TRIO REWARDS, INC. MERCHANT TERMS OF SERVICE
Last updated: March 1,2017
These Terms of Service (the “Terms”) are incorporated into the Trio Merchant Agreement signed by you and govern the relationship between Trio Rewards, Inc. (hereinafter, “Trio” “us,” or “we”) and you regarding your use of Trio’s rewards mobile application (the “App”), Trio’s referral and rewards services, any website used to facilitate use of the referral and rewards services (“Website”) and any other of Trio’s products or services used to facilitate your use of such services (collectively the “Service”). In the event of an inconsistency between the Trio Merchant Agreement and these Terms (collectively sometimes referred to herein as the “Agreement”), the order of control shall be first these Terms and second the Trio Merchant Agreement signed by you.
IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE SERVICE. BY CREATING AN ACCOUNT (AS DEFINED BELOW) OR BY ACCESSING OR USING THE SERVICE OR ANY CONTENT OFFERED THROUGH THE APP OR THE WEBSITE, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU ARE PROHIBITED FROM USING THE SERVICE. UNLESS EXPLICITLY STATED OTHERWISE IN YOUR TRIO MERCHANT AGREEMENT, IF YOU WERE USING A BETA VERSION OR OTHER VERSION OF THE SERVICE OFFERED PRIOR TO YOUR ACCEPTANCE OF THESE TERMS, THESE TERMS ALSO APPLY TO YOUR PAST USE OF THAT BETA OR OTHER VERSION OF THE SERVICE.
1. Definitions and Description of the Service.
- 1.1. Definitions. The following definitions and terms shall apply to these Terms:
(a) “Account” means a unique password protected account that each User must create through the Service.
(b) “Account Balance” means the number of Credits you have earned or purchased for use within the Trio Rewards Network.
(c) “Credit” means a unit of value within the Trio Rewards Network, and includes both Earned Credits and Purchased Credits.
(d) “Earned Credits” are Credits that are added to your Account Balance as a result of (i) your purchases within the Trio Rewards Network, (ii) Purchases by your Referred Members within the Trio Rewards Network, and (iii) periodic promotions by Trio.
(e) “Marketing Fee” means the percentage of a Registered Transaction that will be retained by Trio for the promoting, marketing, and advertising of a Merchant and for the granting of Earned Credits to Users pursuant to the Agreement. The Marketing Fee is set forth in the Trio Merchant Agreement.
(f) “Member” means a non-Merchant User of the Service.
(g) “Merchant” means a retail business, such as a restaurant, dry cleaner, salon, or other business that is a User of the Service, including you.
(h) “Non-Trio Payment” means a form of payment for a Registered Transaction that is not Credits and is not processed through the Service, including but not limited to cash, checks, and credit or debits cards run through a point-of-sale terminal at a Merchant.
(i) “Purchased Credits” means Credits that are purchased by a Member for use within the Trio Rewards Network.
(j) “Referral Code” means a unique identifier used to identify a Member or a Merchant who has invited a Member to enroll in the Service. If a User refers a friend using the “add friends” feature in the App, the link in the text or email generated by the Service will automatically track the Referral Code.
(k) “Referred Member” means a new Member that enrolls in the Service using the Referral Code of a Referring User. When you use the “add friends” feature in the App your friends and acquaintances will receive a text message or email inviting them to download the App and enroll in the Service, allowing you to earn Earned Credits every time they complete a Registered Transaction at a Merchant.
(l) “Referring User” means an existing Member or Merchant who refers a new Member to enroll in the Service and download the App using the “add friends” feature in the App. You will be the Referring User for all of your friends, acquaintances, and customers that download the App and enroll in the Service in response to your invitation to enroll. The more people you refer to the Service, the more opportunities you may have for earning Credits
(m) “Registered Transaction” means a Transaction that has been entered into the Service by a Member who scans the Trio QR Code provided by a Merchant for such Transaction.
(n) “Transaction” means a payment initiated by a Member to a Merchant in return for goods or services.
