This agreement (“Agreement”) is entered into between TREC Corporation. d/b/a Trec2go®(“Us”, “We” or “Our”) and you (“You” or “Your”). In order to use the service (“Site”), You must accept the terms and conditions stated below.
Description of the Site. The Site is a publicly accessible website or application directory of information for consumers looking to order products or services on the go. This enables you as the consumer to access different products and services which people have placed on the site. For the user, which enables You to access information and functions including online classifieds, forums, and various email services (“Services”). In order to access or utilize certain aspects of the Site, You may be required to establish and maintain a valid user account (“User Account”) with Us. We offer various levels of User Accounts, which provide varying degrees of access and functionality. Additional information regarding the User Accounts may be found here.
2. Acceptance of Terms.
a. Your Acceptance of These Terms. You agree that this Agreement forms a legally binding agreement between You and Us relating to Your ability to use the Site. By: (i) checking the Accept box at the end of this Agreement; or (ii) using the Site, You agree to all of the terms and conditions set forth in this Agreement. You agree to use the Site only for lawful purposes permitted under this Agreement and in accordance with applicable law in Your relevant jurisdiction. If You do not agree to all of the terms and conditions, You may not use the Site. You may not access the Site if You are barred or restricted from accessing the Site under the laws of any country in which You are a resident or from which You access the Site.
c. Age Requirement. By using this Site, You certify that You are at least 18 years of age. If You are between 13 and 18 years of age, Your parent or legal guardian must accept the terms of this Agreement and agree to be bound by this Agreement. If You are accepting this Agreement on behalf of someone between 13 and 18 years of age, You understand and agree that You, as the parent or legal guardian, are fully responsible for such a person's actions, including, without limitation, all legal liability and financial obligations such person may incur.
3. Your Right to Use the Site.
a. Access to the Site. Subject to the terms set forth in this Agreement, We grant to You a limited, non-exclusive, non-transferable, and terminable license to use the Site. All sales are final.
b. Proprietary Rights. You acknowledge and agree that the Site contains proprietary Services and confidential information that belongs to Us or Our licensors. You agree that laws protect the Services and confidential information, including, but not limited to, laws relating to patents, copyrights, trademarks, trade secrets, other proprietary, and intellectual property rights, unfair competition, and privacy (collectively, “Proprietary Rights”).
d. Accurate Information. You agree to provide accurate, current, and complete information concerning Your account and to use reasonable efforts to maintain and promptly update the information to keep it accurate, current, and complete. You agree that if You provide information that is intentionally inaccurate, not current, or incomplete in a material way, or We have reasonable grounds to believe that such information is untrue, inaccurate, not current or complete in a material way, We have the right to suspend or terminate Your use of the Site, any portion thereof, or any products, services, or other benefits You receive from Us relating to the Site.
e.Three changes per month are included within the first 90 days with your app and website setup. Then thereafter a $25 service fee for each change will be charged and deducted from your account via ACH.
(i) Comply with Your requests for assistance with the Site; (ii) comply with legal process, or (iii) address claims from third parties that You have violated their rights.
4. Payments and Taxes. You authorize Us to bill the ACH account for the services You provide to Us for all applicable fees. Our list of authorized payment sources (and additional details relating to payments) may be found here [.5] . If Your payment source is declined at any time (including, but not limited to situations where We seek authorizations or charge attempts), We may make up to two (2) attempts to reprocess Your payment source. We reserve the right to charge interest on all of Your past due accounts. Interest shall accrue at the rate of one and one-half percent per month or the highest maximum rate permitted by law, whichever is less, from the date such payment was due until fully satisfied. We reserve the right to suspend or cancel Your User Account. You are responsible for all of Our reasonable expenses (including attorneys’ fees) incurred by Us relating to collection activities associated with Your past due accounts. You are responsible for all taxes associated with Your use of the Site. If We are required to collect or pay any taxes relating to Your use of the Site, You will be charged for all such taxes. If You are tax exempt, You must provide Us with a valid tax-exempt certificate authorized by the appropriate taxing authority.
