TERMS

1. Eligibility and Acceptance

These terms of service are entered into by and between You and MyApricot LLC (“Apricot,” “we,” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, “Terms of Service”), govern your access to and use of Services, including Apricot’s online platform as an e-commerce marketplace, whether as a brand, member, guest or a registered user. “Services” means Apricot’s websites, mobile applications, content, tools, functionality, product marketplaces, and other services. Please read the Terms of Service carefully before you start to use the Services. By using the Services or by clicking to accept or agree to the Terms of Service when this option is made available to you, you accept and agree to be bound and abide by these Terms of Service and by our Privacy Policy at https://myapricot.com/privacy-policy, incorporated herein by reference. If you do not want to agree to these Terms of Service, you must not access or use the Services. The Services are offered and available only to users who:

• Reside in the United States or any of its territories or possessions; and
• Are 18 years of age or older.

By using the Services, you represent and warrant that you are of legal age to form a binding contract with Apricot, are not associated with a company providing similar services, and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Services.

2. Updates to the Terms

We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice before the date the change is posted on the Website. Your continued use of the Services following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

3. Accessing the Services; Account Registration and Security

We reserve the right to introduce, withdraw or amend websites, mobile applications, or any content, material, product offering or other Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Services, to users, including registered users. You are responsible for making all arrangements necessary for you to have access to the Services. To access the Services or some of its resources, you may be asked to provide certain registration details or other information. It is a condition of your use of the Services that all the information you provide to access the Services is correct, current, and complete. You agree that all information you provide to register for these Services or otherwise, including, but not limited to, through the use of any interactive features, is governed by our Privacy Policy at https://myapricot.com/privacy-policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy. If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services or portions of them using your user name, password, or other security information — not even to another person associated with your business. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. If you are using a public or shared computer, you also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you have violated any provision of these Terms of Service.

4. Intellectual Property Rights

The Services and their entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Apricot, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. We grant you a limited, personal, non-exclusive, and non-transferable license to access and use the Services only as expressly permitted in these Terms of Service. You must not reproduce, distribute, license, sell, modify, create derivative works of, publicly display, publicly perform, republish, broadcast, download, store, or transmit any of the material accessible using our Services, except as follows:

• Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
• You may store files that are automatically cached by your Web browser for display enhancement purposes.
• You may print one copy of a reasonable number of pages of the Services for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
• You may download a single copy of any mobile application to your mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
• If we provide social media features with certain content, you may take such actions as are enabled by such features.

You must not:
• Modify copies of any materials of the Services.
• Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Services in breach of the Terms of Service, your right to use the Services will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by Apricot. Any use of the Services not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, and other laws. The Apricot name, marks including the Apricot logos, and all related names, logos, product and service names, designs, and slogans are trademarks of Apricot. You must not use such marks without the prior written permission of Apricot. All other names, logos, product and service names, designs, and slogans that may appear in the Services are the trademarks of their respective owners.

5. Prohibited Uses

You may use the Services only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Services:

• In any way that competes with our business of providing an online platform for facilitating transactions and communications between merchants and customers.
• In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
• For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
• To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards set out in these Terms of Service.
• To transmit, or procure the sending of, any mass advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
• To impersonate or attempt to impersonate Apricot, an Apricot employee, another user, or any other person or entity (including, without limitation, by using email addresses or user names associated with any of the foregoing).
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Apricot or users of the Services, or expose them to liability.

Additionally, you agree not to:

• Use the Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
• Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
• Use any manual process to monitor or copy any of the material on the Services, or for any other purpose not expressly authorized in these Terms of Service, without our prior written consent.
• Use any device, software, or routine that interferes with the proper working of the Services.
• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer, or database connected to the Services.
• Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
• Otherwise attempt to interfere with the proper working of the Services.

6. User Submissions

The Services may contain interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons, or otherwise provide (hereinafter, “post”), content, materials or other data (collectively, “User Submissions”) on, to or through the Services. All User Submissions must comply with the Content Standards set out in these Terms of Service. Any User Submission you post through the Services will be considered non-confidential and non-proprietary. By providing any User Submission, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose, including for marketing purposes, in accordance with our Privacy Policy and your account settings. You represent and warrant that:

• You own or control all rights in and to your User Submissions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
• All of your User Submissions do and will comply with these Terms of Service.

