These Terms are effective as of February 6 2017.
This website or mobile application (the “Site(s)“) is operated by Pitaya Digital Ltd. and its affiliates, subsidiaries, licensors, and other related entities (“Pitaya” “we” “us” or “our“).
About Pitaya’s Site
The Site is a marketplace that allows users to offer, sell and order activities, promotions, venues, service providers, and ideas for events (“Service(s)” and any actual provision of a Service shall be referred to herein as “Event“) in a variety of pricing formats and locations throughout Israel.
While we may provide Service Provider (as defined below) to use the Site as a platform to sell its Services, please note that such Service Provider’s pricing, listing, cancellation policy and other fulfillment procedure are subject to Service Provider’s polices (usually appears on the applicable Service Provider’s page). Despite the provision of our platform through the Site, Pitaya does not represent the Service Provider or the Event Booker (as defined below) in any specific transaction whether or not such transactions are made on or via the Site. Also, while we may facilitate the resolution of disputes through various programs, Pitaya has no control over, does not guarantee, is not liable to or responsible for the existence, quality, safety, availability or legality of the Services advertised and products or Services offered for sale on the Site; the truth or accuracy of User Content or listings; the ability of Service Provider to provide Services; or that an Event Booker or Service Provider will actually complete a transaction; or that Service Provider will provide cancellation.
If you accept or agree to these Terms on behalf of a company, legal entity, association, partnership or other entity, you represent and warrant that you have the authority to bind such company to these Terms and, in such event, “you”, “our” or “user” will refer and apply to such company.
If you are a Service Provider please make sure, in addition to any provision set forth herein, to carefully review the terms set forth under Section 17 (“Service Provider Additional Terms”). If you are an Event Booker please make sure, in addition to any provision set forth herein, to carefully review the terms set forth under Section 16 (“Event Booker Additional Terms”).
This Site is directed to persons 18 years of age or older and the Services on the Site are directed to persons 18 years of age or older. Pitaya and the Site do not knowingly collect information from children under age 13. If you are under age 13, you are not permitted to use the Site or to submit any personally identifiable information to the Site. If you are not at least 18 years of age, do not access, use, register offer or order Services on the Site. If you are between 13 and 18 years of age, when you visit, browse and use the information on a Site, you represent that you have the permission of a parent or guardian to do so and who agrees to these Terms on your behalf. Some Services offered on the Site should be restricted by Service Provider to persons of a certain age (in accordance with applicable law) and we (or Service Provider, as applicable) may require you to provide valid proof of your age before ordering or providing age-restricted Services.
Registration; Password; Security
In order to access some features of the Site, you may be required to register and to select a password and user name, which shall consist of an email address you provide (“User ID“). If you register, you agree to provide us with your own true, accurate and complete registration information, and to inform us immediately of any updates or other changes to such information. Failure to comply with the terms of this paragraph shall constitute a material breach of these Terms, which may result in immediate termination of your account. In addition, we reserve the right to refuse registration of, or cancel, a User ID in our discretion.
You are responsible for maintaining the confidentiality of your password and you are fully responsible for all activities that occur under your User ID and password, whether or not you authorize such activities. You agree to (a) immediately notify us of any unauthorized use of your User ID or password of which you become aware, and (b) ensure that you exit from your account at the end of each session.
By using the Site you expressly agree that we may use the registration information to communicate with you including by email, text messaging, phone or otherwise for any purpose relating to your use of the Site, derive from this Terms and/or the applicable law; In addition, subject to your expressed consent, and for so long you did not revoke such consent pursuant to our instructions, we may include in our communications advertisements and other third party promotional materials, campaigns and tools.
Limited License; Permitted Uses
You may not resell any of the User Content, download or copy any of the Copyright Content (as defined below) for the benefit of another; This license does not include any collection, aggregation, copying, duplication, display or derivative use of the Services nor any use of data mining, robots, spiders, or similar data gathering and extraction tools for any purpose, unless expressly permitted by Pitaya. You are not allowed to use software, scripts or automated agents and bots in a manner intended to mine data from the Services, generate multiple accounts or automatically post multiple messages.
