Curate Inc Terms & Conditions
Last Revised on July 31 , 2022
By installing, using or otherwise accessing the Curate application from any device, mobile or otherwise, You accept and agree to these terms and conditions. If You do not agree to these terms and conditions, do not access, download, copy or use this application. These terms and conditions and any appendices attached hereto (collectively, the “Agreement”) for the Curate software application (together with any updates, the “Application”) is a legal agreement between the user (“User”, “You” or “Your,” as defined more fully below), and Curate, Inc, a Delaware Corporation (“Curate” or “Us”).
THESE TERMS INCLUDE A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER IN SECTION 14. THESE PROVISIONS AFFECTS YOUR RIGHTS TO RESOLVE DISPUTES WITH CURATE AND YOU SHOULD REVIEW THEM CAREFULLY.
By accessing, downloading, copying, or otherwise using the Application, You acknowledge that You have read this Agreement, understand it, and agree to be bound by its terms and conditions. Curate will not and does not grant You access to the Application unless You agree to the terms of this Agreement.
In consideration of the promises and covenants described below, and other good and valuable consideration, You agree as follows:
1. Definitions. Defined terms have the meanings set out below. Additional terms are defined in context.
a. “Application” means Curate’s proprietary technology including the applications, Software, Code, Updates to the Application and Upgrades to the Application.
b. “Code” means computer-programming code. If not otherwise specified, Code shall include both Object Code and Source Code. Code may include any Updates and Upgrades.
i.“Object Code” means the machine-readable form of the Code.
ii.“Source Code” means the human-readable form of the Code and related system documentation including all comments and any procedural code such as job control language.
c. “Confidential Information” means Curate’s confidential or Confidential Information, including by way of example and not limitation information related to: market share, unpublished patents, patentable ideas, customer information pricing models, current and future marketing ideas and plans, costs, supplier lists, data, data and client lists, product costs, research and testing knowledge and results, trademark information, financial information, competitive analysis, product costs, designs, custom calculations, custom displays specifications, the existence of this Agreement, the nature of the discussions and the relationship between the parties, and information obtained from other persons under Agreements to keep such information confidential, trade secrets and other internal secret and Confidential Information. Confidential Information does not include information that is publicly available or that becomes known to the general public other than as a result of a breach by an obligation of Your receipt of the Confidential Information.
d. “Content” means all non-user generated content featured or displayed in or through the Application.
e. “Curate Property” means the Application, Curate’s Intellectual Property Rights, Confidential Information, Content and all hardware tools, ideas, concepts, methodologies, inventions and utilities developed by or on behalf of Curate and all Derivative Works and improvements to the Curate Property.
f. “Derivative Work” means a work that is based on one or more pre-existing works, such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, or any other form in which such pre-existing work may be recast, transformed, or adapted, and if prepared without authorization of the copyright owner of such pre-existing work, would constitute a copyright infringement. For purposes of this Agreement, a Derivative Work includes a compilation that incorporates such pre-existing work.
g. “Documentation” means the manuals (including technical manuals) and other standard documentation Curate makes available with the Application.
h. “Intellectual Property Right” means any patent, design right, copyright, trademark, service mark (any other application or registration respecting the foregoing), database right, trade secret, know-how, goodwill, application, code, source code, object code, specifications, all ancillary and interface software, all current and future enhancements, revisions, new releases, Upgrades and Updates, Derivative Works, images, photographs, illustrations, graphics, audio and video created by or on behalf of Curate and/or other present or future intellectual property right of any type, wherever in the world possible.
i. “Personal Information” means any personally identifiable information or data concerning or relating to a party’s employees, patients, agents, clients or vendors that may be used to uniquely identify or contact such employees, patients, agents, clients or vendors. Personal Information includes the sub-category Personal Sensitive Information (“PSI”). PSI is designated Personal Information that requires additional control and protection, and includes: credit card numbers, debit card numbers, bank account numbers, social security numbers/social insurance numbers, health information, passwords, security challenge information, driver’s license numbers, unique biometric data and Personal Identification Codes. PSI also includes; and any other information that Client may identify in writing as Personal Sensitive Information.
j. “Software” means computer programs, together with input and output formats, all Code, Object Code, Source Code, program listings, data models, flow charts, outlines, narrative descriptions, operating instructions, Documentation, Updates, Upgrades, and Derivative Work to the Software.
