1. Welcome

Dark POS, Inc., doing business as Dark POS, Inc. (“Dark” or “Company” or “we”), provides a mobile ordering and payment platform and related services (“Services” or “Dark Services”), and provides and/or enables related mobile applications, software applications, websites, and microsites (“Apps” or “Dark Apps”), for use by you (“User”) to schedule and make payments for services at physical and/or online points-of-sale (“POS”), among other available functions. Dark provides access to these Services and Apps, including this App, subject to your acceptance of all of the following Terms and Conditions (“User Terms” or “Agreement”).

By accessing, downloading, copying, and/or using a Dark App, including this App, and/or the Services, you agree to these User Terms. THESE USER TERMS CREATE A BINDING LEGAL AGREEMENT BETWEEN YOU AND Dark, AND INCLUDE AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THEM CAREFULLY.

2. Dark User Account

In order to use an App to make payments, and/or engage in any merchant reward Campaigns, you must first register with Dark, create a Dark User Account, and associate a valid debit and/or credit card. Your registration and use of a Dark User Account is subject to these User Terms.

By registering for a Dark User Account, you agree, represent, and warrant to Dark, that:

1. All information provided to Dark is accurate, current and complete, and that you will maintain and update such information as it changes;

2. You will maintain the security of your User Account, take responsibility for all activities that occur using your User Account, and accept all risks of unauthorized access resulting from your acts or omissions;

3. You are of legal age to form a binding contract, or you are over the age of 13 and will use the User Account under the supervision of a parent or guardian who agrees to be bound by these User Terms. The Dark platform and Apps are not intended for or targeted to, anyone under the age of 13;

4. You are either a citizen or a legal resident of the United States and that you will use Dark solely within the United States;

5. You do not and have never used or maintained any other Dark User Account under a different email address (the creation of additional User Account(s) shall be considered a violation of this Agreement); and,

6. Your registration and your use of Dark and any App is not prohibited by law, and will not be used to engage in, commit, or facilitate any illegal activity.

7. Your registration and your User Account, including any User Credit or Loyalty Credit associated with such User Account, and your rights under this Agreement, are personal to you and are not transferable by you to any party.

Payment Methods. Dark enables you to make card-based purchases at participating merchants by linking to your User Account debit, credit, and/or prepaid credit cards issued in the United States bearing the trademarks of MasterCard International Inc. and Visa Inc. (the “Networks”), as well as American Express and Discover (“payment instrument(s)”). You may not associate a Health Savings Account card with your Dark User Account. Your User Account is not a bank account. Dark is not a bank, and does not offer banking or money service business (“MSB”) services as those terms are defined by the United States Department of Treasury.

Primary and Secondary Payment Instruments. By linking a payment instrument(s) to your User Account, you represent to Dark that you are an authorized user of the payment instrument(s). If multiple payment instruments are linked to your User Account, you must designate one linked payment instrument as a primary payment instrument. You may change the designated primary payment instrument associated with your User Account at any time. All payment instruments other than the designated primary payment instrument will be deemed “secondary” payment instruments. You are responsible for ensuring that all payment instruments are at all times current, non-expired, and valid for payments.

Redemption Codes. Users are permitted to redeem one promotion code, coupon code, referral code, or redemption code. Users may redeem a code with a greater amount, but may not use codes in combination.

Test Authorizations. By associating a payment instrument(s) with your Dark User Account, you consent to Dark’s temporarily authorizing a charge on that payment instrument, typically for $1.00 or less, as part of our verification process. You will not be required to pay this charge, and it will disappear from your payment instrument statement within a few days.

Termination of User Account. Dark reserves the right to reject, suspend, or terminate your registration and/or use of a Dark User Account, and/or your access to the Dark platform, in the event that you breach any of the Dark User Terms or any of the representations and warranties made herein.

