YOU FURTHER ACCEPT AND AGREE TO RECEIVE CALLS OR TEXT MESSAGES (SMS AND MMS) FROM CITY, COLU, OR AUTHORIZED THIRD PARTIES AT THE TELEPHONE NUMBER YOU PROVIDE DURING ACCOUNT REGISTRATION, EVEN IF THE TELEPHONE NUMBER PROVIDED IS ON ANY DO NOT CONTACT LIST (INCLUDING ANY CORPORATE, STATE, OR FEDERAL DO NOT CONTACT LIST), AND THAT SUCH CALLS OR TEXT MESSAGES MAY BE FOR TELEMARKETING AND ADVERTISING PURPOSES RELATING TO THE PROGRAM AND/OR REWARD OFFER. YOU UNDERSTAND AND ACKNOWLEDGE THAT SUCH CALLS OR TEXT MESSAGES MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED MEANS (E.G. AUTOMATED TEXT AND/OR ARTIFICIAL AND/OR PRE-RECORDED MESSAGING) AND THAT MESSAGE AND DATA RATES MAY APPLY. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO GIVE THIS CONSENT IN ORDER TO MAKE PURCHASES OR PLACE ORDERS WITH ONE OR MORE REDEEMING MERCHANTS.
“Account” has the meaning set forth in Section 2(c)(i).
“App” and “User App” have the meaning set forth in Section 2(b).
“Utica Halfmoons” means promotional value awarded to a User’s Account upon completion of Qualifying Actions by joining a Reward Offer to exchange for goods and services at Redeeming Merchants. The redemption value of each City Point equals One U.S. Dollar ($1.00).
“Reward Offer” means a reward offer selected by the City and published through the App, that Users can join and which sets forth certain Qualifying Actions that Users can complete to earn Utica Halfmoons, including Qualifying Purchases.
“City” has the meaning set forth in the preamble.
“Colu” has the meaning set forth in Section 2(a).
“Non-Redeeming Merchant” means a merchant within the Territory that is not a Redeeming Merchant.
“Payment Card” has the meaning set forth in Section 3(c)(i).
“Platform” has the meaning set forth in Section 2(a).
“Program” has the meaning set forth in the preamble.
“Qualifying Actions” means an action or set of actions the completion of which is designated by the City in a Reward Offer as qualifying for awarding Utica Halfmoons to Users’ Accounts, in accordance with this Agreement and the terms of a specific Reward Offer for the allocation of rewards, including Qualifying Purchases.
“Qualifying Purchase” means the purchase of goods or services by a User from certain merchants in the Territory, identified in a Reward Offer, through a Payment Card linked to the App, and in compliance with the terms and conditions of the Reward Offer and these Terms.
“Redeeming Merchants” has the meaning set forth in the preamble.
“Terms” has the meaning set forth in the preamble.
“Territory” means the City of Utica, New York.
“User Information” has the meaning set forth in Section 2(c)(i).
“User” means an individual who have created an Account to participate in the Program.
“User Account Limit” has the meaning set forth in Section 3(d).
The City has engaged Colu Technologies (US) Inc., a Delaware corporation (“Colu”) to provide certain services in connection with a government technology SaaS (Software as a Service) platform that enables municipalities to increase civic engagement and community engagement, inter alia, by rewarding residents for taking actions that promote certain strategic goals (“Platform”).
The Platform includes a City branded mobile application for Users to participate in the Program (“App” or “User App”).
Users opt-in to the Program by (A) downloading the App and (B) signing in to the App and creating a User account (“Account”) by providing the User’s full name, phone number, email address, and other information, including, by way of illustration and not limitation, such information that the City may from time to time deem necessary to prevent fraud (“User Information”).
There is no cost to participate.
Users must accept and agree to these Terms by signing into the App and clicking the appropriate buttons when prompted to do so. User’s usage of the App, including participation in the Program is subject to the App Terms of Service.