k. “Updates” means all revisions, updates, modifications, corrections, releases (to include all point, minor and major new releases), versions, fixes, program temporary fixes, replacement products, revised Documentation and enhancements.
l. “Upgrade” means a new versions that include enhancements and new functionality that warrants a new revision number, and is designated by a change in the digit to the left of the decimal point (i.e., a change from version x.x to y.x) and any upgrades to the associated Documentation.
m. “User” means any individual or entity who uses the Application, whether as a user who has paid for access to the Application (a “Paying User”) or as a free user invited to use the Application for a limited time by a Paying User.
n. “User Content” means any and all information and content that a You submit to, or use with, the Application (e.g., content in the user’s profile or postings).
b. Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Curate of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Curate cannot and will not be liable for any loss or damage arising from Your failure to comply with the above requirements.
3. Access to Application and Third-Party Applications.
a. License Grant. Subject to this Agreement, Curate grants You a personal, nonexclusive, nontransferable, non-sublicenseable, revocable, limited right and license to use the Application on a device that You own or control. This license is valid during the Term.
b. Ownership. As between You and Curate, title to the Application and Third Party Applications, including all Derivative Works, Updates, and Upgrades thereto, will remain in Curate. Except as expressly stated in this Agreement, as between You and Curate, Curate owns all right, title and interest in and to (i) the Curate Property, (ii) Third Party Applications, including all Derivative Works, Updates, and Upgrades thereto, and (iii) all Intellectual Property Rights in the foregoing, and nothing in this Agreement conveys any such ownership to You. Except as set forth in this Agreement, neither this Agreement nor any disclosure made hereunder grants any license or usage rights to You under any Curate Intellectual Property Rights.
c. Retained Rights; License Restrictions (No Pirating). Other than the rights granted in this Agreement, no other license, right, or interest is granted to You by implication, estoppel, or otherwise, for any purpose, and any rights not expressly granted are reserved by Curate including without limitation, the right to alter, modify, update, enhance improve or create Derivative Works incorporating the Curate Property. Without limiting the foregoing, except as set forth herein, You shall not, and shall not authorize any third party to: (i) distribute or make the Application available over a network where it could be used by multiple devices at the same time; (ii) translate, reverse engineer, decompile, disassemble, attempt to derive the Source Code of any Curate Software provided to You; (iii) modify or create any Derivative Works to the Curate Software; (iv) during the Term, provide or authorize a third party to provide any functionality or software applications on any product or software that enables a service that is directly competitive with the Curate (i.e., provides similar features or functionality), unless agreed to by Curate in writing (v) sublicense, rent, lease, loan, timeshare, sell, distribute, assign or transfer any rights in, grant a security interest in, or transfer possession of the Curate Software, except as expressly provided in this Agreement; or (vi) obfuscate, alter or remove any of Curate’s copyright or other proprietary rights notices or legends appearing on or in the Curate Software or Documentation. Curate reserves the right to develop, use and distribute Software that has the same or similar functions to the Software, to other clients of Curate.
d. Modifications and Updates. Curate reserves the right, at any time, to modify, suspend, or discontinue the Application or any Third Party Application (in whole or in part) with or without notice to You without any liability to you or any third party. Curate makes no commitment to Update or Upgrade the Application. Curate will make reasonable efforts to keep the Application operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. Curate reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the Application with or without notice.
e. Support or Maintenance. You acknowledge and agree Curate will provide the support or maintenance set forth in the Service Level Agreement.
f. Third Party Applications. The Application may incorporate, embed, or be bundled with Software, technology, or components that are owned by third parties, including Software, technology or components that are subject to terms and conditions of third party licenses (collectively, the “Third Party Applications”). Your use of Third Party Applications, if any, is governed by the terms and conditions contained in the applicable third party’s end user license agreement or other applicable agreement (“Third Party Terms”), which may be made available to You when You access or use the Third Party Application. Unless otherwise set out in the Third Party Terms, the Third Party Applications include, by way of limited example, Curate Payments (as defined in Appendix 1), which are subject to the terms and conditions set out in Appendix 1 (Curate Payments Terms and Conditions).