For the purpose of these Terms “User Content” shall mean all content, either in the form of a text, image, video, link or otherwise, that is posted on, transmitted through, or linked from the Site, including, without limitation, any content posted by you in the course of your use of the Site.
For the purpose of these Terms “Copyright Content” shall mean the content found on the Site, including, without limitation, the text, software (whether downloadable or non-downloadable), technology, user interfaces, forum posts, chat posts, profiles, widgets, messages, links, emails, graphics, images, video, code, sounds, music, videos, Users Content, all audio visual or other material appearing on or emanating to and/or from the Site, as well as the design and appearance of the Site and the accompanying information and documentation.
The Site, the User Content or the Copyright Content or any portion thereof, may not be reproduced, distributed, duplicated, republished, copied, sold, resold or otherwise exploited without Pitaya’s express written consent. You may not frame or utilize framing techniques or caches to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Pitaya without Pitaya’s express written consent.
You agree not to engage in the use, copying, or distribution of any Copyright Content unless you are expressly permitted to do so by a written agreement from Pitaya. You agree not to circumvent, disable or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any Copyright Content or enforce limitations on the use of the Site or the Copyright Content.
All product, brand and company names and logos used on the Site are the trademarks or registered trademarks of their respective owners. Any use of any of the marks appearing on the Site, whether or not owned and/or operated by Pitaya (unless you first receive Pitaya’s express written consent or the consent of the owner of the mark, as applicable), is strictly prohibited. You may not use metatags or any other “hidden text” utilizing any name, trademark, service mark or product or service name of any company without Pitaya’s prior written consent or the consent of the owner of the mark, as applicable. In addition, the look and feel of the Site including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Pitaya and may not be copied, imitated or used, in whole or in part, without Pitaya’s prior written consent. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Pitaya.
By submitting content to the Sites, you grant Pitaya a royalty-free, perpetual, irrevocable, worldwide license, without further compensation, to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, and distribute such content. This license continues indefinitely beyond termination of these Terms for any reason by any party. You warrant and covenant that the content you submit is true, your own original work, and does not violate any applicable law, infringe or violate any other person’s or entity’s rights, or require any third party releases or any payment to a third party.
Links to Other Websites
The Sites may contain advertisements, postings and links to websites operated by other third parties. The Sites provide these advertisements, postings and links as a convenience, and your use of other websites is at your own risk. The advertisements, postings and linked websites are not under Pitaya’s control and Pitaya is not responsible for their content or privacy practices. Such advertisements, postings or links or references to other parties’ products or services do not imply Pitaya’s endorsement of information, material, products or services of any other party or any other website. Pitaya disclaims all liability with regard to your access to and use of such information, material, products or services or transactions with such linked websites or other parties. You acknowledge and agree that Pitaya is not responsible or liable, directly or indirectly, for any damage, loss or other claim caused or alleged to be caused by or in connection with, access to, use of or reliance on any content available on or through any other website or resource.
As between you and us, the Site, including all photographs, images, text, graphics, icons, audio clips, software and other aspects thereof, excluding User Content and/or the concept of the service provided at the Event (as defined below) (“Event Concept“), all improvements or modifications thereof, all derivative works based thereon, and the collection, arrangement, and assembly of the Site, including all copyrights, trademarks, service marks and other intellectual property or proprietary rights in the foregoing or that otherwise displayed on the Site, are owned by us. As between you and us, subject to any licenses and rights expressly granted herein (a) any User Content posted by you is owned by you; and (b) any Event Concept offered and provided by you is owned by you. Nothing contained in these Terms shall be deemed to grant to you or any other user any rights, title or interest in or to any patent, copyright, trademark, trade secret or other proprietary right of ours or any of our licensors. You agree not to copy, modify, distribute, transmit, republish, sell, resell or exploit, for any purpose, any portion of the Sites or the User Content other than as expressly authorized by Pitaya in writing.
