Merchant Account Terms and Conditions
CITY HIVE MERCHANT ACCOUNT TERMS AND CONDITIONS
(LAST UPDATED 12/30/2016)
By using City Hive's Merchant Portal, City Hive's Web and Mobile Content Management System and App Engine, Platform, Hosting and Support Services, (collectively referred to as "the Services") of City Hive Inc. (company number XXXXXXX) ("City Hive") the Customer agrees to be bound by the following terms and conditions and any policies, guidelines or amendments thereto that may be presented to the customer from time to time (collectively, the "Terms"). ("Service Terms and Conditions").
1. DEFINITIONS
1.1 City Hive means City Hive, Inc.; and
1.2 Customer means a merchant or any party engaged with City Hive in order to advertise, offer and or sell products, services and or events to Consumers and or inquire, or buy from suppliers; and
1.3 City Hive Portal means any portal to City Hive's technology that grants the Customer an authorized user access to the City Hive Dashboard or any other proprietary products and/or services offered by City Hive through a Customer's Sub-Merchant Account; and
1.4 City Hive Virtual Point of Sale means, collectively, the City Hive point of sale technology installed as a Mobile App or hosted on any third-party html page and other distribution channels including Widget, e-Store, e-mails, mobile applications or other types of electronic offerings in which the City Hive Virtual Point of Sale appears and function owned, controlled or operated by City Hive.
1.5 Deal Request or DR, and Event Request or ER is a request submitted by Customer to City Hive to create an Offer for inclusion in the City Hive Portal and/or to be Sold over the City Hive Point of Sale. The terms of the DR are specified and submitted by the customer in accordance with Section 5.1;
1.6 Offer means a DR or an ER created or submitted and published by Customer through Customer's Sub-Merchant Account to City Hive's Virtual Point of Sale.
1.7 Service Fee means the Monthly or Annual fee charged by City Hive in connection with the service provided by City Hive to Customer.
1.8 Credit Card Fee means the fee charged by the third party company engaged by City Hive to process credit cards at the time when a Transaction and/or Offer is fulfilled by Customer.
1.9 An Offer or Processing fee means the fees associated with a specific transaction excluding the Credit Card Fees.
1.10 Voucher means the paper voucher or electronic certificate that evidences a Transaction or Offer and contains the terms of, and unique redemption information for, such Transaction or Offer;
2. ACCEPTANCE
2.1 City Hive reserves the right to update and change the Service Terms and Conditions from time to time to reflect changes to law functionality or for any or no reason with or without notice.
2.2 City Hive will take all reasonable steps to notify the Customer in advance of an upcoming update, including details on what the update includes.
2.3 Any new features that augment or enhance the Services, including the release of new tools and resources, shall be subject to the Service Terms and Conditions.
2.4 City Hive may offer certain optional features or functionalities within the Customer 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.
2.5 Customer should review these Terms regularly. If at any time customer does not agree with these Terms, or does not agree to any modified Terms, customer must immediately stop using the services and cease participation in any program offered by City Hive.
2.6 Continued use of the Services after any such changes shall constitute the Customer's consent to such changes. The most current version of the Service Terms and Conditions at any time at: www.cityhive.net/legal.
2.7 Violation of any of the Service Terms and Conditions below may result in the termination of the customer's account and all related services.
2.8 Notwithstanding City Hive's prohibitions on certain conduct and content as specified within these Service Terms and Conditions, the Customer hereby acknowledges and agrees that City Hive shall not be responsible for the content posted on the Services ("Content") and The Customer hereby agrees to use the Service at its own risk.
2.9 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 (as defined below), these Terms shall govern. Customer and City Hive may be referred to throughout these Terms individually as a "Party" and collectively as the "Parties".
3. REPRESENTATIONS AND WARRANTIES
3.1 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.
3.2 Customer represents and warrants 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.
3.3. 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.
4. CUSTOMER OBLIGATIONS
4.1 The Customer hereby agrees to the following obligations as conditions of using the Services:
4.1.1 The Customer must be 18 years of age or older to use the Services.
4.1.2 The Customer must provide its legal full name, a valid email address, and any other information requested in order to complete the registrations process and advise City Hive as soon as possible as to any changes or updates to such information.
4.1.3 The Customer represents that she is of legal age to form a binding contract and have full power, capacity and authority to accept these Terms. If Customer accepts these Terms on behalf of your employer or another entity, Customer must represent that she has full legal authority to bind the employer or such entity to these Terms. If Customer does 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.
