Terms of Use
Cuculi, Inc.
Effective April 1, 2020
Welcome to the SOUL Campaign! By using this Site and the Services, in addition to any Additional Policies applicable to any particular features, Content and functionality of the Services (incorporated into the Terms by reference), offered by Cuculi Inc., Users agree to be bound by these Terms.
Cuculi Inc. may amend the Terms at any time in its sole discretion by posting a revised version of the Terms. Unless stated otherwise, access to or continued use of the Services after the effective date of any revised Terms constitutes your acceptance of the revised Terms. If We make any material change to these Terms, We will notify Users by posting a notice on Our Site, through the Services, or by other means We deem appropriate.
1. What is the SOUL Campaign?
SOUL campaign is an online crowdfunding platform that was created by Cuculi Inc. to support the NYC restaurants to get through this unprecedented situation of COVID-19. This platform will help bring restaurants and people together and allow restaurants to raise funds needed to survive through this crisis. Restaurants can offer Perks to Supporters in thanks for the Supporters purchase of gift cards.
2. Restaurants Obligations
There are no fees for participating in this Campaign. Restaurants are charged only the transaction fee by the payment processor (2.9%+$0.30). Transfer fees, or bank delivery fees, if necessary, are also applied each time SOUL sends funds to a Restaurants’ bank account.
3. Backing a Campaign
As a Supporter, when you purchase a gift card in this Campaign, you understand that the following rules and Terms apply (in addition to all other Terms, including Additional Policies).
a. Voluntary Contributions. All Contributions are made voluntarily and at the sole discretion and risk of the Supporter.
b. SOUL Campaign Does Not Guarantee the Perks Will Be Delivered or Deemed Satisfactory. By contributing to a Campaign, Supporters are supporting the restaurants they care about and for them to get through this crisis. As the future of the COVID-19 situation is still in the air and it is unknown when the restaurants will re-open, Supporters accept the risk that the Campaign may experience changes, delays, and unforeseen challenges, or that a Campaign, and its Perks, might not come to fruition. SOUL Campaign does not guarantee or represent that restaurants will deliver Perks, or that the Campaign will achieve its goals.
c. Taxes are your responsibility. Sales tax will be charged upon using the gift card.
4. Cuculi Inc’s Role
a. We do not guarantee Perks or Refunds. Restaurants bear sole responsibility for the delivery of Perks and for the offering of any refunds.
b. We do not become involved in legal disputes between Supporters and Restaurants. Cuculi Inc. bears no liability, and has no obligation to participate or become involved, in any dispute between Users, including between Supporters and Restaurants.
5. Our Intellectual Property
a. Cuculi Inc. Intellectual Property. SOUL’s Services and Contents, are legally protected in a number of ways, including pursuant to copyright, trademark, service marks, patent, trade secrets, and other U.S. and international intellectual-property laws. You agree to respect all copyright and other legal notices, information, and restrictions contained in any Cuculi Content, Services, or Marks accessed through the Site or the Services. You agree not to change, translate, or otherwise create derivative works of the Services.
b. Limited User Rights; License to Cuculi Content. Cuculi grants you a limited license (that is temporary, non-exclusive, non-sublicensable, and non-transferrable) to access and use User Content and Cuculi Content solely for use of the Services in accordance with these Terms. You may not reproduce, redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, create derivative works of, license, or otherwise transfer or use any User Content or Cuculi Content unless We give you express written permission to do so. We reserve the right to revoke this limited license to access and use User Content and Cuculi Content at any time and in our sole discretion.
6. Payment Services
Credit card payment processing services for Restaurants on Cuculi are provided by Stripe, Inc. ("Stripe") and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). As a Restaurant, you agree to be bound by the Stripe Services Agreement, as may be modified by Stripe from time to time. As a condition to Cuculi enabling credit card payment processing services through Stripe, you agree to provide Cuculi accurate and complete information about yourself and your business, and you authorize Cuculi to share any such information with Stripe, as well as transaction information related to your use of the Stripe payment processing services. In all cases, standard credit card or other third-party processing fees apply in addition to any Platform Fees. We are not responsible for the performance of any third-party credit card processing or third-party payment services.
7. Indemnity
You agree to defend, indemnify and hold harmless Cuculi Inc, Our subsidiaries and affiliated companies, and Our officers, directors, employees, partners, contractors, representatives, agents, and third party providers from and against any and all claims, causes of action, damages, obligations, losses, liabilities, costs or debt, and expenses (including reasonable attorneys' fees and costs) and all amounts paid in settlement arising from or relating to, breach of these Terms or violation of any applicable laws. We reserve the right, in Our sole discretion and at Our own expense, to assume the exclusive defense and control of any matter for which you have agreed to indemnify us and you agree to assist and cooperate with us as reasonably required in the defense or settlement of any such matters.
