TERMS OF SERVICE
I. Applicability & Acceptance of These Terms of Service
By installing, accessing, viewing, browsing or using any of our City Hive Gateways or by receiving a service from a City Hive powered Gateway and/or any services supplied to you by City Hive (collectively, “Services”), you represent to us that you are legally competent to enter into and agree to this Agreement as a binding legal agreement between you and City Hive without limitation or qualification.
Some of our gateways and services are intended solely for users who are 21 years of age or older. Such limitation is indicated upon entering the gateway. Any registration, use or access to these services by anyone under 21 is strictly prohibited and in violation of these terms. By using these gateways or the services, you expressly represent and warrant that you are at least 21 years of age.
PLEASE NOTE THAT THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES (EXCEPT IN CERTAIN CIRCUMSTANCES), RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS.
City Hive provides e-commerce infrastructure: each of our Gateways independently, and the collection of Gateways collectively, enables you to search for products, events and services and place and schedule orders with independent, licensed retailers, and other licensees with retail privileges, (“Licensed Fulfillment Agents”) for the purchase and sale of such products, among other things. All orders placed through any of our Gateways are accepted, reviewed, and ultimately fulfilled by Licensed Fulfillment Agents. Sales by Licensed Fulfillment Agents are made at their licensed premises and title to, and ownership of, all ordered items pass from them to you at their licensed premises and you assume all responsibility for the pick-up, delivery or shipment of your order.
By arranging for the pick-up or transportation of your order on your behalf, the Licensed Fulfillment Agent is providing a service to you. Pick-up, delivery and shipment services may be subject to additional policies and procedures of the Licensed Fulfillment Agents and their shipping or delivery company. By using pick-up, delivery or shipping services for any of the products sold on any of our Gateways you represent that you are of legal consumption age and are in compliance with your local and state laws applicable to the purchase, transportation, receipt and/or reporting of your order. You also represent that you have obtained all required permissions, paid all required fees, are working through properly licensed intermediaries where required, are legally entitled to take possession of the order and are legally entitled to take the quantities ordered. You further represent that you are using the Services for lawful purposes and to place orders for personal consumption and not for any re-sale or distribution. You acknowledge that certain Services may not be available to you due to local rules applicable to your location.
III. Services, Fees & Processing
Each product listed on any of City Hive different Gateways is not an offer to purchase such product but an invitation to make an offer by placing an order. You acknowledge and agree that City Hive does not sell, offer to sell, invite to sell, or solicit any offers. In all instances, all sales are advertised, accepted, made and delivered by licensed retailers who receive all orders and offers. In all instances, any solicitation, invitation, offer, advertisement or communication is void where prohibited by law. City Hive does not sell or deliver products. At time of purchase, your credit card will be charged by a third party credit card processing provider who will transfer and deliver funds to the Licensed Fulfillment Agent. All sales are solely transacted between you and Licensed Fulfillment Agent. No part of the Services is intended to facilitate any improper furnishing of inducements by any manufacturer, importer, supplier, wholesaler or distributor of products to any Licensed Fulfillment Agent or any improper exclusionary practices by any licensee.
City Hive does not currently charge users a fee to use its Services; however, the Licensed Fulfillment Agent fulfilling your order and/or its third party service provider(s) may charge fees in connection with your transaction, including but not limited to shipping or delivery fees in cases where you have placed an order for shipment or delivery and Restocking Fees, which are described in the next section. Any such fees are due immediately. In the future, we may, in our sole discretion, begin charging fees for our Services. We will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services at that time, you will be required to pay all applicable fees for such Services. You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed by any authority on you by virtue of your transacting with retailers or otherwise by using the Services.
If a Licensed Fulfillment Agent accepts your order request, your credit or debit card will be charged for the amount indicated at the time of purchase. Once the charge is authorized, the Licensed Fulfillment Agent will package your order for either pick-up, delivery or shipment as indicated by you in your order request.