4.1.4 The Customer is responsible for maintaining the security of its account and password. Customer agrees 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 Portal. City Hive shall not be liable for any loss or damage arising from the Customer's failure to comply with such security obligations.
4.1.5 The Customer is responsible for all Content posted and activity that occurs under their account (even when Content is posted by others who have gained access to the Customer's account). Responsibility includes without limitation to regularly review the accuracy of your license to sell alcoholic products and other information created on Customer's behalf by authorized City Hive personnel.
4.1.6 The Customer must not modify, adapt or hack the Services or modify another website so as to falsely imply that it is associated with the Services, or any other City Hive service.
4.1.7 The Customer may not use the Services for any illegal or unauthorized purpose.
4.1.8 The Customer must not violate any laws in its jurisdiction (including but not limited to copyright and other intellectual property laws) in any way connected (whether directly or indirectly) to its use of the Services.
4.1.9 The Customer must not reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services without the express written permission by City Hive.
4.1.10 The Customer must not upload, post, host, or transmit unsolicited email, SMSs, or "spam" messages.
4.1.11 The Customer must not transmit any worms or viruses or any code of a destructive nature.
5. CUSTOMER OFFERS
5.1 Creation of Offers. You shall define the conditions of, and may supply the content and images to describe and illustrate, your Offer and its terms, by completing and submitting, or authorizing an agent to complete and submit, a DR through your Merchant Account. Submission of a DR does not obligate City Hive to accept the DR or any of its contents nor to promote the Offer, and is not binding on City Hive.
5.2 You are responsible and liable for all Offer content and terms, and for City Hive's or any purchaser's use or reliance on any of the foregoing. In creating your Offer, you may not: (a) offer to sell any goods or services on terms or in a manner that is prohibited by law from being offered or advertised; (b) include any content that violates or infringes in any way upon the rights of others; or (c) include any material that is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any Law.
5.3 Promotion of Offers. If City Hive accepts your DR, City Hive may promote the Offer using any method and through any medium that City Hive deems appropriate in its sole discretion, including through the City Hive Widget, e-mail, mobile applications and any other type of electronic interface or distribution channel owned, affiliated, controlled or operated by or through City Hive. City Hive further reserves the right, but has no obligation, to promote the Offer through its affiliates and third party business partners from time to time. City Hive will promote your Offer to City Hive customers and potential customers based on geographic or other geolocational data, but will determine the customers and potential customers to whom your Offer is actually promoted and made available in its sole discretion. If you indicate specific limits or maximums with respect to the number or type of vouchers that may be offered through an Offer in the DR, City Hive will use all commercially reasonable efforts to stop promoting your Offer accordingly.
5.4 Responsibility for Offer and Vouchers. You acknowledge that you are the exclusive seller of your Offer and the issuer of the vouchers. You also are responsible and liable for: (a) the decision to make your Offer available through the City Hive services; (b) fulfilling your Offer with respect to all voucher holders; and (c) supplying all goods and/or services specified in the Offer.
5.5 Redemption Obligations. You shall comply with your obligations specified in these Terms, the DR and other obligations regarding the use of your Merchant Account. In addition, when redeeming vouchers, you shall: (a) honor the vouchers during the time period specified on, pursuant to the terms of, your Offer, and as required under applicable law(s); (b) handle all customer service in connection with the redemption and use of the vouchers; (c) honor any voucher presented by an individual, even if that individual was not the purchaser, unless (i) otherwise specified in the Fine Print (as defined below) or otherwise stated prominently on the face of the voucher or, (ii) you reasonably believe that individual obtained the voucher in an unauthorized or illegal manner, in which case you shall immediately contact City Hive and explain the circumstances; and (d) comply with the terms and conditions stated on the voucher without modification and without imposing any restrictions or additional charges or penalties that are not expressly stated on the voucher. You shall specify all generally applicable policies (e.g., cancellation policies that apply to all customers), restrictions and contractual arrangements (e.g., liability waivers required for all customers) applicable to the Offer ("Fine Print") in the DR, and City Hive shall have no liability for the nature of your Fine Print or your failure to specify appropriate Fine Print.