5. Your Obligations Concerning Behavior.
a. No Reverse Engineering. You understand and agree that the rights granted to You are provided on the condition that You do not (and do not allow any third party to) copy, modify, create derivative works of; reverse engineer, reverse assemble, disassemble, decompile, publicly display, retransmit, publicly sell, lease, or transfer the Site or any part thereof or likewise attempt to discover any source code, modify the Site in any manner or form, or use unauthorized modified versions of the Site, including (without limitation) for the purpose of building a similar or competitive product or Site or for the purpose of obtaining unauthorized access to the Site. You agree not to access the Site by any means other than the interfaces that We provide to You. You are expressly prohibited from sublicensing Your right to use the Site to any third party or from permitting any Person other than You to use the Site under Your User Account.
Notwithstanding any other provision hereof, the agreement may be terminated by TREC with or without cause or reason and with or without notice. Termination by TREC shall result in termination of all services. Merchant agrees that it has full ownership rights to any Copyrights, Trademarks, and any Intellectual Property submitted to TREC for the purposes of advertising their products and services through the Trec's advertising platform and merchant agrees that any initial submitted Intellectual Property to TREC and any Intellectual Property uploaded directly by the merchant to the TREC advertising platform is under its full ownership and authority to do so and the merchant shall be responsible for any and all damages and or legal fees related to the Intellectual Property submitted. Merchant shall only post or submit items and services that abide by all Local, State, and Federal laws.
b. Unacceptable Material. You agree that You will not email, upload, post, distribute, display, or otherwise make available or transmit to, on, through, or in any way in connection with the Site:
i. any data, text message, image, video, audio, file, or other material that an ordinary person would or that We deem to be: (1) defamatory, abusive, hateful, harassing, threatening, or stalking; (2) indecent, obscene, pornographic, profane, racist, sexually explicit, or ethnically or culturally offensive; (3) in support of or encouraging violence, hatred, terrorism, or illegal acts or the containing discussion of any illegal acts with an intent to commit them; (4) otherwise objectionable at Our sole discretion; and (5) not suitable for persons under the age of 18;
ii. any data, text message, image, video, audio, file, or other material that violates, dilutes, plagiarizes, misappropriates, or infringes the rights of any third-party including, without limitation, copyright, patent, trademark, trade secret, confidentiality obligation, a right of privacy or publicity, or any other proprietary right;
iii. any person’s personal information without that person’s express consent;
iv. any data, text message, image, video, audio, file, or other material that contains a virus, spyware, time bomb, worms, “Trojan horse,” bot, any automated use of the system (e.g. scripts) that performs actions without the consent of the user, or another harmful component;
v. any unauthorized advertisements, promotional materials, chain letters, pyramid schemes, petitions, or other solicitations of any kind; or
c. Unacceptable Behavior. You also agree not to, in any way, in connection with the Site:
i. impersonate any person or entity or falsely state or otherwise misrepresent Your identity or affiliation with any person or entity, or misrepresent any third-party’s identity or affiliation with any person or entity;
ii. engage in any illegal, disruptive, or destructive acts including, without limitation, “trolling,” “flaming,” “flooding,” or “spamming” (such terms have common meanings within the context of the internet), or cause any unnecessary network usage or violate any service provider’s, or carrier’s terms of service;
iii. solicit or collect personal data including telephone numbers, addresses, last names, or email addresses of other users;
iv. perform any action that impermissibly results in charges or has an impact on any other user, service provider, or carrier; and
v. provide any link to or web address of a website that contains material that would violate the terms of this Agreement;
vi. access the site or collect user information "using automated means (such as harvesting bots, robots, spiders, or scrapers)."