Any trademarks, service marks, and other marks and indicators of source or origin that are displayed on the Site are the proprietary property of Pitaya or their respective owners, as applicable. None of such marks may be used in connection with any other product or service in a manner that is likely to cause confusion among consumers, or to disparage or discredit the owner of such mark or its affiliates. Any trademarks of third parties that appear on the Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. You may not use, copy, modify or display any of the trademarks, service marks, names or logos appearing on the Site without the express written permission of the trademark owner.
Nothing in these Terms shall be deemed to grant to you or any other User any license or right in or to any patent, copyright, trademark, trade secret or other proprietary right of Pitaya.
Use of User’s name and logo. you hereby grant Pitaya, during the term of these Terms, with a non-transferable, non-sub-licensable, non-exclusive, fully paid, worldwide and limited license to use and display your names, logos and trademarks, solely for identifying you as a customer or service provider of Pitaya.
Joint activities. During the term of these Terms, the Parties may mutually agree (but not obligated), from time to time, to engage in joint marketing activities which promote their products or services, including by way of seminars, press announcements, trade shows, user groups and/or other events. Such mutual agreements shall not bind the parties, unless made in writing.
Event photographs. Subject to Pitaya’s compliance with applicable laws, you hereby grant Pitaya a license and right to take, use and reuse photographs and recordings taken at any Event solely for its promotional purposes, including, in whole or in part or in any edited or modified form, for display on websites and social media sites designated by Pitaya, as well as in promotional emails and newsletters, accessible throughout the world, for such period of time as determined by Pitaya. To the extent that any such photograph or recording contains any identifiable person that is a guest or attendee at your Event (“Event Guest“), you represent and warrant that you will obtain such Event Guest’s consent to use such photographs and recordings taken at the Event for its promotional purposes as specified in the preceding sentence. If company does not agree to photograph license, they must let Pitaya know of this in writing and confirm receipt of email.
Modifications, Suspension and Termination
Pitaya reserves the right at any time to modify, suspend or discontinue, temporarily or permanently, the Sites, User Content, Services or any portion thereof, with or without notice. You agree that Pitaya will not be liable to you or to any third party for any modification, suspension or discontinuance of the Sites, User Content, Services or any portion thereof.
Pitaya reserves the right, at its sole discretion, immediately and without notice, to suspend, discontinue, or terminate your access to the Sites, User Content, Services or any portion thereof for any reason, including, without limitation, any breach by you of these Terms. You agree that Pitaya shall not be liable to you or any third party for any such suspension, discontinuance or termination.
Disclaimers of Warranty
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PITAYA MAKES NO WARRANTIES AND HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED WITH REGARD TO THE SITE, ANY SERVICES, AND/OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH ANY LINKS THEREON, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE SITES ARE PROVIDED BY PITAYA ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOUR USE OF THE SITE IS SOLELY AT YOUR OWN RISK. PITAYA DOES NOT WARRANT THAT YOUR USE OF THE SITES WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, NOR DOES PITAYA MAKE ANY WARRANTY OR GUARANTEE WITH REGARD TO RESULTS THAT MAY BE OBTAINED BY USE OF THE SITES, OR THE SALE OF ANY SERVICES BY SERVICE PROVIDER TO USERS THEREON, OR ANY SERVICES PROVIDED BY PITAYA TO USER IN CONNECTION THEREWITH, INCLUDING ANY WARRANTY WITH RESPECT ANY SERVICES OFFERED OR PROMOTED THROUGH THE SITE OR ANY RESULTS SERVICE PROVIDER MAY OBTAIN UNDER THESE TERMS OR THE ORDER OF ANY SERVICE BY EVENT BOOKER. THE FUNCTIONALITY PROVIDED BY THE WEBSITES OR PITAYA, OR ITS DESIGNEES’ SERVERS IS NOT AN ARCHIVE; YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ALL INFORMATION, INCLUDING USER CONTENT PROVIDED TO PITAYA. IN ADDITION, WE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION AND CONTENT ACCESSIBLE VIA THE SITE IS ACCURATE, COMPLETE OR CURRENT, AND WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM USE OF, INABILITY TO USE, OR RELIANCE ON ANY ASPECT OF THE SITE, INCLUDING BUT NOT LIMITED TO USER CONTENT AND ALL OTHER CONTENT, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SITE.