8. No Warranty
CUCULI INC HAS NO FIDUCIARY DUTY TO ANY USER. THE SERVICES, Cuculi CONTENT, USER CONTENT, AND ANY OTHER MATERIALS MADE AVAILABLE OR THROUGH THE USE OF THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR COURSE OF PERFORMANCE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CUCULI AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON- INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. CUCULI AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER(S) ON WHICH THE SERVICES ARE HOSTED, OR ANY SERVICES AVAILABLE ON ANY THIRD PARTY PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO OPINION, ADVICE OR STATEMENT OF CUCULI OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE THROUGH THE USE OF THE SERVICES, OR ON THIRD-PARTY PLATFORMS OR OTHERWISE, SHALL CREATE ANY WARRANTY. YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY SERVICES PROVIDED ON ANY THIRD-PARTY PLATFORM, ARE ENTIRELY AT YOUR OWN RISK.
9. Disclaimer of Liability
a. You release us from all claims. When you use the Services, you release Cuculi Inc. from claims, damages, and demands of every kind - known and unknown, suspected or unsuspected, disclosed or undisclosed - arising out of or related to the Services. All Content that you access or use through the Services is entirely at your own risk and you solely are responsible for any resulting damage or loss to any party.
b. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND USER CONTENT, AND ANY CONTACT YOU HAVE WITH OTHER USERS OR THIRD PARTIES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. NEITHER CUCULI NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CUCULI HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE) FOR: (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL; (B) SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; (E) THE USE OF OR INABILITY TO USE THE; (F) ANY COMMUNICATIONS OR OTHER INTERACTIONS WITH OTHER USERS OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES; OR (G) YOUR CAMPAIGNS OR CONTRIBUTIONS.
IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF CUCULI AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING FROM OR RELATING TO THE TERMS, SERVICES, OR USER CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO CUCULI BY YOU HEREUNDER, OR ONE HUNDRED US DOLLARS IF NO SUCH PAYMENTS HAVE BEEN MADE.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
10. Waiver and Release (for CA Residents)
California residents must, as a condition of this Agreement, waive the applicability of California Civil Code Section 1542 for unknown claims which states: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." You waive this section of the California Civil Code and any similar provision in law, regulation or code that has the same effect or intent as the foregoing release.
11. Legal Disputes Not Subject to Arbitration Will Be Handled In New York, NY and Subject to New York Law.
Cuculi is based in New York, NY. For any action not subject to arbitration, you and Cuculi agree to submit to the personal jurisdiction of a state court located in New York, NY or the United States District Court for the Southern District of New York. The Terms and the relationship between you and Cuculi shall be governed in all respects by the laws of the State of New York, without regard to its conflict of law provisions.
12. Definitions
. "Restaurants" are those Users who raise funds through the Site and Services;
a. "Campaigns" are Restaurants’ fundraising campaigns through the Services;
b. "Content" refers to all software, technology, designs, materials, information, communications, text, graphics, links, electronic art, animations, illustrations, artwork, audio clips, video clips, photos, images, reviews, ideas, and other data or copyrightable materials or Content, including the selection and arrangements thereof offered through the Services;
c. "Contributors" refers to those Users contributing funds to Campaigns;
d. "Contributions" refers to funds donated to Campaigns by Contributors;
e. "DMCA" refers to the Digital Millennium Copyright Act of 1998, including any amendments;
f. "Cuculi" "We, " "Our, " or "Us" refers to Cuculi, Inc., a Delaware corporation, together with its parents, subsidiaries, affiliates, agents, representatives, consultants, employees, officers, and directors;
g. "Cuculi Content" refers to Content provided by Cuculi to Users in connection with the Services, including, without limitation, the software, the products and the site;
h. "Infringement" refers to the unauthorized or not permitted use of copyrighted material or other intellectual property rights;
i. "Perks" refers to the gifts or rewards in the form of tangible items or intangible services offered by Campaign Owners to Contributors;
j. "PII" refers to personally-identifiable information, as that term is defined under all applicable laws;
k. "Services" refers to the Site, mobile applications or connected applications, other offerings and services provided on the Site;
l. "Site" refers to the Cuculi website(s);
m. "Terms" or "Terms of Use" refers the Terms of Use, Additional Policies, Cuculi’s Privacy Policy, all applicable laws, and all conditions or policies referenced here;
n. "User, " "You, " or " Your" refers to Campaign Owners, Contributors or any other visitor to the Site or Users of the Services, either individually or collectively;
o. "User Content" refers to Content uploaded, transmitted or posted to the Services by a User, including User Content in a Campaign.
13. Full Agreement Between You and Us
These Terms are the entire agreement between You and Cuculi with respect to the Services. They supersede all other communications and proposals (whether oral, written, or electronic) between you and Cuculi with respect to the Services and govern our relationship. If any provision of these Terms are deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Cuculi's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
14. Miscellaneous
We may modify or discontinue the Services at any time, in our sole discretion. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Cuculi’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Services must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.