Terms and Conditions
You agree that these Terms and Conditions (the “Terms”) shall exclusively govern the relationship between Wincup Group, LLC, a Florida limited liability company (“WGL,” “we,” “our” and “us”), d/b/a MyBizGPO (formerly My Biz Purchasing Group), and the Member or Client (Member) concerning the Services (as defined below).
1. Services. WGL will, from time to time: secure preferred pricing for those person and entities who are members in good standing, enabling such persons and entities to purchase goods and services provided by third parties (“Vendors”) for use in Member’s business operations; and provide you with access to WGL’s Internet Website (the “Website”) for the purpose of displaying vendors and prices, and to facilitate purchases (collectively the “Service”). Member is solely responsible to secure Internet access, utilities and all computer hardware and software necessary to utilize the Service. Member acknowledges that the Service, including, without limitation, access to the Website, may not be available at all times and may, from time to time, be subject to interruption for various reasons. No interruption of the Service shall constitute a breach of these Terms by WGL. You consent and agree to all Vendors providing WGL with data and information concerning the nature and amount of your purchases. You also agree and acknowledge that WGL is not a retailer nor supplier of any product or service, except the Service.
2. Service Fee and Payment Terms. You agree to pay us the proposed monthly or annual fee at the beginning of each program month/year (the “Service Fee”) together with any other amounts that are due us from time to time in accordance with these Terms. The Service Fee does not include any taxes or other charges or amounts payable to any governmental entity (e.g., sales tax) and, if we determine that we have to collect same, you agree to pay them upon our demand as part of the Service Fee. The Payment Terms are “Due Upon Receipt”. Payments received by us more than ten (10) days from when they are due shall be subject to an administrative late fee of $25 and all amounts due and unpaid shall bear interest from the date due until paid at the lesser of 1.5% per month or the highest rate permitted by applicable law. If you fail to pay the Service Fee on or within thirty (30) days of our invoice to you or set up date, which ever comes sooner, we may, at our sole option, declare you in default and terminate your membership.
3. Credit Card Authorization. If, at any time you provide WGL with a credit or debit card or account number for payment of the Service Fees, then, if WGL elects to offer such payment option(s), you authorize WGL to automatically charge your credit or debit card or deduct from such account all amounts as they become due to WGL. This authorization applies to any credit or debit card or account you provide us from time to time. Your participation in the credit/debit card account deduction program is subject to our approval and we have the right to terminate this payment option at any time for any reason. Your payment will be reversed by us if the transaction is returned by your bank or the credit charge is rejected for any reason and we will charge you a fee of $25.00 per returned transaction. All such charges are subject to change without notice. You agree that WGL is not responsible for incorrect charges to your credit card or debits to your bank account, unless you notify us in writing within 60 days of the date a disputed charge first appears on your bill, in which case WGL will correct an erroneous charge. We are not responsible for bank or other service fees.
4. WARRANTIES. WGL WARRANTS ONLY THAT THE SERVICE WILL BE RENDERED IN A REASONABLE MANNER. EXCEPT AS SET FORTH IN THIS SECTION, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, FOR THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER OR NOT WGL KNOWS OF OR HAS REASON TO KNOW OF OWNER’S USE OF THE SERVICES AND NO WARRANTY CONCERNING THE AVAILABILITY OF THE SERVICE AT ANY PARTICULAR TIME. YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY, WARRANTY AND REPRESENTATION FOR ANY PRODUCTS OR SERVICES PURCHASED FROM VENDORS OR THROUGH THE SERVICE IS THAT PROVIDED BY THE MANUFACTURER, RETAILER OR SERVICE PROVIDER AND YOU AGREE TO LOOK SOLELY TO THE MANUFACTURER, RETAILER OR SERVICE PROVIDER FOR ANY CLAIMS YOU MAY HAVE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE SERVICE WARRANTY IS FOR WGL, AT ITS SOLE OPTION, TO REFUND TO YOU THE APPLICABLE SERVICE FEES.
