GroupCollect Terms and Conditions
IMPORTANT: THIS SOFTWARE AS A SERVICE AGREEMENT (“The Agreement”) IS A BINDING LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY) AND GROUPCOLLECT. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SERVICES. IT PROVIDES A LICENSE TO USE THE SERVICES AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY CLICKING THE “I ACCEPT” BUTTON AND USING THE SERVICES YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SERVICES AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICES.
You acknowledge and agree that we may change these Terms and Conditions from time to time and that those changes become effective immediately. If we make material changes, we will provide you notice. Your continued use of our services following the notice of any changes constitutes your acceptance and agreement to be bound by such changes.
(a) “Agreement” means the written (or electronic) agreement entered into between GroupCollect and the Merchant regarding payment processing services to which these General Terms are applied and are an integral part of.
(b) “Acquirer” is a third-party entity, such as a credit card network processor or bank, that receives and processes End-User Customer payment information and remit payment funds in accordance with and subject to certain policies, procedures and standards, and/or an acquiring bank that screens and accepts sales drafts and completes financial settlement for the respective sale transaction on behalf of GroupCollect or Merchant.
(c) “Acquirer Agreement” is an agreement between the Merchant and an Acquirer enabling the Merchant to act as a merchant or sub-merchant in transactions that are processed through the relevant Acquirer.
(d) “Group Collect, LLC” (hereinafter GroupCollect) is a limited liability corporation organized and existing under the laws of the State of Florida, with its head office located at 7 Old Mission Ave., Saint Augustine, Florida 32084, and is the owner and authorized distributor of GroupCollect Services.
(e) “Confidential Information” means the Services, Documentation, Specifications and Terms and Conditions of the Agreement.
(f) “Customer” A Consumer or company that purchases products or services online from the Merchant.
(g) "Customer Data" means any personal data of Your customers of any type that is submitted to the Services by You or your customers.
(h) “Merchant” A company selling its products or services online to Customers and who has entered into the Agreement with GroupCollect. The Merchant is the vendor of the products or services and the creditor of the Customer.
(i) Merchant ID refers to GroupCollect’s own account(s) at recognized Acquirer(s) and used by GroupCollect to process payment for Products in respect of certain payment transactions conducted through the GroupCollect Payment Services where GroupCollect shall process the transaction through GroupCollect’s Merchant ID on behalf of Merchant.
(j) “Merchant of Record” is the party formally recorded as conducting the payment transaction with an End-User Customer.
(k) “Order Forms” means the ordering document signed by the parties that accompanies and incorporates the Services as a service agreement, including the services policies and any other document referenced or incorporated into the ordering document.
(l) “Product” means goods or services, or a combination thereof supplied to the Customer in accordance with the terms of the sale agreement(s) entered into between the Merchant and the Customer.
(m) “Services” means the GroupCollect software as a merchant of record platform and any third-party computer platform contained therein not explicitly subject to a different license, in each case supplied by GroupCollect herewith, and, if applicable, the corresponding documentation, associated media, printed materials and online or electronic documentation, and all updates or upgrades of the above that are provided to you.
(n) “User” means those individuals authorized by you or on your behalf to use the services, as defined in the ordering document.
(o) “You” and “Your” means the individual or entity that has ordered GroupCollect Services.
2 MERCHANT OF RECORD
2.1 MERCHANT OF RECORD
Subject to the terms and conditions of this Agreement, during the Term of the Agreement and by means of the GroupCollect Merchant ID, GroupCollect will process transactions for payment from Customers for Products from GroupCollect as Merchant of Record.
Where GroupCollect provides the Services through the GroupCollect Merchant ID, it is agreed that GroupCollect has license from the Merchant to perform such sales transactions through the GroupCollect Merchant ID. GroupCollect Merchant ID refers to GroupCollect’s account(s) at recognized Acquirer(s) and used by GroupCollect to process payment for Products. The Customer is informed at time of sale of GroupCollect as Merchant of record.
GroupCollect will not enter into any contracts or commitments in the name of, or on behalf of, Merchant. As a Services Provider, GroupCollect shall not take possession or control of any Products but shall only render payment services. GroupCollect is not the custodian of any monies and is never in possession of such funds. All funds are held and controlled by the payment service provider.
You must open an account with us to use the Services. During registration we will ask you for information, which may include but is not limited to, your name and other personal information. You must provide accurate and complete information in response to our questions, and you must keep that information current. Once registered, you are responsible for maintaining the confidentiality of your passwords, login and account information. You will be responsible for all use of the services by you, anyone using your password and login information (with or without your permission) and anyone who you allow to access the services. If at any time you have reason to believe that your account is no longer secure (through for example: loss, theft, identity theft, hacking, or unauthorized disclosure or use of your information or computer or mobile device used to access the Services), you are solely responsible to promptly change any and all of your Personal information that is affected. We reserve the right to change the account type, suspend or terminate the account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
3.2 MERCHANT INFORMATION AND OBLIGATIONS
The Merchant shall provide GroupCollect with all the information, approvals, powers of attorney and other documents and authorizations, as specified by GroupCollect periodically, in order for GroupCollect to provide the Services and the System.
To carry out the provision of the Services and to ensure accurate and timely processing of all of the Sales, the Merchant shall provide all necessary data in compliance with the specifications as provided by GroupCollect. The Merchant acknowledges that its failure to comply with the specifications for data delivery may result in a delay, suspension or cancellation of processing of the effected Sales.