The prices published on the any of The Gateways are suggested retail prices based on pricing information provided to us by Licensed Fulfillment Agents and may not always reflect the prevailing pricing. The Licensed Fulfillment Agents reserve the right to determine final prices of all their products.
Promotional Offers; Credits.
- Independent retailers, in their sole discretion, may offer certain promotions and credits from time to time for users, to the extent permissible under applicable laws. Depending upon where you are, you may or may not receive or be eligible to participate in these promotional offers and credits. If a retailer choose to extend a promotion or credit to you, it will be issued by the Licensed Fulfillment Agent unless otherwise specifically stated in the terms and conditions of such promotion or credit. Any such promotions and credits are non-transferrable and may only be used in connection with the specific issuing retailer.
- City Hive, in its sole discretion, may offer certain promotions and credits from time to time for users, to the extent permissible under applicable laws. Depending upon where you are, you may or may not receive or be eligible to participate in these promotional offers and credits. If we choose to extend a promotion or credit to you, it will be issued by City Hive and not the Licensed Fulfillment Agents, unless otherwise specifically stated in the terms and conditions of such promotion or credit. Any such promotions and credits are non-transferrable and may only be used in connection with the Services.
- The individual picking-up the order or accepting the order delivery or shipment may be required to provide a valid form of photo identification proving that he or she is at least 21 years old and sign for the order at the time of pick-up, receipt of delivery or shipment.
- It is solely the responsibility of each Licensed Fulfillment Agent, and its employees and agents, or the shipping or delivery company used by the Licensed Fulfillment Agent and that shipping or delivery company’s employees and agents, to verify such proof of identification.
Cancel, Decline & Refund Orders
If you need to cancel an order, please call the Licensed Fulfillment Agent. Contact information of the Agent appears on the confirmation email you’ve received. If the Licensed Fulfillment Agent is not responsive, you are welcome to call City Hive’s customer service team at (917) 475-6618. Neither City Hive nor the Licensed Fulfillment Agent, will make any refunds or exchanges for orders that were delivered and signed for.
Your order request, pick-up, delivery or shipment may be declined for any or no reason by the Licensed Fulfillment Agent, or its employee or agent, or the shipping or delivery company used by the Licensed Fulfillment Agent or that shipping or delivery company’s employee or agent.
- If declining because the requested item(s) or acceptable substitutions are not in stock, the Licensed Fulfillment Agent may offer you a full refund.
- If your order request, pick-up, delivery or shipment is declined or cannot be completed for any other reason, you may be charged a non-refundable restocking fee of fifteen dollars ($15.00) (“Restocking Fee”).
- Without limiting the foregoing, THE RESTOCKING FEE WILL BE AUTOMATICALLY CHARGED TO YOU IF YOU, OR IF APPLICABLE THE ORDER RECIPIENT, FAILS TO PROVIDE ACCEPTABLE PROOF OF IDENTIFICATION AND AGE (IF SUCH A PROOF IS REQUIRED), OR IF THE LICENSED FULFILLMENT AGENT, OR ITS EMPLOYEE OR AGENT, OR THE SHIPPING OR DELIVERY COMPANY USED BY THE LICENSED FULFILLMENT AGENT OR THAT SHIPPING OR DELIVERY COMPANY’S EMPLOYEE OR AGENT, IN ITS SOLE DISCRETION, DETERMINES THAT THE TRANSFER OF POSSESSION OF THE ITEMS IS OTHERWISE ILLEGAL, UNSAFE OR INAPPROPRIATE.
- YOU AGREE THAT YOU MAY NOT PROVIDE CITY HIVE OR A LICENSED FULFILLMENT AGENT ANY INFORMATION OF, OR USE THE SERVICES TO PURCHASE OR PICK-UP FOR OR SEND A DELIVERY OR SHIPMENT TO, ANY INDIVIDUAL UNDERAGE WHEN SUCH A DELIVERY IS AGAINST THE LAW.