Limitation of Liability
TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, PITAYA DISCLAIMS ALL LIABILITY AND OBLIGATION AND SHALL NOT HAVE ANY LIABILITY OR OBLIGATION TO YOU, ANY OF YOUR EVENT GUESTS OR ANY OTHER PERSON FOR OR ON ACCOUNT OF (A) ANY LOSSES SUSTAINED BY, OR ANY LOSSES INCURRED BY OR ASSESSED OR ASSERTED AGAINST OR IMPOSED UPON YOU, ANY EVENT GUEST OR ANY OTHER PERSON; OR, (B) ANY CONSEQUENTIAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES OF ANY KIND (INCLUDING LOST PROFITS OR ANY INTERRUPTION OF BUSINESS) WHETHER SUCH CLAIM OR ACTION IS BASED IN TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, STATUTORY LIABILITY OR OTHERWISE, EVEN IF PITAYA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES, WHICH IN ANY MANNER, DIRECTLY OR INDIRECTLY, ARISES OUT OF OR RELATES TO OR IS IN CONNECTION WITH THE SITES, THE USER CONTENT, THE SERVICES, ANY EVENT, OR ANY OTHER LOSSES INCURRED BY YOU, ANY EVENT GUEST OR ANY OTHER PERSON.
IF, FOR ANY REASON, THE FOREGOING LIMITATION IS FOUND TO BE INVALID OR UNENFORCEABLE, YOU, YOUR EVENT GUESTS AND EACH OTHER PERSON AGREES THAT THE SOLE AND TOTAL LIABILITY OF PITAYA SHALL BE LIMITED, IN THE AGGREGATE, TO THE NET AMOUNT RETAINED BY PITAYA FROM YOU (INCLUDING BY WAY OF SET-OFF) FOR THE SERVICES IN THE PRIOR THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CLAIM AROSE
Governing Law and Disputes
By visiting the Site, you agree that the laws of Israel, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and Pitaya.
ALL DISPUTES BETWEEN YOU AND PITAYA RELATING IN ANY WAY TO THE SITE (INCLUDING WITHOUT LIMITATION ORDERS MADE FROM THE SITE, PITAYA’S ADVERTISEMENTS AND DISCLOSURES, EMAIL AND MOBILE SMS (TEXT) MESSAGES PITAYA SENDS TO YOU, OR RELATING TO THE COLLECTION OR USE OF ANY INFORMATION ABOUT YOU IN CONNECTION WITH THE SITE), THESE TERMS, OR YOUR STATUS AS A USER WILL BE SUBMITTED TO CONFIDENTIAL ARBITRATION IN THE JURISDICTION IN WHICH YOU RESIDE, EXCEPT TO THE EXTENT THAT YOU HAVE, IN ANY WAY, VIOLATED OR THREATENED TO VIOLATE ANY COMPANY OR ITS LICENSOR INTELLECTUAL PROPERTY RIGHT.
Any User who intends to seek arbitration must first send to Pitaya by certified mail, a written Notice of Dispute (“Notice“). The Notice must be mailed to email@example.com. The Notice shall describe the nature and basis of the claim or disputes and the specific relief sought. If we cannot reach an agreement to resolve the claim within thirty (30) days after the Notice is received, either party may commence arbitration.