3. License to Use the Dark Apps and Websites

Limited License. Dark grants you a limited, non-exclusive, non-transferrable license, to access, view, download, install, and use this Dark App(s), and/or any Dark website content, for the purpose of using the Dark Services, including the initiation of payment for goods and/or services. Except as expressly permitted by these User Terms, you may not modify, reproduce, distribute, publish, reverse-engineer, create derivative works out of, decompile, deep link, publicly display, or otherwise exploit for any purpose, the Dark Property, or any portion thereof. You may not remove or alter, or reuse in any manner or for any other purpose, any copyright, trademark or other proprietary notices that have been placed on the Dark Property. You may not collect and use the product listing, pictures, or descriptions within the Dark Property for any commercial purpose. All rights not expressly granted to you by this Agreement remain the property of Dark and its licensors.

No Rights to Dark Property. The Dark App(s) and website content downloaded or accessed by you pursuant to these User Terms, including without limitation all of the text, images, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content, other than User Content, as defined below, and all software embodied in the Dark website or Apps, or otherwise used by Dark to deliver the Dark Services (collectively, the “Dark Property”), is the sole property of Dark and/or of third parties provided under license to Dark. Dark reserves all rights in the Dark Property, including without limitation copyright, trademark, patent, and trade secret rights.

Trademarks. The Dark platform and Apps may feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed in any App, inures solely to the benefit of their respective owners.

No Illegal Uses. The Dark Property licensed hereunder shall not be used for any purpose not contemplated by these User Terms, or for any illegal purpose, or to commit or facilitate any act by any person in violation of any law or regulation, and/or any fraud against any person. The Dark Platform and/or associated Dark Apps shall not be used for the purpose of accepting or transferring security or payment for loans, providing cash advances, check cashing, or otherwise distributing cash to any person or entity, or in connection with any lottery or gambling activity.

4. Authorization of Payments on the Dark Platform

Authorization for Dark to Charge Payment Instrument(s). By linking a payment instrument(s) to your Dark User Account and using an App to initiate a payment for a purchase at a participating merchant POS, you authorize Dark to charge your linked payment instrument(s), including the primary and/or any secondary instrument(s), as necessary to complete payment to Dark for the purchase. Dark will first submit authorized charges to your designated primary payment instrument. If such charge is rejected or fails, Dark may charge any secondary payment instrument(s) without advance notice to you.

In the event you are entitled to a reversal, refund, chargeback, or other adjustment associated with a purchase you made using your Dark User Account, you also authorize a credit to your payment instrument(s) to accomplish that transaction.

All purchases and charges authorized using an App and/or the Dark Services are also subject to the terms and conditions set forth by the entities that issue your payment instrument(s). You are responsible for complying with those terms and conditions, and you are responsible for payment of all charges and related fees imposed by such entities pursuant to those terms and conditions.

There is no limit on the frequency of transactions you may make using your Dark User Account. Dark does not charge any fees to its Users in connection with such transactions.

Failed Transactions. In the event that Dark is unable to successfully charge any linked payment instrument, Dark will notify you via email and/or in-App notification, and you will be unable to initiate further payments with your User Account. Upon Dark’s notification to you of such failure, you agree to link a new, valid payment instrument within three (3) business days. Your Dark User Account will be disabled until a valid payment instrument is provided and the outstanding uncharged balance is resolved by Dark. Dark is not responsible for any charges imposed by the issuer of your payment instrument(s) as a result of any failed charge by Dark. To the extent that Dark is unable to successfully charge any payment instrument linked to your User Account as payment for authorized transactions for more than thirty (30) days, you understand and agree that Dark may employ a collection agency or other business in an effort to collect any outstanding debts and fees associated with your User Account, and you will not contest the use of a third party to collect the debt and fees owed to Dark. You agree that you will be responsible for any legal, court, arbitration or collection agency fees associated with rectifying your account and all monies owed thereunder. You agree that Dark, or any agency or business employed by Dark, has the right to contact you and your heirs via telephone, email or in-person using the information you provided upon registration or during any contact with Dark, in an effort to collect any monies and fees owed under your account, whether specifically referenced in these User Terms or not, and such contact may be made in a manual or automated fashion

