The purpose of this Agreement is to set forth the terms and conditions under which, among other things, (i) CityGro will license to You use of certain of CityGro’s technology, software and/or services such that You can utilize the Application through your mobile device, and (ii) You can access and/or use the Website (collectively, the “Purpose”). As stipulated elsewhere in this Agreement, CityGro does not exert any control over any merchants, retailers, commercial ventures or other third parties, and as such is not liable or responsible for any actions taken or omitted to be taken by any such third party.
You shall not directly or indirectly copy or reproduce all or any part of the Application or the Website, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. You shall use the Application solely for its intended purposes and shall not use the Application for the benefit of any third party except as specifically contemplated under this Agreement. You shall not use the Application to post, transmit, convey, submit, distribute, store or destroy any content, photographs, descriptions, drawings, content, audio materials, text, messages or other information (collectively, “Posted Information”): (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; or (f) in violation of the any acceptable use policy or other policy posted at the Website or within the Application from time to time. You shall not violate or attempt to violate the security of the Application. You shall not reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Application, including, without limitation, any of the software comprising or in any way making up a part of the Application. In addition, You will not export, re-export or permit any third party to export or re-export, directly or indirectly, the Application where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. You shall defend and indemnify CityGro, at Your sole cost and expense, from and against any claims, damages, liabilities and/or expenses arising out of Your breach of any of Your obligations or representations set forth in this Section 3.
You shall be solely responsible for: (i) all Posted Information you input into the Application; (ii) ensuring that all Posted Information is appropriate in tone and is accurate; (iii) complying with all applicable laws, rules and regulations at all times; and (iv) maintaining all passwords and access codes to the Application, and refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes to access the Application.
CityGro shall be entitled, at its sole discretion, to suspend, restrict and/or terminate, without notice of any kind, Your access to the Application or Your CityGro account for any reason. Notwithstanding the foregoing, CityGro shall not be required to review or monitor any Posted Information entered into the Application or otherwise submitted by You, and You shall be solely responsible for the veracity and accuracy of all such data, content and information.
CityGro does not currently charge its users to access and use the Application, however CityGro may, at any point and in its discretion, elect to begin charging fees for use of various portions of the Application and/or for different levels of subscription or account.
Term and Termination.
This Agreement shall continue in full force until the earlier to occur of (i) either party providing written or electronic notice of termination to the other party (at which point You shall no longer be entitled to access or use the Application), or (ii) CityGro electing to terminate Your access to the Application, with or without notice (the “Term”). For purposes of clarity, You are entitled to terminate your CityGro account at any time. Upon termination of this Agreement for any reason, You shall no longer be entitled to access or use the Application or any other non-public portions of the Website. In addition to the foregoing, in the event that CityGro determines, in its sole and absolute discretion, that You have breached this Agreement, threatened to breach this Agreement, committed any fraud or deception, breached any CityGro policy in effect from time to time or otherwise failed to perform to the standards required of CityGro, CityGro shall be entitled, at its discretion and in addition to any other remedies it may have hereunder and/or at law, to terminate, cancel or suspend Your access to the Application, in each of the foregoing cases at any time and for any period of time. CityGro shall not be responsible for the return of any Posted Information of any kind to You upon any termination of this Agreement or suspension of Your access to the Application, including without limitation any information input into the Application by You. Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of this Agreement shall survive any termination of this Agreement.
(a) General Ownership.
All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. For purposes of clarity: (i) as between You and CityGro, You shall be deemed to be the sole owner of all Posted Information entered into the Application or otherwise posted by You; and (ii) CityGro is the sole owner of the name “CityGro” as well as the Website, the Application, and all source code, object code, software, content, copyrights, trademarks, patents and other intellectual property related thereto or included therein. All suggestions, recommendations, bug-fixes, error-fixes or other communications from You to CityGro regarding the Application or the Website shall, upon submission to CityGro, be owned solely and exclusively by CityGro. In addition, CityGro shall be entitled to post feedback at the Website and within the Application (and/or allows others to do so), both positive and negative, regarding any user. You acknowledge and agree that the applicable supplier(s) of any third party software included within the Application shall own all worldwide rights, title and interest in and to such third party software (and any intellectual property rights therein), subject to such suppliers’ license, if any, of such third party software to CityGro.
(b) Use of Posted Information.
You agree to treat as confidential all confidential information of CityGro, not to use such confidential information for any purpose other than to the limited extent necessary to use the Application and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, You shall use at least the same degree of care which You use to prevent the disclosure of Your own confidential information of like importance to prevent the disclosure of confidential information disclosed by CityGro, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. In addition, during the Term and for a period of one year thereafter, You shall refrain from directly or indirectly soliciting, enticing, persuading or inducing any individual who is then, or has been within the 1-year period prior to the applicable date, an employee of CityGro to terminate employment with CityGro or to become employed by or enter into contractual relations with any other individual or entity.