(o) “Transaction Fee” means the fee charged by Trio for each Registered Transaction. The Transaction Fee is set forth in the Trio Merchant Agreement.
(p) “Trio Rewards Network” means all Merchants, including you, that have entered into an agreement with Trio to grant Members Earned Credits for completing Registered Transactions at the Merchant. Participating Merchants may change from time to time without prior notice and will be removed or added to the Service accordingly.
(q) “Trio QR Code” means a QR code (type of barcode) provided by a Merchant to identify a Transaction, which will be scanned by the camera of a Member’s mobile device.
(r) “User” means both Merchants and Members.
- 1.2. Earned Credits. All Merchants, including you, can earn Earned Credits pursuant to the restrictions set forth below:
(a) All your Earned Credits will be credited against your Marketing Fee, reducing the amount you will owe to Trio.
(b) Only Registered Transactions will earn Earned Credits. Failure to scan the Trio QR Code to convert a Transaction into a Registered Transaction will result in no Earned Credits being granted. If you allow a Member to settle a portion of a Registered Transaction using Credits and a portion using a form or Non-Trio Payment, Earned Credits will be awarded for the entire Registered Transaction, minus the amount of any tips.
(c) Each Merchant will earn Earned Credits on all Registered Transactions made by its Referred Members at other Merchants within the Trio Rewards Network. The amount of Earned Credits granted for each Registered Transaction will be based upon the rates set forth in such Merchant’s Trio Merchant Agreement. Trio reserves the right to modify the standard rate of Earned Credits granted for each Registered Transaction upon thirty (30) days’ notice to the Merchants, and rates may vary for each Merchant. No Earned Credits will be granted for any portion of the Registered Transaction that is identified by you at the time of purchase as a “tip” to be paid to your employees.
(d) Earned Credits will appear in your Account Balance within five (5) business days of the date of the Registered Transaction from which they are earned.
(e) Trio reserves the right to grant Earned Credits to select Members and Merchants or to all Members and Merchants, according to criteria established by Trio in Trio’s sole discretion, as part of its periodic marketing activities and promotions, in addition to Earned Rewards granted as a result of a Registered Transaction.
(f) Each Referred Member may be referred by only one Referring User. In the event more than one User invites a potential Member to enroll in the Service, only the Referring User whose Referral Code is first entered (whether by the Referred Member or automatically as a result of following a link) by such Referred Member at the time the Referred Member enrolls in the Service shall be considered the Referring User of such Referred Member and only such Referring User shall earn Earned Credits from the Registered Transactions of such Referred Member.
(g) Earned Credits and the right to earn Earned Credits are not transferable; therefore, if a Referring User terminates its use of the Service, beginning on the effective date of such termination, no Member shall earn Earned Credits from future Registered Transactions of all Referred Members of such terminating Referring User.
- 1.3. Purchased Credits. If a Member does not have sufficient Credits in its Account Balance to complete a Transaction using the Service, such Members may purchase Purchased Credits pursuant to the restrictions set forth below:
(a) Purchased Credits may only be used for Registered Transactions in the Service and have no value outside of the Service.
(b) Purchased Credits are purchased using United States dollars and the price for Purchased Credits will be set by Trio and displayed or made available to Members prior to a Member making a purchase.
(c) Purchased Credits may be purchased through the Service by means of a credit card, debit card, or other electronic payment and are available for use within the Trio Rewards Network immediately upon purchase by a Member.
(d) Purchased Credits are only refundable in the event of the termination or cancellation of an Account, pursuant to Section 2.8(f).
(e) The receipt of Earned Credits does not create a savings, checking, trust, bank, or other depository bank account. Earned Credits will not earn interest and are not to be considered deposits in your Account. All funds received for the purchase of Purchased Credits shall be the property of Trio and not any Merchant or Member.
- 1.4. Transactions. Payment for Registered Transactions will be settled pursuant to the terms and restrictions set forth below:
(a) Both the Merchant and the Member must have a mobile electronic devise with the App installed in order for a qualifying Transaction to be made through the Service.