4. User Content.
a. Your License Grant. You grant Curate a personal, nonexclusive, nontransferable, non-sublicensable, irrevocable, royalty-free and fully paid, worldwide right and license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use or exploit Your User Content, and to grant sublicenses of the foregoing rights, solely for purposes of including User Content in the Application and Third Party Applications. You irrevocably waive (and agree to caused to be waived) any claims and assertions of moral rights or attribution with respect to Your User Content. No compensation will be paid with respect to Curate’s use of Your User Content under this grant.
b. Ownership of Your Content. You own any User Content and You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of Your User Content that personally identifies You or any third party. You hereby represent and warrant that you own all rights needed to provide the grant set out in Section 4.a. (Your License Grant) and that your User Content does not violate our Acceptable Use Policy (defined in Section 4(c)). You may not represent or imply to others that Your User Content is in any way provided, sponsored or endorsed by Curate. Because You alone are responsible for your User Content, You may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Curate is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if You desire. You have the right to remove Your User Content using the Application.
c. Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”):
i.You agree not to use the Application and Third Party Applications to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, pornographic, profane, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
ii.In addition, You agree not to: (i) upload, transmit, or distribute to or through the Application or Third Party Applications any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Application or Third Party Applications unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Application or Third Party Applications to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Application or Third Party Applications, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Application or Third Party Applications (or to other computer systems or networks connected to or used together with the Application or Third Party Applications), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Application or Third Party Applications; or (vi) use software or automated agents or scripts to produce multiple accounts on the Application or Third Party Applications, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Application or Third Party Applications (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Application for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
d. Enforcement. Curate reserves the right (but has no obligation) to review any User Content, and to investigate and/or take appropriate action against You in our sole discretion if You violate the Acceptable Use Policy or any other provision of these Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating Your Account, and/or reporting You to law enforcement authorities.
e. Feedback. If You provide Curate with any feedback or suggestions regarding the Application, Third Party Applications, or other aspects of Curate’s business (“Feedback”), You hereby assign to Curate all rights in such Feedback and agree Curate shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Curate will treat any Feedback You provide to Curate as non-confidential and non-proprietary. You agree that You will not submit to Curate any information or ideas that You consider to be confidential or proprietary.
5. Fees; Payments; Taxes.
a. Fees. Curate charges a fee for the license granted herein to use the Application, which may be paid on an annual or monthly basis. Curate may also charge fees for Your access for Third Party Applications. Such fee is based on the date You begin a subscription. Curate may change the Application fees or fees for Third Party Applications from time to time upon written notice to you. Curate will use reasonable efforts to communicate any price change to You at least 14 days in advance, so You have an opportunity to elect to not renew, although Curate has no obligations to provide You with advance notice prior to changing any fees. If You do not wish to be bound by such changed prices or fees, You may terminate your subscription of the Application under Section 6. Your continued use of the Application after the communication of such price change to You constitutes an acceptance of such new prices or fees.
b. Payment. You hereby authorize Curate to make automatic charges for any fees due to Curate via the payment method You provided in connection with account creation (as such credit card may be updated by you from time to time) or such other method that Curate makes available to You for the payment of fees. If You elect to pay for the use of the Application on an annual basis, Your payment method will automatically be charged each year (based on the date You created an Account), during the Term. If You elect to pay for the use of the Application on a monthly basis, Your payment method will automatically be charged each month within the first five days of each month during the Term. If such payment is declined or if you are otherwise late on any payments, Curate reserves the right to suspend or terminate your access to the Application or Third Party Applications without liability to You or any third party.
c. Taxes. You will be responsible to pay for any taxes related to Curate’s Application or Third Party Applications hereunder, other than taxes based upon Curate’s gross receipts.
6. Term and Termination.
a. Term. This Agreement is effective the day You create an Account (“Start Date”) and continues for one year and shall automatically renew for successive one year terms unless terminated as set forth below (the “Term”).
i. Termination for Convenience. Curate may immediately terminate this Agreement at any time at its sole discretion with or without notice to You. You may choose to terminate this Agreement at any time; however, such termination shall not be effective until the end of the current one year period. For example, if Your start date is November 11, 2018 and you choose to terminate the Application on March 3, 2019, such termination shall not become effective until November 11, 2019.
ii. Termination for Cause. Your rights under this Agreement will terminate automatically if You fail to comply with any term(s) of this Agreement or if You use the Application or Third Party Applications for any illegal conduct. Curate reserves the right to terminate this Agreement or suspend your account at any time in case of unauthorized, or suspected unauthorized use of the Application or Third Party Applications whether in contravention of this Agreement or otherwise.
