Merchant Subscription Agreement

 

 

Terms of Use

 

 

 

Last Updated: November 18, 2016

Thank you for choosing to enroll with CARROT Wellness!

Please read this Merchant Subscription Agreement (the “Agreement”) carefully, as it sets forth some of the terms and conditions of your contract with CARROT pass, LLC., a Delaware corporation (“CARROT pass”). This Agreement, the Terms of Use, the Privacy Policy (each, available at www.carrotpass.com, the “Site”) and the subscription confirmation page, that includes the details of your subscription, shall hereinafter be collectively referred to as the “Subscription Agreement”. The Subscription Agreement describes the terms of your relationship with CARROT Wellness and each document should be read carefully. For the avoidance of doubt, Clover MarketPlace, LLC (“Clover”) is not a party to this Agreement.

The Subscription Agreement forms a legally binding contract between you and CARROT Wellness in relation to your access to and use of the Subscription Services and the CARROT Wellness App (both defined below). You represent and warrant that you (a) have the right and authority to bind your business to the Subscription Agreement, (b) authorize CARROT Wellness to rely on any instructions provided by or agreements entered into with any persons to whom you grant permission to access and use the Subscription Services and the CARROT Wellness App, and (c) you are not barred or otherwise legally prohibited from accessing or using the Clover App Market. For the avoidance of doubt, the terms “you” or “your” shall refer to the “Merchant” (and Merchant’s representative) that is accessing and using the Subscription Services and the CARROT Wellness App.

If you do not agree to the terms of the Subscription Agreement (by clicking to accept this Agreement and the Privacy Policy when that option is made available during the registration process), you should not use the Subscription Services or download the CARROT Wellness App and you should discontinue the registration process.

 

1. The Subscription Agreement

1.1 Subscription Agreement

The Subscription Agreement is a contract made by and between Merchant and CARROT Wellness. The Subscription Agreement will govern Merchant’s access to and use of the (a) CARROT Wellness application (“CARROT pass App”), which has been made available via the electronic marketplace owned and operated by Clover (hereinafter the “Clover App Market”); and (b) the CARROT Wellness services, including all applicable technology and applications, which are designed to facilitate an online loyalty program for Merchant’s business and distribute offers, discounts and rewards to Merchant’s customers (collectively, the “Subscription Services”). The Subscription Agreement is the complete and exclusive understanding and agreement between the parties and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Merchant’s access to and use of the Subscription Services.

1.2 Changes to the Subscription Agreement

CARROT Wellness last modified this Agreement (and the other documents that comprise the Subscription Agreement) on the date stated at the beginning of this Agreement and such documents. CARROT Wellness reserves the right, in its sole discretion, to change, modify, add, or remove all or part of any of the documents comprising the Subscription Agreement at any time and agrees to give Merchant notice of any material changes by posting such changes on the Site, emailing the changes to Merchant or posting the changes electronically via the CARROT Wellness App. Merchant is advised to check the Site and CARROT Wellness App from time to time for any changes or updates. Merchant’s continued use of the Subscription Services indicates its acceptance of the changes and updates.

 

2. Subscription Services

2.1 Registration

In order to receive the Subscription Services, Merchant must (a) download the CARROT Wellness App from the Clover App Market; (b) agree to the terms in the Subscription Agreement; and (c) complete the registration and account signup process, when prompted on the CARROT Wellness App.

During the registration and account signup process, Merchant will create an account and select and configure the Subscription Services, via a dashboard. During this process, Merchant will be asked to include details of its loyalty program for consumers who have installed the consumer-facing CARROT Wellness application on their mobile device or smart phone (the “Customers”). Merchant will then be asked to confirm the details set forth on the subscription confirmation page (“Subscription Confirmation”). Merchant represents and warrants to CARROT Wellness that the person providing the information has all rights necessary to provide such information and create the account, all information is truthful and accurate and the accuracy of such information will be maintained. Once Merchant has established its account, Merchant agrees to continuously use the Subscription Services during the term of this Agreement.

2.3 Revising Your Loyalty Program

At any time during the term of this Agreement, Merchant can reconfigure the Subscription Services via the dashboard. Merchant may add additional locations at any time via the dashboard and, after entering the additional location(s) to the dashboard, Merchant will again be asked to accept the then-current version of this Agreement when that option is made available. Merchant will be charged, in accordance with Section 5, for each additional location.

