TERMS OF SERVICE Effective as of May 8, 2019
Welcome to the Accrueretail App (the “App”), a product of d/b/a Accrueretail (“Accrueretail”, “we”, or “us”) that is being provided to you on behalf of our service partner retail liquor store (“Retailer”) to allow you to search your Retailer’s product inventory, order products and services from your Retailer, gain access to product and service promotions, and track your frequent shopper/loyalty credits all from the convenience of your iOS or Android mobile device.
THE FOLLOWING TERMS OF SERVICE (THE “AGREEMENT”) GOVERN YOUR ACCESS TO AND USE OF THE APP AND YOUR RELATIONSHIP WITH Accrueretail.
IN CONSIDERATION FOR ACCESS TO THE APP, YOU AGREE TO READ THE AGREEMENT CAREFULLY BEFORE FURTHER ACCESSING OR USING THE APP. BY FURTHER ACCESSING OR USING THE APP, YOU REPRESENT, WARRANT, AND ACKNOWLEDGE THAT:
- (a) YOU ARE AT LEAST TWENTY-ONE (21) YEARS OF AGE;
- (c) YOU HAVE THE AUTHORITY AND CAPACITY AND ARE LEGALLY ENTITLED TO ENTER INTO THE AGREEMENT;
- (d) YOUR USE OF THE APP IS FOR YOUR SOLE AND PERSONAL USE;
- (e) YOU HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE APP OR THE SYSTEM; AND
THE APP IS NOT INTENDED FOR CHILDREN. YOU MUST BE AT LEAST TWENTY-ONE (21) YEARS OF AGE TO USE THE APP. When using the App, you agree to comply with all applicable laws of your home territory and the territory in which you are physically present from which you access the App, you thereby represent and warrant that you are not a competitor of Accrueretail, are not accessing or using the App on behalf of a competitor of Accrueretail, and will not use the App in a competitive atmosphere with Accrueretail.
a. “App” means the mobile device software application, owned and operated by Accrueretail.
b. “Accrueretail IP” means any and all past, present, and future intellectual property owned, controlled, or licensed by Accrueretail, including, but not limited to the Site, the System, and all Content Shared by Accrueretail via the Site and the System.
c. Console” means the web based software interface used by your Retailer to access and use the System and Share Content with Accrueretail, Users, and other third parties.
d. “Content” means any intellectual property, data, or communications that is Shared via the System.
e. “Derivative Work” means any work that is based upon any Accrueretail IP, including, but not limited to, an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation, or any other form in which such preexisting works may be recast, transformed, or adapted.
f. “Retailer” means a retail liquor store with which Accrueretail has a contractual relationship to use the System to Share Content with and provide services to Users, Accrueretail, and other select third parties.
g. “Share” means to transmit Content via the System, including, but not limited to the App or the Console.
h. “Site” means http://www.accrueretail.com/ the online presence of Accrueretail.
i. “System” means Accrueretail proprietary software system that allows your Retailer to Share Content with and provide services to Users and Users to Share Content with Accrueretail, your Retailer, and other Users, including, but not limited to, the App and the Console.
j. “User” means any individual who accesses or uses the App.
k. “User Content” means any Content Shared by a User, including, but not limited to, product reviews, User pictures, product ratings, and feedback.
l. “User Information” means the personally identifiable information collected by the App or Shared by a User via the App, including, but not limited to, your email address, password, birthdate, address, preferences, and favorites.
m. “Your Profile” means the collection of User Information stored by the App in order to identify Your Account.
n. “Your Content” means any Content that you Share, including, but not limited to, product reviews, your picture, product ratings, and feedback.
III. Your Account
In order to use the App, you must first download the App to your mobile device and then sign up and create a personal account (“Your Account”) by Sharing certain User Information with the App and choosing a password. You are solely and personally responsible for maintaining the confidentiality and security of Your Account and the password associated with it. You may not authorize others to use Your Account or rent, sell, lease, license, sublicense, lend, distribute, or otherwise transfer or assign Your Account to any other person. You agree to immediately notify Accrueretail of any actual or suspected breach of security or unauthorized use of Your Account.
V. Security of Information Accrueretail maintains our systems in accordance with commercially reasonable industry standards to preserve the integrity and security of your User Information and Your Content. Accrueretail is constantly seeking to improve the App, the Console, and the System and how the App, the Console, and the System Shares your User Information and Your Content. We cannot, however, ensure or warrant the security of any such information you Share via the App and you do so at your own risk. Once we receive your User Information and Your Content, we make commercially reasonable efforts to ensure the security of our systems. However, this is not a guarantee that such information may not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards. “Perfect security" does not exist on the Internet, and your use of the App is at your own risk.