Prohibited Transactions. The Dark Service may be used only for the bona fide purchase and exchange of goods and/or services offered in the ordinary course of a merchant’s business, and may not be used to process a payment or otherwise transfer money between two parties that is unrelated to a purchase of a product or services. The Dark Service may not be used for transactions in which you request cash back from the merchant. Dark reserves the right to decline any attempted transaction if it appears that any of these User Terms have been violated.

Debit/Credit Card Statements. Dark charges to your authorized payment instrument(s) may appear on your statement from the card issuing institution as “Dark” followed by an identifier related to the Dark merchant partner at which the transaction occurred, and as explained above, may appear as a single charge for the aggregate amount of multiple individual transactions. You agree not to knowingly falsely report such charges as fraudulent or unauthorized claims to your payment instrument issuing institution. A knowingly false report of a fraudulent or unauthorized charge shall be grounds for Dark, in its discretion, to cancel your User Account, and seek any other remedies available to Dark.

Refund Policy

• Setup fees are non-refundable.

• Hardware fees are non-refundable.

• Service can be canceled at any time but service fee will not be refunded.

• If paying service fee monthly, service will de-activate at the end of the month service cancelation was requested.

• If paying service fee annually, service fee will be pro-rated and refunded within first 90 days, after 90 days there is no refund.

  
  

5. Consent to Electronic Disclosures and Notices; Paper Copies

By accepting these User Terms, and/or by checking the box titled “Join,” “Sign Up,” “Log In,” or any similar requested acknowledgement in connection with the notice: “By tapping above you agree to Dark’s Terms & Conditions,” or “By tapping above you agree to the terms and conditions and privacy policy,” or similar notice, which you hereby adopt as your electronic signature, you agree that Dark will provide you these User Terms, and all other applicable terms, as well as all disclosures, notices, transaction receipts, transaction authorizations, and transaction statements required by law, and other information about your Dark User Account and legal rights and duties (“Disclosures”), electronically by posting it on our website, to the email address associated with your User Account, and/or through in-App messaging.

Your electronic signature on this Agreement, and any other agreements and documents, has the same effect as if you signed them in ink. You agree that electronic Disclosures and notices have the same meaning and effect as if Dark had provided you with paper copies, whether or not you choose to view the Disclosures. Such Disclosures and notices are considered received by you within 24 hours of the time posted to our website, or emailed or messaged to you.

In order to access and retain the electronic Disclosures you will need, and represent that you have, the following: (i) a computer or mobile device with an Internet connection; (ii) a current web browser that includes 128-bit encryption, and has cookies enabled; (iii) a valid email address associated with your User Account (if you use a spam filter that blocks or re- routes emails from senders not listed in your email address book, you agree to white-list all emails from the @darkpos.com domain to your email address book); and (iv) sufficient storage space to save past Disclosures and/or an installed printer to print them.

You have a right to receive Disclosures in paper form. If you wish to receive a paper copy of any Disclosure, or any transaction receipt, you may request a copy of the Disclosure or receipt within 180 days of the date of the Disclosure or receipt. Dark will provide paper copies free of charge. Requests to receive any paper copy, or to withdraw your consent to future electronic Disclosures, may be made by mailing a written request to 180 Prospect PL, Alpharetta, GA 30005. We will provide a replacement copy of your receipt within ten (12) business days. Requests to cancel your consent to future electronic Disclosures will be completed in a reasonable time. Dark reserves the right to terminate your Dark User Account if you withdraw consent to future electronic Disclosures. You may update the information required to contact you electronically by logging into a Dark App or to the Dark website.