5. LIMITATION OF LIABILITY. WGL SHALL NOT BE LIABLE TO OWNER OR ANY PERSON CLAIMING BY OR THROUGH OWNER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, OR INJURY TO PROPERTY, AS A RESULT OF THE BREACH OF ANY WARRANTY OR OTHER PROVISION(S) OF THESE TERMS, REGARDLESS OF WHETHER WGL WAS ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IN ADDITION, IN NO EVENT WILL DAMAGES PAYABLE BY WGL TO OWNER ON ACCOUNT OF ANY CAUSE OF ACTION ARISING OUT OF THE SERVICES, OR ARISING ON ACCOUNT OF ANY CLAIM BY OWNER ON ACCOUNT OF BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE EXCEED THE SERVICE FEES. THE PARTIES ACKNOWLEDGE THAT THIS SECTION REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THEM OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THESE TERMS, THAT SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES, AND THAT THE ECONOMIC AND OTHER TERMS OF THESE TERMS WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION.
6. Modification and Replacement. These Terms may be modified, supplemented or replaced by WGL, from time to time, upon written notice to you (as provided below in these Terms) and your utilization of the Service after such notice shall constitute acceptance of the modified, supplemented or replaced Terms.
7. Miscellaneous Provisions. These Terms sets forth our entire understanding of this subject matter and incorporate all of our prior negotiations and understandings. There are no other promises, agreements, conditions or understandings, verbal or written, between us concerning this subject matter. No claim that either of us has waived any provision shall be valid unless the waiver is in writing and signed by the waiving party. A written waiver shall only apply to a particular instance. All communications, notices, demands and requests to be given under these Terms shall be in writing and, for notices by WGL to Member, shall have been properly given the next business day after we post such notice on our website or transmit an e-mail containing such notice to you via the e-mail address for you in our records. Notices shall, in the case of a notices by Member to WGL, and may in the case of a notice by WGL to Member, be deemed properly given five (5) days after being mailed, certified, return receipt requested, postage prepaid to the party’s address. Your address shall be the address provided in your member information. The address for WGL shall be that set forth on the “Contact Us” page of the Website. The paragraph numbers and captions in these Terms are inserted only as a matter of convenience and do not define, limit, construe or describe the scope or intent of any provision. Member may not assign, transfer or delegate the performance of its duties hereunder without the express prior written approval of WGL. The invalidity or unenforceability of a particular provision of these Terms shall not affect the other provisions hereof, and these Terms shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
8. Survival. Sections 2, 3, 2, 4, 7, 9 and 10 will survive the expiration, cancellation or termination of your membership or these Terms for any reason.
9. Applicable Law, Venue, Jurisdiction and Waiver of Jury Trial. These Terms shall be deemed executed in Lake Mary, Florida, and shall be construed and governed under and by the laws of the State of Florida, without giving effect to the conflicts of laws principals thereof. Member and WGL agree that, except for third party actions, exclusive venue for any legal action relating to these Terms or your membership shall be Orange County, Florida, and that jurisdiction shall be exclusively vested in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, or the United States District Court for the Middle District of Florida, Orlando Division, as the case may be. Both parties agree not to contest the exercise of personal jurisdiction by the foregoing courts. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR RIGHTS TO A TRIAL BY JURY ON ANY AND ALL ISSUES PERTAINING TO THESE TERMS, THE SERVICES AND ALL OTHER MATTERS RELATING TO OR OTHERWISE DEALING WITH THE RELATIONSHIP BETWEEN THEM.
10. Attorneys' Fees. In the event any litigation, mediation, arbitration, or controversy between the parties hereto arises out of or relates to these Terms, your membership, the Service or the collection of amounts due WGL, the prevailing party shall be entitled to recover from the other all collection costs, reasonable attorneys' fees, expenses and suit costs, including those associated with appellate and post-judgment collection proceedings.