VI. Accrueretail IP
You hereby represent, warrant, and acknowledge that all Accrueretail IP is owned, controlled, or licensed by Accrueretail and is protected by copyright, as a trademark, by patent, or by other intellectual property rights. Unless otherwise noted, the App, the Site, and the Console, and all intellectual property on or that constitutes the Site and the System, including, but not limited to the App and the Console is Accrueretail IP, including, but not limited to, the object code and underlying source code thereof, the tradenames thereof and trademarks thereon, and the selection, sequence, "look and feel", and arrangement of items thereon. You agree that you shall acquire no rights in any Accrueretail IP unless otherwise noted in writing by Accrueretail. You may not copy, reproduce, frame, republish, download, upload, post, transmit, distribute, hyperlink, or exploit any Accrueretail IP for commercial use in any way beyond what is permitted by the Agreement without the prior written consent of Accrueretail.
a. License to User
Accrueretail hereby grants you a limited, personal, non-exclusive, non-assignable, non-transferable, non-sub-licensable, freely and fully revocable license to access and use the App in order to Share Your Content and your User Information with Accrueretail and your Retailer via the System, to Share Your Content with other Users via the App, to access the System in order to purchase products and services from your Retailer, to contact Accrueretail and your Retailer, to access and use Content Shared via the System by Accrueretail, your Retailer, other Users, and our affiliates, to store your User Information and Your Content on the System for such purposes, and to scan product bar codes in order to determine if your Retailer carries such product. You acknowledge and agree that with exception to this limited license you have no right to modify, edit, copy, reproduce, create derivative works, or reverse engineer, alter, enhance, or in any way exploit the System or any other Accrueretail IP in any manner unless otherwise noted in writing by Accrueretail. This license terminates automatically, without notice to you, if you breach the Agreement.
b. Reservation of Rights
Accrueretail reserves all rights not expressly granted in the Agreement unless otherwise noted in writing by Accrueretail.
c. Prevention of Unauthorized Access or Use
Accrueretail reserves the right to exercise whatever lawful means Accrueretail deems necessary to prevent unauthorized access to or use of any Accrueretail IP, including, but not limited to, technological barriers, IP mapping, and directly contacting your internet service provider or law enforcement regarding such unauthorized use.
You may not, nor shall you permit any third party to, directly or indirectly:
- (i) modify, edit, copy, reproduce, create any Derivative Work from, or reverse engineer, alter, enhance, use, or exploit any Accrueretail IP for any purpose unless otherwise stated in writing by Accrueretail;
- (ii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the System;
- (iii) “scrape” the Site or the System, including, but not limited to, the App and the Console, or use any bot, spider, scraper, data miner, or automated agent to access or use the System or gain access to or use any information on System;
- (iv) decipher, decompile, reverse engineer, reverse compile, or otherwise dissemble or attempt to decipher, decompile, reverse engineer, reverse compile, or otherwise dissemble any Accrueretail IP, including, but not limited to the source and object code thereof, or otherwise determine the source code of any Accrueretail IP;
- (v) rent, sell, lease, license, sublicense, lend, distribute, or otherwise transfer or assign Your Account or any Accrueretail IP or any portion thereof to any third party, or otherwise use or allow the use of Your Account, any Accrueretail IP, or any portion thereof to be used for any purpose outside the purposes of the Agreement or on behalf of any third party other than Accrueretail or your Retailer;
- (vi) remove any proprietary notices from any Accrueretail IP;
- (vii) post or otherwise make available any Accrueretail IP, or any portion thereof, in any form, available on any publicly available forum, including, but not limited to the Internet;
- (viii) use a previous version of the App after you have received a new version and are asked to discontinue using the previous version;
- (ix) use or access any Accrueretail IP for any unauthorized purpose;
- (x) use any Accrueretail IP in a competitive manner with Accrueretail;
- (xi) use any Accrueretail IP to violate any U.S. federal, state, or local law, rule, or regulation;
- (xii) interfere with or disrupt the integrity or performance of System or the Content contained thereon; or
- (xiii) attempt to gain unauthorized access to the App, the Console, the Site, the System, or any other Accrueretail IP, system, or network;
- (xiv) use or access any Accrueretail IP to sell any drugs, narcotics, controlled substances (even those that are legal in some states including, but not limited to CBD, and cannabidiol-based products, cannabis, or cannabis-containing product or products), drug paraphernalia such as bongs, vaporizers, and pipes; tobacco and related products including, but limited to, e-cigarettes, e-juice, vaporizers, mods, hookahs, and hookah accessories.