You understand and acknowledge that you are responsible for any User Submissions you submit or contribute, and you, not Apricot, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Submissions posted by you or any other user of the Services.

7. Monitoring and Enforcement; Termination

We have the right to:

• Remove or refuse to post any User Submissions for any or no reason in our sole discretion.
• Take any action with respect to any User Submission that we deem necessary or appropriate in our sole discretion, including if we believe that such User Submission violates the Terms of Service, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Apricot.
• Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
• Terminate or suspend your access to all or part of the Services for any violation of these Terms of Service.
• Terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS APRICOT AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES. However, we do not undertake to review all material before it is posted to the Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

8. Content Standards

These content standards apply to any and all User Submissions and use of Interactive Services. User Submissions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Submissions must not:

• Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
• Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
• Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person, or otherwise contain any content, materials, data or other information that is not lawfully provided to us.
• Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Service and our Privacy Policy.
• Be likely to deceive any person.
• Promote any illegal activity, or advocate, promote, or assist any unlawful act.
• Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
• Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
• Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

9. Copyright Infringement

We take claims of copyright infringement seriously and we will respond to notices of alleged copyright infringement that comply with applicable law. It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers. If you believe any materials accessible on or from the Services infringe your copyright, you may request removal of those materials (or access to them) from the Services by submitting written notification to our copyright agent designated below. To be valid in accordance with the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

• Your physical or electronic signature.
• Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Services, a representative list of such works.
• Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
• Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
• A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
• A statement that the information in the written notice is accurate.
• A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Our designated copyright agent to receive DMCA Notices is: Copyright Agent MyApricot LLC at dmca@myapricot.com. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

10. Reliance on Information

The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other user (whether registered or a guest) of the Services, or by anyone who may be informed of any of its contents. The Services include content provided by third parties, including materials provided by brands, other third party service providers, retailers, and/or other users. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Apricot, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Apricot. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

11. Updates to the Website

We may update the content on our websites from time to time, but the content is not necessarily complete or up-to-date. Any of the material on any website may be out of date at any given time, and we are under no obligation to update such material.

12. Information About You and Your Use of the Services

All information we collect through the Services is subject to our Privacy Policy at https://myapricot.com/privacy-policy. By using the Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

13. Online Purchases and Pricing

All purchases through our site or other transactions for the sale of goods, services, or information formed through the Services, or resulting from visits made by you, are governed by the terms applicable to the corresponding marketplace. You are responsible for reviewing and agreeing to such terms. If you do not review or do not agree with the applicable terms for online purchases, do not make any purchases through the Services. You acknowledge that pricing with respect to the Services, and pricing of goods, services, or information formed through the Services, may be modified or introduced at any time.

14. Links from the Services; Third Parties

If the Services contain links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in any third-party product marketplaces and in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those third-party sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to in the Services, you do so entirely at your own risk and subject to the terms and conditions of use for, and privacy policies applicable to, such websites. You will comply with, and you acknowledge that you are subject to, all terms and conditions of use for, and privacy policies applicable to, all third parties whose services interoperate with, or are otherwise accessed from, the Services.

15. Geographic Restrictions

We provide the Services for use only by persons located in the United States. We make no claims that the Services or any of its content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. You are not permitted to access the Services from outside the United States.

16. Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet, the Website, or otherwise through the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES, THE WEBSITE, OR ANY FUNCTIONS OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY POSTED MATERIAL, OR ON ANY WEBSITE LINKED TO THE SERVICES. YOUR USE OF THE SERVICES, ITS CONTENT, AND ANY FUNCTIONS OR ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, THE WEBSITES, THEIR CONTENT, AND ANY FUNCTIONS OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER APRICOT NOR ANY PERSON ASSOCIATED WITH APRICOT MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER APRICOT NOR ANYONE ASSOCIATED WITH APRICOT REPRESENTS OR WARRANTS THAT THE SERVICES, THE WEBSITES, THEIR CONTENT, OR ANY FUNCTIONS OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES OR THE SERVER(S) THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITES OR ANY OTHER FUNCTIONS OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. TO THE FULLEST EXTENT PROVIDED BY LAW, APRICOT HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

17. Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL APRICOT, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, THE WEBSITES, ANY WEBSITES LINKED TO THEM, ANY CONTENT OF THE SERVICES OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

18. Indemnification

You agree to defend, indemnify, and hold harmless Apricot, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Service or your use of the Services, including, but not limited to, your User Submissions, any use of the Services’ content, functions, and products other than as expressly authorized in these Terms of Service, or your use of any information obtained from the Services.