iii. Effect of Termination. Upon the effective date of the termination, all legal rights and licenses granted to You hereunder shall terminate immediately and You shall cease all use of the Application and Third Party Applications and destroy all copies of the Application and Third Party Applications. Except as expressly granted herein, You shall not be entitled to any refund on any portion of any fees or other charges paid in connection with this Agreement. You shall continue to be responsible for any payments owed until such termination is effective (See Termination for Convenience). If Curate terminates this Agreement or suspends your account for any reason set out in this section, Curate shall have no liability or responsibility to you, and Curate will not refund any amounts that You previously paid. Upon termination of this Agreement, Curate may, it its sole discretion delete any of Your User Content.
7. Third Party Website, Other Users.
a. Third-Party Websites. Curate may provide links to Internet sites maintained by others (“Third Party Sites”). Curate has not reviewed all of the Third Party Sites linked to the Application and is not responsible for the content of, or any products and services offered on, such Third Party Sites.
b. Other Users. You are solely responsible for any and all of your own User Content. Because we do not control User Content, You acknowledge and agree Curate is not responsible for any User Content, whether provided by You or by others. Curate makes no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Application users are solely between You and such users. You agree Curate will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between You and any Application user, Curate is under no obligation to become involved.
c. Release. You hereby release and forever discharge Curate (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Application or Third Party Applications (including any interactions with, or act or omission of, other Application users, Third Party Applications (or their licensors) or any Third-Party Websites). IF You ARE A CALIFORNIA RESIDENT, You HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
8. Data Protection.
9. Your Representations to Curate. You represent and warrant that:
a. You have the authority to bind Yourself to this Agreement;
b. You provided and will maintain accurate, complete and current registration information with Curate, including, without limitation, your full legal name, address, telephone number and email address, and will promptly provide updated information to Curate in the event such information changes;
c. You are an authorized signatory of the credit or charge card, if any, provided to Curate to pay the fees, taxes, purchase prices, and other charges related to the purchase of the Application or any other Curate products or services (including, without limitation Third Party Applications);
d. Your use of the Application and Third Party Applications will be solely for purposes that are permitted by this Agreement;
e. You agree not to use the Application or Third Party Applications (including any Content) in a manner not covered by this Agreement;
f. You agree not to infringe upon any third party’s intellectual property rights in using the Application or Third Party Applications;
g. Your use of the Application and Third Party Applications will comply with all local, state and federal laws, rules, and regulations (“Laws”).
10. Indemnity. You agree to indemnify, hold harmless and defend Curate, any of its licensors, affiliates or subsidiaries and any members, officers, employees and agents of the foregoing, from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement or Your violation of this Agreement; (b) Your use of the Application or Third Party Applications, including any data, Content, User Content, communication or work transmitted or received by You; (c) any unacceptable use of the Application or Third Party Applications by User(s) or through Your account, including, without limitation, any statement, data or User Content posted, made, transmitted or republished by You which is prohibited as unacceptable under this Agreement; (d) any intentional or negligent act or omission by You; (e) Your violation of any third party rights, including, without limitation, any intellectual property or privacy right; and (f) any claim that any User Content posted by You caused damage to a third party.
11. Warranty; Disclaimers; Liability.
a. Warranty. Curate represents and warrants that it will provide the Application in a professional manner consistent with general industry standards. Use of the Application or Third Party Applications is at Your sole risk.
b. Accuracy of Calculations. Curate does its best to make sure that the calculations and the other content provided on the Application or Third Party Applications is integrated, validated and without error. Curate does not guarantee the accuracy or the correctness of the material generated on the Application because the Application’s calculations and materials are based in part, on information input by You and Your use of the most current version of the Application. Therefore, the materials appearing on the Application could include technical, typographical, or photographic errors. Curate does not make any sort of warranty or guarantee to the accuracy, suitability, completeness, or reliability of the Application or Third Party Applications. If You become aware of any such malfunctioning, kindly inform us, so that we can make arrangements to correct the flaws for the benefits of other Application or Third Party Applications users.