All arbitrations required by these Terms will be conducted under the rules then prevailing of the International Chamber of Commerce (ICC). The arbitrator’s award is binding and may be entered in any court of competent jurisdiction. To the fullest extent permitted by applicable law no arbitration brought under, or with respect to, the Site (including, without limitation, any Pitaya advertisement or disclosure, any email or mobile SMS (text) message that Pitaya sends to you, the collection of ruse of any information about you in connection with the Site), these Terms or your status as a User is to be joined to an arbitration involving any other party subject to these Terms whether through class arbitration proceedings or otherwise. Unless Pitaya and you agree otherwise, the arbitrator may not consolidate more than one User’s claims, and may not otherwise preside over any form of a representative, private attorney general or class proceeding.
The arbitrator may award money or equitable relief in favor of only the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. Similarly, an arbitration award and any judgment confirming it apply only to that specific case; it cannot be used in any other case except to enforce the award itself. To reduce the time and expense of the arbitration, the arbitrator will not provide a statement of reasons for his or her award unless requested to do so by all parties.
This section will survive the termination of the relationship between you and Pitaya.
Pitaya or you may seek injunctive relief in the applicable court in Tel-Aviv, Israel, and Company and you consent to the exclusive jurisdiction and venue in Tel-Aviv, Israel for injunctive relief purposes.
Contact and Violations
Please contact us with any questions regarding these Terms. Please report any violations of the Terms to firstname.lastname@example.org.
Event Booker Additional Terms
Any individual or entity which completed an order of a Service (for an Event) through the Site or by Pitaya’s operational team (“Event Booker“) shall be subject to the following additional terms set forth in this Section 16.
Event Booker Responsibilities
- Pitaya is not responsible for and disclaims any and all liability related to any and all Services Listings (as defined below). It is hereby acknowledged that it is solely Event Booker’s responsibility to ensure that the Event is safe and suitable for the use it intends to make of it. Event Booker’s reservation of a space to host the Event is made at its own risk. Event Booker shall be responsible for leaving a facility/ rented space in the same condition as it was provided. Event Booker is responsible for its own acts and omissions and for the acts and omissions of any individuals whom it invites to the Events, including but not limited to guests, invitees, vendors and other service professionals. In the event any vendor and/or Event space owner claims that the materials or property was not relinquished in the same condition as it was provided, and provides evidence of damage, including but not limited to photographs, the Event Booker shall pay the cost of replacing any damaged items with equivalent items. Event Booker must in addition take adequate measures to confirm the identification and age of those wishing to drink alcoholic beverages during the Event taking place. It is illegal to serve alcohol to or purchase alcoholic beverages for a minor.
- Event Booker shall obtain and maintain insurance policies sufficient to cover the Event, including with respect to its participants and Service offered via the Site.
- Any reference to any of Service Provider’s products, services, processes, information or services offered for sale on the Site or otherwise displayed on or transmitted via the Site does not constitute or imply endorsement, sponsorship or recommendation thereof by Pitaya, and Pitaya shall not be liable for any representations of the Service Providers including with respect to the Services they provide.
- Event Booker shall perform all duties set forth herein in full compliance with all applicable laws, regulations, orders, relevant licenses and other legal requirements to which he is subject in the conduct of its responsibilities hereunder.
In no event will Pitaya be liable, directly or indirectly, to Event Booker for any damage or loss of any nature whatsoever arising from or relating to any Service, continued use or reliance on any Service, any Event, or any other claim Event Booker may have against Service Provider or anyone on its behalf. You further acknowledge and agree that Pitaya do not control any of the products, Services or anything else posted to the Site by Service Provider, or any links to other websites, including the content of any offer posted by any Service Provider, and that Pitaya do not guarantee the accuracy, integrity or quality of any products, Services or other offering of any Service Provider. you further understand and agree that Pitaya do not make any promises, guarantees or warranties with respect to any of the products, Services, information or content featured or mentioned on the Site by any Service Provider.
