TERMS & CONDITIONS
Terms & Conditions - Last Updated: March 1, 2016
1. Contractual Relationship
Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and gitr. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. gitr may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason without any prior notice.
Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion and such supplemental terms will be disclosed to you in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
gitr may amend the Terms related to the Services from time to time. Amendments will be effective upon gitr’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
2. The Services
The Services constitute a technology platform that enables users of gitr’s mobile applications or websites provided as part of the Services (each, an “Application“) to purchase, redeem, send and/or receive drink coupons that are exchanged for alcoholic beverages including beers, wines and/or cocktails at any premise that participates with gitr, including independent third party agreements with gitr (“Third Party Providers“). Unless otherwise agreed by gitr in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT GITR DOES NOT DISTRIBUTE OR SERVE ALCOHOLIC BEVERAGES.
Subject to your compliance with these Terms, gitr grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by gitr and gitr’s licensors.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by gitr; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
C. Third Party Services & Content
The Services and all rights therein are and shall remain gitr’s property or the property of gitr’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner gitr’s company names, logos, product and service names, trademarks or services marks or those of gitr’s licensors.
3. Your Use of the Services
A. User Accounts
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account“). You must be at least 21 years of age, or the age of legal majority to consume alcohol in your jurisdiction (if different than 21), to obtain an Account. Account registration requires you to submit to gitr certain personal information, such as your name, address, mobile phone number, email and age. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access and use the Services or gitr’s termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by gitr in writing, you may only possess one Account.
B. User Requirements & Conduct
The Services are not available for use by persons under the age of 21. You may not authorize third parties to use your Account, and you may not allow persons under the age of 21 to receive drink coupons or alcoholic beverages from Third Party Providers even if they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes (e.g., drinks cannot be redeemed for persons under the age of 21). You will not in your use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
C. Promotional Codes
gitr may, in gitr’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Third Party Provider’s services, subject to any additional terms that gitr establishes on a per promotional code basis (“Promo Codes“). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by gitr; (iii) may be disabled by gitr at any time for any reason without liability to gitr; (iv) may only be used pursuant to the specific terms that gitr establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. gitr reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that gitr determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
D. User Provided Content
gitr may, in gitr’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to gitr through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content“). Any User Content provided by you remains your property. However, by providing User Content to gitr, you grant gitr a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and gitr’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant gitr the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor gitr’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by gitr in its sole discretion, whether or not such material may be protected by law. gitr may, but shall not be obligated to, review, monitor, or remove User Content, at gitr’s sole discretion and at any time and for any reason, without notice to you.
E. Network Access & Devices
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. gitr does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You may purchase services or products that may require you to enter your payment information. All payments are processed through Braintree (www.braintreepayments.com), a division of PayPal. We do not save or store any of your payment information. Once payment has been processed, you will receive the services or products that you have purchased and a receipt will be sent to your email. gitr will facilitate your payment of the applicable Charges on behalf of the Third Party Provider, as such Third Party Provider’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Provider. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by gitr. You retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods. gitr will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good.
As between you and gitr, gitr reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in gitr’s sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may be higher or lower. gitr may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you.
This payment structure is intended to fully compensate the Third Party Provider for the services or goods provided. Any representation by gitr (on gitr’s website, in the Application, or in gitr’s marketing materials) to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments you make for services or goods provided is not intended to suggest that gitr provides any additional amounts, beyond those described to the Third Party Provider. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience about your Third Party Provider. Currently, there are no options to add additional tip for your Third Party Provider. In the meantime, additional tips can be provided by you to the Third Party Provider directly.
5. Disclaimers / Limitation of Liabilities / Indemnity
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” GITR DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, GITR MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. GITR DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
B. Limitation of Liability
GITR SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF GITR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GITR SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF GITR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GITR SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND GITR’S REASONABLE CONTROL. IN NO EVENT SHALL GITR’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED ONE HUNDRED U.S. DOLLARS (US $100).
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 5 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
You agree to indemnify and hold gitr and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) gitr’s use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers.
6. Dispute Resolution
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes“) will be settled by binding arbitration between you and gitr, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and gitr are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and gitr otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
B. Arbitration Rules & Governing Law
The arbitration will be administered by gitr’s choice of arbitrator, which must be an independent third-party. The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
C. Arbitration Location & Procedure
Unless you and gitr otherwise agree, the arbitration will be conducted in New York City. If your claim does not exceed $1,000, then the arbitration will be conducted solely on the basis of documents you and gitr submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $1,000, your right to a hearing will be determined based on New York City arbitration rules and/or standards.
D. Arbitrator’s Decision
The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will not be entitled to an award of attorney’s’ fees and expenses, except to the extent provided under applicable law. gitr will not seek, and hereby waives all rights gitr may have under applicable law to recover, attorneys’ fees and expenses if gitr prevail in arbitration.
