Acceptable Use Policy
Please read the following Terms & Conditions and Acceptable Use PolicyBy accessing or using the payment processing services (the "Reservation & Ticketing Services") provided by CellarPass, (“CellarPass,” “us,” “we”), you ("Company") agree to comply with the terms and conditions of this Acceptable Use Policy.[1] Restricted Activities
Event Organizer Terms of Service
ACCEPTANCE OF TERMS
1.1 Overview
The following terms and conditions (this "TOS") govern all use by you as an Organizer (as defined below) of (a) the CellarPass, Inc. websites and domains (including all webpages, subdomains and subparts therein contained, the "Site"), (b) any and all services available on or through the Site or otherwise provided by CellarPass, Inc. ("CELLARPASS") for your events, and (c) all Software (as defined below) (collectively, the "Services"). The Services are owned and operated by CellarPass. The Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Site by CELLARPASS. BY USING OR ACCESSING ANY PART OF THE SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES THAT MAY BE PUBLISHED FROM TIME TO TIME ON THE SITE BY CELLARPASS. IF YOU DO NOT AGREE TO ANY OF SUCH TERMS, CONDITIONS, RULES, POLICIES OR PROCEDURES, DO NOT USE OR ACCESS THE SERVICES. THIS TOS MAY ONLY BE MODIFIED (I) ON AN EVENT BY EVENT BASIS THROUGH A WRITTEN TICKETING SERVICES AGREEMENT OR WRITTEN ADDENDUM AGREEMENT TO THIS TOS, SIGNED BY YOU AND AN AUTHORIZED OFFICER OF CELLARPASS, OR (II) BY CELLARPASS AS PROVIDED IN SECTION 1.2 BELOW.
1.2 Modification
CELLARPASS reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this TOS at any time. It is your responsibility to check this TOS periodically for changes. Your continued use of the Services following the posting of any changes to this TOS constitutes acceptance of those changes. If any change to this TOS is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the Services.
1.3 LanguageWe may translate this Terms of Service, our Privacy Policy or any other operating rules, policies and procedures that may be published from time to time on the Site into other languages for your convenience. The English language version of each of these documents is the version that governs your use of the Services and in the event of any conflict between the English language version and a translated version, the English language version will control.
2. Description of CellarPass
CELLARPASS provides a simple and quick means for registered users who are event organizers and planners ("Organizers" or "you") to collect payments with respect to the sale of tickets/registrations, merchandise and services for, and the solicitation of donations with respect to, events registered on the Site, including Service Fees (as defined below) ("Ticket Fees "), from users who want to attend such events ("Buyers"). Organizers may visit the Site, fill out a questionnaire about their event, including pricing, location, inventory, etc., and collect Ticket Fees online directly from Buyers. Payments are all transacted through the CELLARPASS payment processing gateway (the "Gateway"). This TOS applies to you and your use of the Services as an Organizer.3.
Your Use of Services
3.1 The Services
CellarPass hereby grants you a non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely for the purposes of creating an event page with respect to, and promoting, managing, tracking, and collecting Ticket Fees for, an event that you have registered on the Site, in each case (i) in compliance with this TOS, and (ii) to the extent permitted under all applicable laws and regulations (foreign and domestic). Notwithstanding the foregoing, you shall not, and shall not permit anyone else to, directly or indirectly: (i) modify, reproduce or otherwise create derivatives of any part of the Services or Site Content (as defined below); (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Services (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (iii) rent, lease, resell, distribute or use the Services for timesharing, service bureau, or commercial purposes (except for the limited commercial purpose of collecting Ticket Fees through the Site as an Organizer in accordance with this TOS); (iv) remove or alter any proprietary notices or labels on or in the Services or Site Content; or (v) engage in any activity that interferes with or disrupts the Services.
3.2 Software
If you are allowed to download or use any Software in connection with the Services, CELLARPASS hereby grants you a personal, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software solely for your internal use in connection with the Services, and only in accordance with this TOS and the written instructions/directions (if any) provided by CELLARPASS in conjunction with the Software. For purposes of this TOS, "Software" shall mean any and all software that is available on or through the Site or otherwise provided by CELLARPASS, including without limitation CELLARPASS mobile applications (such as Guest Link™ Entry Manager, CellarPass Table Pro™ and the CellarPass app). For clarity, the Software will be deemed a part of the "Services" hereunder.The Software and the transmission of applicable data is subject to United States export controls. No Software may be downloaded or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. You shall also be responsible for using the Software in a manner that complies with all federal, state and local laws and the rules and regulations of all credit card companies.
