These General Terms of Service (“General Terms”) are a legal agreement between you, as a current or prospective customer of Davetly’s services (“you,” “your”) and Davetly, Inc. (”Davetly,” “we,” “our” or “us”) and govern your use of Davetly’s services, including mobile applications, websites, software, hardware, and other products and services (collectively, the “Services”).
If you are using the Services on behalf of a business, you represent to us that you have authority to bind that business or entity to these terms, and that business accepts these terms. By using any of the Services, you agree to these General Terms and any policies referenced within (“Policies”), including our Privacy Notice (see Section 8) and terms that limit our liability (see Section 18) and require individual arbitration for any potential legal dispute (see Section 21), which are collectively incorporated herein by reference.
You also agree to any additional terms specific to Services you use (“Additional Terms”), such as those listed below, which become part of your agreement with us (collectively, the “Terms”). You should read all of our terms carefully.
Payment Terms: These terms apply to all payments made through the Services. Account Registration Provide accurate personal information during registration and keep the information current. We can suspend or terminate your account if you provide incomplete or false information. You are responsible for all activity on your account. You must open an account with us (a “Davetly Account”) to use the Services. During registration we will ask you for information, which may include but is not limited to, your name and other personal information. You must provide accurate and complete information in response to our questions, and you must keep that information current. You are fully responsible for all activity that occurs under your Davetly Account, including for any actions taken by persons to whom you have granted access to the Davetly Account. We reserve the right to change the account type, suspend or terminate the Davetly Account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements. Revisions, Disclosures and Notices We can make updates to our terms of service at any time, and we’ll notify you of these updates as appropriate. By continuing to use our services after these updates, you agree to the revised terms. We may amend the Terms at any time with notice that we deem to be reasonable under the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a “Revised Version”).
The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Restrictions If you want to use our services, you can’t do certain bad things. If we think you are doing these bad things, we have the right to share your information with law enforcement. You may not, nor may you permit any third party, directly or indirectly, to:
1. export the Services, which may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII);
2. engage in any activity that may be in violation of regulations administered by the United States Department of the Treasury’s Office of Foreign Asset Control (31 C.F.R. Parts 500-599). Prohibited activity includes but is not limited to the provision of Services to or for the benefit of a jurisdiction, entity, or individual blocked or prohibited by relevant sanctions authorities, including but not limited to activities in Iran, Cuba, North Korea, Syria, or the Crimean Region of the Ukraine. If found to be in apparent violation of these restrictions, your account could be terminated and your funds could be held for an indefinite period of time;
3. access or monitor any material or information on any Davetly system using any manual process or robot, spider, scraper, or other automated means; 4. except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services;
5. perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;
6. copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from Davetly;
7. use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement;
8. transfer any rights granted to you under these General Terms;
9. use the Services in a way that distracts or prevents you from obeying traffic or safety laws;
10. use the Services for the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm;
11. use the Services for any illegal activity or goods or in any way that exposes you, other Davetly users, our partners, or Davetly to harm; or
12. otherwise use the Services except as expressly allowed under these Terms. If we reasonably suspect that your Davetly Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Davetly Account, and any of your transactions with law enforcement. Your Content You retain all rights to your content when you upload it into our services, but you do give us broad rights to use, modify, display your content in our services. You can see specifics on the rights you grant us below. Also, anything you provide us or make available to the public through our services must not contain anything that we think is objectionable (e.g., illegal, obscene, hateful or harmful to you, our customers or us). We can remove any content at any time.
The Services may include functionality for uploading or providing suggestions, recommendations, feedback, stories, photos, documents, logos, products, loyalty programs, promotions, advertisements and other materials or information (“Content”). You grant us and our subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, irrevocable, perpetual, and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display your Content throughout the world in any media for any reason, including to provide, promote, and/or incorporate into the Services. You retain all rights in your Content, subject to the rights you granted to us in these General Terms.