Merchant warrants that it has all right, title and license in Products to permit GroupCollect the right of processing the transaction with GroupCollect as the merchant of record. In the event that Merchant breaches this warranty, GroupCollect may immediately suspend or terminate Services for Merchant.
The Merchant represents and warrants that all Customer sales are valid and the products and/or services are marketed and delivered to the Customers in accordance with the applicable law and any sale agreements. The Merchant shall be responsible for the sale to the Customer as a vendor, as specified by the applicable law and any sale agreement terms and conditions.
In particular in the sale of Consumer goods or services, the Merchant must indicate on its website the price and shipping costs of the consumer goods or services being sold and provide all other information required by applicable laws. The total price, shipping costs and all other terms and conditions applicable to the sale shall also be communicated to the consumer in writing or electronically in such a way that the consumer can record or reproduce the information in an unaltered form.
Merchant shall comply with all applicable state and country laws and regulations where Merchant is registered/located as from time to time in force regarding data protection, consumer rights, ecommerce, provision of services, consumer rights, protection and contracts.
Merchant will not act as a payment facilitator or otherwise resell the Services to any third party. Merchant shall not use the Payment Services to handle, process or transmit funds for any third party or use the Services to process cash advances.
3.3 RIGHTS AND OBLIGATIONS
Under no circumstance is GroupCollect responsible for a Customer paying the Merchant, furthermore GroupCollect does not take ownership of or responsibility for any goods or services supplied or to be supplied by the Merchant to the Customer.
GroupCollect shall not provide any Customer support and shall refer any possible queries from the Customers to the Merchant.
GroupCollect may, in its sole discretion, modify or suspend the provision of the Services and/or the System due to suspected illegal activities or if the provision of the Services and/or the System is compromised by the Merchant or any Customer.
GroupCollect may furnish the Merchant periodic advice and assistance with respect to the Services and the System, as GroupCollect determines to be reasonably necessary, including consultation and advice regarding the implementation of payment methods appropriate to the Merchant’s market.
All information based on customers’ activity in the System or Service belongs to GroupCollect and GroupCollect is allowed to use it for producing payment services, however, acknowledging the confidential pieces of Customers' and Merchants' information. GroupCollect has the right to use Customer information received from the Merchant for producing the payment service and simplifying Customers' payment transactions. GroupCollect has no right to disclose Customer information to third party without the Customer's specific consent.
As part of performing Services under this Agreement, GroupCollect may conduct fraud checks. Merchant acknowledges and agrees that such fraud checks may delay transactions and payment collection from Customers. In the event a Customer seeks to cancel an order due to such delay, GroupCollect will not be liable to the Merchant for such cancellation.
4 LICENSE AND OWNERSHIP
4.1 RIGHT TO ACCESS
Upon GroupCollect’s acceptance of your order and for the duration of the service term defined in the ordering document you have a non-exclusive, non-transferable, royalty free, worldwide limited right to install and use the services solely for your internal business operations and subject to the terms and conditions of this Agreement. You may allow your users to use the services for this purpose and you are responsible for your users’ compliance with the agreement. The services are provided as described in, and subject to, the services policies referenced in the ordering document.
You acknowledge that GroupCollect has no delivery obligation and will not ship copies of the GroupCollect programs to you as part of the services. You agree that you do not acquire under the agreement any license to use the GroupCollect programs specified in the ordering document in excess of the scope and/or duration of the services. Upon the end of the agreement or the services thereunder, your right to access or use the GroupCollect programs specified in the ordering document and the services shall terminate.
4.2 OWNERSHIP, DISTRIBUTION AND RESTRICTION ON USE
You retain all ownership and intellectual property rights in and to your data. GroupCollect retains all ownership and intellectual property rights to the services and GroupCollect programs. GroupCollect retains all ownership and intellectual property rights to anything developed and delivered under the agreement. Third party technology that may be appropriate or necessary for use with some GroupCollect programs is specified in the program documentation or ordering document as applicable. Your right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by GroupCollect and not under the agreement.
(a) You may not reproduce in any way or distribute copies of the Services, make available the Services in any way to third parties, upload the Services on any website or electronically transfer the Services from one computer to another or over a network, except as expressly authorized under the terms of the Agreement;
(b) You may not alter, merge, modify, adapt or translate the Services, or decompile, reverse engineer, disassemble, or otherwise reduce the Services to a human-perceivable form or undertake any activity intended to bypass, defeat or otherwise circumvent (or having the effect of facilitating, modifying, or assisting the bypassing, defeating or circumventing of) the proper and/or secure operation of the Services or breach any patent held or patent application deposited by GroupCollect in any way;
(c) You may not sell, rent, lease, loan or sublicense the Services;
(d) You may not modify the Services or create derivative works based upon the Services.
5 PRICE AND PAYMENT
5.1 PAYMENT AND PRICE
The Merchant shall pay GroupCollect the fees for i) the payments made by the Customers to the Merchants due to the Sales; ii) the right to use the System and the Services as well as iii) other remunerations in accordance with the Agreement.
Payment for GroupCollect’s services is directly deducted from the settlement and the remaining amount is transferred to the Merchant. The settlement is the payments the Merchant receives from the Customers on behalf of the Merchant from the sales.