Users must maintain the Account in good standing. Users represent and warrant that all User Information required from time to time is truthful, accurate, current, and complete. Users agree not to misrepresent any identity or User Information. Users must promptly notify Colu of any changes to User Information by updating the User Account within the App, or by contacting Uticaproud@colu.com
Users must be 18 years or older to participate.
Only one Account may be created per phone number, and each individual person may have only one Account.
You may only access and use the App for your own personal, non-commercial use.
As part of the Apps, you may elect to receive alerts and notifications by text message (using a wireless messaging service such as SMS (short messaging service) or MMS (multimedia messaging service)). By enabling these alerts, you consent to receive automatically generated text messages, which may include marketing messages, from Redeeming Merchants at the mobile phone number you provide us. You acknowledge and agree that your consent to receive these messages is not a condition of any purchase or your ability to use the Service. Your wireless carrier’s normal rates and fees, such as text messaging and data charges, may apply. All applicable carrier rates and fees for text messaging are solely your responsibility.
User, which will also be referred as “you” or “your”, understands and agrees that we may change these Terms at any time without prior notice. You may read a current, effective copy of these Terms at any time on the User App, under the tab About/Terms and Conditions. Revised Terms will become effective immediately at the time of posting. We will inform you when there are substantial updates to the Terms, e.g., by email communication to the email address you provided us at the time of your Account registration, or at the time of login. Any use of the App or the earning of points after such posting of the revised Terms shall constitute your acceptance of such updated Terms. If any change to these Terms is not acceptable to you, your sole remedy is to stop your participation in the Program (e.g., cease accessing the App, or earning or redeeming Utica Halfmoons through the App), or otherwise using the App.
You will be provided with a username and password to access the App. You are responsible for creating a secure Account and for maintaining the security of that account by treating your username, password or any other piece of information utilized as part of our security procedures as confidential. You must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this App or portions of it using your username, password or other security information. If the security of account information is breached by a User or other third party, City is not liable for improper access to the Account, or for changes to an Account by another User or third party. City is not responsible in such circumstances for reinstatement of lost Utica Halfmoons or for any damages or losses sustained by a User as a result of such unauthorized access. If you become aware of any fraudulent or unauthorized activity on your Account, including any unauthorized access to or use of your user name or password or any other breach of security, you must report the fraudulent or unauthorized activity to the City in writing to firstname.lastname@example.org and provide relevant information and cooperation to City in connection with such activity. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared device or network so that others are not able to view or record your password or other personal information.
In addition to your other representations and warranties in these Terms, you represent and warrant that you will not access or use the App or participate in the Program to engage in any illegal, fraudulent, or other illicit activity that could adversely affect the proper functioning of the App. City reserves the right to remove awarded Utica Halfmoons, as well as prevent from enrolling in, suspend, and/or remove from the Program, any User for any reason, including any Utica Halfmoons awarded in error, in City’s sole discretion or in the event of any suspected fraud, abuse, or misuse in connection with this Program.
Qualifying Actions: Reward Offers may appear on the App from time to time, designating certain Qualifying Actions that would enable Users to earn Utica Halfmoons and the terms for participation in a specific Reward Offer. City may ask Users to complete certain activities to earn Utica Halfmoons. Examples include, by way of illustration and not limitation, the following: (i) earn X Utica Halfmoons when you make Y Qualifying Purchases with a Merchant, (2) make a Qualifying Purchase with a Merchant and receive X percent of the purchase price in Utica Halfmoons (calculated with each City Point valued at $1), or (3) refer others to join the Program and receive X Utica Halfmoons. Reward Offers may be subject to individual rules, requirements, and/or conditions as specified in the App. Reward Offers may be time specific, having a certain termination date. Users are responsible for checking the App for Reward Offer rules, restrictions, and termination dates.