d. Content Provided by You. You understand and agree that You relinquish all right, title, and interest in all information, postings, materials, contributions, likenesses, ratings, reviews, media, and any other content posted or provided by You on the Site relating to the Services, Site, or anything related thereto, You have no expectation of any ownership interest therein, and that We may use the aforementioned for any purpose without your consent.
e. Your Interactions. You are entirely responsible for your interactions with individuals, organizations, and third-parties through the Site are solely between You and such individuals, organizations, and third-parties. You understand and agree that: (i) We are not responsible or liable for any injury, loss, or damage You incur as a result of any of Your interactions; and (ii) We will not become involved in the event of a dispute between You any and any other individual, organization, or third-party.
f. Sites and Applications may allow you to rate and post reviews of businesses. Such Ratings and Reviews are considered User Content and are governed by the terms and conditions of this Agreement, including, without limitation, your agreement regarding your use of Interactive Areas and the Sites' standards of conduct. Ratings and Reviews are not endorsed by TREC and do not represent the views of TREC or of any affiliate or partner of TREC. TREC does not assume liability for Ratings and Reviews or for any claims, liabilities, or losses resulting from any Ratings and Reviews. We strive to maintain a high level of integrity with our Ratings and Reviews and other User Content. Therefore, all Ratings and Reviews must comply with the following criteria: (1) before posting a Rating or Review, you must have had the first-hand experience with the restaurant within the 7-day period prior to your review; (2) you may not have a proprietary or other affiliation with either the restaurant or any of its competitors; (3) you may not draw any legal conclusions regarding the restaurants' products, services, or conduct; and (4) your review must otherwise comply with the terms of this Agreement. Any Rating and/or Review that we determine, in our sole discretion, could diminish the integrity of Ratings and Reviews, the Materials and/or the Sites may be removed or excluded by us without notice.
g. Some jurisdictions permit the ordering and delivery of alcoholic beverages. In such jurisdictions, if you place an order that includes any alcoholic beverage, you represent and warrant that you are at least 21 years of age. Upon delivery or pickup, as applicable, you shall present a government-issued identification card, evidencing your age, consistent with applicable legal requirements. If you do not comply with these terms, you agree that the alcoholic beverage(s) will not be released to you, and you may forfeit the cost of such beverages.
h. TREC reserves all rights and may use its own discretion at any time without notice to the merchant if TREC deems any content that TREC does not feel appropriate or acceptable content, TREC may remove Said content.
a. You understand and agree that you will provide to Us, and We may provide to You certain information, some of which may be considered to be “Confidential Information.” Confidential Information will remain the sole and exclusive property of the party disclosing the Confidential Information and may not be disclosed to any third-party without the prior written consent of the party disclosing the Confidential Information. We agree to protect Your Confidential Information, in the same manner, We protect the confidentiality of similar information and data of Our own, and at all times We will exercise no less than a reasonable degree of care. Similarly, You agree to protect Our Confidential Information, in the same manner, You protect the confidentiality of similar information and data of Your own, and at all times, You will exercise no less than a reasonable degree of care. Items will not be deemed to be Confidential Information: (i) if they are available to the public; (ii) if they are rightfully received from a third-party who is not in breach of any obligation of confidentiality to You or Us, as applicable; (iii) if they are independently developed by You or Us without the use of the Confidential Information; (iv) if they are known to You or Us at the time they are disclosed (other than under a separate confidentiality obligation); or (v) if they are produced in compliance with applicable law or court order, provided the other party is given reasonable notice of the same. The Site (including any ancillary goods or services) shall at all times be Our Confidential Information, including following any termination of this Agreement. We may use Your information (including Your Confidential Information): (a) to communicate with You; (b) to evaluate Your use of the Site, the Services You obtain via the Site, and any information You provide to Us; (c) to improve any products and services provided by or associated with the Site; and (d) in connection with any lawful purpose relating to the Site.
b. Disclosure of Certain Services. You authorize Us to send electronic and other transmissions (pursuant to any additional instructions that You may give to Us from time to time) of any current and future data that is loaded into the Site to those persons to whom You have authorized Us to disclose such data, provided such sending or transmitting of such data is, in Our discretion, commercially feasible.
