Certifigo Terms of Use Agreement
Last Updated February 16, 2005
This User Agreement (“Agreement”) is a contract between you and 999dine.com, Inc. referred to as “Certifigo” throughout the remainder of this agreement and applies to your use of the Certifigo service and any related products and services available through www.certifigo.com (collectively the “Service”). If you do not agree to be bound by the terms and conditions of this Agreement, please do not sure or access our Services.
You agree to the terms and conditions outlined in this Terms of Use Agreement with respect to our site. This agreement supersedes all prior or contemporaneous agreements, representations, warranties and understanding with respect to the site, the content, products or services provided by or through the site, and the subject matter of this Agreement. This agreement may be amended at any time by us from time to time without specific notice to you. The latest Agreement will be posted on the Site, and you should review this Agreement prior to using the Site. In this Agreement, “you” or “your” means any person or entity using the Service (“users”). Unless otherwise stated, “Certifigo,” “we” or “our” will refer collectively to 999dine.com, Inc. and its subsidiaries including Certifigo.
Eligibility
In order to use the Service, you must register for an account. Our Services are only available to individuals or businesses that can form legally binding contracts under applicable law. Without limiting the foregoing, our service is not available to minors (under 18), persons who are suspended from our Service, or to persons who present an unacceptable level risk. In order to receive payment or use the Service to conduct business or in conjunction with business, you must register for an Authorize.net gateway account.
Agency Relationship
Certifigo acts as a facilitator to help you sell and/or offer our products and services from your website we act as your agent based upon your direction and your requests to use our Services that require us to perform tasks on your behalf. Certifigo will at no time hold your funds and will not voluntarily make funds available to its creditors for any purpose. You acknowledge that Certifigo is no a bank and we require that you use our third party gateway.
Certifigo as a Service Provider
Certifigo acts as a service provider by creating, hosting, maintaining and providing our Service to you via the Internet.
Identity Authentication
We use many techniques to identify our users when they register on our site. Verification of users is only an indication of increased likelihood that a user’s identity is correct. You authorize Certifigo, directly or through third parties, to make any inquiries we consider necessary to validate your registration. However, because user verification on the Internet is difficult, Certifigo cannot and does not guarantee any user’s identity.
Release
In the event that you have a dispute, you release Certifigo (and our parents, officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.
No Warranty
WE, OUR PARENT, SUBSIDIARIES, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR PARENT, SUBSIDIARIES, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Certifigo makes no representations or warranties regarding the amount of time needed to complete processing because our Service is largely dependant upon may factors outside of our control. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.
Limitation of Liability
IN NO EVENT SHALL WE, OUR PARENT, SUBSIDIARIES, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR WEB SITE, OUR SERVICE, OR THIS AGREEMENT (HOWEVER ATISING INCLUDING NEGLIGENCE). Some states do not allow the exclusion or limitation of incidental or consequential damages so the above limitation or exclusion may not apply to you.
OUR LIABILITY, AND THE LIABILITY OF OUR PARENT, SUBSIDIARIES, EMPLOYEES AND SUPPLIERS, TO YOU OR ANY THIRD PARTY IN THE CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUT OF DIRECT DAMAGES.
Indemnification
You agree to indemnify and hole Certifigo, its parent, subsidiaries, affiliates, officers, directors and employees harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of third party relating to your use of the Service.
Liabilities for Violations
If you use Certifigo service in a manner that violates this Agreement your account will be subject to limitation or immediate termination.
You further understand that, if you use the Certifigo service in a manner that violates this Agreement Certifigo may incur substantial liability and/or suffer significant damages, including (without limitation) fines and other related expenses from its payment processors and service providers. By selling Products or Services (including access to content) in contravention of the Agreement or the Restricted Activities section of this User Agreement you acknowledge liability to Certifigo for any and all damages suffered by Certifigo. Without limiting the foregoing, your agree to reimburse Certifigo for any and all costs, expenses, and fines levied on Certifigo by its payment processors and/or service providers as a result of your activities.
You agree that, if either you or Certifigo commence litigation or arbitration in connection with this paragraph, the prevailing party is entitled to recover reasonable attorneys’ fees and any other costs incurred in such proceeding in addition to any other relief to which the prevailing party may be entitled.
Fees
Joining Certifigo is free. We do charge fees for Products and Services for use through our Site and you have an opportunity to review and accept the fees that you will be charged. Our Fees Policy is available and is incorporated into this Agreement by reference. We may change our Fees Policy and the fees for our services from time to time. Our changes to the policy are effective after we provide you with at least (14) days’ notice of the changes by posting the changes on the Site. However, we may choose to temporarily change our Fees Policy and the fees for our services for promotional events (for example, free usage days) and such changes are effective when we post the temporary promotional event on the Site. We may in our sole discretion change some or all of our services at any time. In the event we introduce a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees associated with using our service and the Site and all applicable taxes.