c. Disclaimer of Warranties and Indemnification. CURATE DOES NOT WARRANT THAT USER’S USE OF THE APPLICATION OR THIRD PARTY APPLICATIONS WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES CURATE MAKE ANY WARRANTY AS TO THE ACCURACY OF ANY CONTENT OR AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE APPLICATION OR THIRD PARTY APPLICATIONS. WITH THE EXCEPTION OF THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, CURATE PROVIDES THE APPLICATION, THIRD PARTY APPLICATIONS, AND ALL OTHER SERVICES AND DELIVERABLES “AS IS” WITHOUT WARRANTY OF ANY KIN, WHETHER EXPRESS OR IMPLIED. CURATE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING, TITLE, NON-INFRINGEMENT OR TIMELINESS, IN RELATION TO THE APPLICATION, THIRD PARTY APPLICATIONS, CONTENT OR CURATE’S PERFORMANCE OBLIGATIONS, SERVICES, DELIVERABLES. You ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN IN RELIANCE ON THE APPLICATION, THIRD PARTY APPLICATIONS, OR ANY INFORMATION OR CONTENT THEREIN, INCLUDING, WITHOUT LIMITATION, INACCURATE OR INCOMPLETE INFORMATION. ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED ARE LIMITED TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY, AND OTHER LEGAL RIGHTS MAY BE GRANTED IN SUCH JURISDICTIONS. The Application and This Party Applications are accessible and supported by Curate on the following internet browsers: Chrome, Firefox, Safari. Any warranties related to the Application or Third Party Applications are void if the Application is not used on a supported browser.
d. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CURATE NOR ANY OF ITS LICENSORS, AFFILIATES OR SUBSIDIARIES SHALL BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE APPLICATION, THIRD PARTY APPLICATIONS, THE CONTENT, CURATE’S PERFORMANCE OBLIGATIONS, OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE THE APPLICATION, THIRD PARTY APPLICATIONS, CURATE’S PERFORMANCE OBLIGATIONS, OR CONTENT, ANY CHANGES TO OR INACCESSIBILITY OF THE APPLICATION OR THIRD PARTY APPLICATIONS, ANY INACCURACY OR INCOMPLETENESS OF THE CONTENT OR INFORMATION CONTAINED IN THE APPLICATION OR THIRD PARTY APPLICATIONS, ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE APPLICATION OR THIRD PARTY APPLICATIONS OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE APPLICATION OR THIRD PARTY APPLICATIONS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CURATE’S NOR ANY OF ITS AFFILIATES’ OR SUBSIDIARIES’ TOTAL LIABILITY FOR DIRECT DAMAGES SHALL EXCEED THE TOTAL PURCHASE PRICE AND/OR FEES PAID, IF ANY, BY USER TO CURATE WITHIN THE LAST TWELVE (12) MONTHS HEREUNDER. IF You ARE DISSATISFIED WITH THE APPLICATION OR THIRD PARTY APPLICATIONS, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE FOR You TO DISCONTINUE USE OF THE APPLICATION OR THIRD PARTY APPLICATIONS AND TERMINATE THIS AGREEMENT AS SET FORTH HEREIN.
e. Not Insured. CURATE IS NOT AN INSURER WITH REGARD TO PERFORMANCE OF THE APPLICATION, THIRD PARTY APPLICATIONS, OR CONTENT. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHTS TO USE THE APPLICATION AND THIRD PARTY APPLICATIONS AT THE SPECIFIED PRICE. You AGREE TO ASSUME THE RISK FOR: (i) ALL LIABILITIES DISCLAIMED BY CURATE CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
f. Third Party Liability. You SPECIFICALLY ACKNOWLEDGE AND AGREE CURATE SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING IS BORNE SOLELY BY YOU. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY, AND OTHER LEGAL RIGHTS MAY BE GRANTED IN SUCH JURISDICTIONS.
g. Limit on Claims. No action, regardless of form, whether in court or through arbitration, arising out of any transaction under this Agreement, may be brought by You more than one year after You have knowledge of the occurrence which gives rise to the cause of such action.
