1. Welcome to the InVibe Platform
Kalisto Ingenieria Informatica S.L. doing business as InVibe (“we” or “InVibe” or “Company”), provides a mobile payment and customer rewards platform and related services (“Services” or “InVibe Services”), and provides and/or enables related mobile applications, software applications, websites, and microsites (“Apps” or “InVibe Apps”), for use by you (“User”) to make payments for goods and/or services and participate in merchant incentive and rewards programs (“Campaigns”) at physical and/or online points-of-sale (“POS”), among other available functions. InVibe provides access to these Services and Apps, including this App, subject to your acceptance of all of the following Terms and Conditions (“User Terms” or “Agreement”).
By accessing, downloading, copying, and/or using a InVibe App, including this App, and/or the Services, you agree to these User Terms. THESE USER TERMS CREATE A BINDING LEGAL AGREEMENT BETWEEN YOU AND INVIBE, AND INCLUDE AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THEM CAREFULLY.
2. InVibe User Account
In order to use an App to make payments, and/or engage in any merchant reward Campaigns, you must first register with InVibe, create a InVibe User Account, and associate a valid debit and/or credit card. Your registration and use of a InVibe User Account is subject to these User Terms.
By registering for a InVibe User Account, you agree, represent, and warrant to InVibe, that:
1. All information provided to InVibe is accurate, current and complete, and that you will maintain and update such information as it changes;
2. You will maintain the security of your User Account, take responsibility for all activities that occur using your User Account, and accept all risks of unauthorized access resulting from your acts or omissions;
3. You are of legal age to form a binding contract, or you are over the age of 13 and will use the User Account under the supervision of a parent or guardian who agrees to be bound by these User Terms. The InVibe platform and Apps are not intended for or targeted to, anyone under the age of 13;
4. You are either a citizen or a legal resident of the United States and that you will use InVibe solely within the United States;
5. You do not and have never used or maintained any other InVibe User Account under a different email address (the creation of additional User Account(s) shall be considered a violation of this Agreement); and,
6. Your registration and your use of InVibe and any App is not prohibited by law, and will not be used to engage in, commit, or facilitate any illegal activity.
Your registration and your User Account, including any User Credit or Loyalty Credit associated with such User Account, and your rights under this Agreement, are personal to you and are not transferable by you to any party.
Payment Methods. InVibe enables you to make card-based purchases at participating merchants by linking to your User Account debit, credit, and/or prepaid credit cards issued in the United States bearing the trademarks of MasterCard International Inc. and Visa Inc. (the “Networks”). Your User Account is not a bank account. InVibe is not a bank, and does not offer banking or money service business (“MSB”) services.
Primary and Secondary Payment Instruments. By linking a payment instrument(s) to your User Account, you represent to InVibe that you are an authorized user of the payment instrument(s). If multiple payment instruments are linked to your User Account, you must designate one linked payment instrument as a primary payment instrument. You may change the designated primary payment instrument associated with your User Account at any time. All payment instruments other than the designated primary payment instrument will be deemed “secondary” payment instruments. You are responsible for ensuring that all payment instruments are at all times current, non-expired, and valid for payments.
Termination of User Account. InVibe reserves the right to reject, suspend, or terminate your registration and/or use of a InVibe User Account, and/or your access to the InVibe platform, in the event that you breach any of the InVibe User Terms or any of the representations and warranties made herein.
3. License to Use the InVibe Apps and Websites
Limited License. InVibe grants you a limited, non-exclusive, non-transferrable license, to access, view, download, install, and use this InVibe App(s), and/or any InVibe website content, for the purpose of using the InVibe Services, including the initiation of payment for goods and/or services and for participating in merchant reward Campaigns. Except as expressly permitted by these User Terms, you may not modify, reproduce, distribute, publish, reverse-engineer, create derivative works out of, decompile, deep link, publicly display, or otherwise exploit for any purpose, the InVibe Property, or any portion thereof. You may not remove or alter, or reuse in any manner or for any other purpose, any copyright, trademark or other proprietary notices that have been placed on the InVibe Property. You may not collect and use the product listing, pictures, or descriptions within the InVibe Property for any commercial purpose. All rights not expressly granted to you by this Agreement remain the property of InVibe and its licensors.