If the Merchant has requested that some or all of the collected payments from the Customers be converted into a currency other than the one in which they were collected prior to transfer to the Merchant, then the exchange rates used for such conversion will be made known to the Merchant. The right to raise objection against the used exchange rates shall be waived and invalidated if such objection is not made within fourteen (14) days after receipt of said notification to the Merchant.
5.2 CHARGEBACKS, REFUNDS, REVERESED PAYMENTS
The Merchant assumes full credit risk for the Customers. This liability is not subject to any limitation of liability that may be expressed elsewhere in the Agreement or these General Terms and survives any termination of the Agreement.
In accordance with the applicable law, the Consumer or the Customer may have the right to withdraw from the Sale agreement by notifying the Merchant within the period specified in the law or terminate the Sale agreement. If the Sale is cancelled, terminated or becomes void by virtue of the law and GroupCollect is responsible for reimbursing all the payments received from the Consumer, the Merchant shall compensate GroupCollect for this amount as well as the settlement costs with a 13% settlement fee. GroupCollect is entitled to set off any amount the Merchant is liable for from the payments GroupCollect shall transfer to the Merchant due to the Sales.
The Merchant shall also compensate GroupCollect for all the expenses incurred upon a dispute rising with regard to the Sale.
Merchant will assist when requested, at Merchant’s expense, to investigate any Merchant transactions processed through the Services. You hereby authorize GroupCollect to share information regarding a Chargeback with the customer, the customer’s financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. GroupCollect will use information we request of you and any content you upload through the Service to respond to Chargebacks on your behalf. If the Chargeback is contested successfully, we will release the reserved funds to your Account. If a Chargeback dispute is not resolved in your favor by the Acquirer or issuing bank or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in these terms from you. Without prejudice to your right to appeal a reported chargeback or reversed payment with the acquiring bank, you explicitly agree to accept any such reported reversed payments, penalties or other fees and expenses reported by GroupCollect provided that GroupCollect notifies the Merchant of any such amount.
Your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible Chargeback. In such circumstances, GroupCollect reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.
5.3 HOLDBACKS, ROLLING RESERVES, AND EXCESSIVE CHARGEBACKS
“Holdbacks” are sums that GroupCollect may in its sole discretion without prior notice hold in reserve against Merchant’s account during exposure or potential exposure to high frequency of refunds or Chargebacks or following significant variations in monthly sales volume, so as to ensure there are sufficient funds held in Merchant’s account to meet potential Refund and Chargeback requests. Should GroupCollect be subject to, or have reasonable cause to believe that it may be exposed to any negative Merchant account balance, or any claims, fines, penalties, non-compliance charges or additional fees levied by any Acquirer, Card Association or legal authority due to Merchant’s acts or omissions, or as a result of default, breach or termination of this Agreement, fraud, money laundering, illegal, unauthorized or improper actions of Merchant and/or Merchant’s customers, GroupCollect may in its sole discretion and without prior notice holdback in reserve additional sums for such period as it deems necessary to secure and make whole its financial position.
“Rolling Reserve” – GroupCollect may in its sole discretion set a six-month Rolling Reserve from each payment due to Merchant to meet potential Refunds and Chargeback requests. Such reserve may be increased in period and amount where GroupCollect determines there to be a significant risk of exposure, or in order to be at a level and coterminous with such reserve period set by Acquirers used to process Merchant’s transactions through GroupCollect. A Rolling Reserve may also be imposed for any business category deemed by GroupCollect or any relevant Acquirer to be of a high than usual risk, such as travel and events.
Should there be insufficient funds in Merchant’s account at any time to provide any required Holdback or Rolling Reserve, GroupCollect shall be entitled to issue a written demand for the required funds. If within 48 hours, Merchant fails to provide such funds or provide GroupCollect with a form of guarantee for payment that is acceptable to GroupCollect, then GroupCollect may immediately suspend Merchant’s account or terminate this agreement.
GroupCollect may place Merchant into GroupCollect’s Excessive Chargeback Management Program or under a Card Association’s excessive chargeback requirements program if in GroupCollect’s or Acquirer’s sole discretion there is undue commercial risk or excessive volume of Chargebacks. Merchant shall be liable in respect of all charges relating to such programs and for any fees, assessments, penalties or fines levied by the Acquirer or Card Association in relation to said excessive chargebacks.
5.4 RIGHT OF SET OFF, DEBIT, AND INVOICE
GroupCollect shall be entitled to issue an invoice for any shortfall of funds in the Merchant’s account. GroupCollect may issue and invoice for and recover from Merchant or setoff against current or future amounts due GroupCollect under this Agreement, payments that are charged back or disputed by Customers, and also in respect of any fines, penalties, non-compliance charges and/or fees imposed on GroupCollect by any relevant authority or Acquirer due to Merchant’s act, default or omission, including sums chargeable in relation to any GroupCollect or Card Association Excessive Chargeback Management Program.