2.4 Equipment

The equipment that is needed for the Subscription Services is described on our Site, which is accessible via the CARROT Wellness App (see F.A.Q’s on the registration page). Merchant is solely responsible for obtaining and maintaining such equipment, including a reliable and fast connection to the internet. As part of the subscription, Merchant may receive the CARROT Wellness Beacon (“Beacon”) at additional charge. Upon receipt, the Beacon is owned by the Merchant and can only be used with the Subscriptions Services. Upon termination of the Subscription Services, Merchants are solely responsible for properly disposing of and discarding the Beacon. If at any time the Beacon fails to work, for any reason (damaged, low battery, faulty, etc.), Merchant may request a replacement Beacon which will be shipped by CARROT Wellness at no charge.

 

3. Using the Subscription Services

3.1 Offers

Merchant is solely responsible for the loyalty-based offerings made available to Customers (each an “Offer”). The Offer and all of the related information, including branding, trademarks, logos, data, text, images, graphics (“Content”), are provided and solely determined by Merchant. Merchant is solely responsible for ensuring the accuracy, reliability, integrity, quality and validity of the Offer and Content.

3.2 Rewards

Merchant is solely responsible for fulfilling the terms of its Offers and determining the criteria for Customers to earn and redeem perks, rewards, stamps, credits or incentives (“Rewards”). Merchant is solely responsible for honoring Rewards for eligible Customers who earn those Rewards and Merchant agrees not to withdraw or terminate any Offer after it has been made publicly available to Customers without offering a reasonable alternative method for Customers to redeem any Rewards related to the Offer.

3.3 Cost of the Offers and Rewards

The cost of Offers and Rewards is solely the expense of the Merchant. CARROT Wellness shall have no responsibility for any costs or expenses (including refunds) associated with Merchant’s Offers or Rewards and Merchants failure to issue, accept, fulfill or redeem any Rewards. If Merchant fails to comply with this Section and does not fulfill the terms of an Offer, CARROT Wellness, in its sole discretion, may charge Merchant for the total value of the outstanding and unredeemed Rewards, calculated by using a reasonable market rate at the time of termination of the applicable Offer.

3.4 Content

(a) By providing Content via the CARROT Wellness App, Merchant grants CARROT pass an irrevocable, perpetual, worldwide, royalty-free, non-exclusive, transferable, sublicense-able right and and license to use, modify (for formatting and display purposes), publicly perform, publicly display, reproduce and distribute such Content on and through the Site and CARROT Wellness' consumer applications. This license includes the right for CARROT Wellness to make Content available to other users of the Site who may access and use your Content.

(b) Although CARROT Wellness assumes no responsibility for monitoring the Site and your use of the Subscription Services, including via the CARROT Wellness App, for inappropriate Content or conduct, CARROT Wellness reserves the right at any time in its sole discretion to remove your Content for any or no reason, with or without prior notice or explanation, and without liability.

(c) You must not upload, post, email, transmit or otherwise make available any Content that: (i) is deemed harassing, threatening, indecent, obscene, pornographic, libelous, defamatory or otherwise objectionable, unlawful or tortious, harmful to children, or which violates third party privacy rights, as determined by CARROT Wellness in its sole discretion; (ii) is fraudulent, false, misleading or deceptive; (iii) will or may infringe the intellectual property rights of others; (iv) contains spam or otherwise duplicative or unsolicited messages in breach of any applicable laws, rules and regulations; or (v) contains software viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs.

(d) You represent and warrant that you own or have the necessary licenses, rights, consents, permissions and releases for your Content and to grant the licenses and rights set out in this Agreement. You are also responsible for any fees, royalties or other monies owing by reason of any Content you provide.

(e) The Service also contains Content provided by CARROT Wellness, including, without limitation, text, images and logos (“CARROT pass Content”). CARROT Wellness Content is protected by copyright, trademark, patent, trade secret and other laws, and CARROT Wellness owns and retains all rights in the CARROT Wellness Content and the features and functionality of the Subscription Services. CARROT Wellness hereby grants you a limited, revocable, non-sublicensable license to reproduce and display the CARROT Wellness Content (excluding any software code) solely for your personal use in connection with utilizing the Subscription Services.