You may modify or remove your Content via your Davetly Account or by terminating your Davetly Account, but your Content may persist in historical, archived or cached copies and versions thereof available on or through the Services. You will not upload or provide Content or otherwise post, transmit, distribute, or disseminate through the Services any material that:
(a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory;
(b) encourages conduct that would be considered a criminal offense or gives rise to civil liability;
(c) breaches or infringes any duty toward or rights of any person or entity, including rights of publicity, privacy or intellectual property;
(d) contains corrupted data or any other harmful, disruptive, or destructive files;
(e) advertises products or services competitive with Davetly’s or its partners’ products and services, as determined by us in our sole discretion; or
(f) in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose Davetly, its affiliates or its customers to harm or liability of any nature. Although we have no obligation to monitor any Content, we have absolute discretion to remove Content at any time and for any reason without notice. Davetly may also monitor such Content to detect and prevent fraudulent activity or violations of Davetly’s General Terms.
You understand that by using the Services, you may be exposed to Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any Content, including any loss or damage to any of your Content. Security We take security incredibly seriously, but can’t guarantee that bad actors will not gain access to your personal information. You need to do your part by keeping your passwords safe, being smart about who has access to your account and which of your devices can access our services, and letting us know if you think an unauthorized person is using your account. If there is ever a dispute about who owns your account, we are the decider. We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk. You are responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or Davetly Account or any other breach of security.
Notwithstanding Sections 20 and 21, in the event of any dispute between two or more parties as to account ownership, we will be the sole arbiter of such dispute in our sole discretion. Our decision (which may include termination or suspension of any Davetly Account subject to dispute) will be final and binding on all parties. Privacy When you process information that identifies or is reasonably capable of identifying an individual to Davetly in connection with the Services (including information collected by Davetly on your behalf), you agree to comply with applicable laws regarding the collection, use, disclosure, protection, and retention of this information. You acknowledge that you have reviewed and consent to Davetly’s Privacy Notice, which explains our practices with regard to any personal information you provide to us. If you or your business are located in California, please see Section 27. You consent to us sending messages to your email or mobile devices about your account or our services, which may include marketing. You can opt out of communications in ways that are specific to that communication method, such as by unsubscribing from emails, or replying to text messages with ‘STOP’. You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us when you sign-up for a Davetly account or update the contact information associated with your account.
Such communications may include, but are not limited to requests for secondary authentication, receipts, reminders, notifications regarding updates to your account or account support, and marketing or promotional communications. You acknowledge that you are not required to consent to receive promotional texts or calls as a condition of using the Services. Call and text message communications may be generated by automatic telephone dialing systems. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you. You may opt-out of receiving promotional email communications we send to you by following the unsubscribe options on such emails. You may opt out of any promotional phone calls by informing the caller that you would not like to receive future promotional calls. You may only opt-out of text messages from Davetly by replying STOP. You acknowledge that opting out of receiving communications may impact your use of the Services. Modification and Termination We can terminate or deny you access to our services at any time, for any reason. You can also choose to deactivate your account at any time. We may terminate these General Terms or any Additional Terms, or suspend or terminate your Davetly Account or your access to any Service, at any time for any reason. We may add or remove, suspend, stop, delete, discontinue or impose conditions on Services or any feature or aspect of a Service.
We will take reasonable steps to notify you of termination or these other types of Service changes by email or at the next time you attempt to access your Davetly Account. You may also terminate the General Terms and Additional Terms applicable to your Davetly Account by deactivating your Davetly Account at any time. Effect of Termination Once our relationship ends, we are not responsible for any losses you experience because of the termination of our services or for removing your data from our servers. Some terms of our agreement will still apply even after our relationship ends. Indemnity If you do something using our services that gets us sued or fined, you agree to cover our losses as described below. You will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to:
(a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms;
(b) your wrongful or improper use of the Services;
(c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights;
(d) your violation of any law, rule or regulation of the United States or any other country;
(e) Representations and Warranties Here’s the part where you promise that you are who you say you are, and that you will obey the law and our terms. You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under these General Terms; (c) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including the Health Insurance Portability and Accountability Act (“HIPAA”); (e) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) your use of the Services will be in compliance with these Terms. Disputes “Disputes” are defined as any claim, controversy, or dispute between you and Davetly, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these Terms or the Services, or any other aspect of our relationship.
Binding Individual Arbitration This section provides details about how we will resolve disputes through the arbitration process. You and Davetly agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST DAVETLY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org) according to this Section and the applicable arbitration rules for that forum. The Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the General Terms and/or Additional Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Subject to applicable jurisdictional requirements, you may elect to pursue your claim in your local small-claims court rather than through arbitration so long as your matter remains in small claims court and proceeds only on an individual (non-class or non-representative) basis.
