I hereby acknowledge and authorize Platinum+ to charge my credit card according to the terms of this agreement herein.
This Agreement (the "Agreement") is entered into by and between Platinum+ and ("Customer"), and shall be effective as of this date. By activating the Service, you acknowledge that you have read and understand, and you agree to, the terms and conditions of the Agreement, and you represent that you are of legal age to enter the Agreement and become bound by its terms.
Platinum+ will provide the services set forth in this agreement. Platinum+ will use commercially reasonable efforts to provide a secure transmission of customer data to and from the database. The services and all related software and intellectual property are hereinafter referred to as the "Services."
Customer shall pay to Platinum+ the fees set forth in Schedule A. Platinum+ will invoice Customer for these fees on a monthly billing cycle. Customer agrees to pre-pay for every month of service. All charges and fees hereunder are exclusive of federal, state and local excise, sales, use and other taxes now or hereafter levied or imposed for the provision of Services hereunder.
Platinum+ hereby grants Customer a non-exclusive, non- transferable license to access and use the Services. Customer is prohibited from reselling, loaning or otherwise sharing the Services or divulging any related confidential information including, but not limited to passwords or instructional manuals. Except as expressly permitted in this Section, Customer may not use, reproduce, transfer, share, sublicense or transmit the Services in any form or by any means without the prior written consent of Platinum+. No customer will be permitted more than one (1) licenses using the same email address.
a) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
b) Platinum+ SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR INJURY TO ANY PERSON OR PROPERTY WHATSOEVER RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES OR SOFTWARE OR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THE SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SPECIFICALLY, Platinum+ SHALL NOT BE RESPONSIBLE FOR ANY LOST PROFITS OR REVENUE, OR COSTS, INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOSS OF USE OF THE SERVICES. IN NO EVENT SHALL PLATINUM+’S TOTAL LIABILITY OF ANY KIND, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEED THE TOTAL AMOUNT PAID TO PLATINUM+ UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
a) Customer assumes sole responsibility for all use of the Services and agrees to indemnify, defend and hold Platinum+ and its affiliates, and its and their respective officers, directors, employees, agents and representatives harmless from and against any and all claims, causes of action, suits, proceedings, demands, damages, costs, expenses and liabilities of any kind whatsoever, including (without limitation) legal expenses and reasonable attorneys' fees, from third parties ("Claims"), arising out of or in any way related to (i) Customer's use of the Services, including without limitation the use or inability to use the same, or any errors or omissions in the same, or (ii) any breach by Customer of this Agreement.
b) If a preliminary or final judgment shall be obtained against Customer's use of the Services by reason of a Claim that the Services infringe or misappropriate the intellectual property rights of a third party or if the Services are likely to become the subject of such a Claim, Platinum+ shall at its option and expense either procure for Customer the right to continue to use the Services as provided in this Agreement, or replace or modify the Services with a version of Services that is non-infringing, but performing substantially similar functions. In the event that neither of the foregoing options is commercially reasonable in Platinum+'s sole judgment, Platinum+ shall cease providing the Services to Customer and refund to Customer any pre-paid license fees paid by Customer for the remainder of the Term. THE RIGHTS AND OBLIGATIONS IN THIS SECTION 7(b) ARE PLATINUM+'S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
a) The term of this agreement shall commence upon acceptance herein. Thereafter, this Agreement shall automatically renew on a month-to-month term unless either party provides written notice to the other party that it will not renew, such notice to be given at least thirty (30) days prior to the expiration of the then-existing Term. Services will remain active for any period already paid. Refund of monies already paid is not available following cancellation.
b) Either party may terminate this Agreement immediately for any breach of this Agreement by the other party that is not cured within thirty (30) days after receipt of written notice of the breach from the non-breaching party; provided, however, that the cure period for the breach of an obligation to pay fees when due shall be ten (10) days. Platinum+ may terminate this Agreement at any time without cause upon thirty (30) days written notice to Customer.
