Nytch Waitlist Terms and Conditions
Welcome to the Nytch, Inc. retailer waitlist! Nytch (“We”, “Us”, “Our”) provides a unified consumer and retailer facing mobile application, available on Android and iOS smartphones (“App”), that connects online shoppers with nearby, offline second hand retailers. We are currently preparing the next generation deployment of the App and, in that effort, have provided retail owners and operators in the second hand retail industry to add their names to a waitlist for when the App is available (“Waitlist”). Accordingly, the terms and conditions contained herein (“Terms”) govern your presence on that Waitlist.
By submitting your information, inclusive of payment processing information, you agree that you are bound by these Terms.
I. About Nytch
Nytch is a mobile commerce platform that is pioneering a novel model for local, online shoppers to engage with bricks-and-mortar second hand retailers that are nearby. To do so, Nytch built the App, available for download in the Apple App Store and Google Play under the name “Nytch”, which is a proprietary native mobile application, in tandem with other products and services that we may provide, accessible both through the aforementioned native mobile applications and, as appropriate, web-based portals (collectively, “Nytch Services”). Nytch is partnered with the leaders in the thrift and second hand retail vertical, including various Goodwill agencies, trade associations, and independent retailers. Currently live and available in greater Sacramento, California and Portland, Oregon, Nytch is expanding its presence throughout the western United States.
Based upon Our experience and in collaboration with our retail partners, Nytch has developed a next generation version of its App (“Next Gen App”). We plan to make the Next Gen App available to new retail partners beginning in the late Fall/early Winter of 2022.
Upon activation of the Next Gen App, We shall promptly provide you the access credentials to your exclusive retail management account (“Retailer Account”).
II. Effective Date and Term
These Terms, as applied to you, shall be binding beginning on the date on which you submit the requested information to join the Waitlist. Thereafter, these Terms shall be in effect until such time as replaced by a superseding terms and conditions policy, which shall be made available to you commensurate with the availability of the Next Gen App. In the event We are unable to provide the Next Gen App to you or, for any other reason, refuse to provide you with a Retailer Account on the Next Gen App, we shall refund you the entire amount of the Waitlist Fee (see IV, below) within thirty (30) days of notice under this provision.
III. Accuracy of Information
In order to join the Waitlist, you will be asked to provide us with personal information about yourself and your business including, but not limited to: your name, your address, your business’ name (or DBA/FBN), your business’ address, and payment information. Upon submitting your information to Us in order to become a member of the Waitlist, you warrant that the information you provide is true and accurate to the best of your knowledge. Moreover, you hereby authorize Us to use your information to process the payment herein described.
If payment processing fails for any reason, Nytch is authorized to void your membership on the Waitlist and/or reject any future request on your part to become a retail partner on the App.
IV. Fee Payment and applicability to First Month’s Service Fees
Upon submitting your request to join the Waitlist, Nytch shall immediately process the fee associated with acceptance onto said Waitlist (“Waitlist Fee”). The Waitlist Fee is a one-term charge of $199.00. However, depending on the nature of your business operations, Nytch may - at its sole and absolute discretion - provide for a different Waitlist Fee amount. If so, that amount will be reflected in the invoice submitted to you to reserve your position on the Waitlist.
Nytch charges a per store, per month service fee to maintain individual Retailer Accounts for our retail partners (“Service Fee”). This Service Fee varies based upon the size and complexity of the physical retail location. The above reference Waitlist Fee shall be held by Us as a credit against the first months of service fees for your Retailer Account, activated upon the availability of the Next Gen App. Upon the creation of your Retailer Account, the Waitlist Fee shall be immediately applied to your said account’s Service Fee. Unless provided otherwise as explained in the paragraph above in this Section, the Service Fee shall be set at $199.00 for the entirety of your Minimum Commitment (see below).