7. Access and Security.
a. Your Responsibilities. You are responsible for: (i) certain aspects relating to the security of the Site, including, but not limited to Your access, user names, passwords, and the facilities You utilize to interact with the Site; (ii) all of Your activities that occur through or in connection with the Site; (iii) any act or omission by You relating to access to and use of the Site; and (iv) implementing security and other policies and procedures necessary to limit access to the Site, including, but not limited to, the maintenance of the confidentiality of all usernames and passwords. You agree to immediately notify Us of any attempted or actual unauthorized access or use of the Site and/or any other breaches of security. You acknowledge and agree that We will not be liable, directly or indirectly, for any acts or omissions by You, including any damages of any kind incurred as a result of Your acts or omissions. If You suspect or become aware of: (i) any loss of Your passwords; or (ii) any attempted or actual unauthorized access to Your accounts, You must immediately notify Us at email@example.com.
b. Transmissions and Processing of Services. You understand that the technical processing and transmission of Your electronic communications is fundamentally necessary to Your use of the Site. You expressly consent to Our interception and storage of Your electronic communications and/or Your data. You understand that Your electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Us. You understand that changes to Your electronic communications may occur in order to conform and adapt such data to the technical requirements of connecting networks and devices. You understand that electronic communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. You agree that We are not responsible for any electronic communication and/or Your data that are lost, altered, intercepted, or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Us.
a. Reasons for Suspension. We will not monitor any Content or any Services, however, We reserve the right to remove any Content or Services, and suspend any access to the Site, as We may determine in Our sole discretion. Circumstances under which We may remove or suspend any Services, Content, portions of the Site, or Your access to the Site include, but are not limited to, violation of the terms of this Agreement (including, but not limited to, the Other Agreements), overly or unsubstantiated defamatory, inflammatory or damaging comments, abuse of the Site, virus or malware concerns, notification of possible infringement of another’s rights, privacy concerns, compliance with laws and under circumstances when We are assisting law enforcement.
b. Modifications to the Site. You understand and agree that We reserve the right to modify, suspend or discontinue any part or all of the Site at any time and that We will not be liable to You (or to any third-party) for doing so, even if such modifications make it more difficult or impossible for You to interact with the Site or any Services You have ordered, acquired or paid for.
c. Our Obligations. You understand and agree that We may, without notice to You, access, preserve, and disclose any information provided by You (including, but not limited to details relating to Your User Account) if required to do so by law, or if, in Our reasonable judgment, such is reasonably necessary to: (a) comply with Your requests for assistance with the Site; (b) comply with legal process; or (c) address claims from third parties that any of the Services You have acquired or Your Content (or portions thereof) violate their rights.
9. Termination of Your Account.
a. Termination by You. You may cancel Your use of the Site at any time by providing notice to Us.
b. Termination by Us. You understand and agree that We may immediately terminate Your right to use the Site without notice to You under certain circumstances, including:
i. breaches of this Agreement or Other Agreements;
ii. requests by law enforcement, government agencies or court order;
iii. security and technical issues or problems;
iv. non-payment of any fees owed by You; or
v. extended periods of inactivity.
c. Effects of Termination. You understand and agree that We will not be liable to You or any third party for any termination of Your right to use the Site. Upon termination, We may remove or delete any comments, reviews, ratings, or other information You have provided. We will have no further obligation to grant You any access to or use of the Site.
10. Links and Dealings with Outside Parties. We have no control over any links or other resources available to You via the Site. Your interaction with any third parties via the Site are solely between You and such parties. We are not responsible for the availability of such external resources and do not endorse any content, advertising, products, or other materials on or available from such resources. We do not warrant any such third-party providers or any of their products or services. Any exchange of data or other interaction between You and a third-party provider, and any purchase or use by You of any product or service offered by such third-party provider, is solely between You and such third-party provider. You agree that We will not be liable, directly or indirectly for any loss or damage of any kind or nature arising out of or related to, or incurred in reliance upon, any such interactions, links, resources or content.