19. Disputes

ARBITRATION AND CLASS ACTION WAIVER — IMPORTANT — PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS

19.1 ARBITRATION; WAIVER OF TRIAL BY JURY

YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US OR ANY OF OUR OFFICERS, DIRECTORS OR EMPLOYEES ACTING IN THEIR CAPACITY AS SUCH (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING, WITHOUT LIMITATION, DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE SERVICES AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE JAMS, INC. (“JAMS”) RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT WE OR YOU MAY SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN ANY STATE OR FEDERAL COURT HAVING JURISDICTION TO GRANT IT IN THE EVENT OF AN ACTUAL OR THREATENED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.

19.2 Small Claims Court; Class Action Waiver

As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if such claim is within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US, INCLUDING, WITHOUT LIMITATION, ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding.

19.3 Procedures

These dispute resolution provisions will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event that JAMS is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the American Arbitration Association. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever banned.

19.4 30-Day Opt-Out Period

If you do not wish to be bound by the arbitration and class-action waiver provisions in this Disputes section, you must notify us in writing within thirty (30) days of the date that you first accept these Terms of Service (unless a longer period is required by applicable law), and then you must litigate any disputes against us in accordance with the Governing Law and Jurisdiction section below. Your written notification must be mailed to us at the address set out at the end of these Terms of Service. If you do not notify us in accordance with this paragraph, you agree to be bound by the terms of this Disputes section, including, without limitation, the arbitration and class-action waiver provisions, and further including such provisions in any revisions we make to these Terms of Service after the date of your first acceptance. Such notification must include: (i) your name; (ii) your email address and mailing address; and (iii) a statement that you do not wish to resolve disputes with us through arbitration or waive your ability to participate in a class action. If we make any changes to this Disputes section (other than a change to the address at which we will receive notices or rejections of future changes to this Disputes section), you may reject any such change by sending us written notice, within thirty (30) days of the change, to the address set out at the end of these Terms of Service. It is not necessary to send us a rejection of a future change to this Disputes section if you had properly opted out within the first thirty (30) days after you first accepted the provisions in this Disputes section. If you have not properly opted out, then by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Disputes section, as modified by any changes you did not reject. A notification sent pursuant to this paragraph solely affects these Terms of Service; if you previously entered into other arbitration or dispute resolution agreements with us or enter into other such agreements in the future, your notification that you are opting out of the provisions in this Disputes section shall not affect the other arbitration agreements between you and us.

19.5 Severability

If any of the prohibitions against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Disputes section will be null and void. This Disputes section, including, without limitation, the arbitration agreement and class action waivers contained herein, will survive the termination of your relationship with us.

20. Governing Law and Jurisdiction

All matters relating to the Services and these Terms of Service, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction). Any legal suit, action, or proceeding arising out of, or related to, these Terms of Service or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of New Jersey. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

21. Waiver and Severability

No waiver by Apricot of any term or condition set out in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Apricot to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision. With the exception of Section 19.5, if any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.

22. Entire Agreement

The Terms of Service and our Privacy Policy constitute the sole and entire agreement between you and MyApricot LLC, regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.

23. Your Comments and Concerns

The Services are operated by MyApricot LLC, located at 60 Fadem Road, Springfield, NJ 07081. All notices of copyright infringement claims should be sent to the copyright agent designated in these Terms of Service in the manner and by the means set out therein. All other feedback, comments, requests for technical support, and other communications relating to the Services should be directed to: support@myapricot.com.

Apricot Platform Terms of Service

Last updated: June 10, 2021

Thank You for your interest in Apricot’s Platform and e-commerce marketplace.

1. Eligibility and Acceptance

These terms of service are entered into by and between You and MyApricot LLC (“Apricot,” “we,” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, the “Platform Terms”), govern your access to and use of Apricot’s websites, mobile applications, third-party product marketplaces, and other services provided by Apricot (collectively, the “Apricot Platform”), whether as a brand, member, guest or a registered user.