c) This Agreement shall be immediately terminated upon the dissolution or bankruptcy of Customer, the filing of a bankruptcy petition by or against Customer or a general arrangement or assignment by Customer for the benefit of creditors.
d) Termination or expiration of this Agreement for any reason shall not release any party from any liabilities or obligations set forth in this Agreement that by their nature would be intended to be applicable following any such termination or expiration.
e) Platinum+ reserves the right to suspend the Services or terminate this Agreement in the event that a payment due remains unpaid five (5) business days after Customer has been notified of such non-payment.
a) This Agreement will be construed in accordance with and governed by the laws of the State of New York, without regard to principles of conflicts of law. Any disputes under this Agreement shall be brought in Monroe County, New York.
b) Any dispute or claim arising hereunder shall be submitted to binding arbitration in Monroe County, New York, and conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA), and the parties expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere. The parties hereunder further agree that: (i) any request for arbitration shall be made in writing and must be made within a reasonable time after the claim, dispute or other matter in question has arisen; provided however, that in no event shall the demand for arbitration be made after the date that institution of legal or equitable proceedings based on such claim, dispute, or other matter would be barred by the applicable statutes of limitations; (ii) the award or decision of the arbitrator, which may include equitable relief, shall be final and judgment may be entered on such award in accordance with applicable law in any court having jurisdiction over the matter.
c) In any action, arbitration, or other proceeding by which one party either seeks to enforce its rights under the Agreement, or seeks a declaration of any rights or obligations under the Agreement, the prevailing party will be entitled to reasonable attorney's fees and reasonable costs and expenses incurred to resolve such dispute and to enforce any final judgment.
a) Notices. All notices and other communications to each party must be in writing and sent to the party at the address specified in this Agreement or to such alternative address as either party may furnish in writing to the other from time to time. If to Platinum+, Attention: Legal Department. Unless otherwise agreed, notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered or certified mail.
b) Force Majeure. Neither party shall be liable or deemed to be in default for any delays or failure in performance resulting directly or indirectly from any cause or circumstances beyond its reasonable control, including but not limited to acts of God, war or warlike conditions, terrorism, riot, embargoes, acts of civil or military authority, fire, flood, accidents, strikes or labor shortages, sabotage, Internet failure, transportation facilities shortages, fuel or materials or for failures of equipment, telecommunications facilities or third party software programs.
c) Severability.If any term or condition hereof is found by a court or administrative agency to be invalid or unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law.
d) Waiver. The failure of either party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. A party's remedies set forth herein are not exclusive and are in addition to any and all other remedies available at law or in equity, none of which shall be deemed as waived by virtue of a party's exercise of any other remedy.
e) Entire Agreement. This Agreement and related exhibits and attachments represent the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings. There are no representations, warranties, promises, covenants or undertakings, except as described herein.
f) Service Enhancements. Platinum+ reserves the right to add or delete programs or services as part of our continued enhancement of the Services.
g) Amendment. Except where otherwise provided herein, this Agreement may be amended or modified by Platinum+ at any time.
h) Assignment. Customer may not sell, mortgage, assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity, without the express written consent of Platinum+.
i) Independent Contractors. The relationship of the parties will be that of independent contractors. Neither of the parties will have, and will not represent that it has, any power to bind the other or to create any obligation on behalf of the other. Nothing stated in this Agreement shall be construed as constituting or as creating the relationships of employer/employee, fiduciary, principal/agent, partnership, joint venture or representative of the other.
j) Third Party Beneficiaries. This Agreement is not intended to benefit any third party and the parties do not intend to create any third party beneficiary rights under this Agreement.
a.) Access to Customer Data. Customer will provide a username and password to access the features of the Platinum+.
The Platinum+ service is a bundled offering that includes multiple benefits and features, including FIVE STAR PASS Discount Network, access to a special marketing app, and other exclusive offers. There is a limit of one (1) enhanced OXZGEN subscription per subscription; the first renewed qualified OXZGEN subscription in each calendar month will be eligible for this enhanced benefit.
A monthly fee of $49.95 will be assessed for the Platinum+ product.