IV. User License
City Hive hereby grants to you, subject to these Terms, a personal, nonexclusive, nontransferable, limited license (without the right to sublicense) to access and use the Services (including updates and upgrades that replace or supplement it in any respect and which are not distributed with a separate license, and any documentation), share via social networking or print individual pages from the different Gateways in accordance with this Agreement and solely for the purpose of placing an order through one of the Gateways and for your personal and non-commercial use, provided you do not remove any trademark, copyright or other notice contained on such pages on a mobile or other device that you own or control. These Terms do not permit you to install or use the App on a mobile or other device that you do not own or control and you may not distribute or make all or any portion of the Services available over a network where it could be used by multiple devices at the same time. All rights not expressly granted herein are reserved by City Hive.
You may not misuse the City Hive’s service or data to incorporate the information, content, or other material in any database, compilation, archive or cache. You may not modify, copy, distribute, re-publish, transmit, display, perform, reproduce, publish, reuse, resell, license, create derivative works from, transfer, or sell any information, content, material, software, products or services obtained from any of City Hive’s Gateways, weather done manually, or through use of any technological tool, except as specifically noted above or as specifically authorized by City Hive in writing.
Access to the Service
You acknowledge that from time to time the City Hive Service or this Gateway may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs with City Hive may undertake from time to time; or (iii) causes beyond the control of City Hive or which are not reasonably foreseeable by City Hive.
Your account, password, and security
Use of City Hive services requires that you register and/or create an account (“Account”) or use the Gateway as a guest. To register and create an Account, you must select an account designation and password and provide certain personal information. In consideration of the use of the City Hive’s different Gateways, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or City Hive has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, City Hive has the right to refuse any and all current or future use of any or all of its Gateways (or any portion thereof).
You are responsible for maintaining the confidentiality and security of your Account and password, and you are fully responsible for all activities that occur under your password or Account, and for any other actions taken in connection with the Account or password. You agree to (a) immediately notify City Hive of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. City Hive will not be liable for any injury, loss or damage of any kind arising from or relating to your failure to comply with (a) and (b) or for any acts or omissions by you or someone else using your Account and/or password.
You agree that your use of the Gateway and/or services on the Gateway is subject to all applicable local, state and federal laws and regulations. You agree to protect the Services, and their proprietary content, information and other materials, from any unauthorized access or use, and you agree that you will not use the Services or such proprietary content, information or other materials except as expressly permitted herein or expressly authorized in writing by City Hive. You agree that: (i) you will not use the Services if you are not fully able and legally competent to agree to these Terms; (ii) you will only use the Services for lawful purposes and you will not use the Services for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent or objectionable conduct or to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party; (iii) you will not use the Services to advertise, solicit or transmit commercial advertisements, including “spam”; (iv) you will not use the Services to cause nuisance, annoyance or inconvenience; (v) you will not impair the proper operation of the Services’ network; (vi) you will not try to harm the Services in any way whatsoever; (vii) you will not copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Services, any updates, or any part of the Services or content therein without written permission from City Hive; (viii) you will only use the Services for your own use, not for commercial use, and will not distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Services in any unauthorized manner, including but not limited to by trespass or burdening network capacity, or use the Services in any service bureau arrangement; (ix) you will not attempt to obtain any information or content from the Services using any robot, spider, scraper or other automated means for any purpose; (x) you will keep secure and confidential your account password or any identification we provide you which allows access to the Services; (xi) you will only use an access point or data account which you are authorized to use; (xii) you and any recipient of your orders will provide whatever proof of identity and age reasonably requested by the Licensed Fulfillment Agent, its employee or agent, or the shipping or delivery company used by the Licensed Fulfillment Agent or that shipping or delivery company’s employee or agent; and (xii) you will not permit any third party to engage in any of the acts described in clauses (i) through (xi). You understand and agree that you are not permitted to: (w) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Services; (x) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the App, Website, any updates to or portion of the App or Website (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the App or Website); (y) use any means to discover the source code of the App or Website or to discover the trade secrets in the Services; or (z) otherwise circumvent any functionality that controls access to or otherwise protects the Services. Any attempt to do any of the foregoing is a violation of the rights of City Hive and its licensors. If you breach these restrictions, you may be subject to prosecution and damages.
