Last updated: June 11, 2020
Semy is a social gifting platform that allows its user(s) to give gifts and share the experience of the moment as the gift is given. Semy is brought to you and wholly owned by DOB NGU Corporation (“Semy” or “us”, “we” or “our”) Through Semy’s mobile application(s) (the “Semy Platform”), the Semy widgets integrated into third party websites, or services (collectively the “Service”) Semy users (“users”, “you” or “your”) are connected with merchants (“Merchants”) enabling you to give and send gifts, products and services offered by the Merchants (“Gifts”) to friends, co-workers, clients, family, and loved-ones.
Special Terms for Merchants
Eligibility and Age Restrictions
The Semy Platform and Services may only be used by individuals who have the right and authority to enter into this Agreement and are fully able to satisfy the terms, conditions and obligations herein. By registering a Semy Account and accepting this Agreement, you represent and warrant that you are at least 18 years of age. Notwithstanding the foregoing, if you are the parent or legal guardian of a minor between 13 and 17 years of age you may create a Semy Account for them to use the Semy Platform, at all times in accordance with this Agreement and with your permission and consent, and you acknowledge and agree that you will be responsible for any breach on their part. You are not allowed to register a Semy Account and you do not have the right to access or use the Semy Platform if you do not meet these criteria.
Please note that alcoholic beverages and related services may be sold and delivered only to persons who are at least 21 years of age. By placing an order for any Gift that is an alcoholic beverage, you represent and warrant: (a) that you are purchasing the Gift for personal use and not for resale; (b) that you are at least 21 years old; (c) that any person(s) to whom the Gift will be delivered or served is at least 21 years old; and (d) that the person(s) receiving the Gift will provide valid identification proving that he or she is at least 21 years of age.
If you are under the age of 21 and misrepresent your age or the age of the person(s) to whom a Gift comprising an alcoholic beverage and associated services are to be provided, you may be subject to prosecution for violating state and/or federal law.
If we make any substantial changes, we may also notify you by posting notice of the change on the Semy Platform and/or by sending you an e-mail to the e-mail address that is registered with your account. These changes will not apply to Gifts purchased prior to the effective date of such changes. Any changes will be effective immediately for new users of the Semy Platform and Gifts purchased after the effective date.
Registration and Use
In order to use the Semy Platform, you must complete all required information elements on the registration page of the Semy Platform, including, in some instances, providing a valid credit card or other payment method. You agree to pay for all applicable fees, purchases and other obligations arising from your use of the Semy Platform. You must provide current, complete and accurate information and maintain it as current and accurate. We may require you to provide additional information as a condition of continued use of the Semy Platform or purchasing Gifts. We facilitate processing the payment for purchased Gifts, but we reserve the right to delay or cancel processing of suspicious transactions or transactions which may involve fraud, misconduct or violations of law.
References to “content” herein refer to all aspects of the Semy Platform, including but not limited to all products and services (including Gifts) offered via the Semy Platform, as well as all text, images, photos, video, audio, source code, articles, design, and all other forms of data or communication created, posted, displayed, or transmitted by or onto the Semy Platform.
Products are Sold by the Merchants
The Merchant, not Semy, is the seller of the Gifts and related products and services and is solely responsible for providing the Gifts you purchased. However, we encourage you to notify us of any failure of a Merchant to redeem a Gift to give us the opportunity to address such case as we deem appropriate in our sole discretion. Your only recourse with respect to a Merchant’s failure to redeem a Gift shall be against the Merchant from which you purchased such Gift. Unless otherwise prohibited by applicable law, you agree to make any claims with respect to a Gift purchased on the Semy Platform within 45 days after purchase of such Gift. You are responsible for your own actions or omissions in utilizing the Gifts or other services or products provided by Merchants. We make no representations or warranties, express or implied, as to the quality, safety, usability, or other aspect of the Gifts or other services or products provided by Merchants. We are not liable for any costs, harm or damages that occur as a result of, either directly or indirectly, the Gifts or other services or products provided by Merchants.
Purchasing Gifts and Additional Terms and Conditions
All Gifts offered on the Semy Platform may be subject to additional terms and conditions of the Merchant. Any such terms and conditions will be set forth on the Semy Platform. By making a purchase, you acknowledge and agree to such terms and conditions: By selecting a Gift to purchase, you make an offer to purchase the Gift you have selected from the offering Merchant in accordance with the terms and conditions presented to you at the time of purchase.