Notwithstanding whether an invoice has been issued or not, if the amount of Merchant’s funds held by GroupCollect is insufficient to meet Merchant’s obligations or cover GroupCollect’s financial exposure regarding the Merchant’s account, to the extent permitted by law, GroupCollect may obtain collection of all sums due from Merchant to GroupCollect including sums required by way of refunds, Chargebacks, Holdbacks or Rolling Reserves by debiting such sums directly from any bank accounts used or registered by Merchant for payment from GroupCollect (“Bank Accounts”). Merchant grants to GroupCollect Recovery Authorizations concerning funds Merchant is obligated to repay GroupCollect. Additionally, Merchant hereby authorizes GroupCollect to administratively freeze or direct any third-party bank holding the account to freeze all such accounts to allow GroupCollect to protect our security interest, collection, charge and setoff rights as provided for in this section. Merchant’s failure to discharge such amounts on demand shall be a material breach of this Agreement and Merchant will be liable for GroupCollect’s costs of collection in addition to the sum owed including without limitation, attorneys’ fees, expenses, costs of any arbitration process or court fees, interest, and collection charges.
5.5 HELD FUNDS
Should GroupCollect hold funds that are due to Merchant under this Agreement that it is unable to deliver because Merchant has not provided its current contact information or Merchant's account has become inactive or dormant but not terminated, it is agreed that GroupCollect may assess account maintenance, inactivity or dormant account fees as applicable until any balance is eliminated or Merchant makes contact to obtain the balance remaining at the time of contact less any applicable deductions, all subject ultimately to requirements of law.
When required under applicable law as applies to the business relationship hereunder, GroupCollect shall charge, collect and pay taxes to the appropriate authorities; otherwise the Merchant shall have sole responsibility and liability to collect and remit taxes. To the extent that Merchant is required under applicable law to charge, collect and pay taxes, said taxes shall be paid by Merchant directly to the appropriate authorities.
GroupCollect may charge interest at the rate of 1.5% per month or at the highest amount permitted by applicable law on any negative balance on the Merchant’s account. Such interest to accrue on a daily basis after as well as before any judgment relating to collection of the amount due.
6 PROPRIETARY RIGHTS
This is a subscription agreement for access to and use of the Services. You acknowledge that you are obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale" or like terms in this Agreement no ownership rights are being conveyed to You under this Agreement. You agree that GroupCollect or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "GroupCollect Technology"). Except as expressly set forth in this Agreement, no rights in any GroupCollect Technology are granted to You. Further, You acknowledge that the Services are offered as an on-line, hosted solution, and that You have no right to obtain a copy of any of the Services, except as provided by GroupCollect.
7.1 CONFIDENTIAL INFORMATION OF GROUPCOLLECT
Merchant acknowledges the confidential and proprietary nature of the Confidential Information and agrees that it shall not reveal or disclose any Confidential Information for any purpose to any other person, firm, corporation, or other entity, other than Your employees with a need to know such Confidential Information to perform employment responsibilities consistent with Your rights under this Agreement. You shall safeguard and protect the Confidential Information from theft, piracy, or unauthorized access in a manner at least consistent with the protections You use to protect Your own most confidential information. You shall inform your employees of their obligations under this Agreement, and shall take such steps as may be reasonable in the circumstances, or as may be reasonably requested by GroupCollect, to prevent any unauthorized disclosure, copying or use of the Confidential Information. You acknowledge and agree that in the event of Your breach of this Agreement, GroupCollect will suffer irreparable injuries not compensated by money damages and therefore shall not have an adequate remedy at law. Accordingly, GroupCollect shall be entitled to a preliminary and final injunction without the necessity of posting any bond or undertaking in connection therewith to prevent any further breach of these confidentiality obligations or further unauthorized use of Confidential Information. This remedy is separate and apart from any other remedy GroupCollect may have.
If Merchant is compelled by law to disclose GroupCollect’s Confidential Information it may do so; provided that it provides GroupCollect with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Merchant’s cost, if GroupCollect wishes to contest the disclosure.
Upon termination or expiration of this Agreement, Merchant shall return all copies of GroupCollect’s confidential information (with the exception of 1 archival copy for the purpose of compliance with these obligations) or remove same from all media and destroy same.
The obligations under this section shall continue until such time as the Information is no longer Confidential.
7.2 CUSTOMER DATA
(B) Storage of Customer Data. GroupCollect does not provide an archiving service. GroupCollect agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Your applicable Subscription Term. GroupCollect expressly disclaims all other obligations with respect to storage.
(C) Customer Obligations. (a) In General. You are solely responsible for the accuracy, content and legality of all Customer Data. You represent and warrant to GroupCollect that You have all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting GroupCollect the rights in Section 7.2(A) (Rights to Customer Data)) and that no Customer Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws (including but not limited to GDPR), or (iii) any terms of service, privacy policies or other agreements governing Your accounts with any Third-Party Platforms. You further represent and warrant that all Customer Data complies with the GDPR. You will be fully responsible for any Customer Data submitted to the Services by any person as if it was submitted by You. b) No Sensitive Personal Information. You specifically agree not to use the Services to collect, store, process or transmit any Sensitive Personal Information, other than that information necessary to use the Services. Customer acknowledges that GroupCollect is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. GroupCollect will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
(D) Security. GroupCollect agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Customer Data. However, GroupCollect will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond GroupCollect’s control.
7.3 UNAUTHORIZED DISCLOSUREYou shall notify GroupCollect immediately upon discovery of any prohibited use or disclosure of the Confidential Information, or any other breach of these confidentiality obligations by You, and shall fully cooperate with GroupCollect to help GroupCollect regain possession of the Confidential Information and prevent the further prohibited use or disclosure of the Confidential Information.
