Service Provider terms and conditions

TERMS AND CONDITIONS

Effective date 02/15/2023

These Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the EZeels Vendor Agreement between EZeels and Vendor (collectively, the "Agreement"). EZeels, subject to the provisions of this paragraph, may amend the Agreement in its sole discretion and at any time. The most recent version of the Terms and Conditions (as may be amended by EZeels from time to time) will be available i) on the website EZeels and ii) may be faxed or emailed to the vendor. Vendor agrees that either or both of these notification methods constitute adequate notice to inform Vendor of any amendments to the Agreement and Vendor further agrees to be bound by any such amendments to the Agreement upon such notification.

Definitions

"AMOUNT PAID" means the amount a purchaser pays for each service.

"REMITTANCE AMOUNT" means the amount EZeels shall remit to Vendor for each amount paid, subject to the payment terms.

Discount Program
1. EZeels is authorized to promote and sell vendor’s services on Vendor's behalf subject to the terms of this Agreement and the "Terms of Sale" located at https://ezeels.com. The website will evidence the Vendor Offering and services are to be commenced for customers once payment is received. If there is a conflict between this Agreement and the Terms of Sale, the Agreement controls.
2. If EZeels, in its sole discretion, determines Vendor response times or the quality of service provided to purchasers is unsatisfactory, EZeels may terminate the Agreement and return the Amount Paid to purchasers for pending services.
3. EZeels reserves the continuing right to reject, revise, or discontinue any Vendor Offering, at any time and for any reason in EZeels's sole discretion, and to terminate the Vendor Offering and to remove all references to the Vendor Offering and services from the Website; and redirect or delete any URL used in connection with the Vendor Offering.