Receiving Payments – Authorize.net gateway and merchant services
The only accounts that can receive credit card funded payments are those who have registered for an Authorize.net gateway. Merchant Service accounts are also available through Authorize.net, but is not required by Certifigo and the user may use his or her existing Merchant Service provider. By accepting a credit card payment, you agree that you are responsible for the payment if it is reversed. More information on payment and reversals are available to you at www.authorizenet.com.
Your Information and Restricted Activities
Definition
“Your Information” is defined as any information you provide to us or other users in the registration, payment process, or other features of our Service. You are solely responsible for your information, as we act as a passive conduit for your online distribution and publication of your Information.
Restricted Activities
Your information and your activities (including your payments and receipt of payments) through our Service shall not: (a) be false, inaccurate or misleading; (b) be fraudulent; (c) violate Certifigo’s Acceptable Use Policy; (d) infringe on any third party’s copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy; (s) violate any law, statue, ordinance, contract or regulation (including, but not limited to, those governing financial service, consumer protection, unfair competition, antidiscrimination, or false advertising; (f) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (g) be obscene or contain child pornography; (h) contain any viruses, Trojan horses, worms, time bombs cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or other personal information, or (i) create liability for us or cause us to lose (in whole or in part) the services or our ISP’s or other suppliers. If you use, or attempt to use the Service for purposes other than offering Certifigo Products and Services and managing your account, including but not limited to tampering, hacking, modifying or otherwise corrupting the security or functionality of Service, your account will be terminated and you will be subject to damages and other penalties, including criminal prosecution where available.
License
Solely to enable Certifigo to use the information you supply us with, so that we are not violating any rights you might have in that information, you agree to g rant us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensible (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in your information, in any media now known or not currently known, with respect to your information Certifigo will use and protect your information in accordance with our Privacy Policy.
Trademarks
Certifigo.com, Certifigo, and all related logos, products and services described in this website are either trademarks or registered trademarks of 999dine.com, Inc., or its licensors, and (aside from the circumstances described below) may not be copied, imitated or used, in whole or in part, without the prior written permission of Certifigo and 999dine.com, Inc. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Certifigo and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Certifigo.
Notwithstanding the above, HTML logos provided by Certifigo through its Affiliate program, Website features, or Tools features (“logos”), ay be used without prior written consent for the purpose of directing we traffic to the Service. These Logos may not be altered, modified or changed in any way, or used in a manner that is disparaging to Certifigo or the Service. Logos may not be displayed in any manner that implies sponsorship or endorsement by Certifigo. Certifigo is an online service, and no partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Access and Interference
Our web site contains robot exclusion headers and you agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without our prior expressed written permission. You agree that you will not use any device, software or routine to bypass our robot exclusion headers, or to interfere or attempt to interfere with the proper working of the Certifigo site or any activities conducted on our site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. Much of the information on our site is proprietary or is licensed, to Certifigo by our users or third parties. You agree that you will not copy, reproduce, alter, modify, created derivative works, publicly display or frame any content (except for your information) from our web site without the prior expressed written permission of Certifigo or the appropriate third party. If you use, or attempt to use the Service for the purposes other than outlined in this Agreement and managing your account, including but not limited to tampering, hacking, modifying or otherwise corrupting the security or functionality of Service, your account will be terminated and you will be subject to damages and other penalties, including criminal prosecution where available.
Privacy and Security
We do not sell or rent your personal information to third parties for marketing purposes without your consent and we only use your information as described in the Privacy Policy. We view protection of users’ privacy as a very important principle. We understand clearly that you and your information are one of our most important assets. We store and process your information on computers located in the United States that are protected by physical as well as technological security devices. You should only log in to your Certifigo account on a page which begins with https:www.certifigo.com. We use third parties to verify and certify our privacy principles. If you object to your information being transferred or used in this way, please do not use our services.
Termination of your account
You may close your account at any time by accessing the close account option through your login. Upon closure of an account, any pending transactions will be cancelled and any balances associated with Redemption Codes must be honored. You may not use closure of your account as a means evading investigation – if an investigation is pending at the time you close your account, Certifigo may continue to hole your account for up to 90 days as appropriate to protect Certifigo. If you do not access your account for a period of three years, it will be terminated.