You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. If you object to any part of the Services, you should cease using the Services.
Harm From Commercial Use
You agree that the consequences of commercial use or re-publication of content or information from the any of City Hive’s Gateways may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy and that CITY HIVE will be entitled to temporary and permanent injunctive relief to prohibit such use.
You acknowledge and agree that the Gateway contains proprietary information and content that is protected by intellectual property and other laws, and may not be used except as provided in these Terms of Service without advance, written permission of CITY HIVE. All Gateway content, design, text, graphics, interfaces, and images (and the selection and arrangements thereof), and software, hypertext markup language (“HTML”), scripts, active server pages, and other content and software used in the Gateway are the property of, or duly licensed to, CITY HIVE.
The Services and their content, including “look and feel” (e.g., text, graphics, images and logos), proprietary content, information and other materials, are protected under intellectual property, copyright, trademark and other laws. You acknowledge and agree that City Hive and/or its licensors own all right, title and interest in and to the Services and their content (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. Except for the limited license to the Services granted to you in Section 6 above, you do not acquire any rights or licenses under any of City Hive’s (or its licensors’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these Terms.
Any and all (i) suggestions for correction, change and modification to the Services and other feedback, information and reports provided to City Hive by you (collectively “Feedback”), and all (ii) improvements, updates, modifications or enhancements thereto, whether made, created or developed by City Hive or otherwise relating to the Services (collectively, “Revisions”), are and will remain the property of City Hive. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of City Hive and City Hive may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to City Hive any and all right, title and interest that you may have in and to any and all Feedback and Revisions. At City Hive’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
Third Party Services and Materials.
Certain Services may display, include or make available content, data, information, applications, services or materials from third parties (“Third Party Services and Materials”) or provide links to certain third party web sites and apps. By using the Services, you acknowledge and agree that City Hive is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, availability, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Services and Materials, web sites or apps. City Hive does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third Party Services and Materials. Third Party Services and Materials and links to other websites are provided solely as a convenience to you.
VI. Termination and Modifications to Service
City Hive reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, this Gateway or any of its services offered on or through any of its Gateways (or any part thereof), including but not limited to the Gateway’s features, look and feel, and functional elements and related services. Termination will not limit any of City Hive’s other rights or remedies at law or in equity. We may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Services after the “Last Revised” date at the end of these Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms. If you do not agree with the modifications, then please uninstall the App and do not access or use the Services.
VII. Indemnification; Warranty Disclaimer; Limitation of Liability;
User shall indemnify and hold harmless City Hive and its directors, officers, employees, shareholders, subsidiaries, affiliates, agents, representatives, third-party information providers, delivery agents, merchants, or licensors (collectively, “City Hive Parties”) from and against, for and in respect of, any and all claims, demands, losses, costs and expenses (including the cost of any investigation and reasonable attorneys’ fees), damages, obligations, deficiencies, and liabilities, which arise or result from or are related to User’s improper or illegal: (a) processing of the alcoholic beverage order; (b) purchase of the alcoholic beverage(s); (c) receipt of delivery of the alcoholic beverage(s); or (d) consumption of the alcoholic beverage(s), and/or any consequences which result thereof.
CITY HIVE’s DIFFERENT GATEWAYS, AND THE CONTENT DISPLAYED THEREIN, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. CITY HIVE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE WITH RESPECT TO ANY OF CITY HIVE GATEWAYS, OR ITS CONTENTS OR WITH RESPECT TO ANY INFORMATION, SERVICES, AND PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE CITY HIVE SERVICE.