12. Copyright Policy. Curate respects the intellectual property of others and asks that users of the Application do the same. In connection with the Application, Curate adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Application who are repeat infringers of intellectual property rights, including copyrights. If You believe that one of our users is, through the use of our Application, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to Curate:
a. your physical or electronic signature;
b. identification of the copyrighted work(s) that You claim to have been infringed;
c. identification of the material on our services that You claim is infringing and that You request us to remove;
d. sufficient information to permit us to locate such material;
e. your address, telephone number, and e-mail address;
f. a statement that You have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
g. a statement that the information in the notification is accurate, and under penalty of perjury, that You are either the owner of the copyright that has allegedly been infringed or that You are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
13. Miscellaneous Provisions.
a. Publicity. Curate may use or refer to You, Your trademarks, service marks, trade names, or any other descriptions of You in any public statement, advertisement or promotion of Curate without the prior written consent of You; only for the purpose of Curate stating on its Application, website, Twitter account or Facebook account that You are a Curate user.
b. Survival. All sections that may be reasonably interpreted to or are intended to survive this Agreement will survive this Agreement.
c. Governing Law. This Agreement shall be governed by the laws of the State of Missouri in the United States without regard to conflicts of laws principles. All parties to and disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in or serving Saint Louis City or Saint Louis County, Missouri.
d. Entire Agreement. This Agreement is the complete and exclusive statement of the Agreement between Curate and You and supersedes all proposals, representations or prior agreements, oral or written, and any other communications between Curate and You relating to the subject matter of this Agreement.
e. Severability. You agree that the terms and conditions stated in this Agreement are severable. If any paragraph, provision, or clause in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction, the remainder of this Agreement shall be valid and enforceable.
f. Assignment and Transfer. Curate may assign, transfer, sell, rent or lend this Agreement, in whole or in part, at any time without notice to You. You may not assign this Agreement or any part of it or any rights to use the Application or Third Party Applications, in whole or in part, either temporarily or permanently, to any other party.
g. Attorney’s Fees. If any action in law or in equity or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
h. Force Majeure. Neither party shall be responsible or liable for failure to fulfill its obligations under this Agreement (except for payment of any fees) due to any major unforeseeable event beyond the control of, and not caused by the fault or negligence of, such party or its agents, including, without limitation, an act of God, fire, earthquake, flood, explosion, action of the elements, war invasion, terrorism, insurrection, riot, mob violence, sabotage, inability to procure equipment, facilities, materials or supplies in the open market, failure of power, failure of transportation, failure of telecommunications systems or infrastructure, strike, lockout, action of labor unions, condemnation, requisition, law or order of government, civil or military authorities; provided that the party failing to perform in such event shall promptly resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable.
i. Amendment. Curate reserves the right to modify or amend this Agreement on a continual basis without notice for each update. Your continued use of the Application or Third Party Applications following the posting of changes to the agreement means You accept those changes.
j. Independent Contractor. Curate is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us.
k. United States Only. All materials on this Application and Third Party Applications are provided solely for the purpose of promoting our operations and services in the United States and its territories. We make no representation that the materials on the Application or Third Party Applications are appropriate or available for use in other locations. If despite these conditions, You use the Application or Third Party Applications from outside the United States, You are solely responsible for compliance with any applicable local laws.
l. Export. The Application or Third Party Applications may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Curate, or any products utilizing such data, in violation of the United States export laws or regulations.
m. Electronic Signatures; Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
14. Dispute Resolution. Please read this Section 14 carefully. It is part of Your contract with Curate and affects Your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
a. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement or the use of any product or service provided by the Curate that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to You and the Curate, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement.
b. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Curate should be sent to: 1120 S. Sixth Street, Suite 100, St. Louis, Missouri 63104. After the Notice is received, You and the Curate may attempt to resolve the claim or dispute informally. If You and the Curate do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
c. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Agreement. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of Your residence, unless You reside outside of the United States, and unless the parties agree otherwise. If You reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants You an award greater than the last settlement offer that the Curate made to You prior to the initiation of arbitration, the Curate will pay You the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
d. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
e. Time Limits. If You or the Curate pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
f. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of You and the Curate, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and the Curate.
g. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between You and the Curate in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, You AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
h. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
i. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
j. Severability. If any part or parts of this Section 14 are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
k. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Section 14.
l. Survival of Agreement. This Section 14 will survive the termination of your relationship with Curate.
m. Small Claims Court. Notwithstanding the foregoing, either You or the Curate may bring an individual action in small claims court.
n. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Section 14.
o. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Section 14.
p. Courts. In any circumstances where this Section 14 permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within St. Louis County, Missouri, for such purpose.
q. Subcontracting. Curate shall be entitled to use subcontractors in the performance of Curate’s obligations under this Agreement; provided, however that if Curates engages subcontractors, then Curates shall remain liable for all obligations under this Agreement as though no such subcontracting had occurred.