6. Fraudulent or Unauthorized Transactions; Lost Devices

If any transaction Disclosure received by you appears incorrect, or was unauthorized or fraudulent, you shall notify Dark immediately, including by clicking on a link included in the email transaction receipt, thereby flagging the transaction, or by contacting Dark directly (24/7) at:
Dark POS Inc.
180 Prospect PL, Alpharetta, GA 30005
Email: hello@darkpos.com
Regular Business Hours: Monday through Friday, 9 a.m. to 5 p.m., Eastern Time

Lost Devices. In the event that you lose any mobile device on which a Dark App linked to your User Account is installed, or otherwise learn that your User Account password is compromised (“Lost Device”), you shall notify Dark immediately by contacting hello@darkpos.com.

Dark Security; Reporting Requirements. Dark implements a variety of methods, and proprietary protocols, to protect you from bad actors who may attempt to access and make fraudulent charges using your Dark User Account. Because we are confident in these measures, we generally will not seek to recover from you reimbursement for any fraudulent charges made using your User Account. There are, of course, limits to this policy, which depend upon how quickly you notify us of a fraudulent activity:

1. If Dark confirms that a transaction(s) reported by you was an unauthorized or fraudulent use of your User Account, and if: (i) the first such unauthorized transaction was reported to Dark within two (2) business days of a transaction receipt; or (ii) in the case of a Lost Device, the Lost Device was reported within two (2) business days of the loss; Dark will reimburse you for the amount of any fraudulent or unauthorized transactions charged to your payment instrument.

2. If you fail to notify Dark of a fraudulent or unauthorized transaction using your Dark User Account within two (2) business days of a transaction receipt, or in the case of a Lost Device, within two (2) business days of the Lost Device, you will be responsible for the fraudulent or unauthorized charges in an amount limited to the lesser of: (i) $500; OR (ii) the sum of either $50 or the amount of the fraudulent use during the initial two (2) days (whichever is less), AND the sum of all fraudulent or unauthorized activity after the initial two (2) days prior to your notification to Dark. You authorize Dark to submit to your payment instrument(s) such charges up to that limited amount.

3. If you fail to notify Dark of a fraudulent or unauthorized transaction using your User Account within sixty (60) business days of a transaction receipt, or in the case of a Lost Device, within sixty (60) business days of the Lost Device, you will be responsible for all fraudulent or unauthorized charges after the sixty (60) day period, and authorize Dark to submit such charges to your payment instrument(s).

4. In the event that the state in which you established your User Account provides for lower limitations on liability for fraudulent use, such limitation shall apply in place of these provisions.

   
   

Issuing Institutions. To the extent that the security of your payment instrument(s) is compromised in an event having no relation to the Dark platform (for example, your wallet is stolen), and your payment instrument is linked to another User Account, your liability for any fraudulent transactions will be determined by your agreement with the institution that issued your payment instrument. User Fraud. If Dark determines that you have engaged in any fraudulent use of the Dark platform, or use in violation of these User Terms, in addition to its rights to recover of any monies required to remedy such fraudulent use, Dark shall impose a fee of one hundred ($250.00) dollars for each investigation by Dark that results in a confirmation of such violation of these User Terms. By registering for a Dark User Account, you agree to all additional fees and penalties that Dark may impose in the event Dark deems your use of the Dark platform to be in breach of these User Terms, including without limitation the immediate termination of your Dark User Account.

7. Privacy, Security, and User Data

Dark takes care to protect your privacy and security.

Payment Instrument Security. Dark is 100% compliant with the Payment Card Industry Data Security Standards (“PCI- DSS”). Dark will never share your payment instrument information with any person other than as necessary to process the payments you authorize. Dark does not store your payment instrument information on Dark’s servers. Rather, we partner with Stripe, Inc. (“Stripe”), a globally respected payment gateway, to leverage its secure solutions for all payment instrument storage. All data sent to Dark’s servers is encrypted and our servers are protected by industry standard measures. By leveraging Stripe for storage, we are able to add another powerful layer of security to Dark.