Qualifying Purchases: Where a Reward Offer defines Qualifying Actions as including Qualifying Purchases, the following conditions and requirements apply in order to receive Utica Halfmoons for Qualifying Purchases:
Utica Halfmoons can only be earned for a Qualifying Purchase in a Reward Offer when the following conditions are satisfied: (i) a User makes a purchase at a Merchant that has been designated by City in the Reward Offer in the App, during any time period defined by the City in the Reward Offer, and in accordance with the Reward Offer terms; (ii) such purchase appears in the records of the Payment Card linked to such User’s Account as provided to Colu by Plaid, a third party provider of payment account information; and (iii) such purchase is subject to the identification of the underlying transaction in the records and its verification by Colu, and (iv) such purchase is verified prior to a Reward Offer reaching any terms and conditions, expiration date, or maximum participation level as defined in a Reward Offer. Despite efforts made, the process of identifying qualifying purchases may be subject to errors and consequently Users’ Accounts may not be correctly rewarded automatically. Please contact customer support services at [ email@example.com] within 5 business days following the occurrence if you suspect of such error, for further investigation. City reserves the right to require additional evidence from User to confirm the Qualifying Purchase. In the event sufficient evidence to support the Qualifying Purchase is not available or there is a good faith discrepancy regarding the eligibility of the Qualifying Purchase (e.g., multiple purchases made at same time), City may at its sole discretion remove awarded Utica Halfmoons in question provided that the City also provides notice to Colu.
The identity of Redeeming Merchants designated in a Reward Offer for Qualifying Purchases may change during the term of the Reward Offer. For an up-to-date list of designated Redeeming Merchants, check the Reward Offer in the App.
Tracking: Earned Utica Halfmoons will usually appear in a User’s Account within ten (10) business days from the completion of Qualifying Actions as defined in a Reward Offer. Users will be able to track in the App the number of Utica Halfmoons earned and awarded to their Account, as well the number of Utica Halfmoons deducted from their Account through redemption.
User Account Limit. No more than $2,000 worth of promotional value (“User Account Limit”), in the form of Utica Halfmoons or otherwise, may be associated with the Account of any individual User on any given day. This means that the promotional value that remains in and has been redeemed from the Account at the end of one day, combined, may not exceed $2,000. Thus, if there are 1500 Utica Halfmoons in a User Account and the User redeems 500 Utica Halfmoons that day, the User could not receive more than 500 Utica Halfmoons into the Account that day. City reserves the right to set and revise Account limits, without prior notice.
Redeeming Merchants. Users can pay for goods and services at Redeeming Merchants by using the App to access and redeem the promotional value they have in their Accounts. Users may do this at Redeeming Merchants by requesting that the Redeeming Merchant redeem the User’s Utica Halfmoons and apply them toward all or part of the purchase price of any goods or services offered by the Redeeming Merchant. Users shall determine the amount of promotional value, in the form of Utica Halfmoons, that will be redeemed by a Redeeming Merchant in connection with the purchase of the Redeeming Merchant’s goods or services; provided, however, that a User may not redeem Utica Halfmoons in excess of the User Account Limit described above. City reserves the right to set and revise redemption limitations, without prior notice.
There will be no cash refunds.
Should a Qualifying Purchase transaction that resulted in Utica Halfmoons awarded to the User’s Account be cancelled for any reason (e.g., based upon a return, charge back, dispute, or other refund request for a Qualifying Purchase for which the User has already received the Utica Halfmoons) the Utica Halfmoons balance in such User’s Account may be reduced by the amount of the rewards received for the cancelled transaction. If the Account balance is insufficient to cover the cancellation amount, the Account will fall into a negative status and be credited as Utica Halfmoons are earned and awarded in the future.