Remedies
Without limiting other remedies, we may update inaccurate or incorrect information you provide to us, contact you by means other than electronically, immediately warn our community of you actions, place a hold on funds in your account, limit funding sources and payments, limit access to an account and any or all of the account’s, indefinitely suspend or close your account and refuse to provide our services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) we are unable to verify or authenticate any information you provide to us; (c) we believe that your account or activities pose a significant credit or fraud risk to us; (d) we believe that your actions may cause financial loss or legal liability for you, our users or us. If we close your account, we will provide you notice. Additionally, to secure your performance of this Agreement, you grant to Certifigo a lien on and security interest in your account. In addition, you acknowledge that Certifigo may setoff against any accounts you own for unsecured debts and debts you owe individually or together with someone else. Certifigo may consider this Agreement as your consent to Certifigo’s asserting its security interest or excising its right of setoff should any law require your consent. The rights described in this section are in addition to and apart from any other rights.
Assignability
You may not transfer any rights or obligations you may have under this Agreement without the prior written consent of Certifigo. Certifigo reserves the right to transfer this Agreement or any right or obligation under this Agreement without your consent.
Legal Compliance
You shall comply with all applicable U.S. and international laws, statutes, ordinances, regulations, contracts and applicable licenses regarding your use of our Services.
Notices
Electronic Communications
You agree that this Agreement constitutes “writing signed by you” under any applicable law or regulation. To the fullest extent permitted by applicable law, this Agreement and any other agreements, notices or other communications regarding your account and/or your use of the Service, may be provided to you electronically and you agree to receive all communications from Certifigo in electronic form. Electronic Communications may be posted on the page within the Certifigo website and/or delivered to your email address. Your may print a copy of any Communications and retain it for your records. All communication sin either electronic or paper format will be considered to be in “writing,” and to have been received no later than (3) business days after posting or dissemination, whether or not you have received or retrieved the Communication. Certifigo reserves the right but assumes no obligation to provide Communications in paper format.
Procedure
Except as explicitly stated otherwise, any notices shall be given postal mail to 999dine.com, Inc., Attn: Legal Department, P.O. Box 3505, Albuquerque, Nm 87190 or to our online message center or the email address you provide to Certifigo during the registration process. Notice shall be deemed given 24 hours after posted or email is sent, unless the sending party is aware that the electronic communication was not received. Alternatively, we may give you notice by mail to the address provided to Certifigo during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
Legal Disputes
In the event a dispute arises between you and Certifigo, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Certifigo agree that any controversy or claim at law or equity that arises out of this Agreement or Certifigo’s services shall be resolved in accordance with one of the subsections below, or as otherwise mutual agreed upon in writing by the parties. Before resorting to these alternatives, Certifigo strongly encourages users first to contact Certifigo directly to seek a resolution. Certifigo will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.
Arbitration
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is lass than $5000 USD, you or Certifigo may elect to resolve the dispute through binding arbitration conducted by telephone, on-line, and/or based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association, in accordance with their applicable rules, or any other established ADR provider mutually agreed upon by the parties. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Court
Alternatively, any claim may be adjudicated by a court of competent jurisdiction located in Bernalillo County, New Mexico or where the defendant is located. You and Certifigo agree to submit to the personal jurisdiction of the courts located within the county of Bernalillo, New Mexico.
Alternative Dispute Resolution
Certifigo will consider use of other alternative forms of dispute resolution, such as binding arbitration to be held in Bernalillo County, New Mexico or another location mutually agreed upon by the parties.
Violations of Legal Disputes
All claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using the dispute resolution mechanism that is selected in accordance with this Section by the party first to assert the claim, either through a court filing or commencement of arbitration. Should either party file an action contrary to this section (Legal Disputes), the other party may recover attorneys’ fees and costs up to $1000.00 USD, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim.
General
This Agreement is governed by and interpreted under the laws of the state of New Mexico, U.S. as such laws are applied to agreements entered into and to be performed entirely within New Mexico by New Mexico residents. Notwithstanding the foregoing sentence, the Federal Arbitration Act (“FAA”), and all of its rules and procedures, shall govern this section, to the extent that the FAA is inconsistent with New Mexico law. We do not guarantee continuous, uninterrupted or secure access to our service, and operation of our site may be interfered with by numerous factors outside of our control. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provision shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by Certifigo, in our sole discretion, to a third party in the event of a merger or acquisition. Heading are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement and the documents it incorporates set forth the entire understanding between us respect to the subject matter hereof.
Disclosures
The Services are offered by 999dine.com, Inc., located at P.O. Box 3505, Albuquerque, New Mexico 87190. If you re a New Mexico resident, you may have this same information emailed to you by sending a letter to the address above with our email address and a request for this information. Fees for our services are described in our Fees Policy.
Using the Certifigo® mark and other 999dine.com, Inc. intellectual property such as logos, slogans, trade dress, and graphic symbols on packaging, products, or services requires express written permission from 999dine.com, Inc.. Use of confusingly similar or disparaging terms is a violation of our intellectual property rights. © 2000-2005 999dine.com, Inc.. All Rights Reserved.