(b) To complete a Registered Transaction, you must enter the total amount of the Transaction into the App and use the App to generate a Trio QR Code. This Trio QR Code will then be scanned by the camera of the mobile device of the Member who is making the Transaction. After the Member has scanned the Trio QR Code you will receive a confirmation notice that the Transaction has been completed.
(c) If a Member does not have sufficient Credits in its Account Balance to settle a Transaction, such Member must purchase additional Purchased Credits through the Service prior to completing such Transaction. These additional Credits will be available for use by the Member immediately upon purchase.
(d) You are under no obligation to allow a split Transaction, in which a portion of a Registered Transaction is paid using the Service and a portion is paid with a form of Non-Trio Payment, and may decline to do so in your sole discretion.
(e) From time to time, Trio will establish policies regarding eligible Transactions that can be made using Credits and such policies will be posted through or available for viewing on the Service. Eligible purchase policies may be revised at any time and will be in effect upon posting through or availability for viewing on the Service.
- 1.5. Refunds on Transactions. No refunds or returns on any Transactions or Registered Transactions will be processed through the App or the Service. All refunds and returns on Transactions and Registered Transactions will be handled by you, pursuant to your return policy. In your sole discretion, you may offer to give a refund in cash or in store credit, or to offer no return or refund whatsoever. Trio shall not be liable for any refunds or returns requested as a result of a return of a Transaction or Registered Transaction.
2. Right, License and Restrictions.
- 2.1. License Grant For Service. Subject to your agreement to, and continuing compliance with, these Terms and any other relevant Trio policies, Trio grants you a non-exclusive, non-transferable, revocable limited right and license to access and use the Service. As used in these Terms, “Other User” means another licensee or user of the Service, and includes Merchants and Members; “All Users” means you and all Other Users.
- 2.2. App Specific Terms. You may agree to be bound by other terms regarding use or installation of the App and such terms continue to apply regardless of you agreeing to be bound by these Terms except to the extent such other terms conflict with any of these Terms, these Terms shall apply. You agree not to distribute or modify the App. You agree to always only use the latest available version of the App and acknowledge that any use of an older version of the App may result in some or all parts of the Service to not be available or to function improperly. You agree not to reverse engineer, decompile or otherwise attempt to view the source code for the App.
- 2.3. Minimum Age Requirement. An individual must be at least 18 years of age to use the Service.
- 2.4. Accounts and Access. You must register for an Account in order to use the Service. You may only register for one Account. An “Account Holder” means the person or entity in whose name an Account is registered. A “Third Party Account” means an Account not registered by you.
- 2.5. Use of the Service: The following restrictions apply to the use of the Service:
(a) You accept full responsibility for any unauthorized use of the Service by parties not authorized to use any of your Accounts. Additionally, you are responsible for any use of your credit card or other payment instrument (e.g. PayPal) incurred by parties using your Account;
(b) You shall not create an Account using a false identity or false information, or on behalf of someone other than yourself;
(c) Without first obtaining the written permission of Trio, you shall not register for an Account or in any way use the Service if Trio has removed, suspended, or otherwise terminated any Account registered by you or on behalf of you or if Trio has notified you that you may not use the Service;
(d) You shall not use your Account to advertise, solicit or transmit any commercial advertisements, including chain letters, junk email or repetitive messages to anyone;
(e) You shall not use the Service to engage in any illegal conduct, including the purchase or sale of illegal substances;
(f) You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account or your Credits to anyone without Trio’s written permission;
(g) You shall not reproduce, distribute or publicly display any content you access through the Service unless such content is clearly marked as “public” and you have been given the right to view such content;
(h) You shall not do anything with any content you access through the Service that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions; and
(i) You must have access to a smartphone, tablet or other Wi-Fi or data enabled mobile device with the capability to scan a QR Code at the time of a Transaction in order to participate in the Service. In the event you are unable to scan the Trio QR Code you may be able to manually enter the Trio QR Code into your mobile device, but we cannot guarantee that you will have a data connection.
- 2.6. Account Information and Management.