3.5 Disputes

Any disputes regarding an Offer, Reward, your Content, and any other aspect of any transaction or commercial dealing related to your loyalty program is solely between you and your Customer.

3.6 Accepting Mobile Payments

Subject to (a) your download of the CARROT Wellness App (and related Technology, defined in Section 8 below) on your Clover point of sale device; (b) completion of the CARROT Wellness registration process; and (c) your use of the payment processing and related services provided by CARROT Wellness' Affiliate, you have the ability to accept mobile payments from your Customers via the CARROT Wellness consumer application and the CARROT Wellness App. Your acceptance and the processing of such transactions will be governed by the terms of your processing agreement with our Affiliate and will terminate upon the expiration or termination of such agreement. In addition, you have the sole responsibility to select and complete the programming required, pursuant to your processing agreement with our Affiliate, to accept the mobile payments contemplated herein.

 

4. Using the CARROT Wellness App and the Site

4.1

You may only use the CARROT Wellness App and the Site in accordance with (a) the Subscription Agreement, as updated by CARROT Wellness from time to time in its sole discretion; and (b) all applicable laws, rules and regulations. You must design your loyalty program in accordance with the terms and conditions set forth in the Subscription Agreement.

4.2

You are solely responsible for: (a) your acts and/or omissions in connection with your use of the CARROT Wellness App and the Site (including, but not limited to, any resulting loss or damage that CARROT Wellness or any third party may suffer); and (b) any breach or failure to comply with your obligations under the Subscription Agreement, and the consequences thereof (including, but not limited to, any resulting loss or damage that CARROT Wellness or any third party may suffer).

4.3

CARROT Wellness is constantly innovating in order to provide the best possible experience of the CARROT Wellness App and the Site. Accordingly, you acknowledge and agree that from time to time, and without prior notice, CARROT Wellness may in its sole discretion: (a) release updates to the CARROT Wellness App that you may need to install; or (b) prevent you from accessing the CARROT Wellness App (permanently or temporarily) or certain features within the CARROT Wellness App.

4.4

In addition, you may occasionally experience interruptions, delays or errors when using the CARROT Wellness App and/or the Site as a result of internet issues beyond CARROT Wellness' control, technical problems or scheduled downtime for maintenance. CARROT Wellness will try to minimize these incidents but CARROT Wellness cannot prevent them from occurring.

4.5 Prohibited Activities

You must not: (a) use any deep-link, robot, spider or other device or process to access or acquire, copy or monitor any portion of the Site or CARROT Wellness App; (b) attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or network connection to the Site, or to the CARROT Wellness App by hacking, password mining or any other illegal means; (c) probe, scan or test the vulnerability of the Site, CARROT Wellness App or any network connected thereto, nor breach the security or authentication measures on the Site, Perk App or any network or systems connected thereto; (d) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms in connection with any aspect of the Site or CARROT Wellness App; (e) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or CARROT Wellness App; (f) use any device, software or routine to interfere or attempt to interfere with the proper working of the Site, the CARROT Wellness App or with any other person’s use of the Site or the CARROT Wellness App; (g) interfere with or disrupt the Site, the CARROT Wellness App or servers or networks connected to the Site; (h) collect or store personal data about users of the Site or CARROT Wellness App other than in accordance with the Subscription Agreement and your use of the Subscription Services; (i) copy or reproduce all or any part of the CARROT Wellness App or the Site, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization; (j) republish, upload, post, transmit, disclose, or distribute (in any format) the Site or the CARROT Wellness App (or any part) except as permitted by the Subscription Agreement; (k) remove, relocate or otherwise alter any proprietary rights notices from the Site and the CARROT Wellness App (or any part thereof); (l) modify, rent, lease, loan, sell, distribute, or create derivative works based on the Site or the CARROT Wellness App in any manner; (m) exploit the Site, Subscription Services or the CARROT Wellness App in any unauthorized way whatsoever; or (n) use or access the CARROT Wellness App or Subscription Services for any benchmarking or competitive purposes.

4.6 Clover App Market

The following terms apply to your use of the CARROT Wellness App that is downloaded from the Clover App Market, a third party app distribution platform:

(a) The Subscription Agreement and the terms therein are between you and CARROT Wellness, and not Clover. CARROT Wellness has sole responsibility for the CARROT Wellness App. Clover assumes no obligations or responsibilities of any kind regarding the CARROT Wellness App.