In consideration for each Event the Event Booker shall pay Service Provider via Pitaya (unless otherwise agreed between the parties in writing) the amount set forth on the Site during such Event’s order, taking into account the higher between (1) the number of participants submitted while ordering; or (2) the number of actual participates in such Event according to Service Provider’s records (“Event Payment“). The Event Payment shall be payable within thirty (30) days of the actual provision of the Event/the time stated in each Service Provider Services Listings, unless otherwise agreed in writing by Pitaya. Pitaya shall issue Event Booker a proper tax invoice against any payment. Any unpaid invoice will be paid with an additional 3% interest for every month delay in payment.
Pitaya reserves the right to require Event Booker to provide Pitaya with a credit card number, solely in order to secure the payment of the Event Payment, such credit card shall not be charge if any payment was paid in due time. Pitaya may require you to deposit in advance, certain percentage of the Event Payment, in order to secure the Event; all in accordance with the Services Listings.
Event Booker hereby agrees to indemnify, defend and hold harmless Pitaya, from and against any damage, loss, liability, claim, obligation, demand, actions, suits, costs and expense (including without limitation attorneys’ fees and expert’s fees and expenses, and all other expenses of investigation and defense), judgments or awards of any kind or nature made by Event Booker or on Event Booker’s behalf or by any third party due to, arising out of or in connection with any one or more of the following: (a) Event Booker’s use of or reliance on the Sites or any User Content or Services or any portion thereof; (b) Event Booker or its Event Guests dealings in connection with the Sites, Pitaya, the Event or any venues, independent contractors, service providers, service partners, vendors, suppliers, subcontractors or other third parties; (c) In connection with any Event; (d) Event Booker’s submission(s) or any materials or content Event Booker submit or transmit to the sites or to Pitaya; (e) Event Booker violation of these Terms, or other guidelines of any site, any applicable laws, or the rights of Pitaya or any third party; and/or (f) any other person accessing the sites, using Event Booker account or the Services.
Service Provider Additional Terms
Any individual or entity seeking to offer, promote or sell Services on the Site (“Service Provider“) shall be subject to the following additional terms set forth in this Section 17.
Service Provider’s Responsibilities
- Services Listings. Service Provider will create listings via the Site or Pitaya’s operational office for all Services it intends to offer and sell on the Site (“Services Listings“), for which Service Provider has legal right to do so. Service Provider will not list any Services that may not be supplied strictly in accordance with the Services Listings on the Site. Service Provider acknowledges that Pitaya may publicly display the Services Listings or any part of them, in any manner throughout the Site, and also from time to time, rearrange, change display, rate, comment, alter the category of the aforesaid and/or reject, remove or censor any Services Listing; all for any reason and at Pitaya’s sole discretion. Service Provider shall provide details with respect to age-restricted Services on the Services Listing.
- Services Pricing. Service Provider is responsible to establish prices for its Services in a manner that prices displayed on the Site shall include the total price to be paid by User for ordering Services Listings, including, the Commission (as defined below), any applicable VAT and fulfillment fees and in a manner that fairly details prices breakdown in accordance with applicable law, with respect thereto.
- Service Provider’s Errors. Service Provider shall remain liable at all times to any incorrect, inaccurate or misleading description or pricing information provided by it to any Services Listings.
- Participants Number. Service Provider shall keep records and promptly report to Pitaya of the actual number of participant at each of its Events. It is hereby acknowledged that it is Service Provider sole responsibility to provide Pitaya with the Event’s actual participants number and Service Provider shall have no claims against Pitaya or Event Booker or any third party with respect thereto (including any payment in short).
- Compliance; Permits. Service Provider will, at its own expense, obtain all permits and licenses required to operate its business in accordance with applicable law, and will pay and discharge all applicable taxes and assessments which may be due for selling or offering of its Services for sale on or through the Site. Service Provider alone is responsible for compliance with all applicable law, including any privacy, warranty, insurance, cancellation policy, setting of policies, labeling, taxes, consumers laws and any other laws and regulations applicable under these Terms or Service Provider’s business.