You are responsible to pay arbitrations fees will be determined based on New York City arbitration rules and/or standards.
7. Other Provisions
A. Choice of Law
These Terms are governed by and construed in accordance with the laws of the State of New York, U.S.A., without giving effect to any conflict of law principles.
gitr may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to gitr, with such notice deemed given when received by gitr, at any time by first class mail or pre-paid post to gitr, Attn: User Notices – Legal, 1297 Lexington Avenue #5, New York, NY, 10128.
You may not assign these Terms without gitr’s prior written approval. gitr may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of gitr’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, gitr or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. gitr’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by gitr in writing.
GETR | POWERED BY GITR
Terms & Conditions - Last Updated: March 1, 2016
WHEREAS, GETR has developed a web/mobile application and related documentation, commonly known as “gitr” and “GETR” (collectively referred to hereinafter as “Applications”); and
WHEREAS, Licensee is a venue that wants to obtain access to the Applications and its servers.
NOW, THEREFORE in consideration of the mutual promises and covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Renewal Date: The Renewal Date of this agreement shall be yearly beginning (1) year after the Effective Date of this agreement.
Subscription: This agreement is a subscription for GETR access. This includes unlimited product access for Licensee including product support and GETR updates. By subscribing to GETR, Licensee will be listed on the Applications and Licensee’s data will be available to all gitr users (“Our Customers”). Subscription to GETR will allow Licensee to honor coupons pre-purchased by Our Customers. Licensee will earn cash for each coupon honored based on the negotiated coupon payout rate stated in Section 3B.
Authorized Users: Licensee and their staff are authorized to use the Applications. No other person may be given access to the Applications without expressed permission from GETR.
Licensee Data: Licensee Data means all information entered into the Applications by Licensee and their staff.
1. Grant of License
A. Licensee agrees that Licensee’s use of the Applications shall comply with this Agreement.
B. Subject to the terms and conditions herein, GETR hereby grants Licensee a non-exclusive, non-transferable license to (1) access and execute the Applications via GETR’s application servers over the Internet for the sole purpose of listing their venue on the Applications, (2) honor coupons pre-purchased by Our Customers and (3) request payment for coupons honored based on the negotiated coupon payout rate established in Section 3B.
C. GETR, in its sole discretion, reserves the right to add additional features or functions provide programming fixes, updates and upgrades to the Applications which shall be provided to the Licensee at no additional cost.
D. Licensee agrees that Licensee may have to enter into a new or additional agreement in the event Licensee wants to use a separately licensed module of the Applications.
E. Licensee acknowledges and agrees that GETR, in its sole discretion, may temporarily modify, discontinue or suspend Licensee’s ability to use the Application during a period of regularly scheduled maintenance upon providing advanced notice. GETR will not accept any liability in relation to the direct or indirect damage caused by (1) the release and/or the absence of release of new versions of the Applications and (2) by the suspension or termination of this Agreement by Licensee and/or by GETR. GETR may disable the Applications for Licensee for circumstances where Licensee is in breach of this Agreement or engaging in illegal activities. Prior to disabling the Applications due to breach of this Agreement, GETR must provide Licensee with notice of the breach and an opportunity to cure.
2. Use and Access
A. Licensee’s use of the Applications will comply with the specifications set forth in this Agreement and any documentation provided in connection with the Applications. Licensee shall not use the Applications to enable and/or insert viruses, Trojan horses, worms, time bombs, cancel bots or other code intended to damage, detrimentally interfere with, surreptitiously intercept or misappropriate any system or data. Additionally, Licensee agrees not to deploy, use or allow any data mining software or robots on the Applications.
B. Licensee shall use the Applications only for its internal business operations and shall not permit the Applications to be used by or for the benefit of anyone other than Licensee without GETR’s written permission. Licensee is permitted to interface the Applications with software and systems of third parties to transmit user data, but only through the Applications’ created interfaces. Licensee may not re-license, rent, lease or sell rights to access and/or use the Applications including without limitation on a timeshare, remote batch, or service bureau basis or transfer or assign rights to access or use the Applications except as expressly provided herein. Licensee may not have a third party modify, mirror, distribute, publish, reproduce, copy, translate, reverse engineer, decompile or create derivative works based upon the Applications. Licensee shall not permit any lien to be imposed on the Applications or any portion of the Applications. Licensee shall not permit any lien to be imposed on the Applications in a manner that complies with all applicable laws including any regulations and official guidelines promulgated thereunder as well as any and all intellectual property and copyright laws. GETR expressly reserves any and all rights not expressly granted to Licensee herein.
C. Licensee’s Authorized Users shall not (1) transmit to or share password codes with persons other than authorized users, (2) permit password codes to be cached in proxy servers and accessed by individuals who are not authorized users or (3) permit access to the Applications through a single password code being made available to multiples users on a network.