(a) No Warranties.
Except as explicitly set forth herein, neither CityGro, its affiliates or any of any such party’s equity holders, directors, officers, employees, agents, suppliers, licensors nor the like, makes any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Website or the Application will be error-free, (c) as to a minimum level of uptime for the Application or the Website, or (d) as to the results that may be obtained by You by entering into this Agreement and/or using the Application. You agree and acknowledge that the Application and Website are licensed and/or provided hereunder on an “as is” basis. In addition, You hereby agree and acknowledge that: (i) CityGro shall not be responsible for any actions taken by any other party using the Application or reviewing any of Your Posted Information; (ii) CityGro does not recommend or endorse any third parties hereunder, and makes no representations or warranties whatsoever regarding any such third party; (iii) CityGro is not a party to any transaction between you and any store, retailer or business with which CityGro has a business relationship, and as such, any disputes regarding purchases, rewards and/or any other aspect of any transaction or other commercial dealings is solely between You and such third party; (iv) CityGro is not responsible for any other party’s compliance with applicable laws, rules or regulations; (v) CityGro’s services are administrative in nature and CityGro is not responsible for ensuring that any third party honor any reward, loyalty or other obligations such third party may have towards You; (vi) CityGro shall not, under any set of circumstances, be responsible or liable for an content, text, photographs and/or other Posted Information, including any Posted Information which may violate applicable law and/or a third party’s intellectual property rights; and (vii) the Application and/or Website may not function properly or as intended at times.
(b) Unavailability of Website or Application.
You are responsible, at your sole cost and expense, for providing all equipment necessary to access the Internet, the Website and/or the Application. While it is CityGro’s objective to make the Website and Application accessible at all times, the Website and/or Application may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, various portions of the Website or Application may operate slowly from time to time. You understand and acknowledge that due to circumstances both within and outside of the control of CityGro, access to the Website and/or the Application may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the foregoing, CityGro shall not be liable in any way for any delay in responding to an inquiry or question forwarded by You or the effects any delay or unavailability may have on You. YOU AGREE THAT CityGro SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WEBSITE AND/OR APPLICATION AND THAT YOU SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE WEBSITE AND/OR APPLICATION.
Limitation on Liability.
CityGro SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE APPLICATION OR WEBSITE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, CITYGRO’S TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING HEREUNDER OR RELATED HERETO SHALL NOT EXCEED $50.
CityGro shall not be liable to You for failure or delay in performing any obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control.
The following terms and conditions govern general use of the Website:
(a) You agree to abide by all restrictions displayed on the Website and/or within the Application, as and when they are updated from time to time, including, without limitation, the rules in this Section 13. CityGro reserves the right to remove any content You post to the Website or within the Application, block the sending of any inquiry or other content CityGro deems inappropriate in its sole discretion, and may terminate all access to the Website and/or Application at any time in its sole discretion for any or no reason. While CityGro reserves the right to monitor all postings and/or content posted at the Website and/or within the Application, it has no obligation to do so.
Permitted Uses. You may use the Website only in good faith for the purposes described herein. You may download and print out portions of the content from the Website for non-commercial purposes provided that You follow the rules in this Agreement. You may not use the Website or Application, or any business listings, contract information or other content, to promote another business or commercial venture.
Distribution. Except as expressly permitted under other provisions of this Agreement, You may not modify, reproduce, duplicate, copy, photocopy, print, republish, display, translate, transmit, distribute, sell, resell, rent, lease, loan, exploit, reduce to any electronic medium or machine-readable form, or otherwise make available in any form or by any means all or any portion of the Website, the content or any information or materials retrieved from either of them, including, without limitation, graphics and logos, in whole or in part, for any purpose.
Derivative Works. You may not create compilations or derivative works of the Website or the Application, the Website or Application content or any other materials from the Website or Application.
Infringement. You may not use the Website, Application, the Website and/or Application content or any other materials from the Website or Application in any manner that may infringe upon any copyright or other intellectual property right, proprietary right, or property right of CityGro or any third party.
Information Distribution. You may not use the Website and/or Application or any communications service, chat room, message board, blog, forum, newsgroup, or other interactive service that may be available to You on or through the Website or Application to transmit, upload, post, distribute or facilitate distribution of, or otherwise make available any information or content, including text, communications, software, images, sounds, data or other information, that:
• is false;
• contains explicit or graphic descriptions or accounts of sexual acts, including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals;
• includes any inside information and/or proprietary or confidential information learned or disclosed under nondisclosure agreements;
• You are restricted from using under any law;
• infringes upon the intellectual property rights of any third party; or
• contains software viruses or any other computer code, files or programs that are designed or intended to disrupt, damage, or limit the functions of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any other party.