CITY HIVE DOES NOT ADOPT ANY REPRESENTATION OR WARRANTY OF ANY MANUFACTURER OR MERCHANT OF ANY SUCH INFORMATION, SERVICE, OR PRODUCTS. CITY HIVE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE AVAILABILITY, ACCURACY, OR CONTENT OF ANY INFORMATION, SERVICES, OR PRODUCTS OBTAINED THROUGH THE CITY HIVE GATEWAYS. CITY HIVE DOES NOT WARRANT THAT THE FUNCTIONS PROVIDED BY SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS, CITY HIVE AND ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, REPRESENTATIVES, THIRD-PARTY INFORMATION PROVIDERS, DELIVERY AGENTS, MERCHANTS, OR LICENSORS (I) SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SITE, THE CITY HIVE SERVICE, OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SITE, THE CITY HIVE SERVICE, OR THE CONTENT SHALL BE LIMITED TO THE MONIES YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE SITE OR THE CITY HIVE SERVICE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
CITY HIVE RESERVES THE RIGHT TO LIMIT YOUR ORDER OR THE QUANTITY OF A SPECIFIC PRODUCT YOU MAY ORDER. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
The material in the Site is provided for lawful purposes only. CITY HIVE operates this Site for use in specific jurisdictions where it provides its Services, and makes no representation that these materials are appropriate or available for use in other locations. If you use the Site from other locations, you are responsible for compliance with applicable local laws. Price and availability information is subject to change without notice and may vary geographically.
You agree to defend, indemnify, and hold CITY HIVE Parties harmless from any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, and expenses, including attorney’s fees and costs, arising in connection with a violation of this Agreement by you or through use of your account.
Disclaimer of Warranties.
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY CONTENT, INFORMATION, SERVICES, AND PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SERVICES AND MATERIALS) ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY City Hive OR ITS AUTHORIZED AGENT OR REPRESENTATIVE WILL BE DEEMED TO CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. City Hive MAKES NO REPRESENTATION OR WARRANTY AS TO YOUR LEGAL RIGHT TO PICK-UP OR HAVE ALCOHOL BEVERAGES TRANSPORTED TO YOU OR YOUR INTENDED RECIPIENT.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CITY HIVE NOR ANY OFFICER, DIRECTOR, SHAREHOLDER OR AGENT OF CITY HIVE BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF USE, DATA OR PROFITS OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, OR FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES, OR THE PROCESSING, PURCHASE, SALE, TRANSPORTATION, DELIVERY, SHIPMENT OR CONSUMPTION OF ANY PRODUCT SOLD THROUGH THE ANY OF THE GATEWAYS, INCLUDING ANY CLAIM, DEMAND OR DAMAGES ARISING FROM ANY TRANSACTION THROUGH THE SERVICES INITIATED OR COMPLETED BETWEEN YOU AND ANY RETAILER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF City Hive HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, DEMAND OR DAMAGE. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. If, for any reason, a court or arbitral body finds City Hive liable for damages notwithstanding the foregoing, in no event shall City Hive’s total liability for all damages exceed the amount paid by you to City Hive for your use or receipt of the Services. The foregoing limitations will apply even if the above-stated remedy fails of its essential purpose. NEITHER City Hive NOR THE FULFILLING Licensed Fulfillment Agent NOR THE SHIPPING OR DELIVERY COMPANY USED BY THE Licensed Fulfillment Agent SHALL BE LIABLE FOR ANY DAMAGES TO GOODS CAUSED BY WEATHER CONDITIONS AND OTHER “ACTS OF GOD” DURING TRANSPORTATION. WEATHER CONDITIONS MAY CHANGE AT ANY TIME, SO City Hive, THE FULFILLING Licensed Fulfillment Agent OR THE SHIPPING OR DELIVERY COMPANY USED BY THE Licensed Fulfillment Agent CANNOT ASSUME LIABILITY FOR DAMAGE CAUSED BY CHANGES IN WEATHER DURING TRANSPORTATION. “ACTS OF GOD” INCLUDE UNFORESEEABLE DELAYS OR ACCIDENTS, PUBLIC UNREST, CONFISCATION AND NATURAL DISASTERS. You agree that the above limitations of liability together with the other provisions in these Terms that limit liability are essential terms of these Terms and that City Hive would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability; you are agreeing to these limitations of liability to induce City Hive to grant you the rights set forth in these Terms.