No Access to Financial Information. Dark Apps, and any software applications or websites that you may authorize to access your User Account, are not able, or authorized, to capture or store your financial account information provided to Dark, or details of your linked payment instruments, including on your mobile device, without your expressly granted permission. You should never be asked by any merchant to disclose your financial account information, or your payment instrument information, or to provide any other sensitive information such as your Social Security number, in connection with any Dark transaction. If you are asked for such information, you should report the incident to Dark immediately.

Grant of Permissions to User Data to Dark. As a condition of your use of the Dark payments platform, you authorize Dark to capture, store, and use, securely, information concerning the use of your Dark User Account and your transactions at all merchants (“User Data”). Dark uses this User Data, in accordance with the permissions granted by you and Dark’s Privacy Policy, primarily in order to ensure compliance with all applicable federal and state laws and regulations concerning your payments, to provide the Services (analytics, transaction receipts, awarding and redeeming User Credit) set forth in these User Terms, including in collaboration with Stripe, and to provide Services to our Dark merchant partners that accept Dark. By agreeing to these User Terms, you grant Dark all rights to collect, retain, share, and use User Data for any purpose.

No Sharing of Email Address. Except as specifically authorized by you pursuant to these User Terms, Dark will never share your email address with any third party, other than the partners using the Dark Platform to provide you with services.

Grant of Permissions to User Data to App Provider. By agreeing to these User Terms in connection with your download of a Dark App, or by signing into an App using your existing Dark User Account, you also agree to grant the following permissions to the App and the entity identified as the App provider: creating orders, claiming campaigns, providing access for you manage your account information (such as basic info and default funding sources) within the App, viewing credit at nearby locations and other account related permissions. By signing into an App with your Dark User Account, you also authorize the App provider the use of your email address, in accordance with the provider’s own privacy policy.

Grant of Additional Permissions. When you connect to the Dark platform via the use of a third-party website or software application, you will be asked to grant certain specified permissions to the provider of such third-party website or software, including for example to access your User Account, create orders for your account, and read your transaction history. Dark App providers may also request new or additional permissions from you in the future. Such parties may condition the download, and/or continued use of a website, software application, or Dark App upon your grant of certain additional specified permissions. The decision to grant such permissions is in the sole discretion and responsibility of the User. You understand and agree that Apps, software applications, and websites provided by third parties that request access to your User Account are not controlled by Dark. You should investigate diligently any party requesting permissions in your User Account before agreeing to grant such access. The permissions granted by you to Dark, any App provider, or any third-party software or website provider, may not be transferred to any other entity without your approval. Any permissions granted by you to any party continue to be subject to Dark’s Privacy Policy.

Revocation or Permissions. You may revoke permissions granted to a Dark App or any software application or website at any time by logging in to the Dark website at https://www.darkpos.com

8. Third Party Websites and Dark Apps

The Dark Apps and/or Dark website may contain links to third party apps or websites. In some cases, Dark Apps (meaning applications, sites, or software that you may use or download that have the ability to access the Dark platform on your behalf, with your permission) are provided and maintained by third parties. You may also be offered services, products and promotions provided by third parties as part of your use of any Dark App.

A Dark App’s access to the Dark platform, or link to a third party site or App within a Dark App, does not imply endorsement of, sponsorship of, or affiliation with the linked site or third party Dark App by Dark. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties or granting permissions for any Dark App to access any of your User Data, or otherwise act on your behalf, within the Dark platform. Dark is not responsible for any claims, liabilities, losses, or damages suffered by you in connection with your use of a third party Dark App, site, or service, in connection with the Dark platform.

9. Ideas Submitted to Dark; User Content

User Ideas. Dark is pleased to hear from you and welcomes your comments about the Dark platform. If you submit ideas or suggestions for the Dark platform (“Comments”), you agree that all Comments will be deemed, and will remain, non-confidential and the sole property of Dark, without compensation to you. None of the Comments will be subject to any fiduciary obligation or obligation of confidence on the part of Dark, and Dark will not be liable for any use or disclosure of any Comments. Without limiting the foregoing, Dark will be entitled to unrestricted use and other exploitation of the Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Comments.