11.1 Indemnified Claims.
Merchant will indemnify, defend and hold harmless TREC, its affiliates and respective directors, officers, employees and agents from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Merchant or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Merchants representations, warranties or covenants in this Agreement; or (iii) any claims that the Marks provided by the Merchants third party’s intellectual property rights. In addition, you will indemnify, defend and hold harmless the TREC from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Merchant’s violation or alleged violation of any applicable laws, rules, or regulations; (B) Merchant’s failure to determine the applicable Sales Tax and other fees charged, (C) Merchant’s failure to apply correct sales tax rates, including those rates adjusted by TREC on Merchants behalf (D) Merchant’s failure to provide accurate descriptions of items, products or services (E) Sales Tax, other fees, penalties, interest and other costs related to Merchants obligations.
11.2 Your Indemnification of Us. You will indemnify, defend, and hold Us harmless from and against all liabilities, damages, and costs (including, but not limited to, reasonable attorneys’ fees and all settlement costs) arising out of or related to a third party claim regarding (i) Your (or anyone using Your User Account) infringement or misappropriation any Proprietary Rights; (ii) any of Your acts or omissions, including, but not limited to, Your misrepresentation of any information You provide to Us; (iii) anything arising out of or related to Your Content; or (iv) Your use of the Site in violation of this Agreement (including, but not limited to, Your breach of this Agreement). We reserve the right, at Your expense, to assume the defense (if applicable) and control of any matter relating to Us, and You shall provide reasonable assistance with respect to such claims. You will not settle any matter relating to Us without Our prior written consent.
12.1 Waiver of jury trial and covenant not to participate in a class action. Merchant hereby agrees not to elect a trial by a jury of any issue triable of right by jury, and waives any right to trial by jury fully to the extent that any such right shall now or hereafter exist with regard to this agreement or any action, lawsuit, claim, counterclaim or other action relating to, or arising under this agreement and/or any transaction governed by this agreement. This waiver of the right to trial by jury is given knowingly, voluntarily, and intentionally by Merchant, and is intended to encompass each instance and each issue as to which the right to a trial by jury would otherwise be available. The bank is hereby authorized to file a copy of this paragraph in any proceeding as conclusive evidence of this waiver by Merchant. Merchant also covenants not to bring or participate in any class action against the bank based upon any claims arising from this agreement. if a class proceeding is initiated against the bank, the Merchant may not join that proceeding or participate as a member of that class. If Merchant brings legal action against trec for any reason, Merchant shall commence the action within six (6) months of the date the error or the incident giving rise to such action occurred.
waiver. No delay or failure by either party to exercise any right under the agreement and no partial or single exercise of that right shall constitute a waiver of that right or any other right unless expressly provided for in the agreement.
12.2 Force Majeure. TREC Corporation is not liable or responsible for any failure or delay in performance caused by any Act of God, strikes, flood, fire, war, public enemy, electrical or equipment failure, failures by third parties, or other events beyond its control.
TREC makes no representations, and hereby expressly disclaims all warranties, express or implied, regarding its services or products or any portion thereof, including any implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance.
Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Trec advertising platform, including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party.
15. Advertising services.
For the sake of clarity, neither Trec nor its affiliates provide any products, services or delivery services. Rather, Trec provides an Advertising services platform that both (i) enable Merchant to connect with customers who may purchase Items or services from Merchant that are advertised on the Trec platform and (ii) enable merchants and prospective customers to seek, receive and fulfill on-demand requests for services by or on behalf of Customers seeking services. Merchants fulfill their products and services for (and are paid by) the Customers and not the Merchant.