1. Vendor agrees that in providing the Vendor Offering, Vendor will not inflate prices or impose any additional fees, charges, conditions or restrictions. Unless disclosed in the Fine Print, Vendor further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-EZeels customers.
2. Vendor is responsible for all purchaser service in connection with the Vendor Offering and for supplying all goods and services stated in the Vendor Offering. Vendor is also responsible for any purchaser loyalty programs associated with the Vendor Offering.
3. Vendor agrees to accept returns of the Vendor Offering in compliance with applicable laws and the Fine Print, but in any event: (i) will accept returns of a defective Vendor Offering or nonconforming items in or a part of any Vendor Offering at all times and pay (or reimburse a purchaser for) any and all costs associated with the return of such Vendor Offering; and (ii) will not impose a more restrictive return policy on purchasers than Vendor's regular return policy as applied to Vendor's purchaser in the ordinary course of Vendor's business.
Payment
1. Amounts retained by EZeels from the proceeds of the Vendor Offering are compensation to EZeels for marketing, promoting, and advertising the Vendor Offering on behalf of Vendor.
2. EZeels is authorized to initiate ACH credit transaction entries to Vendor's depository account at the depository financial institution named in this Agreement or as otherwise provided to EZeels by Vendor in writing. Only in the event of an error, EZeels is authorized to initiate debit entry adjustments to the Vendor Bank Account to correct any error. Vendor hereby acknowledges that EZeels's origination of all ACH transactions to Vendor Bank Account must comply with provisions of U.S. law. ACH payments take up to five (5) business days to become available in the Vendor Bank Account after processing.
3. Vendor will not attempt to bill or collect reimbursement from any third-party payor, including but not limited to any insurer, health insurance plan, Medicare, Medicaid, or any other federal, state, provincial, territorial or local governmental program or entity ("Third-Party Payor"), for any of Vendor's services. Vendor will accept the amounts received from EZeels as payment in full for all services provided by Vendor delivered pursuant to the Vendor Offering. Vendor is solely responsible for complying with any contractual requirements imposed by its contracts with Third-Party Payors, including but not limited to requirements related to offering discounted services.
4. Tax Levy. In the event EZeels receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Vendor, EZeels may, in accordance with applicable law, deduct any such amounts from payments due to Vendor.
5. It is Vendor's responsibility to determine what, if any, taxes apply to the payments Vendor makes or receives, and it is Vendor’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. EZeels is not responsible for determining whether taxes apply to Vendor’s transaction with either purchasers or EZeels, or for collecting, reporting or remitting any taxes arising from any transaction with or by Vendor and purchaser. Vendor may be asked to provide EZeels with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Vendor’s name for the value of payments made. Notwithstanding anything else in this Agreement, Vendor shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Vendor is required to be so registered in connection with the Vendor Offering and pursuant to the terms and redemption of the Voucher, and shall be responsible for paying any and all sales, use or any other taxes related to the Vendor Offering or the goods and services.
6. Transaction Taxes. Vendor bears sole financial responsibility for any and all sales, use, excise, general, GST, or other similar taxes, including any interest penalties and additions related thereto, imposed on or arising from the transactions contemplated by this Agreement between EZeels and Vendor (“Transaction Taxes”), if any. EZeels shall apply the applicable Transaction Tax to the amounts it retains and/or other fees remitted to EZeels pursuant this Agreement. Transaction Taxes are calculated using the Vendor’s billing address and will be included on invoices. Tax rates are subject to change. If applied, Transaction Taxes will be calculated at the time of each payment using the rates in effect under current law.
7. Withholding Taxes. EZeels may be required by tax authorities to withhold taxes on behalf of Vendor. EZeels reserves the right to deduct any such taxes from amounts due to Vendor and to remit them to the appropriate tax authority. EZeels may also be required to report the withholding tax payments to the tax authorities. EZeels shall provide evidence of payment of withholding taxes to Vendor no later than 60 days after payment of the withholding taxes.
8. Notwithstanding anything to the contrary, EZeels will have no obligation to advance amounts that have been paid to EZeels by a purchaser until Vendor has complied with Vendor's obligations under this Agreement. If EZeels reasonably believes that Vendor has breached any provision of this Agreement, EZeels may offset, delay, withhold, or suspend future payments to Vendor, in EZeels's sole discretion. In addition, if Vendor is unwilling to, or in EZeels's reasonable discretion appears unable to, perform its obligations under this Agreement, EZeels is authorized to offset, delay, withhold, or suspend future payments to Vendor in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Vendor for any refunds and/or other amounts payable by Vendor under this Agreement.
Customer Data Restrictions
1. "Customer Data" means all identifiable information about purchasers generated or collected by EZeels or Vendor, including, but not limited to, purchasers' name, shipping addresses, email addresses, phone numbers and financial transaction data.
2. Vendor shall use Customer Data only to fulfill its redemption obligations in connection with the Vendor Offering as authorized by this Agreement. Vendor expressly agrees that any Customer Data shall be used only for this purpose (including, but not limited to, services to purchasers), and not to enhance a file or list owned by Vendor, or any third party. Vendor represents, warrants and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law. If Vendor engages any third party to facilitate its redemption obligations hereunder, Vendor shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Vendor or a third party engaged by Vendor to facilitate its redemption obligations hereunder, Vendor shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy and all applicable laws.
3. As long as Vendor uses Customer Data in compliance with applicable law and Vendor's posted privacy policy, restrictions stated in this Agreement on Vendor's use of Customer Data do not apply to: (i) data from any purchaser who is already a customer of Vendor before the Effective Date, if such data was provided to Vendor by such purchaser independent of this Agreement or any transaction hereunder; or (ii) data supplied by a purchaser directly to Vendor who becomes a purchaser of Vendor in connection with such purchaser explicitly opting in to receive communications from Vendor.
4. Vendor shall immediately notify EZeels if Vendor becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of EZeels, and shall cooperate with EZeels in the investigation of such breach and the mitigation of any damages. Vendor will bear all associated expenses incurred by EZeels to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Vendor's reasonable possession or control. Upon termination or expiration of this Agreement, Vendor shall, as directed by EZeels, destroy or return to EZeels all the Customer Data in Vendor's or any agent of Vendor's possession.
Term and Termination

This Agreement will continue in effect until terminated by either party in accordance with this Section ("Term"). EZeels is authorized to terminate this Agreement, at any time for any reason, upon written notice to Vendor. Vendor is authorized to terminate this Agreement upon seven (7) business days prior written notice to EZeels. Termination of this Agreement will not in any way affect Vendor's obligation to provide services to the purchaser according to the terms of this Agreement. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.

Marketing

EZeels and its business partners may communicate with Vendor with regard to products, promotions, and other services that may be of interest to Vendor. This may include email or other communications. EZeels may also solicit Vendor’s opinion for market research purposes.