BY USING THIS APPLICATION, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS SET OUT HEREIN.
Appendix 1 – Curate Payments Terms and Conditions
1. Application of the Curate Payments Terms. The terms and conditions set out in this Appendix 1 (Curate Payments Terms and Conditions) (the “Curate Payment Terms”) apply to certain payment-related services that Curate makes available to You as a Paying User (“Curate Payments”). The Curate Payment Terms shall be in addition to (and not in replace of) the provisions the terms and conditions set out in the Agreement above. By way of limited example, if these Curate Payment Terms set out additional indemnification obligations, then such indemnification obligations will be in addition to (and otherwise supplement) the indemnification obligations set out in the provisions the terms and conditions set out in Section 11.c above.
2. Additional Definitions. Defined terms used in this Appendix have the meanings set out below. Additional terms are defined in context or above.
a. “Applicable Laws” means all applicable federal, state, and local laws and regulations including without limitation all requirements of the Gramm-Leach-Bliley Act and the USA Patriot Act, and all applicable data protection and data privacy laws and regulations.
b. “Payment Network Rules” means the applicable Payment Networks’ rules, policies, terms, conditions, and standards, including but not limited to Payment Card Industry Data Security Standards (“PCI DSS”), the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Payment Networks.
c. “Payment Networks” means VISA, MasterCard, Discover, and/or other credit card or payment processing networks.
d. “Website Requirements” means https://finix.com/docs/guides/security-and-compliance/website-requirements/.
3. Payment Processor’s Terms and Conditions.
4. Your Use of Curate Payments.
a. Use of Curate Payments. Your right to access and use Curate Payments shall be solely to process transactions via the Application on behalf of Your customers.
b. Compliance with Laws and Rules. Your use of Curate Payments shall be, at all times, in full compliance with all Applicable Laws and Payment Network Rules.
c. Use of Your Information. By accessing and using Curate Payments, you agree that Curate may, at Curate’s discretion, provide Your information to the Payment Processor and to act on Your behalf in connection with Curate Payments (if applicable).
d. Risks and Liabilities. You assume all risks and liabilities associated with Your access and use, and Your customers’ access and use, of Curate Payments, including without limitation those risks and liabilities associated with payment fraud or other torts or criminal activities.
e. Payment Processor Disclaimer. The Payment Processor disclaims any warranty of any kind directly to You, including without limitation any warranty of title, merchantability, fitness for a particular purpose, or non-infringement. The Payment Processor expressly disclaims its liability for damages to You, whether direct or indirect, incidental, or consequential, arising in connection with the this Agreement and Your use of Curate Payments.
f. Underwriting; Suspension. The Payment Processor reserves the right to make decisions related to Your use of Curate Payments (including underwriting, risk, compliance, and compliance with the Payment Processor Terms). In connection with such decisions, the Payment Processor may require Curate to suspend or terminate Your access to Curate Payments. In such instances, and as further set out herein, Curate (or the Payment Processor) shall be entitled to suspend or terminate Your access to Curate Payments without liability to You or any third party.
