorized in writing by City Hive, you may not use Customer Data for any purpose other than (i) to redeem the vouchers and service the Offer. (ii) to promote Customer own Business.
    5. You shall, and shall ensure that any Third Party Merchants you may work with, take commercially reasonable efforts to protect the security of Consumer Data and comply with all Laws (and City Hive's policies and procedures) relating to the processing of any Consumer Data. If you become aware of, or suspect, any unauthorized access to or use of Customer Data, you shall immediately notify City Hive, and shall cooperate with City Hive in the investigation of such breach and the mitigation of any damages. You shall bear all resulting costs and expenses incurred by City Hive to comply with applicable Laws (including without limitation any data breach Laws).
  17. Confidentiality
    1. Confidential Information. Each Party agrees that (i) the terms set forth in a Merchant Account are confidential, (ii) any information designated by the other Party as "confidential," and (iii) any other information that the recipient should reasonably expect to be confidential under the circumstances shall be collectively deemed "Confidential Information." Confidential Information does not include information that (a) was, or becomes, publicly known through no action of the receiving Party; (b) is already in the legitimate possession of the receiving Party prior to its disclosure; (c) is obtained by the receiving Party without a breach of any third party's obligations or violation of Laws; or (d) is independently developed by the receiving Party.
    2. Obligation. Each Party shall take reasonable precautions to protect all Confidential Information, and will only disclose Confidential Information to its employees on a need-to-know basis. You may also disclose Confidential Information to your Third Party Merchants if they have signed a confidentiality agreement that requires them to protect the Confidential Information in at least the same manner specified in these Terms. If a Party is required by Law to disclose the other Party's Confidential Information, it shall promptly notify the other Party and shall cooperate with the other Party to obtain a protective order or to otherwise limit the disclosure of the Confidential Information.
    3. Irreparable Harm. Each Party agrees that, in the event of an actual, alleged or threatened breach of its confidentiality obligations established by these Terms, the other Party is likely to suffer immediate and irreparable harm, and may seek a temporary restraining order, injunction or other form of equitable relief without the posting of any bond or other security.
  18. Third Party Services
    1. In addition to these Terms of Service, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, City Hive's partners or other third parties.
    2. City Hive may from time to time recommend, provide you with access to, or enable third party software, applications ("Apps"), products, services or website links (collectively, "Third Party Services") for your consideration or use, including via the City Hive App Store. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider ("Third Party Provider").
    3. Any use by you of Third Party Services offered through the Services or City Hive's website is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. We do not provide any warranties with respect to Third Party Services. You acknowledge that City Hive has no control over Third Party Services, and shall not be responsible or liable to anyone for such Third Party Services.
    4. The availability of Third Party Services on City Hive's websites, including the City Hive App Store, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with City Hive. City Hive does not guarantee the availability of Third Party Services and you acknowledge that City Hive may disable access to any Third Party Services at any time in its sole discretion and without notice to you. City Hive is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. City Hive strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates you should charge to your customers.
    5. If you install or enable a Third Party Service for use with the Services, you grant us permission to allow the applicable Third Party Provider to access your data and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. City Hive is not responsible for any disclosure, modification or deletion of your data or other Materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other Materials. Google Maps is a Third Party Service that is used within the Services. Your use of the Service is subject to your acceptance of the Google Maps and Earth Enterprise Universal Acceptable Use Policy, as it may be amended by Google from time to time.
    6. Under no circumstances shall City Hive be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider, including any Expert. These limitations shall apply even if City Hive has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
    7. You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, City Hive partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys' fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.
  19. DMCA Notice and Takedown Procedure
  20. City Hive supports the protection of intellectual property and asks City Hive merchants to do the same. It's our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our merchants is infringing their intellectual property rights, they can send a DMCA Notice to City Hive. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the merchant can reply with a counter notification if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise we restore the material. For more information, see our DMCA Notice and Takedown Procedure.
  21. Binding Arbitration
  22. The Parties hereby agree that (a) these Terms and all disputes, controversies, or claims arising out of or relating to these Terms, the Offer, any Transaction, or the DR shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA ("Rules and Procedures"); (b) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and City Hive; (c) the arbitrator shall apply New York Law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (d) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration will decide only your and/or City Hive's individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (e) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, City Hive will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (f) with the exception of subpart (d) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (d) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor City Hive shall be entitled to arbitrate their dispute. For more information on AAA and its Rules and Procedures, visit the AAA website at http://www.adr.org.
  23. Miscellaneous
    1. Force Majeure. Neither Party shall be liable for any default or delay in the performance of its obligations under these Terms due to acts of God, terrorism, natural disasters, earthquakes, fire, riots, floods, and other similar events, to the extent such event is beyond the reasonable control of such Party and only for the duration of such event.
    2. Agreement. These Terms constitute the entire understanding between the Parties relating to any Transaction and/or Offer and your obligations in making such Offer, and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. No part of these Terms may be amended or modified except by mutual written agreement of the Parties. In the event of a conflict between these Terms and the terms of your Offer or of any Transaction, these Terms shall govern.
    3. Interpretation. The section headings of these Terms are for purposes of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. References to a section include references to all subsections of that section.
    4. Invalidity of a Provision. If any provision of these Terms should be held to be invalid or unenforceable the validity and enforceability of the remaining provisions of these Terms shall not be affected and the Parties shall negotiate an equitable adjustment in the provisions in order to affect, to the maximum extent permitted by Law, the purpose of these Terms.
    5. Waivers. One or more waivers of any covenant, term or condition of these Terms by either Party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition.
    6. Assignment. You may not assign or transfer any of your rights, or delegate any of your obligations, under these Terms without City Hive's prior written consent, and any attempt to do so shall be void and unenforceable.
    7. Successors and Assigns; No Third Party Beneficiaries. These Terms shall be binding upon and inure to the benefit of, the Parties and their respective permitted successors and assigns. There are no third party beneficiaries to these Terms, except as expressly set forth herein or in a particular DR.
  24. Governing Law
  25. The Terms of Service shall be governed by and interpreted in accordance with the laws of the State of New York and the laws of United States applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of New York with respect to any dispute or claim arising out of or in connection with the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.
City Hive Inc. 250 Greenwich St. 10th floor New York, NY, 10007 United States