Please read the Platform Terms carefully before You start to use the Apricot Platform. By using the Apricot Platform or by clicking to accept or agree to the Platform Terms when this option is made available to You, You accept and agree to be bound and abide by these Platform Terms, our Terms of Service, and our Privacy Policy, found at https://myapricot.com/privacy-policy, incorporated herein by reference. PLEASE REVIEW THE DISPUTES SECTION AND THE ARBITRATION AND CLASS ACTION WAIVER OF THE PLATFORM TERMS AS THIS AFFECTS YOUR LEGAL RIGHTS. If You do not want to agree to these Platform Terms or any incorporated terms and conditions, You must not access or use the Apricot Platform.

The Apricot Platform is offered and available only to users who:

• Reside in the United States or any of its territories or possessions; and
• Are 18 years of age or older.

By using the Apricot Platform, You represent and warrant that You are of legal age to form a binding contract with Apricot and meet all of the foregoing eligibility requirements. If You do not meet all of these requirements, You must not access or use the Apricot Platform.

2. The Apricot Platform

2.1 Brands

The Apricot Platform is a subset of our Services that will permit retail brands (the “Brand Partners”) to offer a variety of products to users (“Members”). Members shall offer for sale and purchase certain products from these Brand Partners through a virtual store (“Store”) on the Apricot Platform. The Members shall manage the Store within the parameters of the Apricot Platform. Stores may create customizable rewards of Apricot Cash for Customers (as defined below) through the Apricot Platform (detailed below). The Terms of Service above continue to govern your use the Apricot Platform to the extent they are not inconsistent with the terms below.

2.2 Customers

The Apricot Platform gives purchasers of products through a Store (the “Customer”) the ability to pay for products purchased from a Member’s Store and communicate with Members. Customers may be able to earn rewards, receive retailer discounts and other perks through the Apricot Platform (detailed below).

2.3 Relationship of the Parties

The Apricot Platform is offered by Apricot as an intermediary service to facilitate communication and transactions between Stores and Customers. In providing services through the Apricot Platform, we do not act as a retailer or payment processor.

Apricot does not guarantee any shipments, product fitness, or results from using the Apricot Platform. Apricot does not make any representations or warranties as to the quality of any Store or Member. We do not control the contents of and are not responsible for the content or accuracy of information in any Store or the quality of any products purchased through the Apricot Platform.

By accepting these terms, You agree that Apricot is acting as an independent contractor with respect to the Apricot Platform. Neither Brand Partners nor the Members shall be considered an employee or agent of Apricot or have any authority under this Agreement to bind or otherwise obligate Apricot on any matter whatsoever.

Nothing contained in this Agreement shall be construed to imply a partnership, agency, or any other fiduciary relationship between Apricot, the Apricot Platform, any Brand Partner, any Member and any Customer.

In facilitating the generation and delivery of communications, including emails, notices, and text messages, between Stores and Customers, Apricot is merely acting as a third-party service provider and in forwarding any communications to Customers on behalf of Stores, and to Stores on behalf of Customers, and is not acting as an agent on behalf of any either party.

2.4 Integration with Third-Party Services

To provide certain functionality through the Apricot Platform, we may provide integration with third-party service providers for providing services on our platform. By using the Apricot Platform, You acknowledge that we may share your user information in order to create required accounts with our partner services, as described in our Privacy Policy at https://myapricot.com/privacy-policy.

3. Accounts and Registration

To use the Apricot Platform, You must be a registered user. You agree to only use the Apricot Platform in connection with the third-party services that may be provided through the Apricot Platform.

Only actual users and prospective users may set up or use a Customer account. Actual users and prospective users may set up or use only one Customer account per person. Only independent contractors who have entered into a Member Agreement with Apricot may set up or use a Member account.

In addition, You shall provide us with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these terms. You may not (i) select or use as a name of another person with the intent to impersonate that person; (ii) use as a username, a name subject to any rights of a person other than you without appropriate authorization; (iii) use as a username, a name that is otherwise offensive, vulgar or obscene; (iv) register for or otherwise obtain, control or operate more than one account; (v) refer more than one email account owned, controlled or operated by You to the Apricot Platform; (vi) register for an account with false information, in a fraudulent manner or using information created solely for registration with us or other online services or (vii) evade any of the requirements set forth in the Platform Terms. We reserve the right to refuse registration of an account, or suspend or delete an account, in our sole discretion. You are solely responsible for the activity that occurs on Your account, and you must keep your account password secure. You must notify us immediately of any breach of security or unauthorized use of Your account.

We may terminate and remove Your account at any time, without notice, in the event that You breach any of these terms.