5.6 Third Party Merchants. If permitted by applicable law, you may subcontract or delegate portions of your performances required by these Terms with respect to a particular Offer or Transaction to a third party. If you subcontract or delegate to Third Party Merchants with respect to fulfilling such Offer or Transaction, you will remain solely responsible and liable for (a) all your obligations, including financial obligations, under these Terms and (b) all acts and omissions of your Third Party Merchants. You shall require your Third Party Merchants to comply with all applicable restrictions and obligations imposed on you under these Terms, and you will be solely responsible for your financial and contractual relationship with your Third Party Merchants.
6. PAYMENTS AND REFUND TERMS
6.1 Payment terms governing Service, Transactions and Offers are as set forth below, unless a separate written agreement with City Hive expressly modifying the terms of payment under a particular Transaction or Offer. For each Transaction and/or Offer that you fulfill you will be paid an amount equal to: the amount paid, less the Processing fees. 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.
6.2 The Customer shall pay City Hive the monthly fee for the Services via credit card, debit card or PayPal, the first such payment due on the date of subscription with subsequent payments to be made on the same day of each month thereafter.
6.3 The monthly 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 clause 7.1.
6.4 The Customer 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.
6.5 All fees payable in respect of the Services are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
6.6 City Hive reserves the right to charge processing fees of up to 2.5% out of each transaction processed through the system that has originated from the Mobile app and up to 5% out of each transaction processed that originated from City Hive's Virtual POS embedded at any of City Hive's channel partners. The processing fee if charged, will be charged automatically out of consumer's total payments.
6.7 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 3.1.
7. PAYMENT DEFAULT TERMS
7.1 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.
7.2 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.
7.3 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.
7.4 Cheques 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.
7.5 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.
8. CANCELLATION AND TERMINATION
8.1 Term. These Terms are effective on the earlier of the date on which you first access the Merchant Center through your Merchant Account, accept the Merchant Account Terms, or submit a DR. These Terms will remain in effect unless terminated pursuant to its provisions.
8.2 Termination: 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:
8.2.1 is in default in respect of payment of any invoices or subscription fees;or
8.2.2 Violate redemption obligations with respect to any Transaction and/or any Offer made by costumers through City Hive's programs and services;
8.2.3 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.
8.2.4 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.
8.2.5 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 customer.
8.3 Suspension of an Offer. Notwithstanding anything herein to the contrary, you or City Hive may cancel or suspend an Offer through your Merchant Account for any or no reason.
8.4 The Customer shall be entitled to cancel the Services at any time however, a 30 day cancellation period will commence on the same day a cancellation occurs. Cancellation requests must be submitted in writing to support@cityhive.net. Cancellations requested by phone or sent to any other email address shall not be effective.
8.5 Upon cancellation of the Services all Customer Content may be deleted. This information cannot be recovered once the Customer's account is cancelled.
8.6 If the Customer cancels the Services prior to the end of the period for which the Customer has paid for the Services, cancellation will take effect immediately and no further charge will be made to the Customer.
8.7 Where a customer has agreed to a special offer that includes a premium build element and cancels prior to app submission the customer will be charged for 50% of the standard premium build charge of $999.
8.8 Where a customer has agreed to a special offer that includes a premium build element and the App has been submitted, should the customer cancels within three months of the submission date, the customer will be charged 50% of the standard premium build charge of $999.
8.9 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.
9. MODIFICATIONS TO THE SERVICES AND PRICES
9.1 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) and to revise the monthly fees payable in respect of the Services, in all cases with or without notice.
9.2 City Hive shall not be liable to the Customer or to any third party for any modification, price change, suspension or discontinuance of the Services.
9.3 From time to time, City Hive may issue an update to the City Hive systems that may add, modify, and/or remove features from the application. 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.
10. SEVERANCE FROM HOSTING PLATFORM
10.1 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.
10.2 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.
11. INDEMNIFICATION
11.1 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.
11.2 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.)
11.3 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.
12. COMPLIANCE WITH LAW AND AUTHORIZATIONS
12.1 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.
12.2 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.
12.3 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.
12.4 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.
13. CONFIDENTIALITY
13.1 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.
13.2 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.
13.3 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.
14. INTELLECTUAL PROPERTY RIGHTS AND CONTENT
14.1 City Hive claims no intellectual property rights over the material the Customer provides to the Service including Content.
14.2 For the period of this agreement, Customer hereby grant City Hive a non-exclusive, worldwide, transferable, irrevocable, perpetual and sub-licensable license to use, copy, distribute, display and perform 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. 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.
14.3 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.