16. Retail Prices; Taxes; Other Fees; Pricing.
Merchant is responsible for determining and setting the retail price for each item to be made available for sale via the Trec advertising platform. Merchant is the “retailer” or “seller” of all Items and services and is solely responsible for the collection and remittance of all applicable Sales Taxes and other fees. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, Item taxes and similar transaction taxes. For the sake of clarity, the Retail Price for each Item excludes Sales Tax or any other fees. Merchant is solely responsible for determining all applicable Sales Tax and other fees and identifying and charging its customers the appropriate Sales Tax and other fees amount to charge Customers on Merchant’s behalf for Items available on the Trec advertising platform. To the extent that applicable Sales Tax and other fees are not determined by Merchant, Merchant expressly hereby acknowledges and agrees that Trec will have no liability.
17. No Development.
EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA, OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. TREC only provides an advertising platform where a merchant can post products and services that the merchant provides to consumers. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between Trec and Merchant prior to the commencement of any such activities.
Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, TREC may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.
19. Representations and Warranties.
a. Your Representations and Warranties. You represent and warrant that:
i. All of the information You provide to Us is correct;
ii. You have all necessary right, power and authority to enter into this Agreement and to perform the acts required of You under this Agreement;
iii. You will not harasses or causes distress or inconvenience to any person via the transmission of obscene or offensive material of any kind;
iv. You will not disrupt the normal flow of any access to, or use of, the Site;
v. You will not use the Site or any of the Services in a manner not permitted under this Agreement or in a manner that interferes with any websites or network resources operated by Us or any third-party;
vi. You agree to comply with all applicable tax laws regarding the purchase of any materials obtained through the Site, and that compliance with such tax laws is Your responsibility and that of the providers of such materials, and not Our responsibility; and
vii. You agree to comply with all local rules regarding online conduct.
b. Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
i. Your use of the site is at your sole risk. The site is provided on an “as is” and “as available” basis. We expressly disclaim all warranties of any kind relating to the site or to any information, products, or services available through the site, whether express or implied, including, but not limited to, the implied warranty of merchantability, fitness for a particular purpose, title and non-infringement. Without limiting the foregoing, we disclaim any and all warranties, express or implied, for any products or services offered via this site;
ii. We make no warranty that: (i) the site will meet your requirements; (ii) the site will be timely, secure, error-free or operate in an uninterrupted fashion; (iii) anything available through or obtained from the site will be accurate, reliable, or useful; and (iv) any errors will be corrected;
iii. Any information, products, services, or other items obtained via the site are provided to you solely at your risk and you will be solely responsible for any harm to you or others, damage to your computer, systems, or otherwise, or loss of data that results from anything obtained via the site; and
iv. Only the limitations which are allowed and lawful in your jurisdiction will apply to you. Our liability will be limited to the maximum extent allowed by applicable law; and
v. Product information accessed through this site is provided by the product’s producer, supplier, or manufacturer. You understand that producers, suppliers, and manufacturers may alter labels such that actual product packaging and materials may contain different information than that shown on this site. We do not guarantee the accuracy, completeness or timeliness of any product information. You may not rely solely on the information presented. you must read labels, warnings, and directions before using any product. We assume no liability for any inaccuracies about products. you understand and agree that customer reviews and other user-generated content is provided solely for informational purposes and is not provided by us. customer reviews are solely the individual reviewer’s views.TREC corp does not warranty or guarantee any of the TREC services. There may be times where updates are needed to be made to the merchant app on the google play store and or app store. During said times where updates may be made the app may be inoperable and waiting for approval from google play store and the app store. During said times TREC shall not be liable for said downtime. TREC Corp does not provide merchant reporting. merchant reporting can be provided upon written request.
vi. Product Pricing. Participating merchants are subject to change, and are not guaranteed to be available at all times. TREC does not assume responsibility or liability for the actions, products, locations, or content of any merchant. you acknowledge and agree that TREC is not responsible for the pricing of the products, and the merchants are solely responsible for setting the prices for products and reviewing their advertising section on TREC for the accuracy of its content and pricing may change at any time without notice.
vii.Trademarks. It is the merchant's obligation to have the legal authority to display any of their markings, trademarks, or any similar as we are only displaying advertising information that we have received from the merchant.
viii. Any orders that are made by you may be canceled by contacting the merchant and it is up to the merchant to use their discretion.