The Software and related documentation are "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the Software or such documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this TOS.4.
PAYMENT METHODS
4.1 Overview
There is one type of payment processing Organizers use when using the Services: "Credit Card Processing" or "CCP", which requires the use of the Gateway for the collection of Ticket Fees. Monetary payments will be made to the Organizer directly by CELLARPASS (via CCP).
4.3 Credit Card Processing
(a) Payment Process
CELLARPASS will collect all Ticket Fees on behalf of the Organizer from Buyers and deduct all applicable Services Fees from the Ticket Fees collected by CELLARPASS, and then pass the remainder along to the Organizer within five (5) business days after the event end date for the event to which the Ticket Fees correspond (either by mailing a check or through an electronic funds transfer, depending on the option the Organizer has chosen through using the Site, to the address or account, respectively, that the Organizer accurately designates on the Site), provided that CELLARPASS reserves the right to withhold funds (i) at any time as CELLARPASS determines to be necessary for the processing and settlement of all refunds, disputed charges, chargebacks, customer complaints, allegations of fraud, and other discrepancies and (ii) as otherwise permitted pursuant to this TOS. CELLARPASS, in its sole discretion, may determine to advance a portion of Ticket Fees to Organizer prior to the period set forth above, on such terms and conditions as CELLARPASS may establish from time to time. CellarPass will not advance more than two-thirds of the total sales for an event or sales within an applicable date range whichever the case may be. Organizer agrees that all Ticket Fees for a given event are earned by Organizer only following conclusion of the applicable event and all Ticket Fees ultimately due will be net of all Service Fees, refunds, disputed charges, chargebacks and other deductions, whether due to customer complaints, allegations of fraud, discrepancies related to the applicable event or otherwise. No payments shall be made to an Organizer from CELLARPASS with respect to any event that is cancelled. If payments have already been made by CELLARPASS to an Organizer for a cancelled event, Organizer will immediately refund to CELLARPASS all such payments upon cancellation of such event. All sales, fees, charges, and funds are payable in U.S. Dollars.ORGANIZER AGREES THAT ANY PAYMENT BY CELLARPASS OF TICKET FEES PRIOR TO THE FIFTH (5TH) BUSINESS DAY AFTER THE END DATE OF THE APPLICABLE EVENT ARE MERELY ADVANCES OF AMOUNTS THAT MAY BECOME DUE TO ORGANIZER UNDER THIS TOS AND THAT CELLARPASS MAY DEMAND SUCH ADVANCES BACK (FROM TIME TO TIME IN ITS SOLE DISCRETION), AND ORGANIZER SHALL THEREUPON PROMPTLY (AND IN ANY CASE WITHIN FIVE (5) BUSINESS DAYS AFTER SUCH DEMAND) PAY BACK TO CELLARPASS SUCH ADVANCE OR ANY PORTION THEREOF DEMANDED BY CELLARPASS.
(b) Refunds
(i) Under the CCP option, it is the responsibility of the Organizer to communicate its refund policy to Buyers and to issue refunds to Buyers via the Site. An Organizer shall ensure that its refund policy is consistent with the terms of this TOS and the payment and refund mechanics of the Site. The Site permits an Organizer to issue refunds to Buyers, provided the refund is issued by Organizer before ninety-six (96) hours after the end date of an event and within six (6) months after the original transaction date for the underlying ticket purchase. Refunds issued following such period will not be processed through the Site, unless otherwise agreed to by CELLARPASS in its sole discretion. Subject to the foregoing, refunds issued by an Organizer will be processed within thirty (30) days after Organizer instructs the issuance of the refunds via the Site. All communications or disputes regarding refunds are between the Organizer and Buyer, and CELLARPASS will not be responsible or liable for, and Organizer hereby agrees to fully indemnify CELLARPASS and its affiliates for, refunds, errors in issuing refunds, or lack of refunds in connection with the use of the CCP option. (ii) Notwithstanding the foregoing, you acknowledge and agree that CELLARPASS shall have the right to force a refund of any or all tickets at any time for any reason or no reason, including without limitation if CELLARPASS receives complaints from a substantial number (as determined by CELLARPASS in its sole discretion) of Buyers with respect to the applicable event or another event held by Organizer, or CELLARPASS determines in its sole discretion that Organizer has engaged in any fraudulent activity or made any misrepresentations. Further, if one or more Buyer(s) request a refund, whether due to a cancelled event or for any other reason where CELLARPASS would reasonably expect to lose a chargeback, CELLARPASS may, in its sole discretion, issue such refund to such Buyer(s), and Organizer shall then owe the amount of such refund to CELLARPASS.