No Rights to InVibe Property. The InVibe App(s) and website content downloaded or accessed by you pursuant to these User Terms, including without limitation all of the text, images, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content, other than User Content, as defined below, and all software embodied in the InVibe website or Apps, or otherwise used by InVibe to deliver the InVibe Services (collectively, the “InVibe Property”),is the sole property of InVibe and/or of third parties provided under license to InVibe. InVibe reserves all rights in the InVibe Property, including without limitation copyright, trademark, patent, and trade secret rights.
Trademarks. The marks inVibe among other marks, the InVibe logo, and the InVibe scanner, are registered or unregistered trademarks of InVibe and may not be used in connection with any service or products other than those provided by InVibe, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits InVibe. The InVibe platform and Apps, also feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed in any App, inures solely to the benefit of their respective owners.
No Illegal Uses. The InVibe Property licensed hereunder shall not be used for any purpose not contemplated by these User Terms, or for any illegal purpose, or to commit or facilitate any act by any person in violation of any law or regulation, and/or any fraud against any person. The InVibe Platform and/or associated InVibe Apps shall not be used for the purpose of accepting or transferring security or payment for loans, providing cash advances, check cashing, or otherwise distributing cash to any person or entity, or in connection with any lottery or gambling activity.
4. Authorization of Payments on the InVibe Platform
Authorization for InVibe to Charge Payment Instrument(s). By linking a payment instrument(s) to your InVibe User Account, including by tapping the “Add Card” authorization button within a InVibe App, and using an App to initiate a payment for a purchase at a participating merchant POS, you authorize InVibe to charge your linked payment instrument(s), including the primary and/or any secondary instrument(s), as necessary to complete payment to InVibe for the purchase. InVibe will first submit authorized charges to your designated primary payment instrument. If such charge is rejected or fails, InVibe may charge any secondary payment instrument(s) without advance notice to you.
In the event you are entitled to a reversal, refund, chargeback, or other adjustment associated with a purchase you made using your InVibe User Account, you also authorize a credit to your payment instrument(s) to accomplish that transaction.
All purchases and charges authorized using an App and/or the InVibe Services are also subject to the terms and conditions set forth by the entities that issue your payment instrument(s). You are responsible for complying with those terms and conditions, and you are responsible for payment of all charges and related fees imposed by such entities pursuant to those terms and conditions.
There is no limit on the frequency of transactions you may make using your InVibe User Account. InVibe does not charge any fees to its Users in connection with such transactions.
Failed Transactions. In the event that InVibe is unable to successfully charge any linked payment instrument, InVibe will notify you via email and/or in-App notification, and you will be unable to initiate further payments with your User Account.
Prohibited Transactions. The InVibe Service may be used only for the bona fide purchase and exchange of goods and/or services offered in the ordinary course of a merchant’s business, and may not be used to process a payment or otherwise transfer money between two parties that is unrelated to a purchase of a product or services. The InVibe Service may not be used for transactions in which you request cash back from the merchant. InVibe reserves the right to decline any attempted transaction if it appears that any of these User Terms have been violated.
Debit/Credit Card Statements. InVibe charges to your authorized payment instrument(s) may appear on your statement from the card issuing institution as “INVIBE APP” followed by an identifier related to the InVibe merchant partner at which the transaction occurred, and as explained above, may appear as a single charge for the aggregate amount of multiple individual transactions. You agree not to knowingly falsely report such charges as fraudulent or unauthorized claims to your payment instrument issuing institution. A knowingly false report of a fraudulent or unauthorized charge shall be grounds for InVibe, in its discretion, to cancel your User Account, and seek any other remedies available to InVibe.
5. Consent to Electronic Disclosures and Notices; Paper Copies
Your electronic signature on this Agreement, and any other agreements and documents, has the same effect as if you signed them in ink. You agree that electronic Disclosures and notices have the same meaning and effect as if InVibe had provided you with paper copies, whether or not you choose to view the Disclosures. Such Disclosures and notices are considered received by you within 24 hours of the time posted to our website, or emailed or messaged to you.
6. Fraudulent or Unauthorized Transactions; Lost Devices
If any transaction Disclosure received by you appears incorrect, or was unauthorized or fraudulent, you shall notify InVibe immediately, thereby flagging the transaction, or by contacting InVibe directly (24/7) at:
InVibe Support Team
Street 9 Villa 15, Al Safa 1, Dubai, United Arab Emirates
Regular Business Hours: Monday through Friday, 9 a.m. to 5 p.m.