g. Additional Restrictions on Your Use of Curate Payments; Monitoring; Suspension. You shall not (i) use Curate Payments to create any service, software, documentation, or other material that performs substantially the same functionality as Curate Payments, (ii) disassemble, decompile, reverse-engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying Curate Payments or any of its components, (iii) impose (or permit any third party to impose) any lien, security, or other encumbrance upon Curate Payments, (iv) adapt, combine, create derivative works of or otherwise modify Curate Payments, (v) disable, circumvent, or otherwise avoid or undermine any security device, mechanism, protocol, or procedure implemented in Curate Payments, (vi) use or access Curate Payments for any unlawful, fraudulent, deceptive, malicious, or otherwise harmful or injurious purpose, (vii) remove, obscure, deface, or alter any proprietary rights notices on any element of Curate Payments or its related documentation, or (viii) use Curate Payments in any manner which could damage, disable, overburden, or impair Curate Payments or interfere with any third party’s authorized use of Curate Payments. You will not utilize any software, hardware, or other tool to scan or monitor Curate Payments or Curate’s (or the Payment Processor’s) servers or network infrastructure for the purpose of measuring or analyzing uptime, operating systems, virtual environments, or other installed applications, including without limitation for stress testing, load testing, or performance benchmarking. Curate reserves the right to suspend performance of and/or Your access to Curate Payments at any time without liability to You or any third party: (1) immediately upon Curate’s determination (or notification from the Payment Processor) of any actual or suspected breach of this Appendix or violation of any Applicable Laws or Payment Network Rules by You; (2) immediately if directed by the Payment Processor, or (3) upon written notice to You if Curate reasonably determines that Your continued access or use of Curate Payments would be in violation of any Applicable Laws or Payment Network Rules or would otherwise expose Curate or You to the risk of liability from a third-party claim brought in connection with such access. Upon such suspension or limitation, You will use commercially reasonable efforts to resolve the issue causing such suspension or limitation. When the issue causing such suspension or limitation is resolved, then Curate will use good faith efforts to promptly restore Your access to Curate Payments, when the condition that caused such suspension is resolved. Such suspension, limitation, or termination shall be in addition and without prejudice to any remedy available to Curate at law or in equity in the event of Your breach of this Agreement.
4. Monitoring; Third Party Beneficiary.
a. Monitoring Your Use of Curate Payments; Third Party Beneficiary. Curate may monitor Your use of Curate Payments and may report any breach of this Agreement to the Payment Processor if such breach may impact the Payment Processor or its platform and services. The Payment Processor shall be an intended third party beneficiary under this Agreement to enforce the terms of this Agreement related to Curate Payments.
b. Scans and Testing. Curate may conduct periodic scans and testing of Your use of Curate Payments to monitor Your compliance with PCI DSS and Payment Network Rules. If Curate detects non-compliance with PCI DSS or Payment Network Rules, the Curate reserves the right to immediately suspend Your access to Curate Payments, without liability to You or any third party, to prevent further noncompliance or PCI DSS or Payment Network Rules. In the event of any non-compliance with PCI DSS or Payment Network Rules, Curate will use good faith efforts to notify You of the non-compliance and Curate will work with You to promptly remediate the non-compliance. In addition, when such remediation is complete, Curate may, after consultation with the Payment Processor, reinstate Your access to Curate Payments, provided that there is no other reason to continue the suspension pursuant to this Agreement. Curate may assess a PCI DSS non-compliance fee for any detected non-compliance.
5. Fees and Payment.
a. Curate Payments Fees. Your use of Curate Payments shall be subject to the fees set out in the fee schedule (the “Curate Payments Fee Schedule”). The fee schedule include a transaction fee of 3% and a chargeback fee of $35. You agree to pay Curate in accordance with Curate Payments Fee Schedule. Curate shall be entitle to modify the fees set out in the Curate Payments Fee Schedule without prior notice. Your continued use of Curate Payments after such modifications means You accept those modifications.
b. Fees Due Upon Termination. Upon termination of this Appendix (or the Agreement), all outstanding unpaid amounts due to Curate, if any, shall become immediately due and payable.
7. Disputes; Challenging Disputes. If any of Your transactions using Curate Payments are subject to any chargebacks, refunds, adjustments, ACH returns, or other disputes (“Disputes”), Curate will receive information about such Disputes from the Payment Processor and provide such information to You. Curate may, in its discretion and in accordance with the Payment Network Rules, provide you with assistance to resolve the Dispute. If You wish to challenge the Dispute, then You authorize Curate to communicate and transmit information related to the Dispute and Your challenge with the Payment Processor. You shall provide Curate any information Curate requests related to the Dispute or Your challenge to such Dispute. You acknowledges that Curate does not guarantee that any challenge will be successful, and that Your challenge may be denied. Curate bears no financial responsibility for any Dispute. You are responsible for any inaccuracy or incompleteness in the information that You submit related to the Dispute or Your challenge to such Dispute. If the aggregate amount of Disputes exceed any thresholds set forth by the Payment Processor, then Curate reserves the right to enforce controls or conditions governing Your use of Curate Payments, including without limitation, by (a) assessing additional fees, (b) requiring that You create a reserve account (as set forth in the Payment Processor Terms), or (c) terminating or suspending Your access to Curate Payments.