(b) You must also comply with any applicable terms of use provided by Clover, when using the CARROT Wellness App. CARROT Wellness may release updates to the CARROT Wellness App from time to time that you may need to install. You may not remove any watermarks, labels or other legal or proprietary notices included in the CARROT Wellness App, and you may not attempt to modify the CARROT Wellness App, including any modification for the purpose of disguising or changing any indications of the ownership or source of the CARROT pass App.

(c) Except as set forth in 6.2(c) below, CARROT Wellness will provide you with reasonable advance notice prior to removing the CARROT Wellness App from future distribution via the Clover App Market. Merchant’s subscription and access to the Subscription Service may continue via the Site.

 

5. Fees and Payment

5.1 Prices

Prices for the Subscription Services are as set forth in the Subscription Confirmation and such price may be subject to sales tax. Payments are due monthly (each month considered a “billing cycle”). The payment dates are set forth in the Subscription Confirmation. Merchant must keep its billing information updated and if such information becomes inaccurate, the Subscription Services will be immediately suspended or terminated.

5.2 Refunds

The Subscription Services are provided “as is” and without any warranties, pursuant to Section 10; provided, however, CARROT Wellness will fully refund Merchant’s payment in a billing cycle if: (a) Merchant requests a refund from CARROT Wellness within forty-eight (48) hours of downloading the CARROT Wellness App and states that the CARROT Wellness App does not function properly and the value of the CARROT Wellness App cannot be substantially consumed or used; (b) Merchant terminates the Subscription Services, pursuant to Section 6.2(a) or (b), and notice of such termination was received by CARROT Wellness within the first fifteen (15) days of a billing cycle (and, with respect to Section 6.2(b), CARROT Wellness has failed to cure the breach within the fifteen (15) day cure period); or (c) CARROT Wellness immediately (and without notice) terminates Merchant’s access to the Subscription Services pursuant to Section 6.2(c) below.

 

6. Term and Termination

6.1 Effective Date

This Agreement is effective on the date it is electronically accepted and agreed to by Merchant.

6.2 Term and Termination

The term of the Subscription Agreement and the Subscription Services will continue on a month-to-month basis and will automatically renew upon the conclusion of each thirty (30) day period (as stated in the Subscription Confirmation) unless terminated by either party pursuant to the following:

(a) Merchant may terminate the Subscription Services and Subscription Agreement at any time for no specific reason. If Merchant terminates, Merchant agrees to provide at least thirty (30) days’ notice to its Customers and will allow Customers to continue participating in any existing Offers for such thirty (30) day notice period.

(b) Either party may terminate the Subscription Services and Subscription Agreement by giving the other party notice if the other party has breached a material provision of the Subscription Agreement and that breach is either (i) not capable of being cured; or (ii) capable of being cured, but remains uncured for thirty (30) days after the breaching party receives notice of the breach.

(c) CARROT Wellness may terminate the Subscription Services, immediately and without notice, if it is determined that the Subscription Services or CARROT Wellness App: (i) infringes or otherwise violates the intellectual property rights of a third party; (ii) violates any applicable law, regulation, card association rule, or is subject to an injunction; (iii) violates Clover’s policies and terms or creates liability for Clover; or (iv) has a virus, malware or spyware or has an adverse impact on the Clover App Market and related systems. In the event of this termination, CARROT Wellness will provide a refund pursuant to Section 5.2 above.

(d) With respect to the termination rights set forth in subsections (a) and (b) above, the Subscription Services will continue during any applicable notice or cure period and will be deemed terminated at the start of the next billing cycle, which shall be considered the “termination date”.

6.3 Survival of Terms

Any provisions that by their nature require survival in order to be effective, shall survive the termination of this Agreement.

 

7. Protection and Use of Information; the CARROT Wellness Privacy Policy

7.1

All information that CARROT Wellness collects from Merchants and their Customers is protected by and subject to CARROT Wellness' Privacy Policy, which is available for review on the Site.

7.2

In addition to the uses permitted by the Privacy Policy, CARROT Wellness may use Merchant’s contact information (available to CARROT Wellness via the CARROT Wellness App) to (a) provide Merchant with information about activating and using particular features of the Subscription Services and CARROT Wellness Clover-App; (b) provide Merchant with service-related notifications, including, but not limited to, notification of planned service outages; and (c) provide Merchant with updates and information about the success of its online loyalty program. Merchant will have the right to opt-out of any communications, except service-related notifications, from CARROT Wellness. CARROT Wellness will share only Customer names with Merchant, as permitted by Customers in connection with their registration for and use of Merchant’s loyalty program.