1. If InVibe confirms that a transaction(s) reported by you was an unauthorized or fraudulent use of your User Account, and if: (i) the first such unauthorized transaction was reported to InVibe within two (2) business days of a transaction receipt; or (ii) in the case of a Lost Device, the Lost Device was reported within two (2) business days of the loss; InVibe will reimburse you for the amount of any fraudulent or unauthorized transactions charged to your payment instrument.
2. If you fail to notify InVibe of a fraudulent or unauthorized transaction using your InVibe User Account within two (2) business days of a transaction receipt, or in the case of a Lost Device, within two (2) business days of the Lost Device, you will be responsible for the fraudulent or unauthorized charges in an amount limited to the lesser of: (i) $500; OR (ii) the sum of either $50 or the amount of the fraudulent use during the initial two (2) days (whichever is less), AND the sum of all fraudulent or unauthorized activity after the initial two (2) days prior to your notification to InVibe. You authorize InVibe to submit to your payment instrument(s) such charges up to that limited amount.
3. If you fail to notify InVibe of a fraudulent or unauthorized transaction using your User Account within sixty (60) business days of a transaction receipt, or in the case of a Lost Device, within sixty (60) business days of the Lost Device, you will be responsible for all fraudulent or unauthorized charges after the sixty (60) day period, and authorize InVibe to submit such charges to your payment instrument(s).
Issuing Institutions. To the extent that the security of your payment instrument(s) is compromised in an event having no relation to the InVibe platform (for example, your wallet is stolen), and your payment instrument is linked to another User Account, your liability for any fraudulent transactions will be determined by your agreement with the institution that issued your payment instrument.
User Fraud. If InVibe determines that you have engaged in any fraudulent use of the InVibe platform, or use in violation of these User Terms, in addition to its rights to recover of any monies required to remedy such fraudulent use, InVibe shall impose a fee of one hundred ($100.00) dollars for each investigation by InVibe that results in a confirmation of such violation of these User Terms. By registering for a InVibe User Account, you agree to all additional fees and penalties that InVibe may impose in the event InVibe deems your use of the InVibe platform to be in breach of these User Terms, including without limitation the immediate termination of your InVibe User Account.
7. Merchant Incentive and Reward Campaigns; Campaign Credit
When you pay with your InVibe User Account at a merchant POS, you participate automatically in any promotional campaigns offered by InVibe’s merchant partners, and/or third-party partners, such as loyalty reward programs, refer-a-friend programs, product incentive programs, etc. (“Campaigns”), and earn automatically any merchant-offered rewards, incentives, or discounts (“Merchant Credit”) and/or third-party-offered incentives, rewards, or discounts (“3rd Party Credit”) associated with your transaction. InVibe will also automatically redeem any Merchant or 3rd Party Credit previously awarded at the time of purchase at the participating merchant’s POS in accordance with the terms of such Campaign. Merchant or 3rd Party Credit applied to the purchase will be deducted from the transaction amount charged by InVibe as part of the authorized charge to the payment instrument(s) associated with your User Account.
Promotional Campaigns, and Merchant or 3rd Party Credit associated with such Campaigns, are offered by the merchant or funding third party alone (and not by InVibe) and the offering parties are responsible for setting applicable rules, including the expiration of any Merchant or 3rd Party Credit, and compliance with such rules. Any complaints concerning any merchant’s or third party’s failure to award or redeem Merchant or 3rd Party Credit according to any Campaign may be sent to InVibe at:firstname.lastname@example.org. While InVibe may, in its discretion, attempt to resolve any complaints concerning a person’s failure to award or redeem Merchant or 3rd Party Credit, InVibe is not responsible for such person’s failure to award or redeem Credit for any reason.
The merchant shall be solely responsible for the goods and/or service provided by such merchant, including the quality of the goods and services, and, any claims, liabilities, injuries, losses or damages you may suffer in connection with the goods or services, your participation in any Campaign, and/or any unclaimed property liability arising from unredeemed Merchant Credit, or any portion thereof. Merchants may choose to discontinue a Campaign at any time. InVibe also reserves the right to terminate a merchant’s Campaign at any time.
Merchant or Third Party Credit associated with any merchant loyalty programs has no cash value. You have no property interest in any Merchant or Third Party Credit. If a Campaign is terminated for any reason, or if your User Account is suspended or terminated for any reason, any existing Merchant or 3rd Party Credit will expire immediately.
Redemption or application of Merchant or 3rd Party Credit for alcoholic beverages is at the sole discretion of the merchant, and is subject to (and may be limited by) merchant’s compliance with applicable federal, state, and local laws and regulations. Merchants may refuse to apply Merchant or 3rd Party Credit to delivery, processing or handling fees, or taxes or gratuities.