Other Prohibited Uses. You may not use the Website or Application for any purpose that:
• is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, or otherwise violates CityGro’s rules or policies;
• victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability, or any other classification protected by law;
• invades any person’s or entity’s privacy or other rights;
• constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
• misidentifies You or impersonates any person or entity, including, without limitation, any employee or representative of CityGro, or falsely states, implies, or otherwise misrepresents Your affiliation with a person or entity by, for example, pretending to be someone other than You or pretending to represent a company or organization that You are not affiliated with or authorized to represent; or
• could otherwise reasonably be deemed or viewed to be unethical, illegal or offensive.
Others’ Personal Information. You may not knowingly solicit or collect personal information from a child 12 years old or younger without appropriate prior verifiable parental consent.
Harm to Minors. You may not take any action on the Website or within the Application or use the Website and/or Application content to harm minors in any way.
Solicitation. You may not use the Website or Application or any Website or Application content in a manner that violates any state or federal law regulating commercial e-mail, facsimile transmissions or telephone solicitations.
(b) The Website, the Application and the Website and Application content may contain and/or provide access to content provided by third parties, including, without limitation, information, dialogue, opinions, stories, advice, statistical data, text, software, music, sound, photographs, graphics, video, messages, and other materials, whether publicly or privately posted to or e-mailed or otherwise transmitted through the Website or Application (“Third Party Content”) that may include content You find to be offensive, indecent or objectionable. The third party from whom or which any such Third Party Content originates is solely responsible for it and CityGro assumes no responsibility to verify, has no control or influence over, makes no representations regarding, and does not guarantee the accuracy, integrity or quality of any Third Party Content. Accordingly, CityGro has no liability of any kind to You or any other person relating to any Third Party Content, including, without limitation, mistake, misstatement of law, omission, falsehood, defamation, obscenity, pornography, profanity, opinion, representation and any other content contained in the Third Party Content or for any loss or damage of any kind incurred as a result of the use of any Third Party Content. Statements of opinion and commentary in Third Party Content are those of the third party and, unless CityGro expressly states in writing to the contrary, CityGro neither endorses nor adopts as its belief any such statements. CityGro may provide information in articles CityGro posts or links to through the Website only for educational and general informational purposes and not as professional advice. CityGro has made no attempt to verify any information contained in any such articles.
(c) As a convenience to You and other Website visitors, the Website may contain links to websites that are owned and operated by third parties that are not affiliated with CityGro. When You uses these links, You will leave the Website and CityGro will have no ability to protect Your interests. You visits linked websites at Your own risk and it is Your responsibility to take any protective measures to guard against viruses and other destructive elements. CityGro is not responsible for and, unless it expressly states otherwise in writing, makes no warranty or representation regarding and does not endorse any linked website or any service, product or information provided on or through the linked website.
If You believe that Your intellectual property or work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide CityGro’s Agent for Notice with the following information in English (Your “Notice”):
• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
• a description of the copyrighted work or other intellectual property that You claim has been infringed;
• a description of where the material that You claim is infringing is located on the Website or within the Application;
• Your address, telephone number, and email address;
• a statement by You that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
• a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
In some circumstances, in order to notify the individual or entity who or which provided the allegedly infringing content to which CityGro has disabled access, CityGro may forward a copy of a valid Notice including name and email address to such individual or entity. CityGro’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
c/o CityGro, Inc.
44 Exchange Place
Salt Lake City, Utah 84111
During the length of the Merchant Agreement, CityGro will provide the CityGro Programs. In the event of any inconsistency among terms and conditions of the Merchant Agreement and these Terms and Conditions (“Agreement”), the order of control shall be: (i) Merchant Terms & Conditions, (ii) Merchant Agreement, and (iii) any other exhibits, addenda or attachments to the Terms & Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. Any capitalized terms that are not defined in these Terms and Conditions have the meanings ascribed to them in the Merchant Agreement.
Intellectual Property Rights.
(i) CityGro owns all right, title and interest in and to any data provided to CityGro by your customer or an end user to CityGro in connection with the CityGro Programs (“Customer Data”).
(ii) CityGro owns all right, title and interest in and to the CityGro Programs including, without limitation, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto. Except as set forth in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the CityGro Programs, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.
You: (i) will use the CityGro Programs solely for your internal business purposes, and (ii) will not, for itself, any affiliate of you or any third party (a) sell, rent, lease, license or sublicense, assign, distribute, or transfer the CityGro Programs; (b) modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the CityGro Programs; (c) copy any tangible versions of the CityGro Programs; or (d) remove from any of the CityGro Programs any language or designation indicating the confidential nature thereof or the proprietary rights of CityGro. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the CityGro Programs where such export or re-export is prohibited by applicable law without appropriate licenses and clearances.