(c) Credit Card Chargebacks
Any credit card chargebacks initiated by a Buyer for any reason with respect to an event shall be charged back to the Organizer of such event. All communications and disputes regarding chargebacks are between the Organizer and Buyer, and CELLARPASS will not be responsible or liable in any way for, and Organizer hereby agrees to fully indemnify CELLARPASS and its affiliates for, chargebacks issued in the course of the use of the CCP option.
4.4 Non-Exclusive Remedies
(a) Payment
In the event that Organizer fails to pay to CELLARPASS any amount owed pursuant to this TOS when due, such amount shall bear interest calculated from the date due until paid in full at a rate equal to the lesser of (a) ten percent (10%) per annum, and (b) the maximum amount permitted by applicable law. In the event any amounts are owed by Organizer to CELLARPASS under this TOS or otherwise, CELLARPASS may, without limiting its other rights and remedies, (i) deduct such amounts from Organizer's outstanding balance, whether for that particular event or for any other event that Organizer lists through the Services; and/or (ii) send an invoice to Organizer for such amounts to the extent Organizer's outstanding balance is insufficient to cover these costs, in which case Organizer shall pay CELLARPASS such invoiced amounts within thirty (30) days after the date of the invoice. If payment for any amounts due to CELLARPASS hereunder are not made by Organizer when due, CELLARPASS reserves the right, in its sole discretion and without limiting its other rights and remedies, to terminate Organizer's registration for the Services (including any and all accounts that Organizer may have) and to cancel all other events listed by Organizer.
(b) Confirmation
Upon receipt of a credit card authorization from each individual ticket purchase, CELLARPASS generates a confirmation message and issues a unique confirmation number. You agree to unconditionally accept, honor, and fulfill all ticketing commitments that have been confirmed by CELLARPASS through the Services, and it is your responsibility to verify the Buyer's membership status, confirmation number and/or any event restrictions prior to the subject event.
(c) Taxes; Withholding
(i) You are solely responsible for determining which, if any, sales, use, amusement, value added, consumption, excise and other taxes, duties, levies and charges (collectively, "Taxes") apply to your use of the Services and for collecting, remitting and reporting the correct amounts of all such Taxes to the applicable governmental authorities, even if CELLARPASS provides you with tools that assist you in doing so. CELLARPASS does not represent or warrant that any tax tools will meet all tax requirements that may be applicable to you. CELLARPASS cannot give you legal or tax advice, so please be sure to check with your own tax advisor about any applicable Taxes. In the event that a governmental authority requires CELLARPASS to pay any Taxes attributable to your use of the Services, you agree to indemnify and reimburse CELLARPASS for such Taxes and all costs and expenses related thereto.(ii) All Service Fees charged by CellarPass do not include any Taxes except to the extent that a Tax is expressly set forth in the applicable invoice or billing statement, and you agree to pay any Taxes that are imposed and payable on such Service Fees (other than those calculated based on CELLARPASS'S net income) to CellarPass.(iii) In addition, due to new IRS regulations, if CELLARPASS processes transactions and issues you payouts (A) for more than $20,000 in gross sales and (B) for more than 200 order transactions, in each case during a given calendar year and in the aggregate across all of your accounts, CELLARPASS is required to report to the IRS the gross amount of transactions for which you have been paid in that calendar year and in each month of that calendar year, as well as, your name, your address, and your Tax Identification Number ("Your Tax Information"). Starting in 2013, as part of these new IRS regulations, CELLARPASS is required to either (I) collect Your Tax Information or (II) establish that you are a foreign person not subject to US taxes, before your accounts pass the 200 order transaction threshold in the aggregate. Once your accounts cross the 200 order transaction threshold, you agree that you will not receive any further payments from CELLARPASS until either (I) or (II) above are satisfied.(iv) CELLARPASS reserves the right to withhold the payment of any amounts owed to you hereunder if CELLARPASS suspects or determines that such amounts have been generated in (A) a fraudulent manner, (B) violation of this TOS, or (C) violation of any applicable laws or regulations (foreign or domestic), or if CELLARPASS is required to do so by applicable laws or regulations (foreign or domestic). Such withholding may be temporary or permanent (as determined by CELLARPASS).