VII. Your Content and User Information
Accrueretail hereby allows you to Share Your Content and your User Information via the App.
a. Sharing Your Content
The App allows you to Share Your Content over the System with, between, and amongst Accrueretail, your Retailer, Accrueretail Rewards, and other parties with access to the System. By choosing to Share Your Content via the App, you represent and warrant that you are solely responsible for Your Content and the ramifications and results of your choice to Share Your Content. You also agree that Apple is not a sponsor of, nor endorses the use of, Accrueretail Rewards. By using the app, you also affirm that you conform to the eligibility requirements set forth in Section 1-Eligibility.
b. Sharing Your User Information
The App allows you to Share your User Information over the System with, between, and amongst Accrueretail Accrueretail Rewards, and your Retailer. By choosing to Share your User Information, you represent and warrant that your User Information is true, up to date, and that you are solely responsible for your User Information and the ramifications and results of your choice to Share your User Information. You also agree that Apple is not a sponsor of, nor endorses the use of, Accrueretail Rewards. By using the app, you also affirm that you conform to the eligibility requirements set forth in Section 1-Eligibility.
c. Retention of Ownership
Accrueretail does not claim any ownership rights in any of Your Content or your User Information Shared via the App. By simply Sharing Your Content or your User Information via the App, you continue to retain ownership of Your Content and your User Information and continue to have the right to use and license Your Content and your User Information in any way you choose unless otherwise stated herein. However, any of Your Content and your User Information Shared via the App must comply with the Agreement.
d. License Grants to Accrueretail
By Sharing Your Content via the App, you thereby grant Accrueretail a paid-in-full, royalty free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide right and license to Share Your Content with Accrueretail, your Retailer, other Users, and our affiliates for the purposes of the App or our services or as required by applicable law or by proper legal, governmental, or regulatory authority and a paid-in-full, royalty free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide license right and license to use, display, perform, distribute, modify, adapt, abridge, exploit, and promote Your Content in any way and in any commercial or non-commercial medium or form without compensation. By Sharing your User Information via the App, you thereby grant Accrueretail a paid-in-full, royalty free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide right and license to Share your User Information with Accrueretail, our Retailers, and our affiliates for the purposes of the App or our services, or as required by applicable law or by proper legal, governmental, or regulatory authority. By downloading and installing the App, you thereby agree that Accrueretail, Your Retailer, and our affiliates may send you “push notifications” if your device supports such communications.
e. License Grants to Retailer
By using the App, you thereby grant your Retailer a paid-in-full, royalty free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide right and license to use your User Information and Your Content for the purposes herein, specifically including, but not limited to providing you with the products and services you order and to contact you via the App for marketing purposes.
f. License Grant to Other Users
By Sharing Your Content via the App, you thereby grant to other Users a limited, non-exclusive license to access and use Your Content. Notwithstanding the foregoing, you also hereby grant to each other User at least a limited, non-exclusive, license to view, download, including, without limitation download to a portable device, print, and have printed Your Content for personal use.
g. Your Content Representations and Warranties
You are solely responsible for Your Content and all the consequences, ramifications, and results of Sharing Your Content via the App. By Sharing Your Content via the App, you represent, warrant, and affirm that:
- (i) you are solely responsible for Your Content and all the consequences, ramifications, and results of Sharing Your Content via the App;
- (ii) you are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and for Accrueretail, Accrueretail Rewards, our Retailers, and other Users to use Your Content as necessary to exercise the licenses granted by you in this Section VII of the Agreement and in the manner contemplated by Accrueretail and the Agreement;
- (iii) Your Content does not and will not slander, defame, or libel any other person;
- (iv) the use of Your Content as permitted herein does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
- (v) Your Content does not contain any viruses, adware, spyware, worms, or other malicious code; and
- (vi) Your Content is free of any digital rights management, including any software designed to limit the number of times Your Content may be copied or played. Violators of this Section VII of the Agreement may be subject to criminal and civil liability. Accrueretail reserves all rights and remedies against any Users who violate the Agreement.
Rules for Participation in Accrueretail Rewards
By using the app, you agree that the following sections indicate your acceptance, understanding, and provisions of the Accrueretail Rewards Program:
By agreeing to sign up, you represent and agree you are 21 years of age or older. When using the App, you agree to comply with all applicable laws of your home territory and the territory in which you are physically present from which you access the App, you thereby represent and warrant that you are not a competitor of Accrueretail, are not accessing or using the App on behalf of a competitor of Accrueretail, and will not use the App in a competitive atmosphere with Accrueretail.
Profile must be completed in its entirety to receive points. Accrueretail Rewards is diligent in its efforts to create and maintain a fair and consistent user environment free of fraudulent or misleading content. Therefore, we review user accounts and information on a regular basis to provide the most accurate results. Users in violation of our TOS will be removed from the rewards program.
Enter Referral Code:
Points are awarded only after the app is downloaded by the person it was sent to, and the referral code is entered in the rewards page. Points will be given for only 3 referrals per week, up to 12,000 points per month. Referrals should only be used for personal and non-commercial purposes, and only shared with personal connections that will appreciate receiving these invitations.