(b) Login Information. During the Account creation process, you will be required to select a username and password (“Login Information”). The following rules govern the security of your Login Information:
(i) You shall not share the Account or the Login Information, nor let anyone else access your Account or do anything else that might jeopardize the security of your Account;
(ii) In the event you become aware of, or reasonably suspect, any breach of security, including without limitation any loss, theft or unauthorized disclosure of the Login Information, you must immediately notify Trio and change the password on your Account;
(iii) You are solely responsible for maintaining the confidentiality of the Login Information and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you; and
(iv) You are responsible for anything that happens through your Account.
(c) Reclaiming Usernames. Trio reserves the right to remove or reclaim any username at any time and for any reason or no reason, including but not limited to claims by a third party that a username violates the third party’s rights.
- 2.7. License and Account Limitations and Prohibitions.
(a) General Effects of Violations. Any use of the Service in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 2, and may subject you to liability for violations of law. Trio is permitted to list or restrict use of the Service for anyone who Trio reasonably believes has or will violate any applicable law when using the Service.
(b) Activity Prohibitions. You agree that you will not, under any circumstances:
(i) Engage in any act that Trio deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms;
(ii) Use the Service in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
(iii) Modify or cause to be modified any files or content that are used to offer the Service, without the express prior written consent of Trio;
(iv) Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service (each a “Server”) or (2) the use or enjoyment of the Service by any other person;
(v) Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(vi) Gain, or attempt to gain, unauthorized access to the Service, Accounts, Servers or networks connected to the Service by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Service);
(vii) Post any information that is abusive, threatening, obscene, defamatory, libelous or racially, sexually, religiously or otherwise objectionable or offensive;
(viii) Post any information that contains nudity, excessive violence or offensive subject matter or that contains a link to such content;
(ix) Harass, abuse, harm, or advocate or incite harassment, abuse or harm of another person or group of persons, including Trio employees or customer service representatives;
(x) Post, distribute or make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity or other right of any person or entity or impersonates any other person;
(xi) Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
(xii) Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms;
(xiii) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server or the Service, whether through the use of a network analyzer, packet sniffer or other device;
(xiv) Make any automated use of the Service or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion;
(xv) Bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology or device to send content or messages, scrape, spider or crawl the Service, or harvest or manipulate data from, through, or relating to the Service;
(xvi) Use, facilitate, create or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Service or (2) any connection using programs, tools or software not expressly approved in writing by Trio;
(xvii) Copy, modify or distribute rights or content from any Trio site, including but not limited to content that contains or is protected by Trio’s copyrights or trademarks or use any method to copy or distribute the content of the Service, except as specifically allowed in these Terms;
(xviii) Solicit or attempt to solicit personal information from Other Users, other than from Users with whom you have an existing business relationship and only in connection with a bona fide business purpose for which the Service is intended;
(xix) Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image, video, or other form), identification documents or financial information through the Service; or
(xx) Upload or transmit (or attempt to upload or to transmit), without Trio’s express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
- 2.8. Suspension and Termination of Account and Service:
(a) FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCOUNT OR YOUR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS OR YOUR ACCOUNT IS USED FOR ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR IMPROPER USE OF THE SERVICE. TRIO SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION, OR DELETION OF YOUR OR ANY ACCOUNT.
(b) IP INFRINGEMENT.
(i) WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT YOU ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
(ii) REPEAT INFRINGERS. IN APPROPRIATE CIRCUMSTANCES IT IS OUR POLICY TO SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO ARE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
(c) Right to Cease Service. Trio reserves the right to stop offering and/or supporting the Service or part of the Service at any time, at which point the license granted hereunder to you to use the Service or a part thereof will automatically terminate. Trio shall not be required to provide refunds, benefits or other compensation to Users in connection with such cessation of the Service or any part thereof.
(d) Termination of Account. Termination of your Account can include disabling your access to the Service or any part thereof, including disabling access to any content that you or Other Users submitted. You agree that if your Account is terminated, Trio will not be obligated to preserve, provide you access to, or provide copies of any content submitted to the Service relating to your Account, whether by you or an Other User.