5. YOUR REGISTRATION OBLIGATIONS
To be a registered user of the Services as an Organizer you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Site registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or CELLARPASS has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, CELLARPASS has the right to suspend or terminate all of your accounts and refuse any and all of your current or future use of the Services (or any portion thereof). CELLARPASS is concerned about the safety and privacy of all its users, particularly children. For this reason, and to be consistent with the terms of use of any FPM service provider or other third party service provider, you must be at least 18 years of age, or the legal age of majority where you reside if that jurisdiction has an older age of majority, to register for an account.
6. ACCOUNT, PASSWORD AND SECURITY
As part of the Site registration process, you will create a password and account. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your account, including, without limitation, all actions by sub-users registered under your account. You agree to (a) immediately notify CELLARPASS of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. CELLARPASS cannot and will not be liable for any loss, damage or other liability arising from your failure to comply with this Section or from any unauthorized access to or use of your account. In the event of any dispute between two or more parties as to account ownership, you agree that CELLARPASS shall be the sole arbiter of such dispute in its sole discretion and that CELLARPASS'S decision (which may include termination or suspension of any account subject to dispute) shall be final and binding on all parties.
7. CONTENT7.1
Site Content
You agree that all material, including without limitation information, data, software, text, design elements, graphics, images and other content (collectively, "Content"), contained in or delivered via the Services or otherwise made available by CELLARPASS in connection with the Services (collectively, "Site Content") is protected by copyrights, trademarks, service marks, trade secrets or other intellectual property and other proprietary rights and laws. CELLARPASS may own the Site Content or portions of the Site Content may be made available to CELLARPASS through arrangements with third parties. Except as expressly authorized by CELLARPASS in writing or in connection with your use of the intended functionality of the Services, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any Site Content, or post any Site Content on any other web site or in a networked computer environment for any purpose. Reproducing, copying or distributing any Site Content for any other purpose is strictly prohibited without the express prior written permission of CELLARPASS. You shall use the Site Content only for purposes that are permitted by this TOS and any applicable laws and regulations (foreign and domestic). Any rights not expressly granted herein are reserved.
7.2 Your Content
You acknowledge and agree that if you contribute, provide or make available any Content to the Site ("Your Content"), you hereby grant to CELLARPASS a non-exclusive, worldwide, irrevocable, limited, royalty-free, right and license to use, reproduce, adapt, modify, distribute, translate, publish, create derivative works based on, perform, display and otherwise exploit Your Content, in whole or in part solely for the purposes set forth in this Agreement.. You represent and warrant that you have all the rights, power and authority necessary to grant the foregoing license, and that all Your Content (i) to the best of your knowledge, does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party, and (ii) complies with all applicable laws and regulations (foreign and domestic). In addition, Your Content must be accurate and truthful. CELLARPASS reserves the right to remove any of Your Content from the Site at any time if CELLARPASS believes in its sole discretion that it does not comply with this TOS. In addition, with the prior written authorization of you, which may be withheld in your sole discretion, you agree that CELLARPASS may use your name and logo (whether or not you have made it available through the Site) for the purpose of identifying you as an existing or past customer of CELLARPASS both on the Site and in marketing and promotional materials.