Invite your Friends:
Points will be awarded for 10 invites per week and up to 4,000 points per month. This should only be used for personal and non-commercial purposes, and only shared with personal connections that will appreciate receiving these invitations. In no instance shall Accrueretail be held responsible or liable for any invitation activity undertaken by the account holder.
By reviewing products, you provide valuable information to the user experience. Please focus your reviews on the reasons why you like or dislike the item. You may not submit copyrighted content unless you own the copyright to such content, or have the authorization of the copyright owner to use them. Points will be awarded for 5 reviews per week, up to 4,000 points per month. Any infringement shall result in removal of the user from the rewards program.
How are we doing?
Any writing, comments, remarks, or other information posted to the app belongs to the person who posted such content. When you upload, communicate or submit your comments to us, you grant Accrueretail a royalty-free, worldwide, perpetual, irrevocable permission to publish and use your content for marketing purposes. Accrueretail also has the right to limit or revoke the use of privileges of account of anyone who posts unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable comments.
The user has complete control over whether they would like to receive relevant push notifications. User may opt out of receiving push notifications by going to the Notifications tab in the app. Points are awarded for 2 views per week and up to 2400 points per month. The notification must be viewed within 24 hours of posting to receive points.
Accrueretail Rewards Amendment:
Accrueretail may amend, modify or end any content within Accrueretail Rewards in whole or in part from time to time, without notice, including suspension of the entire reward program, by posting an amended agreement on the website. Such updated version of the agreement will be effective at the time we post it. Accrueretail also reserves the right to expire accrued points of users at any time. Any fraudulent, deceptive, unauthorized, or unlawful participation is strictly prohibited, and may result in immediate termination or disqualification from the rewards program. The reward points cannot be sold, copied, shared or transferred. Any violation of the provisions in this TOS may result in cancelation of the account and the expiration of all accumulated points and rewards.
VIII. Digital Millennium Copyright Act Policy
Accrueretail takes intellectual property rights very seriously and demands the same from all Users. Accrueretail will respond to allegations of copyright violations in accordance with the Digital Millennium Copyright Act [17 U.S.C. 512] (the “DMCA”). The DMCA provides a process for a copyright owner to give notification to Accrueretail concerning alleged copyright infringement (“Notice of Infringement”). When a valid Notice of Infringement is received, Accrueretail shall respond under this process by taking down the offending Content. In accordance with the DMCA, upon taking down the Content, Accrueretail shall take reasonable steps to contact the owner of the removed Content so that a counter-notification (“Counter Notice”) may be filed. On receiving a valid Counter Notice, Accrueretail will generally restore the Content in question, unless Accrueretail receives notice from the original provider of the Notice of Infringement that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity.
THESE NOTICES OF INFRINGEMENT AND COUNTER NOTICES ARE REAL-WORLD LEGAL NOTICES PROVIDED OUTSIDE THE AGREEMENT. Accrueretail MAY PROVIDE COPIES OF SUCH NOTICES TO THE PARTICIPANTS IN THE DISPUTE OR THIRD PARTIES, AT Accrueretail’S DISCRETION AND AS REQUIRED BY APPLICABLE LAW OR BY PROPER LEGAL, GOVERNMENTAL, OR REGULATORY AUTHORITY; THE AGREEMENT DOES NOT PROTECT INFORMATION PROVIDED IN THESE NOTICES.
a. Notice of Infringement
If you are a copyright owner and have a good faith belief that any Content posted on or transferred through the System infringes your copyright(s), you may send Accrueretail’ “Designated Copyright Agent”, as identified hereinafter, written Notice of Infringement pursuant to the DMCA. This Notice of Infringement must contain the information specified below in the following format:
- (i) identify in sufficient detail the copyrighted work claimed to have been infringed; if multiple copyrighted works are covered by a single Notice of Infringement, provide a representative list of such works;
- (ii) identify in sufficient detail the material that is claimed to be infringing and information reasonably sufficient to permit Accrueretail to locate the material (e.g., provide the Uniform Resource Locator, “URL,” of the material claimed to be infringing);
- (iii) provide information reasonably sufficient to permit Accrueretail to contact you (e.g., a street address, telephone number, and email address if available);
- (iv) provide a statement that you have a good faith belief that the use of the copyrighted material in the manner described in the Notice of Infringement is not authorized by the copyright owner, its agent, or the law;
- (v) provide a statement, made under penalty of perjury, that the information provided in the Notice of Infringement is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
- (vi) provide the physical or electronic signature of the copyright owner or someone authorized to act on the owner's behalf.
The Notice of Infringement must be submitted to Accrueretail’s Designated Copyright Agent by mail or email as set forth below:
Subject: DMCA Notice
Be advised that failure to comply with all of the above requirements may invalidate your Notice of Infringement under the DMCA. Accrueretail’ response to a proper Notice of Infringement will be to remove or disable access to the Content claimed to be infringing and notify the alleged infringer of your claim so he or she can submit a Counter Notice to Accrueretail.
b. Counter Notice.