V. Minimum Commitment
Your addition to the Waitlist obligates you to maintain an active Retail Account for a minimum of three (3) months following activation of your Retail Account (“Minimum Commitment Term”). As set for in section IV, in exchange for the Minimum Commitment Term, We shall not alter your Service fee for the duration of said period. At the conclusion of said Minimum Commitment Term, you shall have the option to renew with an adjusted Service Fee that we define.
VI. Failure to Deliver Next Gen App
If We are unable to, or otherwise fail to, provide you with a Retail Account at the conclusion of the 2022 calendar year, which for these Terms is defined as by 11:59 PM PDT on December 31, 2022, then we shall refund you the entire amount of your Waitlist Fee within thirty (30) days of said failure (“Release Event”). In the occurrence of a Release Event, your refunded amount will be the whole amount of the Waitlist Fee and, for the avoidance of doubt, shall not include any interest (simple or compounded) or penalty.
In the circumstances that a Release Event is likely to take place, Nytch may extend said time period for the occurence of said Release Event for a maximum of thirty (30) days if it believes, in good faith, that your Retail Account is likely to be created within that time period (“Release Event Extension”).
VII. Return or Waitlist Fee prior to Release Event
If you encounter circumstances wherein the holding of your Waitlist Fee by Us is causing you undue hardship, then We may, at our sole and absolute discretion, return the full amount of the Waitlist Fee to you upon the proper submission by you of your request that we do so. In order to submit a request under this section, you must submit an email to us at firstname.lastname@example.org wherein you: confirm your name, confirm your business name, and explain the need for the return of the Waitlist Fee. We will respond to your request within seven (7) business days of receipt of said request with Our decision.
VIII. Limited License upon Creation of Reail Account
Upon creation of your Retail Account, We grant to you a limited, non-exclusive, revocable, non-transferrable, non-sublicensable license to use Nytch Services. As noted above, continuing compliance includes payment of all applicable and assessed fees (see above) and acceptance of the terms and conditions made available to you upon the creation by Us of your Retailer Account.
You do hereby agree that additional terms and conditions, not materially inconsistent with these Terms, shall be submitted to you for your review and approval concurrently with the creation of your Retail Account. If you do not approve the aforementioned terms and conditions when they are made available to you, you do hereby acknowledge that the Waitlist Fee shall be forfeited by you to Nytch in their entirety.
IX. Electronic Communications
By providing us with the information described in these Terms, you agree that We may, from time to time, send you electronic communications, notices, and disclosures about the subject matter of these Terms. When you send Us communications in any form including, but not limited to, emails, text messages, or a third-party chat interface from your desktop or mobile device, you may be communicating directly with us and you consent to receive messages in the same or similar format directly from us. Moreover, you agree that any and all agreements, notices, and/or disclosures received by you from us in electronic format satisfy all legal notice requirements.
You may opt-out of receiving any direct marketing materials or communications from us through the “unsubscribe” link included in any such email that you receive from us.
XI. Intellectual Property
All content available to you through your presence on the Waitlist including, but not limited to, our logos, trademarks, products designs, descriptions, graphics, user interface designs, and text, is the exclusive property of Nytch and is protected by United States and international intellectual property protection laws.
b. Trademarks and restrictions on use
Nytch intellectual property is not to be used in connection with any product, service, or any combination thereof by any party other than Nytch and Our applicable licensors. Moreover, the intellectual property that is owned by Nytch is not to be used by any party in a manner that could cause confusion by any customers or retail partners.
c. Third-party trademarks
All other trademarks that may be accessed or otherwise viewed or perceived through the App, Next Gen App, or presence on the Waitlist are the property of their respective owners. These include, but are not limited to, those trademarks associated with Apple, Inc. (through its ownership and administration of the “App Store”) and Alphabet, Inc. (through its ownership and administration of “Google Play”).
You agree that any feedback you provide to us on the App, the Next Gen App, or Nytch generally (“Feedback”) shall be the sole and exclusive property of Nytch and you hereby grant a perpetual, worldwide, irrevocable license. Submitting ideas to us is completely voluntary and we are free to integrate, use, or modify such ideas without any obligation or notice to you.