7.3 DMCA
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any Content made available in connection with the Services infringes your copyright, you (or your agent) may send us a notice requesting that the Content be removed, or access to it blocked. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright for details). Notices and counter notices with respect to the Services should be sent to:
CellarPass
Attn: Sarah Elliman
50 California Street
Suite 1500
San Francisco, CA 94111
By Email: legal@cellarpass.com
8. CONDUCT8.1 Certain Restrictions
You understand that you are liable for all Content, in whatever form, that you provide or otherwise make available to or through the Services, including to Buyers and other users of the Services. You agree not to use the Services to:
Upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
Harm minors in any way;
Facilitate gambling, gaming, lotteries, raffles, contests, sweepstakes and/or any other activity featuring the award of a prize other than raffles, contests or sweepstakes conducted in a manner that complies in all respects with CELLARPASS's Raffles, Contests and Sweepstakes Guidelines;
Impersonate any person or entity, including, but not limited to, an CELLARPASS representative or forum leader, or falsely state or otherwise misrepresent your affiliation with a person or entity;
Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
Upload, post, insert or include any references to making purchases on another website or form of payment outside of the CellarPass.com domain. This includes posting either reservation-based events or ticketed events that would subsequently require attendees to pay additional entry fees, service fees, purchases or collect any other form of payment to attend via any other transactional method than CellarPass.
Upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);Upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any person or entity;
Upload, post, email, transmit or otherwise make available any Content related to the sale or provision of goods and services other than the sale or provision of tickets and registrations to events listed on the Site and other goods and services being sold or provided in conjunction with such events;
Upload, post, email, transmit or otherwise make available any Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to otherwise interact with the Services in a manner not permitted by this TOS or expressly authorized by CELLARPASS.
Interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
Intentionally or unintentionally violate any applicable law or regulation (foreign or domestic), including without limitation (i) regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange (e.g., the New York Stock Exchange, the American Stock Exchange or the NASDAQ) and (ii) laws and regulations (foreign or domestic) regarding the sale or resale of tickets (including without limitation with respect to licensure requirements, maximums or limits on ticket prices, etc.); or stalk or otherwise harass any person or entity.
Raffles, Contests &Sweepstakes Guidelines
The following guidelines, together with the CellarPass TOS and any other CellarPass rules, policies or procedures that may be published from time to time, govern all use of the Services (as defined in the CellarPass Terms of Service) to create, administer, sponsor, sell tickets or entries to, promote or operate any raffles, contests or sweepstakes:
All raffles, contests and sweepstakes (whether based on chance, skill or otherwise) must be created, administered, sponsored, promoted and operated in all respects in strict compliance with all federal, state, local and foreign laws.
All raffle, contest and sweepstakes event registration pages must clearly and conspicuously state that CellarPass is not a sponsor or administrator of, and is not in any way affiliated with, such event or activity.
You acknowledge your indemnification obligations pursuant to the CellarPass Terms of Service, which include full indemnification of CellarPass with respect to any claim, loss or damage arising in connection with the operation or promotion of any raffle, contest or sweepstakes in connection with the Services.
The event registration page or related rules for all raffles, contests and sweepstakes must contain a complete release from participants of CellarPass from any and all liability related in any way to such event.
If CellarPass determines (in its sole discretion) at any time that any such raffle, contest or sweepstakes does not comply with these CellarPass Raffles, Contests and Sweepstakes Guidelines and the CellarPass Terms of Service, then CellarPass shall have the rights and remedies set forth in the CellarPass Terms of Service, including to alter, edit or remove such raffle, contest or sweepstakes or any part thereof, as well as the right to suspend or terminate the account holder.
8.2 Certain Remedial Rights
You acknowledge that CELLARPASS does not pre-screen any Content provided or made available by you or any third party in connection with the Services, but that CELLARPASS and its designees shall have the right (but not the obligation) in their sole discretion to (i) monitor, alter, edit, or remove any of your Content, in whole or in part, and/or (ii) rescind and terminate your right to use the Services at any time (with or without notice) for any reason or no reason. You acknowledge and agree that CELLARPASS may preserve your Content and may also disclose your Content for any reason, including without limitation if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this TOS; (c) respond to claims that any of your Content violates the rights of third parties; and/or (d) protect the rights, property, or personal safety of CELLARPASS, its users and/or the public. You understand that the technical processing and transmission of the Services, including Your Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
9. Sub-Domains
CELLARPASS may provide you with the right to use a sub-domain within the Site (e.g., [sub-domain prefix].CellarPass.com). All such sub-domains are the sole property of CELLARPASS. In the event CELLARPASS provides you with a sub-domain, your right to use such sub-domain may be terminated by CELLARPASS at any time (with or without notice) for any reason or no reason.