All conditions associated with the lawful sale and service of Gifts by the Merchant are the responsibility of the Merchant and may be subject to additional regulatory conditions and restrictions including but not limited to age verification requirements and restrictions associated with the delivery of alcoholic beverage products to certain consumers.
From time to time, we may offer special promotions, contests and/or sweepstakes to provide users with incentives to purchase Gifts using the Semy Platform. We might also tailor particular promotions for you based on the Gifts that you’ve purchased previously, Gifts you have received from other Semy Account Holders or related to the Merchants from whom you have purchased or received Gifts. The applicable rules for such special promotional activities will be posted on the Semy website or communicated to you in advance of the promotional activity.
Gifts Are Nontransferable
When you purchase a Gift, only the named recipient has the right to receive the Gift. The recipient cannot transfer the right to receive the Gift to anyone else except as explicitly allowed by the Semy Platform. The right to receive a Gift comprising an alcoholic beverage is subject to the Merchant’s obligation to comply with all applicable laws and regulations associated with the sale and service of alcoholic beverages.
Gifts are purchasable and billed on a one-time basis. You hereby authorize us to charge, on behalf of the Merchant, the credit card or other payment method you have on file in connection with purchases of Gifts.
No Refunds or Exchanges
Once your purchase of a Gift is completed, the Gift cannot be returned or refunded by either us or the Merchant. We advise that prior to placing an order for a Gift you carefully review your selection. Once you have purchased a Gift, you agree to not dispute or otherwise seek a “chargeback” from the credit card or other payment method you used. If you have a question about a charge, you may contact us via the Semy Platform or via e-mail at email@example.com. If you deliberately or inadvertently issue a chargeback to the credit card or other payment method you have on file, your account may be terminated. You also agree to pay a $50 processing and collection fee to cover our costs for processing each chargeback. Failure to pay such fees and amounts owed for Gifts purchased may result in the information pertaining to your outstanding debt being turned over to a collection agency. Past-due balances may be subject to a finance charge of 2% per month or the highest amount permitted by applicable law, whichever is lower. If any fees or charges owed by you are past due, you agree to pay all related collection costs including, but not limited to, court costs, attorneys’ fees, collection agency fees and other administrative costs.
Equipment and Mobile Applications
You shall be responsible for obtaining and maintaining your Devices and all telephone and other equipment needed for access to and use of the Semy Platform and all charges related thereto. We shall not be liable for any damage to your Devices or other equipment resulting from the use of the Semy Platform.
Our mobile applications allow users to access many features of the Semy Platform through a mobile device. If you use the applications you are responsible for any fees that your phone service provider may charge for connection, subscription, roaming, SMS, data, etc. We are not affiliated with any phone or Internet service providers.
Privacy, Security and Passwords
We have several tools that allow you to record and store information. You are responsible for taking all reasonable steps to ensure that no unauthorized person has access to your username, passwords or account. It is your sole responsibility to (1) control the dissemination and use of your username and passwords; (2) authorize, monitor, and control access to and use of your Semy Account, username, and password; and (3) promptly inform us of any need to deactivate a username or password. At all times you are fully responsible for all activities that occur under your Semy Account.
Use of the Semy Platform and Restrictions
Although we welcome and encourage user interaction on the Semy Platform, we require that all users restrict any and all activity on the Semy Platform to that which involves lawful purposes only. In your use of the Semy Platform and services you agree not to post or transmit through the Semy Platform any material which violates or infringes in any way upon the rights of others, or any material which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or which, without our express prior, written approval, contains advertising or any solicitation with respect to products or services. In addition, in your use of the Semy Platform and its service you agree that you will not:
- Exploit the Semy Platform or its service to access unauthorized information;
- Advertise or perform any commercial, religious, political or non-commercial solicitation, including, but not limited to, the solicitation of users of the Semy Platform to become users of other on- or off-line services directly or indirectly competitive or potentially competitive with us.