20. Limitation of liabilities. You expressly understand and agree that we (including all of our subsidiaries, affiliates, officers, directors, agents, employees, and licensors) shall not be liable to you for any direct, indirect, incidental, consequential, special, punitive, or exemplary damages, including, but not limited to, damages for loss of profits, loss of goodwill, loss of use, loss of data or other intangible losses (even if we have been advised of the possibility of such damages), resulting from (i) use or the inability to use the site; (ii) the cost of obtaining substitute goods or services; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the site; (v) any information, product, or service you obtain through the site; or (vi) any other matter relating to the site. These limitations shall apply to the fullest extent permitted by law.
21.Attorney’s Fees and Collection Costs. MERCHANT shall be liable for and shall indemnify and reimburse TREC for any attorney’s fee, arbitration costs, expenses incurred by TREC in the enforcement hereof, including but not limited to collecting any amounts or obligations due from MERCHANT. TREC shall assess a collection fee of not less than two hundred fifty ($250.00) in the collections of any obligation or amounts due by MERCHANT.
22. Copyright Disputes. We are dedicated to operating in accordance with the U.S. Copyright Law and ask You to comply as well. The Digital Millennium Copyright Act of 1998 (“DMCA”) provides owners of copyrighted material who suspect that their rights under U.S. Copyright Law have been violated with certain remedies. One such remedy is contacting the Internet service provider’s designated agent to report suspected infringements that appear on Web pages hosted by that Internet service provider.
a. If We receive a notification of suspected copyright infringement, and assuming the notification satisfies the requirements of the DCMA (discussed below), We may remove or prohibit access to such materials. However, You may submit to Us a counter-notice if you believe such notice of suspected copyright infringement was mistakenly filed.
b. We advise You to seek legal counsel if: (i) You believe Your copyrights have been infringed, or (ii) if a notice of copyright infringement has been filed against You. We will not be involved as a party to disputes over alleged copyright infringement and you agree to indemnify, defend and hold us harmless from and against any costs, damages or expenses (including reasonable attorney fees) We incur arising out of or related to any alleged or actual infringement involving You.
c. We reserve the right to terminate Your account or remove any content if We, in our sole discretion, believe the DMCA notification meets the criteria listed below. You grant TREC an irrevocable, transferable, paid-up, royalty-free, perpetual, non-exclusive worldwide sub-licensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use User Content in connection with TREC's or its partners’ or affiliates’ business and in all forms of media now known or hereafter invented (collectively, the “Uses”) without notification to and/or approval by you. You further grant TREC a license to use your username and/or other user profile information, including, without limitation, your rating history and how long you have been a TREC merchant, to attribute User Content to you in connection with the Uses, if we choose to do so, again without notification to and/or approval by you. Further, if you provide any suggestions, input, or other feedback relating to the Sites or the services we provide (collectively, the “Feedback”), TREC shall have the right to freely and fully exercise and exploit the Feedback in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to you. Accordingly, you hereby grant TREC a royalty-free, perpetual, irrevocable, transferable, sub-licensable, worldwide, nonexclusive license to all rights necessary to incorporate and use the Feedback for any purpose.
d. Notification of Claimed Copyright Infringement.
i. If You believe Your copyrights have been infringed because of material appearing on a web page We host, you must file Your claim of infringement with Our designated agent via mail at the address below.
P.O. Box 664
Cross River, New York 10518
Alternatively, You may email Us with Your complaint of claimed infringement.