To use certain features of the Apricot Platform, including identity verification and payment services, You will be required to verify your identity with our third-party vendors.

You must provide your full legal name, a valid email address that has not been created solely or primarily for access to the Apricot Platform, and any other information requested in order to complete the signup process. You are also responsible for keeping your email address and other contact information up to date, so we can send You important notices.

If You are a Member processing orders and other payment transactions through the Apricot Platform, You must provide your legal name and/or legal business entity name, your personal or your business contact information, and your social security or taxpayer identification number(s) if requested. We will collect and maintain that information, as well as your account information and the amount of payments and number of payment transactions You or your business processes through the Service, so that your payments can be reported to the Internal Revenue Service when we are required by law to do so.

4. Use of the Apricot Platform

By using the Apricot Platform, You agree to:

• Use the Apricot Platform in compliance with all applicable laws, and all legal notice and disclosure requirements as provided in agreements of third-party service providers providing services through the Apricot Platform (detailed below).
• Comply with the terms and conditions of all of Apricot’s third-party service providers.
• Use the Apricot Platform only on your own behalf, and not transmit or resell any information or services available through the Apricot Platform to third parties.
• Provide us, upon our request, with the details of all transactions processed by You through the Apricot Platform.
• Use the Apricot Platform only in connection with properties located within the United States
• Use only payment methods issued in the United States.
• Charge a Customer fees related to orders purchased through a Store managed and operated by You.
• Not use the Apricot Platform to transfer money in violation of any money laundering laws, including the Bank Secrecy Act, or any regulations of the US Treasury’s Office of Foreign Assets Control or the Federal Trade Commission.
• Comply with any transaction limits as may be set by Apricot for the platform from time to time.
• Not submit any false or fraudulent information through the Apricot Platform or otherwise to us, or otherwise use the Apricot Platform or any of our other products or services for false or fraudulent purposes.
• Not rely on any feature of the Apricot Platform in lieu of legal advice from a licensed attorney.
• Not use the Apricot Platform to discriminate against anyone based on race, color, national origin, religion, sex, disability, or the presence of children, or decline or treat a Customer differently based on any other class protected by the laws of your state and municipality (e.g., sexual orientation, gender identity, military status or marital status).
• Not attempt to circumvent, or encourage anyone else to circumvent, the Platform Terms.
• Allowing Apricot to keep and track data on your use within the application.
• Use only one account and only one name for Apricot Platform.
• Not use the Apricot Platform by means of multiple accounts, multiple email addresses or multiple sets of information provided to the Apricot Platform, or email addresses or other information created solely to access the Apricot Platform or other online sites.

5. Apricot Cash

“Apricot Cash” is an online, redeemable credit system that may be used or redeemed to obtain certain products, benefits, and features we may offer through the Apricot Platform. An amount of Apricot Cash may be associated with a user’s account and (a) may be awarded to users for free, or in exchange for referring the Apricot Platform to others, in connection with certain promotional offerings; (b) may be awarded by Stores to Customers in connection with submitting orders and meeting other criteria; and (c) may be awarded in connection with making certain types of Product purchases through the Apricot Marketplace.

We may, in our sole discretion, review how You earn Apricot Cash and engage in other activities in the Apricot Platform, including, without limitation, to confirm the validity of Apricot Cash awards. We reserve the right to limit and otherwise adjust the amount of Apricot Cash that You can be awarded, accumulated, or redeemed over any given period of time. We, in our sole discretion, determine how Apricot Cash may be awarded or redeemed through the Apricot Platform and we may reject awards and redemptions of Apricot Cash and any other reward fulfillment.

We reserve the right to terminate your access to Apricot Cash in your account if we determine, after investigation, that You have acquired the Apricot Cash in connection with any fraudulent or illegal activity.

We reserve the right to modify or terminate the Apricot Cash system (including, without limitation, any rules regarding use or access thereto) at any point in time.

6. Apricot Marketplace

READ THESE TERMS CAREFULLY BEFORE YOU START TO USE OR MAKE ANY PURCHASES THROUGH THE APRICOT MARKETPLACE.

The Apricot Platform provides access to an online third-party product marketplace (the “Apricot Marketplace”). The Terms of Service and Platform Terms above continue to govern your use of and any purchases that You make through the Apricot Marketplace service available through the Apricot Platform, to the extent they are not inconsistent with the terms of this Section 6.