- Insurance Requirements. Service Provider will maintain at all time and at its own expense such insurance policies as customary in the industry. Such insurance policies shall be subject to the Israeli law and interpretation and the jurisdiction shall be the court of Israel.
- Cooperation. Services Provider shall devote its desire, know-how, efforts, expertise and talents required for the proper performance of the Services and shall make its best efforts and cooperate with Pitaya in making the Services available to Users.
- Transaction. Services Provider hereby acknowledges and agrees to finalize any transaction which was initiated on the Site by way of booking through the Pitaya platform. Service Provider shall obtain, at its sole expense, any and all licenses, permits and/or approvals required for each and every Event including, without limitation, any fees associated with rent, the hosting of an Event, conducting workshops, running experiences, or otherwise use and/or provide the Services, and any and all applicable taxes with respect to an Event.
Service Provider’s Undertaking
- Services Provider warrants and undertakes that there is no legal, commercial, contractual or other restriction, including any obligation or agreement or confidence with any previous or current employer or any other third party, which precludes or might preclude the Services Provider from completely performing his obligations pursuant to these Terms.
- Services Provider undertakes to provide the Services in the accordance with the description in the advertisement, pictures, and announcements posted on the Services Listings.
- The Services Provider undertakes to keep Pitaya fully informed in due time of all developments relating to the Services that may be of concern to Pitaya and/or an Event Booker.
- The Services Provider shall not be entitled to make any representations or undertakings on behalf of Pitaya and/or bind Pitaya in any manner whatsoever unless a prior written consent has been given by Pitaya.
- The Services Provider shall perform all duties set forth herein in full compliance with all applicable laws, regulations, orders, relevant licenses and other legal requirements to which he is subject in the conduct of its activities hereunder.
- The publication, reproduction, display, modification, distribution or transmission of Service Provider’s User Content does and will not (a) infringe, misuse, dilute, misappropriate, or otherwise violate any intellectual property rights of third parties, including copyright, patent, trademark, trade secret, domain name, right of publicity, or confidentiality or other proprietary rights (b) contain defamatory or discriminatory content, (c) constitute an invasion of a party’s rights of privacy or publicity; and/or (d) reflect unfavorably on Pitaya, the Site and/or other Service Providers on the Site; under the applicable law.
In no event will Pitaya be liable, directly or indirectly, to Service Provider for any damage or loss of any nature whatsoever arising from or relating to any Service, continued use, or reliance on the Site, any Event, or any other claim Event Booker may have against Service Provider or anyone on its behalf. You further acknowledge and agree that Pitaya do not control any order made by any Event Booker, and that Pitaya do not guarantee the integrity of any Event Booker. you further understand and agree that Pitaya do not make any promises, guarantees or warranties with respect to any of Event Booker’s information, compliance with all Service Provider’s requirement (according to its Service Listing) or ability to pay for an Event. Pitaya is not responsible for and disclaims any and all liability related to any and all Services Listings. It is hereby acknowledged that it is solely Service Provider’s responsibility to ensure that the Event is safe and suitable for the use it intends to make of it. Service Provide shall make sure Event Booker’s reservation of a space. Service Provider is responsible for its own acts and omissions and for the acts and omissions of any of its employees, officers, directors, service providers or any other individuals acting on its behalf. In addition to Event Booker’s responsibility, Service Provider shall also confirm the identification and age of those wishing to drink alcoholic beverages during an Event taking place.
- Extended License to Service Provider. In addition to the License granted hereinabove in Section 6, Service Provider is hereby granted with a limited, non-exclusive, non-sub-licensable, revocable license to use the Site and the Services for commercial uses solely for its promotion, sale and provision of its Service via the Site.