GroupCollect warrants to and for the benefit of You only that, for a period of ninety (90) days after commercial sale to You (the "Services Warranty Period"), the Services will operate substantially in accordance with the specifications published by GroupCollect for such Services. If it is determined the Services do not operate substantially in accordance with the specifications published by GroupCollect for such Services, then at GroupCollect’s sole discretion, (a) such Services will be modified or replaced so that it does operate substantially in accordance with such specifications and returned to You freight prepaid, or, at GroupCollect’s election, (b) the amount paid by You to GroupCollect for the Services which fails to so operate in accordance such specifications will be refunded to You and thereupon the license to use such Services shall terminate. GroupCollect shall have no warranty obligations whatsoever with respect to any Services which has been modified in any manner from the form in which it was delivered by GroupCollect.
8.2 DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.1 GROUPCOLLECT MAKES NO REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND GROUPCOLLECT SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
9.1 INDEMNIFICATION BY GROUPCOLLECT
GroupCollect hereby indemnifies You against any claims that the Services, furnished and used within the scope of the Agreement, infringes any United States registered copyright or patent, provided that: (1) GroupCollect is given prompt notice of the claim; (2) GroupCollect is given immediate and complete control over the defense and/or settlement; (3) You does not prejudice in any manner GroupCollect’s conduct of such claim; and (4) the alleged infringement is not based upon the use of the Services in a manner prohibited under the Agreement, in a manner for which the Services was not designed , or in a manner not in accordance with the specifications.
9.2 INDEMNIFICATION BY YOU
You hereby indemnify and hold harmless GroupCollect against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon the breach of any Customer Data. The Merchant shall indemnify and hold GroupCollect harmless against all expenses, costs, damages, interests incurred by GroupCollect based on the Sale or Agreement, misuse of credit cards, account information, or the Service.
9.3 ALTERED VERSION
GroupCollect shall have no liability for any claim of infringement based on (a) the use of superseded or altered version of the Services in infringement would have been avoided by the use of a current or unaltered version of the Services which GroupCollect made available to You; or (b) the combination, operation, or use of the Services with Services or hardware, or other materials not furnished by the GroupCollect.
10 LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY APPLICABLE LAWS. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES SET FORTH IN THE AGREEMENT.
GROUPCOLLECT DOES NOT ASSUME ANY LIABILITY FOR MERCHANT’S FAILURE TO PERFORM INACCORDANCE WITH THIS AGREEMENT OR ANY RESULTS CAUSED BY MERCHANT’S ACTS,OMISSIONS OR NEGLIGENCE, OR A SUBCONTRACTOR OR AN AGENT OF MERCHANT OR AN EMPLOYEE OF MERCHANT OR ANY OF MERCHANT’S AGENTS OR SUBCONTRACTORS, NOR SHALL GROUPCOLLECT HAVE ANY LIABILITY FOR CLAIMS OF THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, CLAIMS OF THIRD PARTIES ARISING OUT OF OR RESULTING FROM, OR INCONNECTION WITH, MERCHANT’S PRODUCTS (EXCEPT AS MAY ARISE THROUGH GROUPCOLLECT ACTING AS MERCHANT OF RECORD), MESSAGES, PROGRAMS, CALLER CONTRACTS, PROMOTIONS, ADVERTISING, INFRINGEMENT, OR ANY CLAIM FOR LIBEL OR SLANDER OR FOR MERCHANT’S VIOLATION OF COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHTS.
10.2 FORCE MAJEURE
Neither party shall be under any liability for any loss of for any failure to perform any obligation hereunder due to causes beyond its control including without limitation industrial disputes of whatever nature, power loss, telecommunications failure, acts of God, governmental actions, fire, work stoppages, shortages, war, terrorism, civil disturbances, transportation problems, interruptions of power or communications, Internet service provider or hosting facility failures or delays involving third party hardware or software systems, denial of service attacks, malware intrusion, hacking attacks, acts of third parties outside of GroupCollect’s control, natural disasters, pandemic, quarantine, or significant changes in the ability of GroupCollect to offer the Services in terms of the scope and/or price set out herein as a result of changes in law, or in policy of Card Associations and/or Acquirers, and/or governmental authorities, or any other similar cause beyond the parties reasonable control.
For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party's financial inability to perform its obligations hereunder.
11 TERM AND TERMINATION
Unless otherwise terminated pursuant to this section, this Agreement shall continue until terminated by one party serving upon the other advance written notice of 60 days notice of such party's intention to terminate this Agreement. Such notice shall be in writing and sent via certified mail to the address of the Party in the Agreement.
GroupCollect may, in its sole and absolute discretion, at any time and for no reason, suspend or terminate the rights afforded to You hereunder, with or without prior notice. Furthermore, if You fail to comply with any of the terms or the Agreement, then any rights afforded to You hereunder shall terminate automatically, without any notice or other action by GroupCollect. Upon termination, You shall cease all use of the Services and uninstall the Services.
You may terminate the Agreement without prejudice to any other remedy You may have, in the event of a material breach of the Agreement which is not remedied within 15 days. Termination shall not relieve Your obligation to pay all amounts which are due and payable or which You have agreed to pay.