Intellectual Property Rights
1. Vendor grants to EZeels a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Vendor's name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Vendor (collectively, "Vendor IP"); and (b) any third party's name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Vendor (collectively, "Third Party IP"), in each case in connection with the promotion and resale of the goods and services in all media or formats now known or hereinafter developed ("License"). Any use of the Vendor IP or Third Party IP as contemplated in this Agreement is within EZeels's sole discretion.
2. Vendor acknowledges and agrees that, as between the parties, EZeels owns all interest in and to the Website, Customer Data, EZeels trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by EZeels or at EZeels's direction, or assigned to EZeels, and any materials, software, technology or tools used or provided by EZeels to promote, resell or distribute the goods and services and conduct its business in connection therewith (collectively "EZeels IP"). Vendor shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the EZeels IP or any portion thereof, or use such EZeels IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that EZeels grants Vendor a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of EZeels's mobile vendor software application on a single mobile computer, tablet computer, or other device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Vendor shall keep the EZeels IP confidential, and shall not prepare any derivative work based on the EZeels IP or translate, reverse engineer, decompile or disassemble the EZeels IP. Vendor shall not take any action to challenge or object to the validity of EZeels's rights in the EZeels IP or EZeels's ownership or registration thereof. Except as specifically provided in this Agreement, Vendor and any third party assisting Vendor with its obligations in this Agreement, are not authorized to use EZeels IP in any medium without prior written approval from an authorized representative of EZeels. Vendor shall not include any trade name, trademark, service mark, domain name, social media identifier, of EZeels or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Vendor shall not use or display any EZeels IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Vendor or a third party and EZeels. All rights to the EZeels IP not expressly granted in this Agreement are reserved by EZeels.
3. If Vendor provides EZeels or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a EZeels product or service or otherwise in connection with this Agreement, any EZeels IP, or Vendor's participation in the Vendor Offering, (collectively, "Feedback"), Vendor irrevocably assigns to EZeels all right, title, and interest in and to Feedback. In the event your assignment to EZeels is invalid for any reason, you hereby irrevocably grant EZeels and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Vendor warrants that: (A) Feedback is Vendor's original work, or Vendor obtained Feedback in a lawful manner; and (B) EZeels and its sublicensees' exercise of rights under the license above will not violate any person's or entity's rights, including any copyright rights. Vendor agrees to provide EZeels such assistance as EZeels might require to document, perfect, or maintain EZeels's rights in and to Feedback.
Representations and Warranties

Vendor represents and warrants that: (a) Vendor has the right, power and authority to enter into this Agreement; (b) Vendor, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Vendor's goods and services will be provided; (d) the terms and conditions of the Voucher, including any discounts or goods and services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol and any laws governing vouchers, gift cards, coupons, and gift certificates; (e) the Vendor's redemption of the Voucher will result in the bona fide provision of goods and/or services by Vendor to the purchaser; (f) Vendor owns all interest in and to the Vendor IP and has licensing rights in (with the right to sublicense to EZeels) the Third Party IP, and has the right to grant the License stated in this Agreement; (g) the Vendor IP and the Third Party IP, the Vendor Offering, EZeels's use and promotion thereof, and the results of such Vendor Offerings, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (h) the Vendor IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (i) the advertising or promotion of Vendor's goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (j) Vendor and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Vendor Offering to provide the goods or services described in this Agreement; (k) Vendor's business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Vendor is the authorized entity to receive the funds forwarded by EZeels; (l) Vendor is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Vendor is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Vouchers in connection with this Agreement and (m) the Vendor Offering is: (i) free from defects in workmanship, materials and design, (ii) vendorable and suitable for the purposes, if any, stated in the Agreement, and (iii) genuine, bona fide products, as described herein and does not violate the rights of any third party.

Indemnification

To the extent allowed under applicable law, Vendor agrees to defend, indemnify and hold EZeels, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys' fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Vendor of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Vendor arising from the sale and redemption of a Voucher; (c) any claim by any local, state, provincial, territorial or federal governmental entity for non-delivered services or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest; (d) any claim arising out of a violation of any law or regulation by Vendor or governing Vendor's goods and/or services; (e) any claim arising out of Vendor's violation of law or regulation governing the use, sale, and distribution of alcohol; (f) any claim by a purchaser or anyone else arising out of or relating to the goods and services provided by Vendor and/or pick up of the goods and services at the Redemption Site, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; (g) any claim by a purchaser for the Amount Paid; (h) any claim arising out of Vendor's misuse of Customer Data, or any violation of an applicable data privacy or security law. EZeels maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between EZeels and Vendor; and (i) any claim arising out of Vendor's negligence, fraud or willful misconduct. Vendor's duty to defend and indemnify EZeels includes the duty to pay EZeels's reasonable attorneys' fees and costs, including any expert fees.