7.3

Merchant will not use or release any Customer information (including to CARROT Wellness) except with such Customer’s express consent, including in connection with a Merchant’s marketing campaign to potential customers and CARROT Wellness' assistance with such marketing. Merchant will abide by and is solely responsible for all applicable laws and regulations in connection with its use or release of Customer’s and potential customer’s information.

7.4

In connection with Merchant’s acceptance of mobile payments from its Customers via Merchant’s Clover point-of-sale device, such acceptance of mobile payments is governed by the terms of your processing agreement with CARROT Wellness' Affiliate. All transaction data sent to our Affiliate’s servers is encrypted and protected by industry standard measures.

 

8. Technology

Merchant acknowledges that the Subscription Services, the CARROT Wellness App, and any CARROT Wellness equipment, database, software and other technology used to provide the Subscription Services and operate the Site (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of CARROT Wellness. Merchant will not, and will not permit any third party to: (a) alter, modify, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of Technology; (b) interfere in any manner with the operation of the Technology or attempt to gain unauthorized access to the Technology; (c) sublicense, delegate, or transfer any of Merchant’s rights or obligations under this Agreement, including, without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties, or otherwise make available the Technology to any third party; or (d) use the Technology except as explicitly permitted by the Subscription Agreement. For the avoidance of doubt, Technology includes the software, and integration of such software, necessary to allow you to accept mobile payments from your Customers via the CARROT Wellness consumer applications and the CARROT Wellness App.

 

9. Ownership and Licensing (End User License Agreement)

9.1

CARROT Wellness grants to you a personal, non-exclusive, non-transferable, revocable license to download and use the CARROT Wellness App on devices owned by you and to access and use the Site for your internal business use only in accordance with the Subscription Agreement and without the right to sub-license or assign in any way. CARROT Wellness may from time to time upgrade, update or modify the CARROT Wellness App, release new versions of the CARROT Wellness App or create new related modules, each of which may, at CARROT Wellness' sole discretion, be included in this license. For the avoidance of doubt, this license is provided by CARROT Wellness and not Clover or its agents, subcontractors, representatives or employees.

9.2

All intellectual property rights in or related to the CARROT Wellness App and the Site are and remain the sole and exclusive property of CARROT Wellness and its licensors, and all right, title and interest associated with the CARROT Wellness App and the Site not expressly granted by CARROT Wellness under the Subscription Agreement are withheld.

9.3

You are not granted any rights or license in or to the CARROT Wellness name, trademarks, service marks, graphics or logos, which are and will remain the sole and exclusive property of CARROT Wellness.

9.4

Subject to your license grant in Section 3.4, all intellectual property rights in or related to your Content are and remain your sole and exclusive property, and all right, title and interest associated with your Content, not expressly granted by you herein, are withheld. You hereby irrevocably waive and cause to be waived against CARROT Wellness any claims and assertions of moral rights or attribution with respect to your Content.

9.5

The licenses granted hereunder may be subject to other licenses currently held by us or our subcontractors. Should any license held by us to certain technology or software be terminated or suspended, the corresponding license(s) granted to you hereunder may also be terminated or suspended in our sole and absolute discretion. You acknowledge and agree to such potential termination or suspension and hereby waive any and all damages, whether actual, incidental or consequential resulting therefrom.

 

10. Disclaimers of Warranties

10.1

THE SITE AND THE CARROT Wellness APP ARE PROVIDED "AS IS" AND "AS AVAILABLE". CARROT Wellness EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES AND CONDITIONS OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, CARROT Wellness MAKES NO WARRANTY THAT: (A) THE SUBSCRIPTION SERVICES AND CARROT Wellness APP WILL MEET MERCHANTS REQUIREMENTS; (B) THE SUBSCRIPTION SERVICES AND CARROT Wellness APP WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SUBSCRIPTION SERVICES AND CARROT Wellness APP WILL BE ACCURATE, TIMELY, OR RELIABLE; OR (D) THE QUALITY OF SUBSCRIPTION SERVICES AND CARROT Wellness APP WILL MEET MERCHANTS EXPECTATIONS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSIONS OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.