“City Hive”, all City Hive logos, and all titles, characters, names, graphics and button icons are service marks, trademarks and/or trade dress of City Hive or otherwise proprietary to City Hive and may not be used by you for any reason other than as expressly permitted by these Terms of Service. All other trademarks not owned by City Hive (or its affiliates) that appear on each of the Gateways are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by City Hive or its affiliates and you do not acquire any ownership rights in such marks, logos or names by using this Gateway of the City Hive Service.
You acknowledge that these Terms are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your use of the Services and receipt or use of data, content, products and/or services through the Services.
XIII. Jurisdiction, Applicable Law, and Limitations
This Gateway is created, maintained, operated and controlled by City Hive in the State of New York, U.S.A. You agree that the laws of the New York State, excluding its conflicts of law rules and provisions, govern these Terms. City Hive makes no representation as to any laws, rules or regulations of any jurisdiction regarding the sale, service, transportation, import, shipment or delivery of alcoholic beverages. City Hive shall not be liable for any loss or damage arising from your failure to comply with the terms set forth in these Terms or to comply with applicable laws. You agree to comply at your sole expense with all applicable United States laws and regulations. City Hive explicitly reserves the right to refuse access to any portion of the Services at any time without notice for your failure to abide by the terms as set forth in these Terms or your failure to comply with applicable laws.
Apple App Store.
This Paragraph applies to you only if you are using the Gateway as manifested in an App from the Apple App Store. City Hive and you, the end-user of the Gateway and Services, acknowledge that these Terms are entered into by and between City Hive and you and not with Apple, Inc. (“Apple”). Notwithstanding the foregoing, you acknowledge that Apple and its subsidiaries may be third-party beneficiaries of these Terms and that Apple has the right (and is deemed to have accepted the right) to enforce these Terms. City Hive is solely responsible for the App and any content contained therein. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. You and we acknowledge that in the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and will have no responsibility for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty. You and we acknowledge that Apple is not responsible for addressing any claims made by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation. You and we acknowledge that in the event of any third party claim that the App, or your possession or use of the App, infringes such third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such claim. You acknowledge that you have reviewed the App Store Terms and Conditions. Capitalized terms not defined in this Paragraph 11 shall have the meanings set forth in the App Store Terms and Conditions. Your use of the App must comply with the App Store Terms and Conditions.
Google Play Store.
This Paragraph applies to you only if you are using the Gateway as manifested in an App from Google, Inc. or one of its affiliates or successors (“Google”) via Google Play. To the extent of any conflict between the Google Terms of Service, the Google Play Business and Program Policies and such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”) on the one hand and these Terms, the Google Play Terms shall apply with respect to your use of the App. The Google Play Terms can be accessed here: Google Play Terms. City Hive and you hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by City Hive or you (or any other user) under these Terms or the Google Play Terms.
NO WAIVER. The failure of CIty Hive to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of said right or provision. Neither party hereto shall be deemed to be in default of any provision of the Agreement or for failure in performance resulting from acts or events beyond the reasonable control of such party and arising without its fault or negligence, including, but not be limited to, acts of God, civil or military authority, interruption of electric or telecommunication services, civil disturbances, acts of war or terrorists, strikes, fires, floods or other catastrophes.
HEADINGS & CONSTRUCTION. The section titles in the Agreement are for your convenience only and carry no contractual or legal effect whatsoever. The language in this Agreement shall be interpreted in accordance with its fair meaning and shall not be strictly interpreted for or against either party.