8. Privacy, Security, and User Data
Payment Instrument Security. InVibe is 100% compliant with the Payment Card Industry Data Security Standards (“PCI- DSS”). InVibe will never share your payment instrument information with any person other than as necessary to process the payments you authorize. InVibe does not store your payment instrument information on InVibe’s servers. Rather, we partner with Braintree Payment Services, LLC (“Braintree”), a globally respected payment gateway, to leverage its secure vault solutions for all payment instrument storage. All data sent to InVibe’s servers is encrypted and our servers are protected by industry standard measures. By leveraging Braintree for storage, we are able to add another powerful layer of security to InVibe. If you have any further questions about InVibe’s security measures, we provide our Security Policy at www.invibe.me/security
No Access to Financial Information. InVibe Apps, and any software applications or websites that you may authorize to access your User Account, are not able, or authorized, to capture or store your financial account information provided to InVibe, or details of your linked payment instruments, including on your mobile device, without your expressly granted permission. You should never be asked by any merchant to disclose your financial account information, or your payment instrument information, or to provide any other sensitive information such as your Social Security number, in connection with any InVibe transaction. If you are asked for such information, you should report the incident to InVibe immediately.
No Sharing of Email Address. Except as specifically authorized by you pursuant to these User Terms, InVibe will never share your email address with any third party, other than the partners we use to contact you concerning the InVibe Services.
Revocation or Permissions. You may revoke permissions granted to a InVibe App or any software application or website at any time by logging in to the InVibe website athttps://www.theinVibe.com/.
9. Ideas Submitted to InVibe; User Content
User Ideas. InVibe is pleased to hear from you and welcomes your comments about the InVibe platform. If you submit ideas or suggestions for the InVibe platform (“Comments”), you agree that all Comments will be deemed, and will remain, non-confidential and the sole property of InVibe, without compensation to you. None of the Comments will be subject to any fiduciary obligation or obligation of confidence on the part of InVibe, and InVibe will not be liable for any use or disclosure of any Comments. Without limiting the foregoing, InVibe will be entitled to unrestricted use and other exploitation of the Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Comments.
User Content. InVibe Apps and/or InVibe’s websites may include areas in which you or other registered Users can create, post, send or store messages, materials, data, information, text, music, sound, photos, video, graphics, applications, tags, code, links or other items or materials (“User Content”). By using InVibe Apps and/or websites, you agree not to post, upload, transmit, distribute, store, create or otherwise publish any of the following:
i. User Content that personally identifies sensitive information about yourself or another person (including, but not limited to, information that relates to health or medical conditions, Social Security numbers, credit cards, bank accounts or other financial information, InVibe User Account credentials, other information concerning trade union membership, sex life, political opinions, criminal charges or convictions, religious beliefs, racial or ethnic origin, or other sensitive matters);
ii. User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, otherwise objectionable or that threatens our relationships with our employees, partners, customers or suppliers;
iii. User Content that infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content;
iv. User Content that impersonates any person or entity or otherwise misrepresents your identity or affiliation with another person or entity;
v. Spam, direct marketing communications or any unsolicited advertising, promotional materials or other forms of solicitation or commercial content;
vi. User Content that constitutes, encourages or provides instructions for a criminal offense, violates the rights of any party or that creates liability or violates any applicable local, state, national or international law;
vii. Viruses, spyware, Trojan horses, Easter eggs or any other harmful, disruptive or destructive files; and
viii. User Content that, in the sole judgment of InVibe, is objectionable, restricts or inhibits any other person from using or enjoying the Services or that damages the image or rights of InVibe, other users or third parties.
InVibe does not control, take responsibility for or assume liability for any User Content, nor is InVibe liable for any User conduct or any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity that you may encounter.
If you become aware of User Content that you believe violates these User Terms (with the exception of copyright infringement which is addressed in the Digital Millennium Copyright Act Notice section), you may report it by contacting InVibe at email@example.com. Enforcement of these User Terms pertaining to User Content is in InVibe’s sole discretion and absence of enforcement in some instances does not constitute a waiver of our right to enforce the User Terms in other instances.These User Terms shall not create a third-party right of action or any reasonable expectation or promise that the Apps or websites will not contain any content that is prohibited by these User Terms. InVibe reserves the right, and has absolute discretion, to remove, screen or edit any User Content at any time and for any reason without notice. You are solely responsible for creating backup copies and replacing any User Content you post or store at your sole cost and expense.