10.2

CARROT Wellness HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSSES YOU MAY INCUR FROM UNAUTHORIZED USE OF YOUR CARROT Wellness ACCOUNT, EITHER WITH OR WITHOUT YOUR KNOWLEDGE. HOWEVER, YOU COULD BE HELD LIABLE FOR LOSSES INCURRED BY CARROT Wellness OR ANOTHER DUE TO THE UNAUTHORIZED USE OF YOUR CARROT Wellness ACCOUNT AND YOU WILL INDEMNIFY AND HOLD CARROT Wellness HARMLESS FOR ANY IMPROPER OR ILLEGAL USE OF YOUR CARROT Wellness ACCOUNT.

10.3

CARROT Wellness DOES NOT REVIEW OR MONITOR MERCHANT CONDUCT OR ANY PROMOTIONAL CONTENT INPUT INTO A CARROT Wellness APPLICATION OR POSTED ON THE SITE. ACCORDINGLY YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF PROMOTIONAL CONTENT IS AT YOUR SOLE RISK. CARROT Wellness HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSSES YOU MAY INCUR RELATING TO YOUR CONDUCT OR PROMOTIONAL CONTENT.

10.4

The Site may include links to other websites provided by third parties. CARROT Wellness HAS NO CONTROL OVER THE CONTENT OF THOSE WEBSITES. CARROT Wellness DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY SUCH WEBSITES, THEIR CONTENT OR THEIR PRIVACY PRACTICES. CARROT Wellness WILL NOT BE RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO, ANY LOSS OR DAMAGES CAUSED BY USE OR RELIANCE ON ANY CONTENT, FEATURES, GOODS OR SERVICES MADE AVAILABLE THROUGH SUCH WEBSITES. CARROT Wellness WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION ENTERED INTO BY YOU IN CONNECTION WITH OTHER WEBSITES PROVIDED BY THIRD PARTIES.

 

11. Limitation on Liability

11.1

YOU WILL HAVE NO CLAIMS AGAINST CARROT Wellness AND IN NO EVENT WILL CARROT Wellness, ITS AFFILIATES OR ITS LICENSORS BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS INCURRED BY YOU, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, COMPENSATORY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR PERSONAL INJURY, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF PRIVACY, LOSS OF PROFITS OR REVENUE INCURRED BY YOU OR ANY THIRD PARTY IRRESPECTIVE OF WHETHER WE HAVE BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS ARISING FROM YOUR ACCESS TO, OR USE OF, OR INABILITY TO USE THE SITE OR THE CARROT Wellness APP.

11.2

NEITHER CLOVER NOR ITS AGENTS, SUBCONTRACTORS, REPRESENTATIVES OR EMPLOYEES WILL BE LIABLE TO MERCHANT IN ANY WAY WITH RESPECT TO MERCHANT’S USE OF THE SUBSCRIPTION SERVICES AND CARROT Wellness APP.

11.3

IF THE DISCLAIMERS OR LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FOR ANY REASON HELD BY A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION TO BE VOID, UNENFORCEABLE OR INAPPLICABLE, SUCH PROVISIONS WILL BE LIMITED OR ELIMINATED TO THE MINIMUM EXTENT NECESSARY AND REPLACED WITH A VALID PROVISION THAT BEST EMBODIES THE INTENT OF THE SUBSCRIPTION AGREEMENT, PROVIDED, IN NO EVENT WILL THE AGGREGATE LIABILITY OF CARROT pass OR ITS AFFILIATES TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THE SUBSCRIPTION AGREEMENT OR YOUR ACCESS TO AND USE OF THE SITE, THE SUBSCRIPTION SERVICES, OR THE CARROT Wellness APP EXCEED THE AMOUNT OF TWO HUNDRED FIFTY DOLLARS ($250.00), REGARDLESS OF THE FORM OR THEORY OF THE ACTION OR CLAIM.

 

12. Indemnification and Waiver

12.1

BY USING THE SUBSCRIPTION SERVICES AND CARROT Wellness APP, MERCHANT AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD CARROT Wellness, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS (INCLUDING THIRD PARTY CLAIMS) ARISING OUT OF (A) THE SUBSCRIPTION AGREEMENT; (B) MERCHANT’S USE OR ACCESS TO THE SUBSCRIPTION SERVICES, THE SITE AND CARROT Wellness APP; (C) THE PROMOTIONAL CONTENT INCLUDING, WITHOUT LIMITATION, YOUR FAILURE TO HONOR ANY OF YOUR COMMITMENTS REGARDING THE OFFERS AND REWARDS.