These Terms may not be modified by you except by a writing executed by the duly-authorized representatives of City Hive. These Terms will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms and the rights granted under these Terms may be assigned by City Hive but may not be assigned by you without the prior express written consent of City Hive. If any provision of these Terms is or becomes, at any time or for any reason, unenforceable or invalid, no other provision of these Terms will be affected and the remaining provisions will continue to be enforceable and valid according to the terms of such provisions. It is expressly understood that in the event either party fails to perform any term of these Terms and the other party does not enforce that term, the failure to enforce not constitute a waiver of any term. Nothing contained in these Terms will be deemed to constitute either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose. No joint venture, partnership, employment, or agency relationship exists between City Hive and you or any third party as a result of these Terms or your use of the Services. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence. You and City Hive agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms. The headings and captions contained in these Terms will not be considered to be part of these Terms but are for convenience only.
XVI. Injunctive Relief
You agree that a breach of these Terms will cause irreparable injury to City Hive for which monetary damages would not be an adequate remedy and City Hive shall be entitled to seek equitable relief, in addition to any remedies it may have hereunder or at law, without having to post a bond or other security or prove damages.
XVII. Dispute Resolution
Arbitration, No Class Actions. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THESE TERMS OR THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act (“FAA”) and federal arbitration law apply to these Terms. If you do not want to arbitrate disputes with City Hive and you are an individual, you may opt out of this arbitration agreement by sending an email to info@CityHive.net within 30 days of the day you first access or use the Services.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS AS A COURT WOULD.
If you intend to seek arbitration you must first send written notice to City Hive’s Customer Service Center of your intent to arbitrate (“Notice”). The Notice to City Hive should be sent by any of the following means: (i) electronic mail to info@CityhHive.net or (ii) U.S. Postal Service certified mail to City Hive, Inc., Attn: Customer Service Center, 4 World Trade Center, 150 Greenwich, #2968, New York, NY, 10007. The Notice must: (x) describe the nature and basis of the claim or dispute; (y) set forth the specific relief sought; and (z) set forth your name, address and contact information. If we intend to seek arbitration against you, we will send any notice of dispute to you at the contact information we have for you. If we do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or City Hive may commence an arbitration proceeding.
The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be governed by the American Arbitration Association (“AAA”) under its AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer Related Disputes, as modified by these Terms. The AAA’s rules are available at ADR.org or by calling 1-800-778-7879. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by these Terms. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. We will reimburse all other AAA filing, administration and arbitrator fees paid by you for claims totaling less than $10,000, unless the arbitrator determines that the arbitration was frivolous or brought for an improper purpose, in which case the payment of all such fees shall be governed by the AAA Rules. In such case, you agree to reimburse City Hive for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. City Hive will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claim or the relief sought is improper or not warranted. The arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, based solely on written submissions or in person in the Commonwealth of Massachusetts or at a mutually agreed location. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. No claim or action arising from or concerning the Services or otherwise hereunder may be brought later than one (1) year from the date the claim or cause of action arose. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable.
WE EACH AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Further, you agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, and that if this specific proviso is found to be unenforceable, then the entirety of this arbitration clause shall be null and void. If for any reason a claim proceeds in court rather than in arbitration, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and we each agree to the exclusive jurisdiction and the exercise of personal jurisdiction of the state or federal court located in the Commonwealth of Massachusetts for the purpose of litigating all claims or disputes, and waive any objection as to inconvenient forum. We also both agree that City Hive may bring suit in court for injunctive relief to enjoin infringement or other misuse of intellectual property rights.
You may contact us regarding the Services or these Terms at: City Hive, Inc., 4 World Trade Center, 150 Greenwich St., New York, NY, 10007, or by email to: info@CityHive.net.
Last Revised: March 15, 2017