Upon termination of this Agreement, You shall cease using the Services and promptly delete the service and return all copies of the Services, and all other Confidential Information in Your possession or control. You shall delete all copies of the Services and all other Confidential Information residing in- on- or off- line computer memory, and destroy all copies of said material.
12 RELATED AGREEMENTS
The Merchant agrees to enter into agreements with third parties enabling GroupCollect to provide the Services and the System for the Merchant. The Merchant shall bear the costs associated with procuring and maintaining such third-party agreements. The Merchant acknowledges and agrees that GroupCollect does not have the authority to negotiate, facilitate or allow changes to these agreements.
Payment processing services for GroupCollect are provided by Stripe, Inc. ("Stripe") and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). By agreeing to these terms or continuing to use GroupCollect’s service, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of GroupCollect enabling payment processing services through Stripe, you agree to provide GroupCollect accurate and complete information about you and your business, and you authorize GroupCollect to share it and transaction information related to your use of the payment processing services provided by Stripe. In all cases, standard credit card or other third-party processing fees apply in addition to any service fee. GroupCollect is not responsible for the performance of any third-party credit card processing or third party payment services. You expressly understand and agree that the GroupCollect shall not be liable for any payments and monetary transactions that occur through Your use of the Service.
If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstances will not be affected, and the provision so held to be invalid, unenforceable or otherwise illegal will be reformed to the extent (and only to the extent) necessary to make it enforceable, valid or legal.
14 BINDING AGREEMENT
Subject to the limitation on the transferability of this License contained herein, this Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.
15 NO WAIVER
No failure by either party hereto at any time to give notice of any breach by the other party of, or to require compliance with, any condition or provision of this Agreement shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
16 BINDING ARBITRATION
Any dispute, controversy or claim arising out of or relating in any way to the Agreement including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach of the agreement including these terms, shall be exclusively resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be three. The place of arbitration shall be Florida. Florida law shall apply. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after one year from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach.
It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within one hundred and twenty days from the date the arbitrators are appointed. The arbitrators may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award.
The Parties shall not be entitled to discovery in the arbitration except that any Party shall be entitled to request no more than 500 pages of documents and to take two depositions not to exceed eight hours for each such deposition. Any Party shall be entitled to depose any expert who will testify in the arbitration proceeding but shall pay the regular hourly rate of such expert during such deposition.
The Parties shall exchange a copy of all exhibits for the arbitration hearing and shall identify each witness who will testify at the arbitration, with a summary of the anticipated testimony of such witness ten days before the arbitration hearing.
The arbitrators shall have no authority to award punitive/consequential/special/indirect damages. The arbitrators shall be entitled to issue injunctive and other equitable relief.
The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this Section by bringing suit in any court of competent jurisdiction. This Section shall survive the termination or cancellation of this Agreement.
17 GOVERNING LAW
This Agreement shall be governed by and construed under the laws of the State of Florida (without regard to conflict of laws principles), all rights and remedies being governed by said laws. GroupCollect and Merchant hereby submit to the exclusive jurisdiction of state and federal courts located in Florida.
18 ATTORNEYS’ FEES
In any action or proceeding brought to enforce any provision of this Agreement or where any provision hereof is validly asserted as a defense, the successful party shall, to the extent permitted by applicable law, be entitled to recover reasonable attorneys’ fees in addition to any other available remedy.
Sections 7 ,8, 9, and 10 shall survive the termination of this Agreement for any reason.
20 ENTIRE AGREEMENT
This Agreement comprises the agreement between the parties regarding the subject matter hereof and supersedes and merges all prior proposals, understandings, and all other agreements, oral and written between the parties relating to the Agreement.
Electronic Signature Consent
Electronic Signature Agreement
Consent to Electronic Delivery
You specifically agree to receive and/or obtain "Electronic Communications” from the Company. The term "Electronic Communications" includes, but is not limited to, any and all current and future notices and/or disclosures that various federal and/or state laws or regulations require that we provide to you, as well as such other documents, statements, data, records and any other communications regarding your relationship to the Company. You acknowledge that, for your records, you are able to retain the Company’s Electronic Communications by printing and/or downloading and saving this Agreement and any other agreements and Electronic Communications, documents, or records that you agree to using your E-Signature. You accept Electronic Communications provided via your account with the Company as reasonable and proper notice, for the purpose of any and all laws, rules, and regulations, and agree that such electronic form fully satisfies any requirement that such communications be provided to you in writing or in a form that you may keep.
Paper version of Electronic Communications
You may request a paper version of an Electronic Communication. You acknowledge that the Company reserves the right to charge you a reasonable fee for the production and mailing of paper versions of Electronic Communications. To request a paper copy of an Electronic Communication contact us at email@example.com.
Revocation of electronic delivery
You have the right to withdraw your consent to receive/obtain communications via your account with the Company at any time. You acknowledge that the Company reserves the right to restrict or terminate your access to your account with the Company if you withdraw your consent to receive Electronic Communications. If you wish to withdraw your consent, contact us at firstname.lastname@example.org.
Valid and current email address, notification and updatesYour current valid email address is required in order for you to obtain Electronic Communications from the Company. You agree to keep the Company informed of any changes in your email address. You may modify your email address by logging into your account on the Company’s website. The Company may notify you through email when an Electronic Communication or updated agreement pertaining to your account is available.