(e) Cancellation of Account. You may cancel your Account at any time by sending an email to email@example.com, which email shall include your name, Account number, and reason for cancelling your Account.
(f) Effects of Termination. In the event your account is terminated or cancelled, you will forfeit (i) all earned and unused Earned Credits in your Account Balance.
- 2.9. Intellectual Property Ownership in the Service. The Service, and all of its components and contents, (including without limitation any computer code, template content, pre-populated content, concepts, artwork, animations, sounds, musical compositions, audio-visual effects and text contained within) is owned by Trio or its licensors, and all of which material is protected by United States and international patent, copyright, trademark, trade secret, and other intellectual property laws.
- 2.10. Obligation to Receive Communications. As a condition to your use of the Service, you agree to allow Trio to send you emails and other alerts related to the Service, your Account Balances, and other promotions and alerts related to the Service.
3. Posted Content.
- 3.1. Posted Content: “Posted Content” means any communications, videos, images, sounds, and all the material, data, and information that you upload, post, publish or transmit through the Service, including without limitation any comments you may make about content uploaded or transmitted by other Account Holders and any trademarks, logos, trade dress, tradename, or other marks used to identify your business (collectively, “Merchant Marks”). We may provide you with templates, pre-populated communications, or other content through the Service (“Template Content”) that you may distribute, use or modify as part of using our Service to communicate with Other Users in a manner consistent with the intended use of the Service. You acknowledge that your use of any Template Content does not relieve you of any responsibilities or obligations under this Agreement. By transmitting or submitting any Posted Content while using the Service, you affirm, represent and warrant that such transmission or submission: (a) is accurate and not confidential; (b) is not in violation of any applicable law, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the Posted Content; (c) will not, when Trio exercises rights in Posted Content granted under these Terms, result in any infringement of the intellectual property rights of any third party or violate or misappropriate any rights of publicity or privacy for any third party; and (d) is free of viruses, adware, spyware, worms or other malicious code. You further represent and warrant that you have all rights necessary to transmit Posted Content to Trio and to grant the rights in Posted Content granted to Trio under these Terms.
- 3.2. Licenses to Posted Content: You hereby grant Trio a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, assignable, unlimited license and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works of, manufacture, introduce into circulation, publish, distribute, sublicense, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your Posted Content as well as all modified and derivative works thereof. Trio will only exercise the rights granted in this Section 3.2 to offer or to facilitate the offering of the Service. Trio will only use the Merchant Marks to promote your business within the Service and to promote the Service. To the extent permitted by applicable laws, you hereby waive any moral rights or any of your rights of publicity or privacy you may have in any Posted Content. Trio will cease any further public display or distribution of any Posted Content if you use the features of the Service that permit you to indicate that certain Posted Content is to no longer be displayed or distributed to Other Users except Trio retains the right to display or distribute any Posted Content as necessary for Trio to fulfill its legal duties or in connection with bringing or defending any legal claims or actions that may arise now or in the future.
- 3.3. Content Screening.
(a) Consent to Monitoring. By entering into these Terms, you hereby provide your irrevocable consent to our monitoring and recording of your use of the Service. You acknowledge and agree that you have no expectation of privacy vis a vis us or any of our service providers who provide services to us or you as part of Service concerning the transmission of any information, including without limitation chat, text or voice communications.
(b) Options Regarding Posted Content. Trio may reject, refuse to post or delete any or all Posted Content for any or no reason, including, but not limited to the reason that, in the sole judgment of Trio, that the contents or posting or other use of such Posted Content in connection with the Service violates these Terms.