If Your Content was removed or access was blocked and you have a good faith belief that it is not infringing on any copyrighted material, you may send Accrueretail a written Counter Notice pursuant to Section 512 of the DMCA. The Counter Notice must contain the information specified below in the following format:
- (i) identify in sufficient detail the Content that Accrueretail has removed or to which Accrueretail has disabled access and the location of the material (e.g., the URL) before it was removed/disabled;
- (ii) provide your name, address, telephone number, and email address;
- (iii) a statement that you consent to the jurisdiction of the federal district court in which your address is located, and a statement that you will accept service of process from the person who provided notification of the alleged infringing activity;
- (iv) provide a statement, made under penalty of perjury, that you have a good faith belief that the material was removed/disabled as a mistake or misidentification of the material; and
- (v) provide your physical or electronic signature.
The Counter Notice must be submitted to Accrueretail’ Designated Copyright Agent by mail or email as set forth below:
Subject: DMCA Notice
Be advised that failure to comply with all of the above requirements may invalidate your Counter Notice under the DMCA. If the Designated Copyright Agent receives your valid Counter Notice, Accrueretail may restore your removed Content or cease disabling it within ten to fourteen (10-14) business days, unless Accrueretail receives notice from the alleged copyright owner (who filed the initial Notice of Infringement) that said party has filed a court action seeking to stop your alleged infringement.
IX. Trademark Notice
You agree that in the event that Accrueretail receives a written demand alleging that any of Your Content infringes upon, dilutes, tarnishes, or otherwise violates a party’s trademark rights, Accrueretail may in its sole discretion, remove or disable access to such Content until Accrueretail receives either:
(a) written confirmation from the party sending such demand that the demand is withdrawn or has been resolved or
(b) you submit sufficient evidence to satisfactorily rebut the allegations contained in such demand, the adequacy of such evidence to be determined by Accrueretail in Accrueretail’ sole discretion and which Accrueretail may reject for any reason without penalty or liability to you. In order for Accrueretail to accept such rebuttal, you expressly acknowledge and agree that such rebuttal shall include:
1) the information set forth in Section VIII hereinabove, except that the such information shall relate to the disputed trademark at issue rather than disputed copyrighted material and
2) an express, irrevocable, and binding obligation pursuant to which you shall indemnify, defend, and hold harmless Accrueretail from damages, costs, or expenses that Accrueretail may incur, in any manner whatsoever, arising out of or in connection with the disputed Content and Accrueretail’ restoration thereof. The procedures of the DMCA apply only to copyrighted works and expressly exclude any other forms of intellectual property rights, including any rights in trademarks; the process hereinabove is intended only to provide a convenient mechanism for addressing trademark disputes and does not, and shall not, be construed, as imposing any obligation on Accrueretail under the DMCA with regards to response times or the like. Accrueretail is under no obligation to restore access to any removed Content even if you provide the aforementioned rebuttal.
X. Derivative Work
To the extent that you create any Derivative Work absent an explicit agreement with Accrueretail, such Derivative Work shall be owned by Accrueretail and all right, title, and interest in and to each such Derivative Work shall automatically vest in Accrueretail. Such right, title, and interest shall be deemed paid-in-full and royalty free, and Accrueretail shall have no obligation to grant you any right in any such Derivative Work. You hereby irrevocably assign to Accrueretail any and all joint or individual ownership, rights, titles, and interests in and to any and all such Derivative Work, including, but not limited to all:
- (a) copyrights, patents, inventions, rights in mask works, trademarks, trade secrets, and other intellectual property rights, and all other rights that may hereafter be vested relating to the Derivative Work, arising under U.S. or any other law, together with all national, foreign, state, provincial, and common law registrations, applications for registration, and renewals and extensions thereof;
- (b) goodwill associated with the Derivative Work; and
- (c) all benefits, privileges, causes of action, and remedies relating to any of the foregoing, whether before or hereafter accrued, including, but not limited to, the exclusive rights to apply for such registrations, renewals, or extensions, to sue for all past infringements or violations of any the foregoing, and to settle and retain proceeds from any such actions. You further assign to Accrueretail, during the full copyright or patent terms and any extensions or renewals of that term, all copyrights and patents in and to the Derivative Work. In the event that the assignment in this Section of the Agreement does not provide Accrueretail with full ownership, rights, titles, and interests in and to the Derivative Work, you hereby grant Accrueretail an exclusive, freely transferable, freely assignable, irrevocable, paid-in-full, royalty-free, perpetual, fully worldwide license to reproduce, create derivative works from, distribute, publicly display, publicly perform, use, make, have made, offer for sale, sell or otherwise dispose of, and import the Derivative Work in any and every way Accrueretail sees fit, with the right to sublicense each and every such right. Furthermore, you hereby assign and transfer any and all moral rights in any Derivative Work to Accrueretail. You agree where such rights may not be assigned as a matter of law to cooperate fully with Accrueretail during the lifetime of such rights and agree not to take any interest with regard to such rights that is contrary to the will and goals of Accrueretail, and you agree not to exercise any such moral rights without the explicit prior written consent of Accrueretail. Where any such moral rights may not be assigned as a matter of law, but may pass on to your heirs at law, you hereby disclaim any and all such moral rights.