Confidentiality

The terms for the Vendor Offering described in this Agreement are confidential, and Vendor agrees not to disclose the terms described in this Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable public records and other law, if Vendor has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such parties). In the event of a breach, EZeels is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).

Limitation of Liability

EXCEPT FOR VENDOR'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. EZEELS'S SOLE AND COMPLETE LIABILITY TO VENDOR FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS OR OMISSIONS IS LIMITED TO THE AMOUNT OF FEES RETAINED BY EZEELS HEREUNDER FOR THE PRECEDING SIX(6) MONTHS AFTER FINAL CALCULATION AND RECONCILIATION OF ALL REFUNDS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. IN ADDITION, ANY CLAIM BY OR ON BEHALF OF A VENDOR IN CONNECTION WITH ANY PAYMENT MADE BY EZEELS, INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING THAT A VENDOR WAS UNDERPAID, MUST BE MADE IN WRITING TO EZEELS WITHIN NINETY (90) DAYS FROM THE DATE EZEELS REMITS THE PAYMENT AT ISSUE. ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY VENDOR.

Dispute Resolution

All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 14 Dispute Resolution.

1. Binding Arbitration
  
  EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN VENDOR AND EZEELS ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT ("DISPUTES") SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 14 TO ARBITRATE, VENDOR AND EZEELS ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 14). The provisions of this Section 14 shall constitute Vendor’s and EZeels’s written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to its applicable rules, including those applicable to Commercial Disputes, available at http://www.adr.org or by calling 800-778-7879. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award.
  
  To begin an arbitration proceeding, Vendor or EZeels must comply with the limitations provision set forth in Section 13 and submit the Dispute by making a demand for arbitration as detailed at http://www.adr.org. If EZeels demands arbitration, it shall simultaneously send a copy of the completed demand to the Vendor's address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. EZeels will reimburse those fees for Disputes totaling less than $10,000 if Vendor is the prevailing party in such arbitration. EZeels will not seek attorneys' fees and costs in arbitration unless the arbitrator determines that a Vendor Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Vendor requests and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Plano, Texas, unless the arbitrator determines or we agree that the matter should proceed in the county of Vendor's principal place of business.
2. Class Action Waiver
  
  WE EACH AGREE THAT WE SHALL BRING ANY DISPUTE AGAINST THE OTHER IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WE EACH AGREE THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.
3. Choice of Law/No Jury Trial
  
  If for any reason a Dispute proceeds in court: (i) Vendor and EZeels agree that any such Dispute may only be instituted in a state or federal court in Collin County, Texas; (ii) Vendor and EZeels irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Vendor and EZeels agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of Texas, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) VENDOR AND EZEELS AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
4. Injunctive Relief/Attorneys' Fees
  
  Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury.
  
  In the event EZeels is the prevailing party in any Dispute, subject to any exceptions in this Section 14, Vendor shall pay to EZeels all reasonable attorneys’ fees and costs incurred by EZeels in connection with any Dispute.
Other
1. The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party's prior written approval, to bind or commit the other in any way.
2. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
3. Vendor is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without EZeels's prior written consent. Any waiver must be in writing and signed by an authorized signatory of EZeels. EZeels is authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Vendor.
4. If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.
5. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF VENDORABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EZEELS DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICES ARE ERROR-FREE, OR THAT ANY VENDOR OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR VENDOR.

SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

EZeels (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Marketing Program Terms and Conditions (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent to receive such autodialed or prerecorded marketing mobile messages is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.

User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.

Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, up to 4 messages per month, and additional mobile messages may be sent periodically based on your interaction with Us.

Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at info@circadianoptics.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.

Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes

Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;

Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;

Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;

Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;

Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and

Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Circadian Optics, or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Walpole, Massachusetts before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which EZeels’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.

Other Terms:

The users should have an option to auto-debit their charges at the end of current service cycle. If a user does not pay at the end of the current cycle, they automatically drop out of the group. To be able to buy the service again, the user needs to be added by a group member to that service group.
Costs/Fees for our services: Please see the Onboarding Instructions you receive for our current costs for utilizing EZeels platform. If you have not received it, please reach out to info@ezeels.com. There are no fees to list your service on EZeels.com.