CityGro retains the right to approve, modify, or refuse any CityGro related communications to end users.
Fees; Pricing and Payment Terms; Taxes.
(i) CityGro’s current fees for the CityGro Programs and its services are set forth in the Merchant Agreement. CityGro reserves the right to amend the fees payable for the CityGro Programs at any time upon thirty (30) days prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next Subscription Period.
(ii) You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the CityGro Programs.
(iii) Notwithstanding anything herein to the contrary, CityGro, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use the CityGro Programs, at any time, upon notice to you, if you have not paid all amounts due on or before the payment due date, or for any other material breaches of the Merchant Agreement, Merchant Terms and Conditions, or any other exhibits, addenda or attachments to the Terms & Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by CityGro to collect any unpaid amounts owed by you.
(iv) CityGro provides standard installation of its CityGro Programs, however, in the event of a complex installation such as when third party or outside technical support is required to complete the installation, CityGro will provide up to one hour of such technical support. Technical support exceeding one hour will be billed at cost to the Merchant.
Term; Termination; Survival.
The Agreement will remain in full force specified in the Merchant Agreement. At the end of any Subscription Plan, unless you select a new Subscription Plan, your Subscription Plan will automatically convert to a month-to-month Subscription Plan. This will be ongoing until you select a new Subscription Plan or provide at least sixty (60) days written cancelation notice, at which time you may be charged a restocking fee. Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party.
If your Merchant Agreement specifies that you are entitled to a “30 day Money Back Guarantee” and if, within 30 days of the Installation Date, You desire to have the CityGro Kit uninstalled, you agree to provide written notice to CityGro. Within 30 days of CityGro’s receipt of the CityGro Kit, CityGro will refund You any money collected for the initial monthly subscription fee in the same manner in which the initial fee was paid. All Onboarding, Activation, or Setup fees paid are non-refundable. If, after thirty (30) days from the Installation Date and prior to the subsequent Subscription Period, You desire to terminate the CityGro Program, You agree to pay an early cancellation fee equal to six (6) months of your monthly subscription fee via the credit card or ACH on file. If you subscribe to a variable subscription fee plan, your early cancellation fee is equal to (6) months at the most recent monthly billed rate. CityGro will cease to collect the monthly subscription fee at the point in time in which CityGro has received your returned CityGro Kit. In the event of a termination, all items in the CityGro Kit must be returned to CityGro in specified return packaging provided by CityGro. If you were not previously provided with specified return packaging, CityGro will provide you with specified return packaging at no cost to you, otherwise you will be charged for packaging materials. You are responsible for all return shipping charges and for any damage incurred in the shipping process. If any item in the CityGro Kit is not returned, CityGro will charge you for the cost of the item not returned. CityGro will prorate the last monthly subscription fee based on the date the CityGro Kit is received by CityGro. Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect.
Representations and Warranties; Disclaimer.
(i) CityGro warrants that CityGro has the authority to enter into this Agreement.
(ii) You represent and warrant to CityGro that: (a) you have the authority to enter into this Agreement; and (b) you will only use the CityGro Programs for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party.
(iii) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF CityGro PROGRAMS OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. CityGro PROGRAMS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of CityGro. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to such disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.
Dispute Resolution; Governing Law.
In the event of a reward dispute or mistake between a Merchant and User, CityGro may in its sole discretion unilaterally make adjustments to User reward points.
To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. This Agreement is governed by the State of Illinois and you expressly agree to the exclusive jurisdiction for any claim or dispute with CityGro in the federal and state courts within the jurisdiction of the United States District Court for the Northern District of Illinois. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
You will defend, indemnify, and hold CityGro and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your material breach of this Agreement, your unauthorized use or misuse of the CityGro Programs or any unauthorized combination of the CityGro with any hardware, software, products, data or other materials not specified or provided by CityGro.
Limitation of Liability.
CityGro’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to CityGro under the Agreement during the twelve (12) months preceding the date on which the claim occurred. To the maximum extent permitted by applicable law, in no event will CityGro be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services, however caused and regardless of theory of liability. In addition, CityGro will not be liable for damage (physical or otherwise) incurred by the merchant upon any asset or property from the installation or removal of any CityGro product or add-on in-store and will not be responsible for replacement or cost of repair if damages occur. This limitation will apply even if such damages were foreseeable and you have been advised or are aware of the possibility of such damages.
Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to the contact person listed on the Order Information as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally.
You may not, without the prior written consent of CityGro, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.
No Third-Party Beneficiaries.
The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
This Agreement may be changed only by written agreement signed by both CityGro and you. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.
If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.
If either party is prevented from performing any of its obligations under the Agreement due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to CityGro provided prior to the force majeure event.
The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
Compliance with Laws.
Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.
The Agreement will constitute the entire agreement between CityGro and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.