Hardware, software and operating system
You are responsible for installation, maintenance, and operation of your computer, browser and software. The Company is not responsible for errors or failures from any malfunction of your computer, browser or software. The Company is also not responsible for computer viruses or related problems associated with use of an online system.
We require, at minimum, a functioning modern web browser that was released in the past two years (such as a recent version of Microsoft Edge, Google Chrome, Mozilla Firefox, or Safari) running on an up-to-date operating system (such as Windows 10, OS X Mojave, etc). Unsupported browsers may not receive full functionality of the product.
For example, we support Apple's Safari browser on macOS Mojave or High Sierra (both updated within the past two years), but not Internet Explorer on Windows 8, as Internet Explorer is no longer supported or being updated by Microsoft.
This Agreement supplements and modifies other agreements that you may have with the Company. To the extent that this Agreement and another agreement contain conflicting provisions, the provisions in this agreement will control (with the exception of provisions in another agreement for an electronic service which provisions specify the necessary hardware, software and operating system, in which such other provision controls). All other obligations of the parties remain subject to the terms and conditions of any other agreement.
It is recommended that you print a copy of this Agreement for future reference.
Our Group Tour Terms of Service
This Participant Agreement (“Agreement”) is made between you, as a participant (or as one who has indicated an intent to be a participant) in a Group Event (defined below), and Our Group Tour LLC, (“OGT”), a Alabama limited liability company, and shall apply to all OGT services provided for each group event (a “Group Event”) in which you participate (or in which you indicate your intent to participate) and for which OGT has been engaged to provide its event planning and coordination services (the “Services”).
You agree to this Agreement by taking any of the following actions: (a) participating in a Group Event or indicating your intent to participate in a Group Event; (b) associating your Account (as defined below) with a Group Event; (c) using or accessing www.ourgrouptour.com (“Website”) or registering an Account, or (d) by allowing or authorizing any person to do any of the foregoing on your behalf or for your benefit. If you do not agree with this Agreement, please do not use, or authorize another on your behalf to use the Website or any OGT Services or features on the Website or participate in a Group Event. Questions and concerns regarding this Agreement should be directed to www.ourgrouptour.com.
1. Scope of Relationship.
(a) Group Leader. Your “Group Leader” is the representative of your group or organization for the Group Event, who has engaged OGT on your behalf, and who has been designated by OGT as your group leader for the Group Event. Your Group Leader shall serve as the primary point of contact between all Event Participants (defined below, and including you), OGT, and each Third-Party Service Provider (defined below). You agree to utilize the Group Leader as your primary point of contact with OGT, to follow his or her instructions regarding the Group Event, and that the Group Leader’s agreements with OGT and each Third-Party Service Provider shall be binding on your group or organization participating in the Group Event, and upon you as an Event Participant.
(b) Event Participants. You are one of a number of participants in a Group Event (collectively, “Event Participants”), and in order to provide the Services, OGT requires your timely cooperation in key matters, including but not limited to: (i) registering for a OGT event participant account (an “Account”) on the OGT website (the “Website”), and thereby becoming a OGT Member (a “Member”); (ii) submitting to your Account, and keeping updated in your Account, all information requested by OGT, your Group Leader, and Third Party Service Providers (defined below); and (iii) making timely deposits and subsequent payments as required for the Group Event. You agree that OGT may refuse Services to, or exclude from the Group Event, you, or any other Event Participant, in its reasonable discretion.
(c) Third-Party Service Providers. The Group Event may require, and the Services may include, engaging the services of third parties for, without limitation, transportation, lodging, food, and related services (each, a “Third-Party Service Provider”). Third-Party Service Providers may require your compliance with various requests, such as for information, agreement to their terms and conditions of service, or the payment of deposits or other amounts, as generally as coordinated by your Group Leader through OGT. Failure to comply with any such request may result in your ineligibility to participate in the Group Event.
2. Consent to Itinerary. The itinerary for the Group Event will be available on the Website through your Account and may change from time to time prior to the date of the Group Event, as determined by OGT and your Group Leader. You agree to such itinerary and all such changes to it, and if you have any concerns regarding such itinerary or changes, you may contact your Group Leader. As between you and OGT, your sole remedy, should you disagree with the Group Event itinerary or any changes to it, shall be to withdraw from the Group Event, subject to applicable refund policies (as set forth below with respect to individual refunds and as between OGT and the Group Leader with respect to the entire Group Event).
3. Billing and Payment Terms. You accept the Group Event pricing, payment schedule, and cancellation and refund policies available through your Account on the Website and/or set forth herein (as applicable). Group Event prices and OGT fees are subject to modification by agreement of OGT and your Group Leader, and as between you and OGT, your sole remedy, should you disagree with such pricing or fees (or such agreed changes to them), shall be to withdraw from the Group Event, subject to applicable refund policies (as set forth below with respect to individual refunds and as between OGT and the Group Leader with respect to the entire Group Event).
(a) Deposit and Group Event Account Signup. Within thirty (30) days after the Group Leader’s formal engagement of OGT for the Group Event (the “Deposit Date”), you must submit the required Group Event deposit indicated through your Account (the “Deposit”), by any OGT accepted method of payment. Your failure to pay OGT the Deposit by the Deposit Date may result, at OGT’s discretion and in addition to any other remedy available, ineligibility to participate in the Group Event. All sign up for group event accounts are locked at 15 days from Deposit Date. Any travelers wishing to add beyond this date, must contact OGT directly, and requests are subject to OGT’s discretion and a late signup fee.