XI. Unsolicited Suggestions
Accrueretail welcomes your feedback, suggestions, and recommendations. By submitting any feedback, suggestions, or recommendations to Accrueretail you agree that Accrueretail may, but shall have no obligation to, use, modify, distribute, copy, and otherwise exploit such feedback, suggestions, or recommendations in any manner, as Accrueretail sees fit, without restriction or limitation of any kind, and you thereby grant to Accrueretail a paid-in-full, royalty-free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide license to do so and to allow others to do so, and agree not to permit or prosecute any action or lawsuit on the ground that Accrueretail’ use or alleged use of such feedback, suggestion, or recommendation infringes any of your rights.
XII. Links to Sites or Services
The App and the Site may include links or references to websites or services (“Linked Sites”). Linked Sites are provided for your convenience and information only. Accrueretail does not control the availability and content of Linked Sites. Access and use of Linked Sites, including the information, materials, products, and services on or available through Linked Sites is solely at your own risk. Any concerns regarding Linked Sites, or any information, resources, or services therein, should be directed to that particular Linked Site.
XIII. Transactions with Retailer
The App is a software application that allows you to purchase products and services from your Retailer (a “Transaction”). You hereby represent and warrant that all Transactions are between you and your Retailer, that Accrueretail is not a party to such Transactions, that Accrueretail bears no responsibility for examining or evaluating the quality or any other aspect of products and services provided by your Retailer, and that Accrueretail shall bear no liability or responsibility to you or any third party resulting from the Transaction or the products or services provided to you by your Retailer. You also agree that unless otherwise stipulated by the Retailer, all sales are final and no refunds are permitted. Accrueretail is not a bank, credit union, payment processor, or other financial institution. Transactions are processed by your Retailer’s payment processor and point of sale system vendor. By placing a Transaction via the App, you are authorizing your Retailer‘s payment processor and point of sale system vendor to charge your credit card or other payment method. Transactions processed via the App may also be subject to the terms and conditions of your Retailer and your Retailer’s payment processor and point of sale system vendor. Accrueretail does not provide refunds via the App for any Transactions. You hereby agree to address any disputes or refunds regarding any Transaction directly with your Retailer. You hereby represent and warrant that should you dispute any charge that appears on your credit card or other payment statement related to any Transaction that any chargeback shall apply directly to your Retailer.
XIV. Product and Service Availability, Timeliness, and Pricing Disclaimer
You hereby represent and warrant that you understand that Accrueretail and your Retailer cannot guarantee the availability of any product or service offered via the App. Furthermore, should you request delivery, neither Accrueretail nor your Retailer can guarantee delivery at any particular time or within any particular period of time. Additionally, all prices of all products and services displayed in the App are subject to change without notice. Whilst Accrueretail and your Retailer make every effort to provide you the most accurate, up-to-date information, occasionally, one or more products or services may be mis-priced on occasion on the App. In the event a product or service is listed at an incorrect price due to typographical, photographic, or technical error or error in pricing information received from our suppliers, your Retailer shall have the right to refuse or cancel any orders placed for product listed at the incorrect price.
XV. Other Users
Other Users use the App to access and use the System for their own purposes in accordance with the Agreement.
a. User Disputes
While Accrueretail reserves the right, but has no obligation, to monitor or moderate disputes between you and other Users, you are solely responsible for your interactions with other Users.
b. Off-System Interaction with Other Users
You are solely responsible for Your Content and all the consequences of Sharing Your Content with other Users. You understand that you are solely responsible for any interaction with any other Users that takes place outside of the System whether online or offline.
XVI. Changes to the App, the System, and the Site
Accrueretail, our Retailers, and our affiliates are seeking to improve our integration and the services available to you. Accrueretail may discontinue or change any content, service, function, or feature of the App, the System, or the Site at any time with or without notice.