11. Special Admonitions for International Use
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. By way of illustration and not limitation, you agree to comply with all applicable laws and regulations (foreign and domestic) regarding the transmission of technical data exported from the United States or the country in which you reside.
In addition, the Services are subject to United States export controls. No part of the Services may be exported or re-exported into, or to a national or resident of, any country to which the U.S. has embargoed goods and/or services of the same type as the Services. By using the Services or any part thereof (including by downloading any Software), you represent and warrant that you are not located in, and you are not a national or resident of, any such country. Further, no part of the Services (including any Software) may be exported or re-exported to any person or entity appearing on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List or the Bureau of Industry and Security's Denied Persons List. By using the Services or any part thereof (including by downloading any Software), you represent and warrant that you are not a person or entity or under the control of or affiliated with a person or entity that appears on any such list.
12. Additional Services
CELLARPASS may, upon request, and for such fees as CELLARPASS may establish from time to time in its sole discretion, provide additional services to you beyond the functionality of the Site, including without limitation leasing ticket scanning and other equipment, providing consultants and staffers to assist you on the date of your event, and providing dedicated account management services. All such additional services, whether provided prior to, during or following your event, shall be deemed a part of the Services and subject to all the terms and conditions of this TOS. Such additional services shall be set forth in a written Addendum Agreement to this TOS, CELLARPASS Equipment Lease Agreement, and/or other written agreement between you and an authorized officer of CELLARPASS, and shall set forth the Service Fees and the other terms and conditions relating to such additional services. As a condition to the lease of any equipment, you shall enter into a separate CELLARPASS Equipment Lease Agreement.
13. Indeminity
You agree to defend, indemnify and hold CELLARPASS, and its affiliates, and each of its and their respective officers, directors, agents, co-branders, other partners, and employees, harmless from any and all damage (whether direct or indirect, loss, liability, cost and expense (including, reasonable attorneys and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise), or investigation made by any third party (each a "Claim") due to or arising out of: your Content; your or any of your affiliates, or any of your or your affiliates officers, directors, agents or employees, use of, contribution to or connection with the Services or violation of any rights of another; your event(s); and/or your violation of this TOS. CELLARPASS shall provide notice to you of any such Claim, provided that the failure or delay by CELLARPASS in providing such notice shall not limit your obligations hereunder. CELLARPASS reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification of CELLARPASS under this Section, and in such case, you agree to cooperate with all reasonable requests in assisting CELLARPASSs defense of such matter.
CELLARPASS agrees to defend, indemnify and hold Customer, and its respective officers, directors, agents, cobranders, other partners, and employees, harmless from any and all damage, loss, liability, cost and expense (including reasonable attorneys’ fees) resulting from any claim, demand suit, proceeding (whether before an arbitrator, court, mediator or otherwise), or investigation made by any third party (each a “Claim”) due to or arising out of: (i) CELLARPASS’ gross negligence, willful misconduct or intentional misconduct of CELLARPASS or CELLARPASS’ employees, subcontractors or agents; (ii) any actual or alleged infringement or violation of any patent, trademark, copyright or other intellectual property or proprietary right relating to the Services. Customer reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification of Customer under this Section, and in such case, CELLARPASS agrees to cooperate with all reasonable requests in assisting Customer’s defense of such matter.