(b) Final Payment. The entire amount of all fees and other amounts for your participation in the Group Event, (the “Final Payment “) is due by the date indicated on the Website through your Account (the “Final Payment Date”), which is (45) days prior to the scheduled date of the Group Event. Your failure to pay OGT the Final Payment by the Final Payment Date may result, at OGT’s discretion and in addition to any other remedy available, ineligibility to participate in the Group Event.
(c) Other Billing Terms. All payments are due as indicated on the website through your account (“Payment Due Date”). Payments are considered past due and are subject to a $25.00 late fee after 10 days from the Payment Due Date, and shall be due and payable immediately, and are non-refundable with no exceptions. If OGT must attempt to process any payment from you more than once, OGT may charge $25.00 for returned checks. Your failure to pay OGT according to Payment Due Date, may result, in removal from the Group Event (“Inactivated”), at OGT’s discretion. If Event Participant is Inactivated due to failure to pay, reinstatement is subject to, at OGT’s discretion, a $50 inactivation fee and all current payments due must be paid at the time of reactivation. Billing disputes must be provided in writing, prior to Final Payment Date, or shall be deemed waived.
(d) Payment Refund and Return Policies. Please reference the Cancellation and Refund Policy.
5. Indemnification and Release. You agree to defend, indemnify and hold harmless OGT, and its respective managers, officers, directors, members, shareholders, employees, contractors, sub-contractors, and volunteers (collectively, the “Released Parties”) from and against any third-party claims (including but not limited to claims by Third-Party Service Providers, the Group Leader, and/or other Event Participants), and all liabilities, debts, damages, injuries, losses or expenses arising out of or relating to such claims, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (a) the Services or any other services provided you by OGT; (b) your breach of this Agreement; or (c) your conduct or the conduct of any of your invitees during or with respect to the Group Event, except to the extent the same may arise out of the breach hereof, misconduct, or gross negligence of OGT. You acknowledge that OGT has no control over, or responsibility for, the conduct or activities of the Group Leader, any other Event Participant, or any Third-Party Service Provider, and that the Group Leader, not OGT, as selected such parties for participation in or the provisions of services or products for the Group Event. Accordingly, you hereby release and covenant not to sue OGT and/or the Released Parties for or in respect of the conduct or activities of the Group Leader, any other Event Participant or any Third-Party Service Provider or for any other damages, injuries, or losses arising during or out of the Group Event (other than by breach of OGT’s express obligations under this Agreement), including such injuries, claims and damages as may arise in the future, and regardless of theory of liability. Additionally, you hereby indemnify and hold harmless OGT from and against any damage, claim, loss, or expense arising out of any direct agreement or obligation between you and any Third-Party Service Provider.
6. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL OUR GROUP TOUR BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER SUCH DAMAGES ARISE AND REGARDLESS OF LEGAL THEORY (WHETHER CONTRACT, TORT, PROPERTY OR OTHERWISE) ARISING OUT OF THE AGREEMENT OR THE SERVICES PROVIDED BY OGT. OGT SHALL NOT BE LIABLE FOR OR IN RESPECT OF ANY BREACH OF THIS AGREEMENT DUE TO FORCES BEYOND OGT’S REASONABLE CONTROL. IF, NOTWITHSTANDING THE FOREGOING, OGT (OR ANOTHER RELEASED PARTY) IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, YOU AGREE THAT OGT’S (OR SUCH OTHER PARTY’S) LIABILITY TO YOU WILL BE LIMITED TO AN AMOUNT EQUAL TO THE DIFFERENCE OF (A) THE TOTAL FEES PAID BY YOU TO OGT FOR THE GROUP EVENT MINUS (B) A PRO-RATED PORTION (BASED UPON THE NUMBER OF EVENT PARTICIPANTS) OF AMOUNTS PAID OR OWED BY OGT TO THIRD PARTIES FOR THE GROUP EVENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
7. Governing Law and Venue. This Agreement and each party’s rights and obligations hereunder shall be governed by and interpreted in accordance with the laws of the State of Alabama, excluding its choice of law rules. Any legal action relating to this Agreement must be instituted in a state or federal court of competent jurisdiction in Alabama, provided that actions or specific performance or injunctive relief, or to enforce a judgment, may be brought where necessary, and the parties each agree to personal jurisdiction and venue in Alabama.
(a) If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. No waiver of any rights hereunder shall be deemed to waive any other rights, nor any waiver of the same rights in any different future context. No failure to enforce any rights hereunder shall be deemed a waiver thereof. Except as set forth herein, this Agreement may not be amended except expressly in a writing signed by authorized representatives of each party.
(b) Neither party may assign or delegate this Agreement without the express written consent of the other party.
(c) The terms of this Agreement shall supersede any prior agreement(s) between you and OGT with respect to the subject matter hereof and shall not be affected by the terms of any purchase orders or similar documents submitted by you, unless OGT expressly agrees to such terms, whether before or after the date of this Agreement. In the case of any conflict of terms between this Agreement and any agreement between OGT and your Group Leader, the agreement with the Group Leader shall govern, but solely with respect to such specific conflict.