D. All data input by Licensee into the Applications is the property of Licensee and GETR. Any derivative data resulting from the processing of such input data by the Applications is the property of GETR.
E. Upon termination or expiration of this Agreement, licensee forfeits all rights to the Applications. Licensee shall pay GETR for any services that GETR performs for Licensee once this Agreement is terminated or expired on a time and material basis.
3. Price and Payment
A. License of the Applications are provided to Licensee for free.
B. Licensee will earn cash for each coupon honored inclusive of sales tax and tips.
C. Licensee is responsible for managing their own account and can request payment for their outstanding balance at their own convenience through the Applications. Payment options include check, direct deposit, credit card or PayPal. Payment processing fees vary for each payment option and will be deducted automatically from the Licensee’s outstanding balance. Payment requests will be processed within 3-5 business days.
D. GETR may in future years change the fees charged for some or all of the elements included in this Agreement. GETR fees will not increase by more than an average of 3% per year from the original purchase price for the same features and services, and will not exceed the current list prices for the same features and services level.
4. Data Collection
All data input by Licensee into the Applications is the property of Licensee and GETR. Any derivative data resulting from the processing of such input data by the Applications is the property of GETR.
5. Technical Support
Technical support for the Applications during the term of the license shall be provided at no additional cost provided the subscription fees have been paid in full for the applicable year.
6. Term and Termination
A. The initial term of this Agreement will commence on the Effective Date and will continue for a period of 12 months. Thereafter, this agreement shall automatically renew for a successive one (1) year periods on the Renewal Date unless otherwise terminated earlier under the terms contained within this Agreement.
B. Licensee may terminate this Agreement without cause upon verbal or written notice to GETR. In the event of such termination by Licensee, GETR shall refund a pro rata portion of the prepaid subscription fee and pay Licensee’s outstanding balance.
C. Any party may terminate this Agreement for material breach, provided however, that the terminating party has given the other party at least fourteen (14) days prior written notice of such material breach and the opportunity to cure such breach and the breaching party fails to cure the breach during such cure period. Termination for breach shall not preclude the terminating party from exercising any other remedies for breach.
D. Cessation of Use: Upon termination or expiration of this Agreement, Licensee’s access and use of the Applications, except for access for archival purposes, shall immediately cease.
E. Survival of Terms: Termination or expiration of this Agreement for any reason shall not release any party from any liabilities or obligations set forth in this Agreement which the parties have expressly agreed shall survive any such termination or expiration or by their nature would be intended to be applicable following any such termination or expiration. The rights and obligations of the parties under the provision contained in Sections 7 (Ownership of Intellectual Property), 8 (Confidentiality), 10 (Limitation of Liability, Indemnifications), and 16 (Attorneys’ Fees) shall survive termination of this agreement.
7. Ownership of Intellectual Property
A. Title to any proprietary rights in the Applications or any components thereof (including without limitation all copyrights, patents, trademarks and trade secrets) shall remain in and be the sole and exclusive property of GETR. Licensee shall own all content created and posted by Licensee.
B. Licensee acknowledges and agrees that all copyright, trade secret and other intellectual property rights of whatever nature in and to the Applications are and shall remain the property of GETR as appropriate, and nothing in this Agreement shall be construed as transferring any aspects of such rights to Licensee or any other third party.
A. Licensee acknowledges and agrees that the Applications and other code and process on the application server embodies logic, design and coding methodology that constitute valuable confidential information that is proprietary to GETR (“GETR Confidential Information”). Licensee shall safeguard the right to access the GETR Confidential Information using the same standards of care that Licensee uses for its own confidential information or material but no less than a reasonable standard of care. This obligation does not apply to the Application and other data that (1) is or becomes, through no act or failure to act on the part of the Licensee, generally known or available; (2) is known by Licensee at the time of receiving such information as evidenced by its written records; (3) is hereafter furnished to Licensee by a third party, as a matter of right and without restriction on disclosure; (4) is independently developed by Licensee as evidenced by its written and dated records and without any breach of this Agreement; or (5) is the subject of a written permission to disclose provided by GETR. Further notwithstanding the foregoing, disclosure of data will not be precluded if such disclosure: (1) is in response to a valid order of a court or other governmental body of the United States provided such party gives seven (7) days notice; (2) is otherwise required by law provided such party gives seven (7) days notice; or (3) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. Licensee agrees that demonstrating GETR to any third party is a direct breach of this Agreement.