3.4. User Interactions and Legal Problems; Releases. You hereby release us, and our officers, directors, agents, subsidiaries, joint ventures and employees, from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute that arises between you and one or more Other Users. If you are a California resident, you acknowledge that you are aware of, and hereby waive your rights under the provisions of California Civil Code Section 1542, which provides: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
4. Fees and Purchase Terms. You agree to pay any and all fees and applicable taxes incurred by you or anyone using an Account registered to you. Any required fees will be specified as part of the Service or when you register your Account. Trio reserves the right to charge fees for any parts of the Service that may have previously been offered without a fee. You agree that Trio in the future may offer premium services as part of the Service that may require fees or additional fees. Trio may revise the pricing for the goods and services offered through the Service at any time. YOU ACKNOWLEDGE THAT TRIO IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED PRODUCTS AND SERVICES WHEN YOUR ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY. TRIO IS NOT RESPONSIBLE FOR PAYING SALES TAX OWED BY MEMBERS WHO COMPLETE A TRANSACTIOND AT YOUR ESTABLISHMENT.
5. Third Party Advertising.
- 5.2. Links to Third Party Sites and Dealings with Advertisers. Trio may provide links on the Service to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving a benefit. Any charges or obligations you incur in your dealings with these third parties are your responsibility. Trio makes no representation or warranty regarding any content, goods, or services provided by any third party even if linked from our Service, and we will not be liable for any claim relating to any third party content, goods, or services. The linked sites are not under the control of Trio and may collect data or solicit personal information from you. Trio is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Trio of these linked sites.
6. Copyright Notices; Complaints. It is Trio’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). Trio reserves the right to terminate without notice any User’s access to the Service if that User is determined by Trio to be a “repeat infringer.” In addition, Trio accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
7. Updates to the Service. You understand that the Service undergoes frequent changes. Trio may require that you accept updates to the Service in order to continue using the Service. You acknowledge and agree that Trio may update the Service without notifying you.
8. Disclaimer; Limitations; Waivers on Liability; Indemnification.
- 8.1. Disclaimer of Warranties.
(a) SERVICE PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY (30) CALENDAR DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). TRIO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, THAT SALES AT YOUR ESTABLISHMENT WILL INCREASE AS A RESULT OF YOUR PARTICIPATION IN THE TRIO REWARDS NETWORK, THAT YOU WILL EARN SUFFICIENT CREDITS TO COVER THE MARKETING FEE, OR THAT YOU WILL BE THE EXCLUSIVE OR LIMITED NUMBER OF BUSINESSES OF A CERTAIN TYPE IN A CERTAIN AREA THAT IS COVERED BY THE TRIO REWARDS NETWORK.
(b) NO WARRANTY OF ERROR-FREE OPERATION. WITHOUT LIMITING THE FOREGOING, NEITHER TRIO NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, THIRD-PARTY SERVICE PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “TRIO PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
(c) NO WARRANTY REGARDING ACCESS TO ACCOUNTS AND CONTENT. TRIO DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY AN ACCOUNT HOLDER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. TRIO DOES NOT WARRANT THAT THE SERVICE, ACCOUNT HOLDER INFORMATION OR ANY INFORMATION POSTED BY AN ACCOUNT HOLDER WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL OR ENTITY WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY TRIO OR THROUGH THE SERVICE.
(d) NO WARRANTY REGARDING USE OF THE SERVICE. TRIO DOES NOT WARRANT THAT YOU WILL BE ABLE TO COMPLETE A TRANSACTION THROUGH THE SERVICE. TRIO IS NOT RESPONSIBLE FOR YOUR INABILITY TO PRODUCE A QR CODE, YOUR FAILURE OR THE FAILURE OF YOUR EMPLOYEES OR OF THE MEMBERS TO BE FAMILIAR WITH THE SERVICE OR TO KNOW HOW TO COMPLETE A TRANSACTION USING THE SERVICE.
- 8.2. Limitations; Waivers of Liability.