- Copy (including by taking screenshots), publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, any of the content of the Semy Platform, in whole or in part, without our prior consent;
- Transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam (sending the same message multiple times or to multiple people will be treated as spam), chain letters, contests, pyramid schemes, surveys, or any other form of solicitation or mass messaging, whether commercial in nature or not;
- Knowingly transmit any material that contains adware, malware, spyware, software viruses, Trojan Horse, worm or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- Encourage excessive or irresponsible consumption of alcohol, the consumption of alcohol by minors, stalk, bully or otherwise harass any other person or otherwise engage in or contribute to any other illegality or wrongdoing under applicable law;
- Use the Semy Platform in a manner, or post to the Semy Platform any material, that infringes or violates any third party rights including breach of confidence, copyright, trademark, patent, trade secret, moral rights, privacy rights, right of publicity, or any other intellectual property or proprietary right;
- Impersonate any individual or entity, or otherwise misrepresent your affiliation with any individual or entity;
- Interfere with or disrupt or attempt to disrupt the Semy Platform or servers or networks connected to the Semy Platform, or cause excessive traffic demands on the Semy Platform’s technology infrastructure, or disobey any requirements, procedures, policies, or regulations of networks connected to the Semy Platform or our services;
- Circumvent, disable, or otherwise interfere with security-related features of the Semy Platform or features that prevent or restrict use or copying of any content or enforce limitations on use of the Semy Platform or the content therein; reverse engineer any portion of the Semy Platform;
- Without our permission, process, collect, or record user information or Semy Platform content, or otherwise access the Semy Platform using automated means, such as but not limited to robots/bots, spiders, scrapers, or site search/retrieval applications; or contribute content that contains restricted access mechanisms, hidden content of any kinds, or utilize SQL injection or cross site scripting methods.
Each user agrees that it shall use the content of the Semy Platform, including without limitation (a) the identity of Merchants, (b) information regarding Gifts (including without limitation, prices and discounts) and (c) the identity of our employees, contractors or other agents, solely in connection with making its decision to purchase Gifts. We are not obligated to post any material that you submit via the Semy Platform. We have the right to remove any material for any reason (or no reason) including, without limitation, material that we believe to be in violation of the provisions hereof or otherwise objectionable.
We have the right at any time to change or discontinue any aspect or feature of the Semy Platform, including, but not limited to, content, hours of availability, equipment needed for access or use, and Gifts available. Further, we may discontinue disseminating any portion of information or category of information, may change or eliminate any transmission method and may change transmission speeds or other signal characteristics.
Everything located on or in the Semy Platform is the exclusive property of Semy or is used with the express permission of the copyright and/or trademark owner. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OF THE SEMY PLATFORM WITHOUT OUR EXPRESS WRITTEN PERMISSION IS STRICTLY PROHIBITED. Any violation hereof may result in a copyright, trademark or other intellectual property infringement claim that may subject you to civil and/or criminal penalties.
You acknowledge that you do not acquire any ownership rights in or to any of the copyrighted material, either via your use of the Semy Platform or Services, or otherwise. Material that is located within or on the Semy Platform otherwise owned or operated in conjunction with us shall not be deemed to be in the public domain but rather the exclusive property of us, unless such site is under license from the applicable licensor, in which case such license is for our exclusive benefit and use unless otherwise stated.
You shall not upload, post or otherwise make available (or submit to us for uploading, posting or to be made available) on the Semy Platform any material protected by copyright, trademark or other proprietary right unless you are the legal owner of the same, or unless you have obtained the express permission of the owner of the copyright, trademark or other proprietary right. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such submission. By posting content to the Semy Platform, you represent and warrant that you have the right to post that content and to grant the foregoing rights to us (and our affiliates and sublicensees).
You take full and sole responsibility for all content that you post on the Semy Platform and the consequences of posting that content. You are responsible for obtaining all necessary rights to upload, post and distribute all content, including obtaining permission from any person shown in a photo that you upload or that is identified in any writing that you post.
Disclaimer of Warranty
YOU EXPRESSLY AGREE THAT USE OF THE SEMY PLATFORM IS AT YOUR SOLE RISK AND THAT THE SEMY PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SEMY AND OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, THIRD PARTY CONTENT PROVIDERS AND/OR LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SEMY AND THE SEMY PLATFORM, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WE STRIVE TO MAINTAIN THE SEMY PLATFORM ON A COMMERCIALLY REASONABLE BASIS, BUT CANNOT GUARANTEE THAT YOU WILL HAVE ACCESS TO THE SEMY PLATFORM AT ALL TIMES AND DO NOT WARRANT THAT YOUR USE OF THE SEMY PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. WE MAKE NO WARRANTY AS TO (I) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SEMY PLATFORM, OR (II) THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR PRODUCT (INCLUDING PRODUCTS) PROVIDED THROUGH THE SEMY PLATFORM.