12.2

YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM CARROT Wellness, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS AS A RESULT OF ITS DECISION TO (A) REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, (B) WARN YOU, SUSPEND OR TERMINATE YOUR ACCESS TO THE SITE AND CARROT Wellness APP, OR (C) TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF CARROT Wellness' CONCLUSION THAT A VIOLATION OF THE SUBSCRIPTION AGREEMENT HAS OCCURRED.

12.3

THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.

 

13. Notice

Any notice, consent, approval and other communication (“Notice”) provided to CARROT Wellness by Merchant under the Subscription Agreement must be delivered in writing by e-mail to support@CARROT pass.com. CARROT Wellness may provide Notice to Merchant under the Subscription Agreement by (a) posting of a general notice on the Site or via the CARROT Wellness App, (b) electronic mail to Merchant’s e-mail address on record with CARROT Wellness, or (c) certified or registered mail (postage prepaid and return receipt requested) to Merchant’s address on record. Merchant consents to receiving Notice as described in the preceding sentence and agrees that all Notices received electronically will satisfy any legal requirement that Notices be in writing. Any Notice sent under this Section 12 will be effective upon either receipt, expiration of forty-eight (48) hours after posting to the Site, or twelve (12) hours after sending (if sent by email), whichever occurs earliest.

 

14. Governing Law and Venue

The Subscription Agreement will be governed by the laws of the State of New York, USA, excluding its conflict of laws principles. The parties hereby irrevocably consent to jurisdiction and venue in the state and federal courts sitting in the county of Suffolk, New York. In any such dispute, the prevailing party will be entitled to recover its reasonable attorneys’ fees and expenses from the other party. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THE SUBSCRIPTION SERVICES, THE PERK-CLOVER A APP AND USE OF THE SITE.

 

15. General

15.1

A failure by CARROT Wellness to enforce any right or provision of the Subscription Agreement will not constitute a waiver by CARROT Wellness of future enforcement of that right or provision or any other right or provision.

15.2

If any provision of the Subscription Agreement is held to be invalid or unenforceable, that provision will be inoperative only to the extent necessary and will be severed from the remainder of the Subscription Agreement. The rest of the Subscription Agreement will remain in full force and effect.

15.3

Except as specifically stated, no third party will have any rights under, or be able to enforce, the Subscription Agreement.

15.4

You must not assign or transfer any of your rights or obligations under the Subscription Agreement, in whole or in part, by operation of law or otherwise, without the prior written approval of CARROT Wellness. You must enter into any documents required by CARROT Wellness to effectuate an assignment or transfer by CARROT Wellness of its rights and obligations under the Subscription Agreement.

15.5

The Subscription Agreement establishes an independent contractor relationship between you and CARROT Wellness, and does not create any affiliate relationship, partnership, joint venture, employment relationship, agency, or fiduciary or other special relationship between you and CARROT Wellness. Except as expressly stated in the Subscription Agreement, neither party has the authority to act or purport to act as the other party's agent or representative for any purpose.

15.6

The Subscription Agreement constitutes the entire and complete legal agreement between you and CARROT Wellness regarding its subject matter, and completely replaces any prior or contemporaneous agreements or understanding, written or oral, between you and CARROT Wellness regarding its subject matter. Each party acknowledges that it has not relied on any oral or written representations made to it (whether made negligently or innocently) other than as expressly set out in the Subscription Agreement. Nothing in this Section 15.6 will limit or exclude your liability for fraud.

 

16. CARROT Wellness Affiliates

References to CARROT Wellness' “Affiliates”, including CARROT pass, Ltd, means all present or future legal entities that are directly or indirectly owned or controlled by Marvel Apps, LLC and its subsidiaries. The term “control” in the preceding sentence means the ability to direct the management of such entity and the term “owns” or “ownership” means the beneficial ownership of more than fifty percent (50%) of the equity interest in an entity.

 

17. Support Services

CARROT Wellness will provide technical support and answer questions related to the Subscription Services and CARROT Wellness App on the Site via the “Support” link.