XVII. Changes to the Agreement
THE SYSTEM, INCLUDING, BUT NOT LIMITED TO, THE APP AND THE CONSOLE, IS ALWAYS UNDER ONGOING DEVELOPMENT AND TESTING. Accrueretail, OUR RETAILERS, AND OUR AFFILIATES DESIRE TO OBTAIN INPUT FROM YOU TO ASSIST US IN THE ONGOING DEVELOPMENT OF THE SYSTEM. YOU EXPRESSLY REPRESENT AND WARRANT THAT YOU ARE WILLING TO PROVIDE THAT INPUT. ACCORDINGLY, YOU ACKNOWLEDGE THAT THE SYSTEM MAY CONTAIN ‘‘BUGS’’ AND OTHER ERRORS THAT COULD ADVERSELY AFFECT THEIR USE OR PERFORMANCE; THE SYSTEM, INCLUDING, BUT NOT LIMITED TO THE APP, MAY CONTAIN INOPERABLE FEATURES, MAY CONTAIN ERRORS, AND MAY BE INCOMPLETE; AND YOU SHOULD TAKE EXTRA CARE IN PRESERVING YOUR CONTENT IN ORDER TO AVOID ANY LOSS OF YOUR CONTENT AS A RESULT OF USING THE APP.
XIX. Disclaimer of Warranties
XX. User Warranties
You hereby represent and warrant that:
- (a) you have the right to enter into and fully perform the mutual covenants contemplated herein, consistent with the Agreement;
- (b) there is no outstanding contract, commitment, or agreement to which you are a party that conflicts with the Agreement;
- (c) you are not subject to any injunctions or settlement agreement with private or public parties that may limit your ability to comply with the terms of the Agreement;
- (d) you shall comply with all applicable laws and regulations;
- (e) you understand that use of any product or service, specifically, including, but not limited to, the consumption of any product is at your own risk and Accrueretail and your Retailer shall bear no responsibility resulting from your consumption of any product.
XXI. Limitation of Liability and Damages
IN NO EVENT WILL Accrueretail BE LIABLE TO YOU FOR ANY THIRD PARTY CLAIM FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOST PROFITS, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, YOUR USE OF THE SITE OR THE SYSTEM, OR YOUR USE OF ANY PRODUCT OR SERVICE FROM YOUR RETAILER, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL Accrueretail BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SITE, THE SYSTEM, ANY OTHER Accrueretail IP, OR ANY CONTENT SHARED BY YOU, OUR RETAILERS, OR OTHER USERS, OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO ACCESS OR USE THE SITE, THE SYSTEM, ANY OTHER Accrueretail IP, ANY CONTENT SHARED BY Accrueretail OR OUR RETAILERS, ANY OF OUR RETAILERS SERVICES, ANY LINKED SITES, OR ANY USER CONTENT, ANY OTHER INTERACTIONS WITH Accrueretail, OR ANY OF YOUR USE OF ANY PRODUCT OR SERVICE FROM YOUR RETAILER, YOUR INTERACTIONS WITH ANY OTHER USERS, OUR RETAILERS, OR THIRD PARTIES EVEN IF Accrueretail OR AN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED. IF YOU ARE CALIFORNIA RESIDENTS, YOU HEREBY AGREE TO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD Accrueretail AND OUR RETAILERS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, ACTIONS, LIABILITIES, LOSSES, EXPENSES, OR DAMAGES, INCLUDING REASONABLE ATTORNEY FEES AND EXPENSES, WHICH MAY HEREAFTER ARISE, WHICH Accrueretail AND OUR RETAILERS MAY SUSTAIN DUE TO OR ARISING OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY MADE HEREIN, YOUR BREACH OF THE AGREEMENT, YOUR NEGLIGENT ACT OR OMISSION, YOUR USE OF ANY PRODUCT OR SERVICE FROM YOUR RETAILER, YOUR ACTS IN VIOLATION OF THE AGREEMENT OR ANY APPLICABLE LAW, STATUTE, OR REGULATION OF THE UNITED STATES OR THE JURISDICTION IN WHICH YOU RESIDE, OR YOUR CONTENT, OR CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY YOUR ACCESS TO AND USE OF THE SITE, THE SYSTEM, ANY OTHER Accrueretail IP, OR CONTENT SHARED BY Accrueretail, OUR RETAILERS, OR OUR AFFILIATES OR YOUR USE OF ANY PRODUCT OR SERVICE FROM YOUR RETAILER.
XXIII. Equitable Relief
You agree and acknowledge that the protections in Sections VI, VII, X, and XI the Agreement are directly related to Accrueretail’ goodwill and vital business interests and that a breach of the Agreement would cause Accrueretail significant and irreparable injury, the degree of which may be difficult to ascertain and for which monetary damages may not provide adequate compensation. Accordingly, in addition to any other remedy, Accrueretail will be entitled to seek immediate injunctive relief against such breach or threatened breach in any court of competent jurisdiction, without proving actual damage or posting a bond or other security.