Apricot provides the Apricot Marketplace to allow You to review offers and to purchase products and services (“Product”) from Members, who choose the Products through pre-approved participating third-party retailers (“Retailers”). When You make a purchase through the Apricot Marketplace, You are purchasing the Product from a Retailer and not from Apricot. In selecting a Product for purchase You may be directed to a third-party website of the Retailer and will be subject to the terms of use for the Retailer’s website. We are not the merchant of record and the actual contract for sale is directly between You and the seller. When You submit an order for Product through the Apricot Marketplace, You are entering into a binding agreement to purchase the Product directly from the Retailer through our third-party payment processors. You agree that Apricot is not an agent for You or for any Retailer and has no authority to act on your or on a Retailer’s behalf.

We are not responsible for examining or evaluating, and we do not warrant, any Product offerings of any Retailers. Apricot does not assume any responsibility or liability for the actions, product, and content of all these Retailers and any other third parties. You should carefully review their privacy statements, selling policies, and other conditions of use.

6.1 Marketing Communications

By establishing an account with Apricot or by making a purchase through the Apricot Marketplace, You grant us permission to contact You at your email address and phone number and send You marketing content related to the Apricot Marketplace, our affiliates, and our business partners. You can opt-out of receiving our marketing content following the opt-out procedures set forth in such marketing content.

6.2 Marketplace Use

Apricot may exclude any buyer, including You, from making purchases in the Apricot Marketplace at any time and for any reason. Resellers may not purchase Products in the Apricot Marketplace and we reserve the right, in our sole discretion, to cancel such purchase.

6.3 Apricot Cash Rewards

You may receive offers from us or from Retailers to receive rewards of Apricot Cash on the successful purchase of certain Products in the Apricot Marketplace. Apricot Cash You earn through the Apricot Marketplace will be associated with your user account.

6.4 Product Information

Any information about and descriptions of Products for purchase from Retailers through the Apricot Marketplace (“Product Information”) may be based on information provided to us by Retailers. We do not warrant the accuracy, completeness, or usefulness of this information. There may be information accessible through the Apricot Marketplace that contains typographical errors, inaccuracies, omissions, and other types of errors, including, without limitation, errors that relate to descriptions of Products, pricing, promotions, offers, minimum order amounts, delivery times, and Product availability. Any reliance You place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by You or any other user of the Apricot Platform, or by anyone who may be informed of any of its contents.

6.5 Purchase Processing

When You submit an order for Product through the Apricot Marketplace, You are entering into a binding agreement to purchase the Product directly from the Retailer through our third-party payment processors (see details below).

6.6 Delivery

Delivery of any Products You purchase through the Apricot Marketplace, if applicable, is made by the Retailer seller and not Apricot. You agree that we have no obligation to deliver any Product You purchase through the Apricot Marketplace. You agree that we may provide to the Retailer your street address, email address, name, and phone number for supplying to You the Product You purchase from the Retailer through the Apricot Marketplace.

ANY CLAIMS RELATED TO THE DELIVERY OF A PRODUCT, INCLUDING CLAIMS THAT THE PRODUCT WAS NOT DELIVERED, CLAIMS OF DAMAGE TO PROPERTY, OR CLAIMS RELATED TO PRODUCT QUALITY OR SUITABILITY ISSUES MUST BE HANDLED SOLELY BETWEEN YOU AND THE APPLICABLE RETAILER. YOU ARE RESPONSIBLE FOR MAKING ANY CLAIMS DIRECTLY WITH THE RETAILER AND AGREE THAT YOU WILL NOT SEEK TO HOLD APRICOT RESPONSIBLE FOR ANY OF THE FOREGOING CLAIMS.

6.7 Changing or Cancelling Marketplace Orders

Apricot is not responsible for the fulfillment, modification, cancelling, or return of any orders placed with a Retailer through the Apricot Marketplace. Once You have placed an order for a product in the Apricot Marketplace, the Retailer will handle all aspects of the order fulfillment, including changes to orders (if available), and processing of returned orders. Apricot will not change or cancel any order made by You, including any change to delivery address or billing information. You will need to contact the Retailer for any changes or cancellations that You wish to make to your order or to process any returns. The Retailer’s contact information may be found in the email sent to You confirming your order.

7. Payments

Apricot, in conjunction with a third-party processor, offers a feature to facilitate payment of Product orders and other sums due in accordance with written agreements between Customers and Stores and between Members and Retailers in the Apricot Marketplace.