By Email: firstname.lastname@example.org
By Phone: 914-902-8453
ii. You must provide the following information in your written complaint to us in order for it to be valid under the DMCA:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notice is accurate, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
iii. Elements 1-6 above are taken directly from 17 U.S.C. 512(c)(3). Please consult the DMCA for additional details on the information necessary for valid notification.
iv. Please note: Misrepresentations and false accusations of copyright infringement may subject You to damages including, but not limited to, fees incurred in blocking material, court costs, and attorneys’ fees.
e. Counter-notification response to Claims of Copyright Infringement. You may file a counter-notification with Our designated agent. All such responses must be submitted to the address listed above in this section and must contain the following:
i. A physical or electronic signature of the subscriber.
ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
iii. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
iv. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
v. Elements (i) – (iv) above are taken directly from 17 U.S.C. 512(g)(3). Please consult the DMCA for additional details on the information necessary for valid notification.
vi. Please note: Misrepresentations and false responses to claims of copyright infringement may subject You to damages including, but not limited to, fees incurred in blocking material, court costs, and attorneys’ fees.
vii. As provided by the DMCA, after receipt of a valid counter-notification, We may restore or re-enable access to remove material.
f. Other Violations. Please contact us at any of the above addresses to report any other actual or potential violation of the Terms.
7. General Terms.
a. Entire Agreement. Except for the Other Agreements, this Terms of Site constitutes the entire agreement between Us and You regarding
b. Choice of Law. You and We agree that this Agreement will be governed by the laws of the State of New York, USA, without regard to conflicts of law principles or provisions.
c. No Waiver. Our failure or Your failure to exercise or enforce any right or provision of this Agreement or the Other Agreements shall not constitute a waiver of the right or provision. If any provision of this Agreement or the Other Agreements is found by a court of competent jurisdiction to be invalid, then You agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision and that the other provisions of this Agreement and the Other Agreements remain in full force and effect. TREC shall have the right to designate an alternate legal jurisdiction or any jurisdiction for this case at its own discretion.
d. Force Majeure. Performance by any party of any obligation hereunder shall be excused if and for so long as such breach or failure to perform is caused by a force majeure event, and prompt notice thereof has been given to the other party. If any party fails to perform any duty or obligation hereunder as a result of a force majeure event, such party shall be required to fulfill its obligations hereunder within a reasonable time after the force majeure event ceases to exist.
e. No Assignment By You. You agree that Your rights under this Agreement are personal to You and that You do not have the right to assign, transfer or convey (by operation of law or otherwise) this Agreement or any right or interest under this Agreement herein in whole or in part without Our prior written consent. Any attempt to do so shall be null and void.
f. We May Assign the Agreement. You understand that We may transfer ownership or operation of all or any part of the Site to another person, and You agree that if We do so We may assign Our rights and obligations under this Agreement to another person. You will remain bound by all of the terms and conditions of this Agreement following any such assignment by Us.
g. Our Right to Amend the Agreement. We have the right to amend the Agreement at any time without notice to You. You acknowledge and agree that if You use the Site following such an amendment, You will automatically be bound by all of the terms in the amended Agreement as if those terms were in the original Agreement accepted by You.
h. Survival. In the event of any termination or expiration of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive shall survive the expiration or termination of this Agreement.
i. Export Control Notice. Regardless of any disclosure made by You to Us of an ultimate destination or use of the Site or any Services, or other materials, products, goods, or services, You obtain through the Site, You acknowledge and agree that such may be subject to United States export control laws.
j. Terms of Agreement. The Merchant Application Agreement is a 1-year agreement and will automatically renew unless 60-days written notice is provided to TREC. Monthly Plan is billed monthly. Your setup fee and first month’s service payment will be processed within forty-eight hours and the monthly recurring billing will begin after submitting this form. Annual Plan is paid in full up-front and your payment will be processed within forty-eight hours after submitting this form. Per Order Plan is billed monthly and added costs are billed monthly according to the percentage or per order as per the merchant agreement.
You acknowledge Your exclusive obligation to ensure that Your obtaining and use of any Services, materials, products, goods, or services are in compliance with the United States export control laws.