B. Other than as set forth in Section 2 and Section 7 herein, all Licensee Data disclosed in connection with the performance of this Agreement and residing on the application server and all information concerning Licensee’s trade secrets, methods, strategies, processes, initiatives, business plan or intellectual property which GETR learns during the course of its performance of this Agreement but which is not considered Licensee Data (“Licensee Confidential Information”) shall be held as confidential and will not, without the prior written consent of Licensee, be disclosed or be used for any purpose other than the performance of this Agreement. GETR shall safeguard the confidentiality of such data using the same standard of care that it uses for its own confidential information but no less than a reasonable standard of care. This obligation does not apply to data that: (1) is or becomes, through no act or failure to act on the part of GETR, generally known or available; (2) is known by GETR at the time of receiving such information as evidenced by its written records; (3) is hereafter furnished to GETR by a third party, as a matter of right and without restriction on disclosure; (4) is independently developed by GETR as evidenced by its written records without any breach of this Agreement; or (5) is the subject of a written permission to disclose provided by Licensee. Further, notwithstanding the foregoing, disclosure of data will not be precluded if such disclosure: (1) is in response to a valid order of a court or other governmental body of the United States provided such party gives seven (7) days notice; (2) is otherwise required by law provided such party gives seven (7) days notices; or (3) is otherwise necessary to establish rights or to enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
9. Warranty and Disclaimer
A. GETR warrants and represents that services performed by GETR or by a permitted subcontractor or agent of GETR shall be performed on a professional basis, consistent with the best practices in the industry and in a diligent, workmanlike, and expeditious manner.
B. GETR represents and warrants that it has and shall continue to have for the term of this Agreement the right to grant to Licensee the license to use the Applications as set forth in this Agreement without violating the legally protected rights of any other person or entity and there is no actual or threatened suit by any third party based on an alleged violation of such right by GETR. To the extent GETR incorporates third party rights into the Applications, GETR warrants and represents that it has obtained rights from those third parties necessary to vest in or grant to licensee the various license rights necessary under this Agreement.
C. The Application is provided “as is”. GETR specifically disclaims all warranties expressed or implied, including but not limited to, implied warranties of title, non-infringement, merchantability and fitness for a particular purpose with respect to the Applications and documentation, operation of the Applications and any particular application or use of the Applications; provided however, that GETR represents and warrants that the Applications does not infringe on the legally protected rights of any other person or entity, and will indemnify and hold licensee harmless against any claim of infringement.
D. GETR does not warrant Licensee’s use of the Application will be uninterrupted or error-free.
E. Licensee is solely responsible for complying with the Alcoholic Beverage Control laws of New York, Article 1-11, as defined at http://www.sla.ny.gov/abc-law.
10. Limitation of Liability, Indemnification
In no event shall GETR be liable for any loss of profit or any other commercial damage, including but not limited to special, incidental, consequential, exemplary or other indirect damages under any cause of action arising out of or relating to this Agreement. Licensee shall indemnify and hold GETR harmless against any claims incurred by GETR arising out of or in conjunction with Licensee’s breach of this reasonable cost, expenses and attorney’s fee incurred therein. GETR will indemnify and hold Licensee harmless against any claims incurred by Licensee arising out of or in conjunction with GETR’s breach of this Agreement or its gross negligence or willful misconduct, as well as all reasonable costs, expenses and regardless of cause or theory of recovery will not exceed the total amount of fees paid or to be paid by Licensee to GETR during the twelve (12) months immediately preceding the occurrence or act or omission giving rise to the claim.
Any and all notices and proposed amendments required or permitted to be given pursuant to this Agreement must be provided in writing, signed and executed by both parties with reference to this Agreement.
12. Relationship of the Parties
Nothing in this Agreement will create or imply an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
No party shall assign this Agreement, in whole or in part, without thirty (30) days written notification to the other party. This Agreement will inure to the benefits of, and be binding upon the parties hereto, together with their respective legal representatives, successors and assigns, as permitted herein.
14. Applicable Law and Jurisdiction
This Agreement shall be governed by and construed under the law of the State of New York, without regard to choice of law rules.
15. Attorneys’ Fees
If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs.
If any terms of this Agreement is found to be unenforceable or contrary to law, it shall be modified to the minimum extent necessary to make it enforceable, and the remaining portions of this Agreement shall remain in full force and effect.
17. Force Majeure
No party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure to perform is caused by events or circumstances beyond the delaying party’s reasonable control provided. GETR shall not be excused from its performance of this Agreement. In the event GETR excuses its performance of any of the requirements of this Agreement or otherwise invokes the force majeure, the payment provisions of this Agreement shall be suspended for an equal period of time. If the period of delay or failure of performance by GETR exceed five (5) days, Licensee shall have the right to terminate this Agreement and shall be entitled to a pro rata refunds of any prepaid subscription fee.
18. Waiver and Modification
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights. This Agreement may be modified by a written instrument executed by authorized representatives of the parties hereto.
19. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, proposals, negotiations, representations, or communications relating to the subject matter. The parties acknowledge and agree that they have not been induced to enter into this Agreement by any representations or promises not specifically stated therein.