License to User Content. You represent and warrant to InVibe that your User Content is not subject to any confidentiality obligations and that you own and control all of the rights to the User Content or otherwise have the right to grant the rights to InVibe that you grant herein. InVibe claims no ownership or control over any User Content, except as otherwise provided herein. By submitting or posting User Content, you grant InVibe and its designees a worldwide, perpetual, irrevocable, non-exclusive, fully-paid up and royalty free license to use, sell, reproduce, prepare derivative works, combine with other works, alter, translate, distribute copies, display, perform, publish, license or sub-license the User Content and your name and likeness in connection with such use of your User Content. By posting User Content, you hereby release InVibe and its agents and employees from any claims that such use, as authorized above, violates any of your rights and you understand that you will not be entitled to any compensation for any use of your User Content.
Recommendations. The InVibe App enables you to submit recommendations to InVibe for a business or businesses that you would like to see start accepting InVibe. InVibe appreciates your referrals and recommendations, and offers $10.00 in InVibe credit for recommendations made through the App that lead to a new business launching on InVibe (“Referral Bonus”). InVibe limits the Referral Bonus to the first twenty-five (25) Users to recommend each new business. Each InVibe User is limited to a total of ten (10) Referral Bonuses (or a total of $100 in InVibe credit).
10. Suspension; Modifications and Termination
Termination by User. You may terminate this Agreement at any time by closing your InVibe User Account and ceasing to use the InVibe Services, and all InVibe Apps.
Termination by InVibe. InVibe reserves the right to suspend or terminate your User Account and/or your access to the InVibe Services at any time, without notice to you, if it believes you are in breach of this Agreement, or if it believes that you are using the InVibe Services or any InVibe App in a manner harmful to InVibe, its merchants, users, or any other third party. Any such termination, suspension, or modification will terminate any Merchant or 3rd Party Credit that you rightfully earned prior to termination.
Modification of Services and Terms. InVibe reserves the right to modify the Services and InVibe Apps, any features or aspects of the Services or Apps at any time, without notice to you. InVibe may also from time to time amend, update, or change these User Terms. If InVibe does so, it will notify you by posting the amended terms on our website. You are under a continuing obligation to review the current version of these User Terms and other published InVibe policies when using the InVibe Apps and/or Services. You agree that your continued use of your InVibe User Account, the InVibe Services, or the InVibe Apps shall constitute your agreement to the User Terms as so amended. If you do not agree to the amended Terms, you must terminate your User Account and cease using the InVibe Services and InVibe Apps.
Obligations in the Event of Termination. If your InVibe User Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the InVibe Services and all InVibe Apps, (c) that the license provided by InVibe under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of the User Data stored by InVibe, and (e) that InVibe shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with your use of InVibe or for termination of access to your InVibe User Account.
Sections 4, 8, 9, and 13-17, any accrued rights and remedies hereunder, including specifically InVibe’s rights to retain and use User Data and complete any authorized transactions, and any other provisions that by their nature require survival in order to be effective, shall survive the termination or expiration of this Agreement.
11. No Warranties
The InVibe Services and InVibe Apps are provided on an “as-is” basis. InVibe does not warrant that the Services or InVibe Apps will operate error-free or without downtime. InVibe may pause or interrupt the Services at any time, and users should expect periodic downtime for updates to the Service.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, INVIBE DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE. INVIBE DOES NOT WARRANT THAT THE INVIBE SERVICES AND/OR ANY INVIBE APP: (i) WILL PROVIDE RESULTS OR INCLUDE CONTENT THAT IS ACCURATE, RELIABLE OR CORRECT; (ii) WILL MEET YOUR REQUIREMENTS; (iii) WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; OR (iv) WILL BE FREE OF DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF INVIBE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. NO ADVICE OR INFORMATION, ORAL OR WRITTEN, OBTAINED BY YOU FROM INVIBE OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
You are solely responsible for obtaining and maintaining the computer, smartphone and other equipment you use to access the InVibe Services, and for paying for such equipment and any telecommunications charges. We are not liable for any third-party charges, or loss or damage you suffer arising from damage to equipment used in connection with use of the InVibe Services.
InVibe is not responsible for the goods and services that you purchase using the InVibe Services or any InVibe App. The providing merchant is responsible for all customer service related to those goods and services, including order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and issues concerning experiences with a merchant’s personnel, policies, or processes. InVibe is also not responsible for any customer service related to your payment instrument(s).