Except as expressly set forth in this Section 4(b)(iii), all redemptions of Utica Halfmoons are final and irrevocable. If a transaction that involved the redemption of Utica Halfmoons is rescinded due to a technical error of a User (including, by way of illustration and not limitation, the inclusion of the incorrect Redeeming Merchant as part of such transaction), then the City shall credit the appropriate User’s Account with the number of Utica Halfmoons redeemed by the Redeeming Merchant in such rescinded transaction, provided that such error is reported to Colu within two (2) business days after such redemption. If a transaction that involved the redemption of Utica Halfmoons is rescinded for any other reason (including, by way of illustration and not limitation, by the return of purchased goods or the refund of the purchase price for services rendered), or if a User’s technical error is not reported to Colu within the time period set forth in the preceding sentence, then the terms of such rescission shall be agreed, and any disputes relating thereto shall be resolved, by the User and the Redeeming Merchant, and neither the City nor Colu shall be responsible for crediting or debiting either the User’s Account or the Merchant’s Accounts in connection with such rescission.
Privacy and Intellectual Property Rights
Intellectual Property Rights:
The App and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by Colu, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws and City licenses such rights under its agreement with Colu (“Colu SaaS Agreement”).
If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the App in breach of the Terms, your right to use the App will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the App or any content on the App is transferred to you, and all rights not expressly granted are reserved by Colu. Any use of the App not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.
You represent and warrant that you own or control all rights in and to any content including, without limitation, all data that you post on the App and have the right to grant the license granted above to us and our service providers, and each of their and our respective licensees, successors and assigns and that all content posted to the App complies with these Terms. You understand and acknowledge that you are responsible for any content you submit or contribute to the App, and you, not Colu or City, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.
Information in the App and Third-Party Information, Services and Links
The information presented through the App is made available solely for general information purposes. Neither City nor Colu warrant the accuracy, completeness, or usefulness of this information. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other user of the App.
The App may include content provided by third parties, or based on information published on third-party websites or content on social media and other publications. All statements and/or opinions expressed in such content are solely the opinions and the responsibility of such third parties. We are not responsible, or liable to you or any third party, for such content. For the avoidance of doubt, City and Colu do not endorse any of the merchants displayed in the App nor any messages and statements in with respect to such merchants in the App.
The App contains links to third-party websites, applications, and services that are not owned or operated by City or Colu. Separate terms and conditions apply to Third-Party Services. You should read those terms and conditions carefully before accessing any Third-Party Services. Neither City nor Colu are responsible for the actions, content or services of such third parties.
Modification and Termination
City reserves the right to change, suspend, or discontinue all or any part of the App or the Program at any time without prior notice or liability. This includes the right to modify, amend, cancel, delete, change or terminate the Program or any Terms of the Program in any manner at any time in City’s sole discretion, including but not limited to terms applicable to eligibility for participation, Point values, redemption values, rules for receiving or using Utica Halfmoons, or any other aspect of the Program. These modifications may affect Utica Halfmoons already received, including the opportunity to use such Points or their redemption rate.
An Account may be suspended or terminated at any time and at the sole discretion of the City. Upon termination for any reason and by any party, User Account balances are canceled.
Users may terminate their Accounts at any time by following instructions on the App or by contacting firstname.lastname@example.org. Accounts may not be terminated by Users if they are in a negative status as described in Section 4(b)(ii) above. They must remain open until they have reached a zero (0) balance, upon termination by City or until the Program has ended, whichever is earlier. Upon termination, City may immediately delete your password and user name and all related information and files associated with it.
Limitation of Liability
City, Colu or any person associated with City or Colu make no guarantees, warranties, or representations of any kind concerning the App and services provided through the App, including the Program except as expressly contained in these Terms. You release City and its officers, directors, elected officials, affiliates and agents, and Redeeming Merchants from all liability regarding the earning, redemption, and use of Utica Halfmoons, including any rewards that, after receipt, may be lost, stolen, or destroyed. Redeeming Merchants are independent contractors and are not agents or representatives of the City. Redemption at a Redeeming Merchant may vary. City is not responsible for, and assumes no liability for, the actions or redemption responsibilities of a Redeeming Merchant. Nothing in the Program or in these Terms is intended to create any agency, partnership or joint venture between City and any Merchant. If any Redeeming Merchant improperly denies any User any benefit they are entitled to under the Program, the liability of such Redeeming Merchant, or of City is limited to the fair market value of the denied benefit as determined by City. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR MOBILE DEVICES, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE APP, ITS CONTENT OR ANY SERVICES OBTAINED THROUGH THE APP. YOUR USE OF THE APP, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP IS AT YOUR OWN RISK.