User Content. Dark Apps and/or Dark’s websites may include areas in which you or other registered Users can create, post, send or store messages, materials, data, information, text, music, sound, photos, video, graphics, applications, tags, code, links or other items or materials (“User Content”). By using Dark Apps and/or websites, you agree not to post, upload, transmit, distribute, store, create or otherwise publish any of the following: i. User Content that personally identifies sensitive information about yourself or another person (including, but not limited to, information that relates to health or medical conditions, Social Security numbers, credit cards, bank accounts or other financial information, Dark User Account credentials, other information concerning trade union membership, sex life, political opinions, criminal charges or convictions, religious beliefs, racial or ethnic origin, or other sensitive matters); ii. User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, otherwise objectionable or that threatens our relationships with our employees, partners, customers or suppliers; iii. User Content that infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content; iv. User Content that impersonates any person or entity or otherwise misrepresents your identity or affiliation with another person or entity; v. Spam, direct marketing communications or any unsolicited advertising, promotional materials or other forms of solicitation or commercial content; vi. User Content that constitutes, encourages or provides instructions for a criminal offense, violates the rights of any party or that creates liability or violates any applicable local, state, national or international law; vii. Viruses, spyware, Trojan horses, Easter eggs or any other harmful, disruptive or destructive files; and viii. User Content that, in the sole judgment of Dark, is objectionable, restricts or inhibits any other person from using or enjoying the Services or that damages the image or rights of Dark, other users or third parties. ix. Dark does not control, take responsibility for or assume liability for any User Content, nor is Dark liable for any User conduct or any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity that you may encounter.

If you become aware of User Content that you believe violates these User Terms (with the exception of copyright infringement which is addressed in the Digital Millennium Copyright Act Notice section), you may report it by contacting Dark at hello@darkpos.com. Enforcement of these User Terms pertaining to User Content is in Dark’s sole discretion and absence of enforcement in some instances does not constitute a waiver of our right to enforce the User Terms in other instances. These User Terms shall not create a third-party right of action or any reasonable expectation or promise that the Apps or websites will not contain any content that is prohibited by these User Terms. Dark reserves the right, and has absolute discretion, to remove, screen or edit any User Content at any time and for any reason without notice. You are solely responsible for creating backup copies and replacing any User Content you post or store at your sole cost and expense.

License to User Content. You represent and warrant to Dark that your User Content is not subject to any confidentiality obligations and that you own and control all of the rights to the User Content or otherwise have the right to grant the rights to Dark that you grant herein. Dark claims no ownership or control over any User Content, except as otherwise provided herein. By submitting or posting User Content, you grant Dark and its designees a worldwide, perpetual, irrevocable, non-exclusive, fully-paid up and royalty free license to use, sell, reproduce, prepare derivative works, combine with other works, alter, translate, distribute copies, display, perform, publish, license or sub-license the User Content and your name and likeness in connection with such use of your User Content. By posting User Content, you hereby release Dark and its agents and employees from any claims that such use, as authorized above, violates any of your rights and you understand that you will not be entitled to any compensation for any use of your User Content.

10. Copyright Infringement; Digital Millennium Copyright Act

Dark complies with the provisions of the Digital Millennium Copyright Act (“DMCA”). If you believe that any material contained in a Dark App or on a Dark website infringes a copyright that you control, you may contact our Designated Agent with a notification of such infringement at the following address:
Dark POS Inc.
180 Prospect PL, Alpharetta, GA 30005
Email: hello@darkpos.com

Dark requests that any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights include the following information (17 U.S.C. § 512(c)(3)): (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right allegedly infringed; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of the material that you claim is infringing and where it is located on the Services; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Counter Notices. If material that you have posted to the Services has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. § 512(g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following: (a) a physical or electronic signature of the subscriber; (b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (d) your name, address, and telephone number; and (e) a statement that you consent to the jurisdiction of United States District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Dark may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.