IN NO EVENT SHALL SEMY OR ITS AFFILIATES, OFFICERS, DIRECTORS AND/OR EMPLOYEES BE LIABLE FOR (I) IN THE AGGREGATE, ANY AMOUNT IN EXCESS OF THE FEES PAID BY USER DURING THE TWO (2) MONTHS PRECEDING THE INCIDENT GIVING RISE TO ANY CLAIM; (II) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SEMY PLATFORM, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA OR FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE ARISING OUT OF YOUR ACCESS TO OR USE OF SEMY.
YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN SEMY AND YOU. YOU UNDERSTAND THAT SEMY WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
Release and Indemnification
The Merchants are the sellers of the Gifts which you are purchasing. We do not control any Merchant, and are not responsible for any costs, harm or damages that occur as a result of, either directly or indirectly, Gifts offered by the Merchants.
You release us and our affiliates, and the respective directors, officers, employees, contractors and agents from any claim or liability arising from or related to (a) any Gifts or other services or products provided by the Merchants and (b) any acts or omissions by users, including users’ failure to comply with applicable law and/or Merchants’ failure to provide Gifts as described in good faith by us (collectively, (a) and (b) are referred to as the “Released Products Claims”). You also agree to defend, indemnify and hold harmless us and our affiliates, and the respective directors, officers, employees, contractors and agents from and against all claims and liability, including attorneys’ fees, arising out of or related to the Released Products Claims.
Notwithstanding anything herein to the contrary, we shall have the right, exercisable in our sole discretion, to immediately terminate this Agreement and your Semy Account and block your access to the Semy Platform at any time and for any reason. You may immediately terminate this Agreement at any time by discontinuing use of the Semy Platform and terminating your Semy Account, where applicable.
Third Party Content and Links
The Semy Platform may contain content that is submitted by third parties, including other users. You acknowledge that by using the Semy Platform, you may be exposed to content that you find objectionable, or which is inaccurate, misleading or incomplete. We are not responsible for the accuracy, completeness or usefulness of any third-party content, nor do we make any endorsement claims for the Semy Platform’s third party content. We have no editorial control over such content, and any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including content providers or any other users, are those of the respective author(s) or distributor(s) and not us. You therefore use the Semy Platform and the content at your own risk.
The Semy Platform, or third party users and members, may provide links to other web sites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials contained in or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, products or services available on or through any third party site or resource. We reserve the right to disable any link or remove any third party content at any time in our sole discretion.
Agreement to Arbitrate and Waiver of Class Action Claims
Please read this section carefully as it may significantly affect your legal rights, including your right to file a lawsuit in court.
You and DOB NGU Corporation agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Semy Platform, or the purchase or sale of any products or services, including Gifts (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in San Francisco County in the State of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
You and we agree that you and DOB NGU Corporation each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. You further agree with us that neither you nor us will join any arbitral claim with the claim of any other person or entity in a lawsuit, arbitration or other proceeding; that no arbitral claim will be resolved on a class-wide basis; that neither you nor we will assert an arbitral claim in a representative capacity on behalf of anyone else; and both parties expressly waive their right to file a class action or seek relief on a class basis.
Both parties hereby waive the right to a trial by jury. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
OPT-OUT NOTICE: YOU HAVE THE RIGHT TO OPT-OUT AND NOT BE BOUND BY THE ARBITRATION AND CLASS ACTION WAIVER PROVISIONS SET FORTH IN THIS SECTION BY SENDING WRITTEN NOTICE OF YOUR DECISION TO OPT-OUT TO THE FOLLOWING ADDRESS: 1527 N. HUDSON AVENUE, 1N, CHICAGO, IL 60610, ATTN: OPT-OUT, OR BY EMAIL TO LEGAL@SEMY.APP. UNLESS YOU OPT OUT OF ARBITRATION AS SET FORTH HEREIN WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION” SECTION ABOVE, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
If your claim does not exceed $10,000, then the arbitration will be conducted telephonically and solely on the basis of the documents that you and DOB NGU Corporation submit to the arbitrator, unless the arbitrator determines that an in-person hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Any in-person arbitration will be conducted in San Francisco County, California, or any other location you and we mutually agree to.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Each party’s responsibility to pay any AAA filing, administrative and arbitrator fees will be as set forth in the AAA Rules.