(a) DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE TRIO PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
(b) NOT RESPONSIBLE FOR THIRD PARTY CONDUCT. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE TRIO PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE TRIO PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER ACCOUNT HOLDERS OR USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
(c) YOUR RESPONSIBILITY TO MEMBERS. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT IF YOU ARE UNABLE TO COMPLETE A TRANSACTION FOR ANY REASON USING THE SERVICE, YOU WILL BE SOLELY LIABLE FOR PROCESSING AND COLLECTING PAYMENT FOR GOODS OR SERVICES RENDERED TO A MEMBER, INCLUDING FULL PAYMENT FOR SUCH GOODS AND SERVICES BY MEANS OF CASH, CREDIT CARD, OR SOME OTHER FORM OF PAYMENT ACCEPTABLE TO YOU. THE TRIO PARTIES WILL GIVE NO REFUNDS AND GRANT NO EARNED CREDITS FOR TRANSACTIONS BETWEEN YOU AND A MEMBER THAT ARE NOT SETTLED USING THE SERVICE FOR ANY REASON.
(d) MONETARY LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE TRIO PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO TRIO FOR MARKETING FEES IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
(e) FAILURE TO PAY. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID TRIO ANY AMOUNTS IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH TRIO IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
(f) DISCLAIMER MAY NOT BE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
8.3. Indemnification. You agree to defend, indemnify, save, and hold the Trio Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms, any breach of the representations, warranties and covenants made by you herein, any returns or requests for refund of a Transaction by a Member, decision on your part not to offer a refund or return of a Transaction, or any failure on your part to pay sales and other applicable taxes to the appropriate government authority. Trio reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Trio and you agree to cooperate with Trio’s defense of these claims. Trio will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this Section will survive any termination of these Terms, your Account or of the Service.
9. Dispute Resolution.
- 9.1. General. If a dispute arises between you and Trio, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Trio agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or the Service (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to Customer Support. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed in Section 9.2, you and Trio agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section 9, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
- 9.2. Exclusions from Arbitration. YOU AND TRIO AGREE THAT ANY CLAIM FILED BY YOU OR BY TRIO IN SMALL CLAIMS COURT OR BY TRIO RELATED TO PROTECTION OF TRIO’S OR ANY TRIO LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 9.
- 9.3. RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 9, YOU MUST NOTIFY TRIO IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO TRIO TERMS ADMINISTRATOR, AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR USERNAME, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH TRIO THROUGH ARBITRATION.
- 9.4. Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND TRIO SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
- 9.5. Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or Trio elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding must initiate it with the American Arbitration Association (“AAA”). The terms of this Section 9 will govern in the event they conflict with the arbitration rules identified below.
- 9.6. Arbitration Procedures. Because the software and/or service provided to you by Trio concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Consumer Arbitration Rules shall apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to, and negotiated in good faith with, Trio as described above, and if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to Trio or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
- 9.7. Location of Arbitration. You or Trio may initiate arbitration in either San Francisco, California or the county in which you reside. If you initiate arbitration in the county of your residence, Trio may transfer the arbitration to San Francisco, California provided that Trio agrees to pay any additional fees or costs you incur as a result of the change in location, as determined by the arbitrator.
- 9.8. Severability. If any clause within this Section 9 (other than the Class Action Waiver clause of Section 9.4) is found to be illegal or unenforceable, that clause will be severed from this Section 9 and the remainder of this Section 9 will be given full force and effect. If the Class Action Waiver (Section 9.4) clause is found to be illegal or unenforceable, this entire Section 9, except for this Section 9.8, will be unenforceable and the dispute will be decided by a court and IN THAT INSTANCE, YOU AND TRIO EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
- 9.9. Survival. This Section 9 shall survive any termination of the Terms.
10. General Provisions.
- 10.3. Assignment. Trio may assign any of its rights or delegate any of its obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under the Terms without the prior written consent of Trio; any purported assignment or delegation in violation of this Section 10.3 is void.
- 10.4. Supplemental Policies. Trio may publish additional policies related to specific services such as forums, contests, or loyalty programs. Your use, if any, of such services is subject to such specific policies and these Terms.
- 10.8. Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to Trio are of a unique and irreplaceable nature, the loss of which shall irreparably harm Trio and which cannot be replaced by monetary damages alone, so that Trio shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 8.2.
- 10.9. Force Majeure. Trio shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Trio, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Trio’s control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.