CITY PROVIDES ANY AND ALL SERVICES THROUGH THE APP, INCLUDING THE PROGRAM ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CITY, COLU OR ANY PERSON ASSOCIATED WITH CITY OR COLU EXPRESSLY DISCLAIM ANY WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, TIMELINESS, SECURITY, DESIGN, ACCURACY, CAPABILITY, SUFFICIENCY, SUITABILITY, CAPACITY, COMPLETENESS OR AVAILABILITY, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
You agree that City has not represented that (1) the Program, App or any services obtained through the App will include any particular products or services or otherwise meet your needs or expectations, (2) that the Program and any other services provided through the App will not be interrupted, without omissions or error free, (3) that defects will be corrected or changes implemented, or (4) our App or the server that makes it available are free of viruses or other harmful components. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO CITY’S OWN NEGLIGENCE, WILL CITY, COLU, OR THEIR RESPECTIVE AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE PROGRAM, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, WHETHER IN BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS OR UNDER ANY OTHER LEGAL THEORY, EVEN IF A REPRESENTATIVE OF CITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR INABILITY TO USE THE APP, ANY CONTENT ON THE APP OR SUCH OTHER WEBSITE OR APP, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP OR SUCH OTHER APP.
In the event City is held liable for any act, error or omission related to the Program, City’s maximum total liability to User for any reason and upon any cause of action including without limitation, breach of contract, negligence, strict liability, misrepresentations, and other torts, is limited to the lesser of (i) $200, (ii) reimbursement for services or products you paid for but did not receive under the Program, or (iii) the issuance of Utica Halfmoons under the Program as compensation, at City’s election. You agree to waive any claim or action of any kind in any forum that is not commenced and served on City within one year after the first occurrence of the kind of act, event, condition or omission upon which the claim or action is based. Colu’s limitation of liability is governed and set forth in the Colu SaaS Agreement. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
All disputes and controversies of every kind and nature between the parties shall be resolved, by confidential binding arbitration. The arbitration shall be administered by the American Arbitration Association (“AAA”) and conducted in English in Utica, New York, in accordance with AAA International Arbitration Rules. In the event of any conflict between this Agreement and such rules, the provisions of this Agreement shall govern. Upon written notice by the claimant party to the other party of such claimant’s intention to arbitrate, the parties shall select one arbitrator within ten (10) days of such notice If an arbitrator is not appointed within such time limit, then such arbitrator shall be appointed by the AAA. The decision of the arbitrator must contain written reasons, and shall be final and incontestably binding upon the parties and not subject to any rights of appeal. Judgment upon any award may be entered in any competent court. The parties shall equally split and pay all fees and expenses of the arbitrator. All awards made pursuant to any arbitration proceeding conducted hereunder shall be in U.S. dollars.
Either party may, without inconsistency with this agreement to arbitrate, seek from a court any provisional remedy that may be necessary to protect confidential information, intellectual property, or other rights or property pending the establishment of the arbitral tribunal or its determination of the merits of the controversy. The parties agree that the arbitrator has the power to award all costs of the arbitration, including reasonable attorneys’ fees and expenses, to the prevailing party. The Federal Arbitration Act, as amended, shall apply to this provision.
The official language of this Agreement is English. Each party accepts and approves the English version of the Agreement as controlling in any dispute among the parties arising from or related to the Agreement.
Governing Law. The laws of the state of New York and federal law govern these Terms and any aspect of your relationship with the City under the Program. They govern without regard to any conflicts of law principles that would cause the application of the substantive law of another jurisdiction.
Invalidity. If any provision of these Terms is invalid or unenforceable, all remaining provisions hereof will remain in full force and effect. The failure of the City to exercise any of its rights under these Terms does not constitute a waiver of such rights in any other instance.
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