XXIV. Liquidated Damages
You agree and acknowledge that the protections in Sections VI, VII, and X of the Agreement are directly related to Accrueretail’ goodwill and vital business interests and that such breach of these Sections of the Agreement would cause Accrueretail significant and irreparable injury, the degree of which may be difficult to ascertain. Accordingly, in addition to all other remedies available to Accrueretail, Accrueretail shall be entitled to liquidated damages in the amount of ONE MILLION U.S. DOLLARS ($1,000,000). You agree and acknowledge that these liquidated damages are a fair and accurate estimate of Accrueretail’s actual damages resulting from such breach and shall not be construed as penalty or punitive damages against you.
XXV. Law and Venue
You agree that any action at law or in equity arising out of or relating to the Agreement, the Site, the System, including, but not limited to the App and the Console, any other Accrueretail IP, any Content Shared by Accrueretail, or Accrueretail, and all suits and special proceedings relating to the Agreement, the Site, the System, including, but not limited to the App and the Console, any other Accrueretail IP, any Content Shared by Accrueretail, or Accrueretail, shall be construed in accordance with and under and pursuant to the laws of the State of Texas, without giving effect to any principles of conflicts of law. You further agree that any action at law or in equity arising out of or relating to the Agreement, the Site, the System, including, but not limited to the App and the Console, any other Accrueretail IP, any Content Shared by Accrueretail, or Accrueretail, and all suits and special proceedings relating to the Agreement, the Site, the System, including, but not limited to the App and the Console, any other Accrueretail IP, any Content Shared by Accrueretail, or Accrueretail, will be filed only in the Dallas Division of the Northern District of Texas or the state courts in and for Dallas, Texas, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action and expressly submit to extraterritorial service of process.
XXVI. Dispute Resolution You agree that you will first try to resolve any controversy, claim, or dispute arising out of or relating to the Agreement, the Site, the System, including, but not limited to the App and the Console, any other Accrueretail IP, any Content Shared by Accrueretail, or Accrueretail, with the help of a mutually agreed upon mediator in Dallas, Texas. Any costs and fees other than attorney fees associated with the mediation shall be paid by you. Attorney fees associated with the mediation shall be paid by the respective parties.
XXVII. Attorney Fees
In the event that Accrueretail must initiate proceedings in connection with or for the enforcement of the Agreement, Accrueretail shall be entitled to recover its cost of suit, including reasonable attorney fees, both at trial and appellate level.
XXVIII. Survivorship of Benefits
The Agreement shall be binding on and inure to the benefit of the respective parties and their executors, administrators, heirs, personal representatives, successors, and assigns.
XXIX. International Use
Accrueretail makes no representation that the Site or the System is appropriate or available for use in locations outside the United States. If you choose to access or use the Site or the System from a location outside the U.S., you do so on your own initiative and you are responsible for compliance with local laws.
XXX. Waiver of Modification of Agreement
A waiver or modification of the Agreement or of any covenant, condition, or limitation in the Agreement shall not be valid unless made in accordance with Section XVII of the Agreement or executed in writing between the parties, and evidence of any waiver or modification shall not be offered into or received in evidence in any proceeding, mediation, arbitration, or litigation between the parties arising out of or affecting the Agreement, or the right or obligations of any party under the Agreement, unless the waiver or modification is made in accordance with Section XVII of the Agreement or executed in writing between the parties in writing. The parties further agree that the provisions of this Section XXX of the Agreement may not be waived except as set forth in the Agreement. The failure of Accrueretail to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision.
To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any terms of the Agreement invalid or otherwise unenforceable in any respect. In the event that any terms of the Agreement are held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from the Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining terms of the Agreement.
Your rights and licenses under the Agreement may not be assigned, transferred, or sub-licensed by you, but Accrueretail’ rights and licenses under the Agreement may be freely and fully assigned, transferred, or sublicensed by Accrueretail without restriction. Any assignment, transfer, or sublicense attempted to be made by you in violation of the Agreement shall be void ab initio.
XXXIII. Hierarchy of Documents
The heading references herein are for convenience purposes only, do not constitute a part of the Agreement, and will not be deemed to limit or affect any of the provisions hereof.
Both you and Accrueretail are independent contractors. The Agreement creates no agency, partnership, joint venture, franchise, or employee-employer relationship between the parties unless otherwise noted in writing by the parties. Both you and Accrueretail represent, warrant, and acknowledge that neither party has the authority to bind the other party or incur any obligation on the other party’s behalf, or represent, cause, or allow to be represented, encourage, aid, or abet any other third party in the making of representations that such third party possesses any such authority in any capacity other than as specified in the Agreement.
All notices, requests, demands, consents, permissions, and other communications hereunder shall be in writing by email:
a) to Accrueretail at email@example.com;
b) to you via the App or at the email address or phone number listed in Your Profile and shall be deemed received when transmitted and confirmation of delivery or receipt is received.
XXXVIII. Contact Information
Any comments, complaints, or requests for further information can be directed to firstname.lastname@example.org.