- Grant of License by Service Provider. Service Provider hereby grants to Pitaya a royalty-free, non-exclusive, irrevocable, perpetual, worldwide, royalty-free, right to use and to reproduce, modify, rate and/or comment (including by Users), catalog, display, distribute, perform, re-format, create derivative works of or otherwise commercially or non-commercially exploit in any manner the Service Provider’s User Content and listing of Services with the right to sublicense such rights through multiple tiers; provided that all of the aforesaid shall be confined for any purpose that at Pitaya’s discretion may serve any part of the Site (now or in the future) and/or the Users; further provided however that Pitaya will not alter any Service Provider’s trademarks from the forms provided by Service Provider except to the extent necessary for presentation, so long as the relative proportions of the marks remain the same; provided further than nothing in these Terms will restrict Pitaya’s right to use Service Provider’s User Content to the extent such use is allowable without a license from Service Provider under applicable law.
- Service Fee. Unless otherwise agreed between the parties in writing, in consideration for the proper, timely and complete performance of Service Provider’s obligations and the provision of Services as set forth herein, Pitaya shall forward Service Provider a Service fee in the amount that was demanded and displayed on the Site upon Event Booker’s order of an Event minus the Commission (as defined below) (the “Service Fee“). Pitaya shall pay the Service Fee to Service Provider within fourteen (14) days of actual receipt in full of the entire amount charged for each Event (or of any installment, respectively to installment amount, if the payment is made in several installments) from the Event Booker and against receipt of a proper tax invoice. It is agreed that the Service Fee detailed above shall be the sole compensation of the Service Provider, and the Service Provider or any third party on its behalf shall not be entitled to receive any further compensation, consideration, reimbursement or other rights in respect of the Services herein (including without limitation from Event Booker). The consideration hereunder is inclusive of any taxes and the Service Provider shall be responsible for the payment of any tax or other payment payable in respect thereof, including any applicable tax, charge or other payment imposed with respect to the Service Fee, if any. Pitaya shall be entitled to withhold, deduct and/or set-off from payments due to the Service Provider hereunder, any and all amounts as may be required to be withheld, deducted and/or set-off under any applicable law and/or any payments to Pitaya including the Commission.
- Commission. Service Provider will pay commissions to Pitaya according to the “Collaboration Agreement” provided and accepted as an Annex to these Terms (“Commission“). Signing the Collaboration Agreement is a necessary requirement of Service Provider for being featured on the Site. In any contradiction or discrepancy between these Terms to those of the Collaboration Agreement, the terms of the Collaboration Amendment shall prevail.
Indemnification by Service Provider
- Obligation. Services Provider undertake as an independent obligation of its other obligations herein, to defend, and indemnify and hold harmless Pitaya from and against all third-party any and all claims, actions, losses, expenses, costs or damages of every nature and kind whatsoever (including reasonable attorneys’ fees) asserted in any claim, action, lawsuit or proceeding, whether actual or alleged, arising out of or relating to any of the following (collectively, the “Indemnity Claims“): (i) Services Provider breach of these Terms, (ii) Services Provider improper use of the Site or (iii) Services Provider breach of any law or the rights of a third party (iv) failure to provide the Services, including the Services provision in full compliance with their Services Listings (v) any other Event Booker’s claims against Pitaya with respect to Service Provider or its Services, an Event or otherwise. Notwithstanding the provisions of this paragraph, Services Provider will not be liable for damage to third parties to the extent such damage was solely and proximately caused by the breach or willful misconduct of Pitaya.
- Process. In performing its obligations under Section 17.5.1, Seller will retain defense counsel satisfactory to Pitaya and will, from time to time, provide reports, consult with Pitaya in conducting the defense of the Indemnity Claims and otherwise cooperate fully with the reasonable requests of Pitaya; provided that upon Pitaya’s written request with respect to any Indemnity Claim(s) Pitaya may, at its election and at any time, take control of the defense and investigation of said Indemnity Claims and employ attorneys and other consultants, investigators and experts of its own choice to manage and defend any such Indemnity Claims at the cost and expense of Service Provider.
- Settlement. All Indemnity Claims settlements, including any that would create obligations of (or restrictions upon) Pitaya or restrictions upon the sale (or disposition) of the Services, will require Pitaya’s prior written consent.