14. Service Modifications and Suspensions
CELLARPASS reserves the right at any time to, and from time to time may, modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof) for any reason or no reason with or without notice. CELLARPASS will not be responsible to you for a refund, in whole or part, of Service Fees for any reason, except for Service Fees (excluding the portion of Service Fees paid over to FPMs and other third party service providers used by CELLARPASS in connection with providing the Services) related to refunds issued to Buyers. You agree that CELLARPASS shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
15. Terminations
CELLARPASS, in its sole discretion, may terminate your password, accounts (or any part thereof) and/or your right to use the Services, and remove and discard any and all of Your Content within the Services, at any time for any reason or no reason, including, without limitation, for lack of use, failure to timely pay any fees or other monies due CELLARPASS, or if CELLARPASS believes that you have violated or acted inconsistently with the letter or spirit of this TOS. You agree that any termination of your right to use the Services may be effected without prior notice, and acknowledge and agree that CELLARPASS may immediately deactivate or delete your account and all related Content and files related to your account and/or bar any further access to such files or the Services. Further, you agree that CELLARPASS shall not be liable to you or any third-party for any termination of your right to use or otherwise access the Services. All provisions of this TOS that by their nature should survive termination of your right to use the Services shall survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, and intellectual property protections and licenses).
16. Links
The Services may provide, or third parties may provide, links to other Internet websites or resources. Because CELLARPASS has no control over such websites and resources, you acknowledge and agree that CELLARPASS is not responsible for the availability of such websites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, services or other materials on or available from such websites or resources. You further acknowledge and agree that CELLARPASS shall not be responsible or liable for any damage or loss caused or alleged to be caused by or in connection with any use of or reliance on any such Content, advertising, products, services or other materials available on or through any such website or resource.
17. Disclaimer of Warranties
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CELLARPASS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. CELLARPASS MAKES NO WARRANTY THAT: (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE SERVICES THEMSELVES (OR ANY PART THEREOF) WILL MEET YOUR EXPECTATIONS, OR (V) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. CELLARPASS IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR THE CONTENT, PRODUCTS, SERVICES, ACTIONS OR INACTIONS OF ANY USER, BUYER OR OTHER NON-ORGANIZER, ORGANIZER OR THIRD PARTY BEFORE, DURING AND/OR AFTER AN EVENT; AND CELLARPASS WILL HAVE NO LIABILITY WITH RESPECT TO ANY WARRANTY DISCLAIMED IN (I) THROUGH (V) ABOVE. YOU ACKNOWLEDGE THAT CELLARPASS HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF EVENTS ADVERTISED, THE TRUTH OR ACCURACY OF ANY USERS' (INCLUDING BUYERS', OTHER NON-ORGANIZERS' AND ORGANIZERS') CONTENT OR LISTINGS, OR THE ABILITY OF ANY USER (INCLUDING BUYERS AND ORGANIZERS) TO PERFORM, OR ACTUALLY COMPLETE A TRANSACTION. IN ADDITION, CELLARPASS IS NOT AFFILIATED WITH, AND HAS NO AGENCY OR EMPLOYMENT RELATIONSHIP WITH, ANY THIRD PARTY SERVICE PROVIDER USED IN CONJUNCTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY FPM SERVICE), AND CELLARPASS HAS NO RESPONSIBILITY FOR, AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY SUCH THIRD PARTY SERVICE PROVIDER. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Notwithstanding the foregoing, you may report the misconduct of users, Buyers, other non-Organizers, Organizers and/or third parties in connection with the Site or any Services to CELLARPASS. CELLARPASS, in its sole discretion, may investigate the claim and take necessary action.