You agree to pay all charges incurred by You or on your behalf through the Apricot Platform, at the prices in effect when such charges are incurred. If Apricot changes the fees for all or part of the Apricot Platform, including by adding fees or charges, Apricot will provide You advance notice of those changes. If You do not accept the changes, we may stop providing the applicable part of the Apricot Platform to You. Apricot’s third-party payment processors will charge the payment method You specify at the time of purchase.

You authorize Apricot and its third-party processors to charge all payments as described in these Platform Terms, for the Apricot Platform, to your chosen payment method. If You pay with a credit card, Apricot’s third-party payment processors may seek pre-authorization of your credit card account before your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
If any payment You initiate using the Apricot Platform does not successfully complete, the intended recipient reserves the right to seek payment from You via or outside the Apricot Platform. Any authorization You provide to make repeating automatic payments using the Apricot Platform will remain in effect until cancelled.

When submitting a payment, including for scheduled payments, You may be asked to supply certain relevant information, such as your debit or credit card number and its expiration date, checking account information, and/or billing address. By submitting such information, You: (i) represent and warrant that You have the right to use any payment method that You submit through the Apricot Platform; and (ii) grant to Apricot the right to provide such information to third parties for purposes of facilitating the transactions. Verification of information may be required prior to the acknowledgment or completion of any payment transaction.

By making or receiving payments through the Apricot Platform, You grant Apricot and our third-party payment processors the right, power, and authority to act on your behalf to access and transmit your personal and financial information from the relevant institution, and to charge your account in the amounts specified in the Apricot Platform. You agree to your personal and financial information being transferred, stored, and processed by our third-party payment processors.

You agree that all payments made through the Apricot Platform are final, and You will not challenge or dispute the charge with your bank. If You initiate a dispute with Your bank, You agree that You will be held responsible for any outstanding balance owed to us (or other payee), plus any dispute case fees charged by the payee’s bank. Any outstanding balance left unpaid after 30 days may be submitted to a collections agency, and You agree that a collections fee of up to 50% of the outstanding balance or $100 (whichever is higher) will be added to the amount that You owe.

If a payor or payor’s bank or card issuer initiates a reversal, chargeback, or payment dispute of a payment made through the Apricot Platform to You, You authorize Apricot and our third-party payment processors to reverse or otherwise debit the funds from your account. In the event we are unable to reverse or otherwise debit funds from your account, You agree promptly to deposit such funds upon our request.

We may also initiate a reversal, or take other actions we determine to be appropriate, if, in our reasonable opinion, fraud or abuse of the Apricot Platform has occurred. Additionally, we may choose to implement a chargeback or reversal fee in the case of unsuccessful payment, in which case we will provide You prior notice of the amount to be charged.

8. Modifications and Terminations

Without limitation of our other rights, we may introduce, modify any content, materials, features, pricing or other elements of the Apricot Platform (expressly including, without limitation, the Apricot Marketplace and rewards) at any time in our sole discretion, without notice. We may also terminate the Apricot Platform (expressly including, without limitation, the Apricot Marketplace and rewards) at any time in our sole discretion, without notice. You shall not retain any rights that may have arisen prior to modification or termination, except to the extent expressly required by applicable law.

9. Disclaimers

THE APRICOT PLATFORM IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. APRICOT MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY MATERIAL ON OR ACCESSIBLE THROUGH THE APRICOT PLATFORM. ANY RELIANCE ON OR USE OF SUCH MATERIALS SHALL BE AT YOUR SOLE RISK. APRICOT MAKES NO REPRESENTATION OR WARRANTY (A) REGARDING THE STATEMENTS, ACTS OR OMISSIONS OF ANY MEMBER; (B) THAT THE APRICOT PLATFORIM WILL BE AVAILABLE ON A TIMELY BASIS, OR THAT ACCESS TO THE APRICOT PLATFORM WILL BE UNINTERRUPTED, ERROR FREE OR SECURE; (C) THAT DEFECTS OR ERRORS WILL BE CORRECTED; OR (D) THAT THE APRICOT PLATFORM OR THE SERVERS OR NETWORKS THROUGH WHICH THE APRICOT PLATFORM ARE MADE AVAILABLE ARE SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. APRICOT RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CORRECT ANY ERROR OR OMISSION ON THE PLATFORM OR IN ITS CONTENT. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.