11. Suspension, Modifications and Termination

Termination by User. You may terminate this Agreement at any time by closing your Dark User Account and ceasing to use the Dark Services, and all Dark Apps.

Termination by Dark. Dark reserves the right to suspend or terminate your User Account and/or your access to the Dark Services at any time, without notice to you, if it believes you are in breach of this Agreement, or if it believes that you are using the Dark Services or any Dark App in a manner harmful to Dark, its merchants, users, or any other third party. Any such termination, suspension, or modification will terminate any Merchant or 3rd Party Credit that you rightfully earned prior to termination.

Modification of Services and Terms. Dark reserves the right to modify the Services and Dark Apps, any features or aspects of the Services or Apps at any time, without notice to you. Dark may also from time to time amend, update, or change these User Terms. If Dark does so, it will notify you by posting the amended terms on our website. You are under a continuing obligation to review the current version of these User Terms and other published Dark policies when using the Dark Apps and/or Services. You agree that your continued use of your Dark User Account, the Dark Services, or the Dark Apps shall constitute your agreement to the User Terms as so amended. If you do not agree to the amended Terms, you must terminate your User Account and cease using the Dark Services and Dark Apps.

Obligations in the Event of Termination. If your Dark User Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Dark Services and all Dark Apps, (c) that the license provided by Dark under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of the User Data stored by Dark, and (e) that Dark shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with your use of Dark or for termination of access to your Dark User Account.

Any accrued rights and remedies hereunder, including specifically Dark’s rights to retain and use User Data and complete any authorized transactions, and any other provisions that by their nature require survival in order to be effective, shall survive the termination or expiration of this Agreement.

12. No Warranties

The Dark Services and Dark Apps are provided on an “as-is” basis. Dark does not warrant that the Services or Dark Apps will operate error-free or without downtime. Dark may pause or interrupt the Services at any time, and users should expect periodic downtime for updates to the Service.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, Dark DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE. Dark DOES NOT WARRANT THAT THE Dark SERVICES AND/OR ANY LEVEL UP APP: (i) WILL PROVIDE RESULTS OR INCLUDE CONTENT THAT IS ACCURATE, RELIABLE OR CORRECT; (ii) WILL MEET YOUR REQUIREMENTS; (iii) WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; OR (iv) WILL BE FREE OF DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF Dark IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. NO ADVICE OR INFORMATION, ORAL OR WRITTEN, OBTAINED BY YOU FROM Dark OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

You are solely responsible for obtaining and maintaining the computer, smartphone and other equipment you use to access the Dark Services, and for paying for such equipment and any telecommunications charges. We are not liable for any third-party charges, or loss or damage you suffer arising from damage to equipment used in connection with use of the Dark Services.

Dark is not responsible for the goods and services that you purchase using the Dark Services or any Dark App. The providing merchant is responsible for all customer service related to those goods and services, including order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and issues concerning experiences with a merchant’s personnel, policies, or processes. Dark is also not responsible for any customer service related to your payment instrument(s).

Because we do not control the security of the Internet, or other networks you use to access the Dark Services, Dark is not responsible for the security of information that you choose to communicate with Dark while it is being transmitted. Dark is not responsible for any data lost during transmission.

13. Limitations of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL Dark, OR ANY OF Dark’S MERCHANTS, PROCESSORS, SUPPLIERS, OR LICENSORS (OR ANY OF THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, PROFITS, USE, GOODWILL, DATA, OR OTHER INTANGIBLE LOSSES), ARISING FROM OR RELATING TO THE USE OF, OR INABILITY TO USE, THE Dark SERVICES OR ANY Dark APP, OR ANY LOYALTY CREDIT OFFERED OR AWARDED, OR ANY GOODS AND SERVICES PURCHASED WITH THE Dark SERVICES OR ANY Dark APP. Dark SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE Dark SERVICES, YOUR Dark USER ACCOUNT, ANY Dark APP, OR THE INFORMATION CONTAINED THEREIN. Dark SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE Dark SERVICES OR ANY GOODS OR SERVICES PURCHASED USING THE SERVICES.

THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND EVEN IF Dark OR A MERCHANT HAD BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

With respect to any unauthorized, fraudulent transaction conducted using your User Account, absent any violation of these User Terms by you, your right to reimbursement for any direct losses (i.e., losses not refunded by your payment instrument issuing entity) as set forth herein shall be your sole and exclusive right and remedy for any loss or damages incurred by you arising out of, in connection with, or relating to any fraudulent or unauthorized use of your Dark User Account, and Dark may condition its payment of any fraud or unauthorized use reimbursement upon your releasing Dark from any further claims with respect thereto.

An action or proceeding relating to any claim arising out of the Dark Services or any Dark App must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued.

14. Release of Claims, Indemnity

You hereby release, and agree to defend, indemnify and hold harmless Dark against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees arising in connection with or relating to: (i) your improper or illegal use of the Dark Service or any Dark App; (ii) your breach of any provision of this Agreement; (iii) your violation of any federal, state, or local law or regulation; (iv) any goods and services purchased with the Dark Service; (v) any act or omission of any merchant; and/or (vi) your participation in any merchant loyalty campaign or Loyalty Credit awarded or redeemed with the Dark Services or any Dark App (“Damages”). Dark reserves the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to provide indemnification hereunder. You agree to cooperate with Dark with respect to such defense and settlement.

15. Disputes & Arbitration

Dark seeks reasonably to attempt to resolve disputes with Users to their satisfaction. If, however, a matter arises that cannot be resolved promptly between you and Dark, you agree that any disputes arising out of or relating to the Dark Services, any Dark App, or this Agreement (including, without limitation, the validity, applicability, or enforceability and scope of the agreement to arbitrate and any disputes with Dark’s third-party licensors or merchants) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) under the Federal Arbitration Act and shall be conducted before a single arbiter pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). You agree that the arbitration shall be held in Atlanta, Georgia, unless the AAA or the arbitrator shall determine that venue in Atlanta is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. You agree that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. This provision shall not apply to claims of patent, trademark, copyright infringement, or misappropriation of trade secrets. In addition, you or we may elect to bring an individual claim in a small claims court, but Dark does not hereby agree to any personal jurisdiction that is otherwise lacking.

You agree that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. You further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST Dark.

If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, then this entire section shall be deemed invalid and the arbitration clause shall be void.

16. Miscellaneous Provisions

This Agreement represents the entire agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties.

This Agreement shall be governed by the laws of the State of Georgia without reference to principles of conflicts of laws.

No delay or omission by Dark in exercising any of its rights occurring upon any noncompliance or default by you with respect to this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Dark of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained.

Except as provided in Section 13 above, if any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.

In no event shall Dark be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside Dark’s reasonable control.

The provisions of this Agreement are entered into for the benefit of Dark, its third party licensors, and the merchants and each of them shall have the right to enforce such provisions of this Agreement, including the arbitration clause, directly against you to protect their interests. Except as stated in the preceding sentence, there shall be no third party beneficiaries to this Agreement.

Dark reserves the right to change or add to these User Terms at any time. When we do so, we shall provide notice on our website by posting the updated User Terms. You agree that if you do not agree to any such amendment, you shall immediately terminate this agreement. Your failure to do so, or continued use of any Dark App or Service, shall constitute agreement to User Terms as so amended.

In the event of a conflict between this Agreement and any other Dark agreement or policy provided to you, directly or indirectly, this Agreement shall prevail on the subject matter of this Agreement.

Effective Date: January 1, 2023