Because we do not control the security of the Internet, or other networks you use to access the InVibe Services, InVibe is not responsible for the security of information that you choose to communicate with InVibe while it is being transmitted. InVibe is not responsible for any data lost during transmission.
12. Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL INVIBE, OR ANY OF INVIBE’S MERCHANTS, PROCESSORS, SUPPLIERS, OR LICENSORS (OR ANY OF THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING WITHOUT
LIMITATION DAMAGES FOR LOSS OF BUSINESS, PROFITS, USE, GOODWILL, DATA, OR OTHER INTANGIBLE LOSSES), ARISING FROM OR RELATING TO THE USE OF, OR INABILITY TO USE, THE INVIBE SERVICES OR ANY INVIBE APP, OR ANY LOYALTY CREDIT OFFERED OR AWARDED, OR ANY GOODS AND SERVICES PURCHASED WITH THE INVIBE SERVICES OR ANY INVIBE APP. INVIBE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE INVIBE SERVICES, YOUR INVIBE USER ACCOUNT, ANY INVIBE APP, OR THE INFORMATION CONTAINED THEREIN. INVIBE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE INVIBE SERVICES OR ANY GOODS OR SERVICES PURCHASED USING THE SERVICES.
THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND EVEN IF INVIBE OR A MERCHANT HAD BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
With respect to any unauthorized, fraudulent transaction conducted using your User Account, absent any violation of these User Terms by you, your right to reimbursement for any direct losses (i.e., losses not refunded by your payment instrument issuing entity) as set forth herein shall be your sole and exclusive right and remedy for any loss or damages incurred by you arising out of, in connection with, or relating to any fraudulent or unauthorized use of your InVibe User Account, and InVibe may condition its payment of any fraud or unauthorized use reimbursement upon your releasing InVibe from any further claims with respect thereto.
An action or proceeding relating to any claim arising out of the InVibe Services or any InVibe App must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued.
13. Release of Claims; Indemnity
You hereby release, and agree to defend, indemnify and hold harmless InVibe against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees arising in connection with or relating to: (i) your improper or illegal use of the InVibe Service or any InVibe App; (ii) your breach of any provision of this Agreement; (iii) your violation of any federal, state, or local law or regulation; (iv) any goods and services purchased with the InVibe Service; (v) any act or omission of any merchant; and/or (vi) your participation in any merchant loyalty campaign or Loyalty Credit awarded or redeemed with the InVibe Services or any InVibe App (“Damages”). InVibe reserves the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to provide indemnification hereunder. You agree to cooperate with InVibe with respect to such defense and settlement.
14. Disputes; Arbitration
InVibe seeks reasonably to attempt to resolve disputes with Users to their satisfaction. If, however, a matter arises that cannot be resolved promptly between you and InVibe, you agree that any disputes arising out of or relating to the InVibe Services, any InVibe App, or this Agreement (including, without limitation, the validity, applicability, or enforceability and scope of the agreement to arbitrate and any disputes with InVibe’s third-party licensors or merchants) shall be resolved exclusively by final and binding arbitration. This provision shall not apply to claims of patent, trademark, copyright infringement, or misappropriation of trade secrets. In addition, you or we may elect to bring an individual claim in a small claims court, but InVibe does not hereby agree to any personal jurisdiction that is otherwise lacking.
You agree that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. You further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST INVIBE.
If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, then this entire section shall be deemed invalid and the arbitration clause shall be void.
15. Miscellaneous Provisions
This Agreement represents the entire agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties.
No delay or omission by InVibe in exercising any of its rights occurring upon any noncompliance or default by you with respect to this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by InVibe of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained.
In no event shall InVibe be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside InVibe’s reasonable control.
The provisions of this Agreement are entered into for the benefit of InVibe, its third party licensors, and the merchants and each of them shall have the right to enforce such provisions of this Agreement, including the arbitration clause, directly against you to protect their interests. Except as stated in the preceding sentence, there shall be no third party beneficiaries to this Agreement.
InVibe reserves the right to change or add to these User Terms at any time. When we do so, we shall provide notice on our website by posting the updated User Terms. You agree that if you do not agree to any such amendment, you shall immediately terminate this agreement. Your failure to do so, or continued use of any InVibe App or Service, shall constitute agreement to User Terms as so amended.
In the event of a conflict between this Agreement and any other InVibe agreement or policy provided to you, directly or indirectly, this Agreement shall prevail on the subject matter of this Agreement.