18. Limitation of Liability
CELLARPASS SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WITH RESPECT TO THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THIS TOS, FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CELLARPASS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, (III) AMOUNTS IN EXCESS OF US$100.00 IN THE AGGREGATE FOR ALL CLAIMS FROM A GIVEN ORGANIZER WITH RESPECT TO THE SERVICES, OR (IV) ANY MATTERS BEYOND CELLARPASS'S REASONABLE CONTROL. CELLARPASS SHALL HAVE NO LIABILITY WITH RESPECT TO ANY OF YOUR CONTENT OR ANY CONTENT OF ANY OTHER USER OF THE SERVICES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
19. Release
IN CONSIDERATION OF BEING PERMITTED TO ACCESS AND USE THE SERVICES, YOU HEREBY AGREE TO RELEASE CELLARPASS, AND ITS AFFILIATES, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, CO-BRANDERS, OTHER PARTNERS, AND EMPLOYEES FROM ALL DAMAGES (WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE), LOSSES, LIABILITIES, COSTS AND EXPENSES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH DISPUTES BETWEEN YOU AND THIRD PARTIES (INCLUDING OTHER ORGANIZERS, BUYERS, AND OTHER NON-ORGANIZERS) IN CONNECTION WITH THE SERVICES, YOUR ACCESS AND USE OF THE SERVICES, OR YOUR EVENT. NOTWITHSTANDING THE ABOVE, THE RELEASE SHALL NOT EXTEND TO ANY THIRD-PARTY CLAIMS BROUGHT AGAINST CUSTOMER DUE TO NEGLIGENCE, RECKLESSNESS OR INTENTIONAL MISCONDUCT ON THE PART OF CELLARPASS, ITS EMPLOYEES, AGENTS OR CELLARPASS’ SERVICES IN CONNECTIONIN CONNECTION WITH THE FOREGOING RELEASE, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE 1542 AND ANY OTHER APPLICABLE LAW OR STATUTE, WHICH SAYS, IN SUBSTANCE:"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."Additionally, you may not use the CellarPass Reservation & Ticketing Services in connection with any product, service, transaction or activity that involves:a. Violates any law or government regulation, or promotes or facilitates such by third parties;b. Violates any rule or regulation of Visa, MasterCard, American Express, Discover or any other electronic funds transfer network (each, a “Card Network”);c. Is fraudulent, deceptive, unfair or predatory;d. Causes or threatens reputation damage to us;e. Involves any of the business categories listed in Section 2; orf. Results in or creates a significant risk of chargebacks, penalties, damages or other harm or liability.
2 Certain Business CategoriesYou may not use the Reservation & Ticketing Services in connection with any product, service, transaction or activity that involves:aggregation or factoring, whether licensed or unlicensedairlines (exceptions apply if you get our prior written approval)bail bondsbankruptcy lawyersbidding fee auctionsbusiness or investment opportunity saleschain letterscheck cashing, wire transfers or money orderscollection agenciescounterfeit goods or any product or service that infringes upon the copyright, trademark or trade secrets of any third partycredit card and identity theft protectioncredit counseling, repair or protection services, or mortgage consulting or reduction servicescruise linescurrency exchanges or dealersdrug paraphernaliaembassies, foreign consulates or other foreign governmentsevading card association chargeback monitoring programsextended warrantiesgambling (including but not limited to lotteries, Internet gaming, contests, sweepstakes, or offering of prizes as an inducement to purchase goods or services) (exceptions apply in some countries and if you get our prior written approval)multi-level marketing or pyramid schemesnegative response marketingpersonal computer technical support (exceptions apply if you get our prior written approval )pseudo pharmaceuticalsproducts/services that promote hate, violence, harassment or abuse, if illegalquasi-cash or stored valuesexually oriented or pornographic products or servicessharing cardholder’s data with another merchant for payment of up-sell or cross-sell products or servicessocial media activity sales (such as sales of Twitter followers, Facebook likes or Youtube views)sports forecasting or odds makingsubstances designed to mimic illegal drugsweapons and munitions.
3 Actions by CellarPass
If, in our sole discretion, we believe that you may have engaged in any violation of this Acceptable Use Policy, we may (with or without notice to you) take such actions as we deem appropriate to mitigate risk to CellarPass and any impacted third parties and to ensure compliance with this Acceptable Use Policy. Such actions may include, without limitation:
a. Blocking the settlement or completion of one or more payments;
b. Suspending, restricting or terminating your access to and use of the CellarPass platform;
c. Terminating our business relationship with you, including termination without liability to CellarPass of any payment service agreement between you and CellarPass;
d. Taking legal action against you;
e. Contacting and disclosing information related to such violations to (i) persons who have purchased goods or services from you, (ii) any banks or Card Networks involved with your business or transactions, (iii) law enforcement or regulatory agencies, and (iv) other third parties that may have been impacted by such violations; or
f. Assessing against you any fees, penalties, assessments or expenses (including reasonable attorneys’ fees) that we may incur as a result of such violations, which you agree to pay promptly upon notice.
4 Amendments
This Acceptable Use Policy may be amended by CellarPass at any time by posting a new version of it to our website. By accessing or using the CellarPass platform after a new version is posted, you agree to all amendments reflected therein.