The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. If you are a consumer bringing a claim relating to a transaction intended for a personal, household, or family use, any arbitration hearing will occur within the county where you reside. Otherwise, any arbitration hearing will occur in San Francisco, California, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. An Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. Davetly will reimburse the arbitration fees due to the American Arbitration Association for individual arbitrations brought in accordance with this section for all claims totaling less than $10,000 unless the Arbitrator determines that your claims were frivolous. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the arbitrator. For any claim where you are seeking relief, we will not seek to have you pay our attorney’s fees, even if fees might otherwise be awarded, unless the Arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Davetly also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases as discussed above) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of San Francisco, California, or federal court for the Northern District of California.
Governing Law Our relationship is governed by the laws of California, federal law, or both. These General Terms and any Dispute will be governed by California law and/or applicable federal law (including the Federal Arbitration Act), without regard to its choice of law or conflicts of law principles. Limitation on Time to Initiate a Dispute Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues. Assignment You may not transfer any rights you have under our terms of service to anyone else. These General Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void. Third Party Services and Links to Other Websites While you’re using our products and services, you may be offered services from third parties. We are not responsible for any issues you may have with them. You may be offered services, products and promotions provided by third parties and not by Davetly, including, but not limited to, third party developers who use Davetly’s services (“Third Party Services”). If you decide to use Third Party Services, you will be responsible for reviewing and understanding the terms and conditions for these services. We are not responsible or liable for the performance of any Third Party Services. Further, you agree to resolve any disagreement between you and a third party regarding the terms and conditions of any Third Party Services with that third party directly in accordance with the terms and conditions of that relationship, and not Davetly. The Services may contain links to third party websites.
The inclusion of any website link does not imply an approval, endorsement, or recommendation by Davetly. Such third party websites are not governed by these General Terms. You access any such website at your own risk. We expressly disclaim any liability for these websites. When you use a link to go from the Services to a third party website, our Privacy Notice is no longer in effect. Your browsing and interaction on a third party website, including those that have a link in the Services is subject to that website’s own terms, rules and policies. California Businesses If you are a “Business” as defined by the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq., (“CCPA”) then this provision 27 applies to you. For purposes of this Section 27, “process”, “sell”, and “business purpose(s)” have the meaning ascribed to them by the CCPA.
a) For purposes of this Section 27, “Buyer Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household that is processed by Davetly in connection with its Services to you. Buyer Personal Information does not include information Davetly receives about your customers (“Buyers”) for purposes of Davetly’s digital receipt, customer directory and email marketing tools (“Davetly Buyer Features”). It does include information that your Buyer has provided you through Davetly Appointments, Davetly Invoices, or to receive Loyalty-related or promotional text messages. For details about our privacy practices with respect to Davetly Buyer Features, please refer to our Buyer Features Privacy Notice.
b) We may receive Personal Information from Buyers for the purpose of performing Services on your behalf as described in these General Terms. We agree that we will process Buyer Personal Information collected, processed, stored or transmitted by, or accessible to us in the course of these General Terms, and other Applicable Terms of Service referenced above, only on your behalf, and for the purpose of providing you with the Services in these Terms and other applicable terms linked above based on the products you use. We acknowledge that we are prohibited from: (i) selling the Buyer Personal Information; (ii) retaining, using, or disclosing the Buyer Personal Information for any purpose other than providing to you the Services specified in these General Terms(s), and other applicable Terms of Service referenced above. As part of, and for purposes of, facilitating the Services, Davetly may (i) de-identify or aggregate the Buyer Personal Information; and (ii) process the Buyer Personal Information for operational purposes, including, without limitation, verifying or maintaining the quality and safety of the Services; improving, updating or enhancing the Services either for you or for our customers generally; detecting and preventing fraud, and for protecting the security and integrity of our Services; and complying with our legal obligations. You acknowledge and agree that Buyer Personal Information that you disclose to Davetly is provided to Davetly for the parties’ business purposes.
c) We reserve the right to delete Personal Information stored pursuant to these General Terms in the ordinary course of business, pursuant to our retention schedules.