14.4 Customer 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, 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").
14.4.1 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.
14.4.2 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.
14.5 City Hive is under no obligation to screen Content, but City Hive has the right (but not the obligation) in its sole discretion to refuse or remove any Content that is provided by the Customer.
15. CONSUMER AND CUSTOMER DATA
15.1 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").
15.2 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.
15.3. 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.
15.4. 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).
16. LIMITATIONS OF LIABILITY, INSURANCE
16.1 LIMITATION OF City Hive's LIABILITY. CITY HIVE'S SOLE AND COMPLETE LIABILITY TO YOU SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO YOU BY CITY HIVE PURSUANT TO THESE TERMS PRIOR TO THE DATE THE CLAIM AROSE PER OFFER OR TRANSACTION. IN NO EVENT SHALL CITY HIVE BE LIABLE TO YOU, ANY THIRD PARTY MERCHANT OR ANY OTHER THIRD PARTY FOR ANY CLAIMS RELATING TO THE USE OF YOUR GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO CLAIMS RELATING TO FALSE ADVERTISING, INJURIES, ILLNESSES, DAMAGES, OR DEATH. ANY CLAIM ARISING OUT OF OR RELATING TO ANY VOUCHER OFFERED UNDER THE APPLICABLE DR MUST BE MADE WITHIN ONE (1) YEAR OF THE DATE OF THE TRANSACTION AND ALL CLAIMS NOT SO MADE SHALL BE DEEMED WAIVED BY YOU.
16.2 NO CONSEQUENTIAL DAMAGES. EXCEPT FOR (A) INDEMNIFICATION OBLIGATIONS HEREUNDER OR (B) EITHER PARTY'S (OR WITH RESPECT TO YOU, YOUR THIRD PARTY MERCHANT'S) (I) VIOLATION OF SECTION 8 (COMPLIANCE WITH LAW AND AUTHORIZATIONS), SECTION 9 (CONFIDENTIALITY), OR SECTION 10 (INTELLECTUAL PROPERTY RIGHTS; CUSTOMER DATA) OR (II) FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE.
16.3 Insurance. You represent and warrant that you have, and shall maintain at your expense and at all times during the term of these Terms, all types of liability insurance policies, with coverage in amounts that are customary for merchants and/or service providers in your region, consistent with best industry practices, and sufficient to fully comply with applicable Law and fulfill your obligations under these Terms. Upon City Hive's request, you shall provide proof of your maintenance of such policies and provide assurances that indicate that City Hive will be covered by your insurance policies in the event of a claim arising under or in relation to, these Terms or any Offer.
17. BINDING ARBITRATION
17.1 Binding Arbitration. 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.
18. MISCELLANEOUS
18.1 Electronic Communications and Notices. You acknowledge that communications between the Parties often use electronic means. 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., Four world Trade Center, 150 Greenwich #2958, New York, NY 10007, with a copy to the attention of the CEO.
18.2 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.
18.3 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.
18.4 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.
18.5 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.
18.6 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.
18.7 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.
18.8 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.
18.9 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.
19. GENERAL CONDITIONS
19.1 The Customer's use of the Content Management System is at the Customer's sole risk. The service is provided on an "as is" and "as available" basis. Technical support is only available via email. The technical support email address is support@cityhive.net.
19.2 Unless otherwise specified in writing, the Customer hereby authorizes City Hive to use, reuse, and to grant others the right to use and reuse, its Content, and any reproduction or simulation thereof, in any form of media or technology now known or hereafter developed, both during and after the Customer's use of the Services, for any purposes related to the Services.
19.3 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.
19.4 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.
19.5 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.
19.6 The Customer hereby acknowledges and accepts that understand that the technical processing and transmission of the Services, including the Customer's Content, 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.
19.7 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.
19.8 The Customer hereby acknowledged and and agrees 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 (even if City Hive has been advised of the possibility of such damages), 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.
19.9 The failure of City Hive to exercise or enforce any right or provision of these Service Terms and Conditions shall not constitute a waiver of such right or provision.
19.10 These Service Terms and Conditions shall constitutes the entire agreement between the Customer and City Hive and govern the Customer's use of the Services, superseding any prior agreements between you and City Hive (including, but not limited to, any prior versions of these terms and conditions
19.11 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.
20. GOVERNING LAW.
20.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of New York.
Address: City Hive Inc., 4 World Trade Center, 150 Greenwich St., New York NY, 10007