XII. Disclaimer of all Implied Warranties
ALL PRODUCTS, CONTENT, INFORMATION, AND SERVICES PROVIDED BY NYTCH ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
NYTCH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE APP OR NEXT GEN APP OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS, SOFTWARE, OR ANY OTHER SERVICES MADE AVAILABLE TO YOU THROUGH THE SAME. YOU USE THE APP, THE NYTCH APP, AND JOIN THE WAITLIST AT YOUR OWN RISK.
NYTCH DOES NOT WARRANT, REPRESENT OR GUARANTEE THAT ITS PRODUCTS PROVIDED UNDER THESE TERMS ARE ACCURATE, RELIABLE OR CORRECT; THAT OUR PRODUCTS PROVIDED UNDER THESE TERMS WILL MEET YOUR REQUIREMENTS; THAT OUR PRODUCTS PROVIDED UNDER THESE TERMS WILL BE AVAILABLE TO YOU AT ALL TIMES OR LOCATIONS, WITHOUT ERROR, OR UNINTERRUPTED, WITHOUT DEFECT OR SECURE.
TO THE FULL EXTENT PERMISSIBLE BY LAW, NYTCH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
XIII. Limitation of liability
TO THE FULL EXTENT PERMITTED BY LAW, NYTCH WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND WHETHER THEY ARE DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE PRODUCTS PROVIDED UNDER THESE TERMS OR ANY ACTIONS YOU TAKE OR FAIL TO TAKE IN CONNECTION THEREWITH, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF NYTCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NYTCH’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE PRODUCTS PROVIDED UNDER THESE TERMS OR ANY ACTIONS TAKEN IN CONNECTION THEREWITH EXCEED THE AMOUNT THAT YOU PAID FOR THE WAITLIST FEE.
XIV. MANDATORY AND BINDING ARBITRATION
Any dispute or claim in any way arising from your use of Nytch, the App, the Next Gen App, or presence on the Waitlist, shall be submitted to binding arbitration rather than through a court. However, if your claim qualifies for local small claims court, you may assert said claims in that venue only if the proceeding remains in small claims court and proceeds on an individual basis.
Any arbitration proceeding may only proceed on an individual basis. Arbitration proceedings will be administered by Judicial Arbitration and Mediation Services (“JAMS”), applying its rules and procedures relevant to commercial agreement-related disputes. The comprehensive rules applied by JAMS can be found here: https://www.jamsadr.com/rules-comprehensive-arbitration/. The arbitration proceeding shall take place at the JAMS location in Sacramento, California and shall be conducted by a single, neutral arbitrator. You shall be given the opportunity to have a convenient time, place, and manner for the arbitration proceeding to take place, whether telephonically, virtually, or in-person, subject to JAMS’ policies then in effect. The arbitrator will have the authority to determine all threshold claims subject to arbitration. Moreover, the arbitrator will have the power to decide any motions brought by either you or Nytch. The standards applied to those motions will be the California Code of Civil Procedure and the arbitrator shall apply all relevant California substantive law to any claims. Any judgment of the arbitrator shall be in writing, containing findings of fact and conclusions of law, and said judgment shall be binding on both parties and upon any court of competent jurisdiction.
The Federal Arbitration Act applies to these Terms.
Nothing in this arbitration provision shall prohibit either you or us from seeking injunctive relief from a court of competent jurisdiction to protect against reputational damage or infringement against intellectual property rights.
XV. Governing Law
These Terms shall be governed by the Federal Arbitration Act, California substantive and procedural law, without regard to its choice of law or conflicts of law principles. To the extent any litigation commences under these Terms, the Superior Court for the County of Sacramento shall have exclusive jurisdiction of all parties and matters and you consent to such.
XVII. Third Party Service Providers