EHOPPER POINT OF SALE MERCHANT USER SOFTWARE LICENSE AND SERVICES AGREEMENT
Thank you for choosing EHOPPER Point of Sale Software and Services. This Merchant User License together with the sales order form (as defined below) you enter into (the “Sales Order Form”) are referred to collectively as the “License” or the “Agreement”, and gives you certain non-exclusive rights and responsibilities depending on which version of the software and services package you purchase.
The term “Software” shall mean the point of sale software provided to you, the merchant (“you” or “Licensee”), by EHopper Services LLC ( the “Company”, “we”, “us” or “our”) under this Agreement (or by any agreement You may have with a reseller or master licensee of the Company’s Software); the term “Software” shall include without limitation, any other programs, apps, tools, internet-based services, plug-ins, components and any “updates” made available to you (for example, Software maintenance, service information, help content, bug fixes, patches or maintenance releases etc.) or “upgrades” of the Software that the Company elects, in its sole discretion, to provide or make available to you after the date you obtained your initial copy of the Software.
The term “Services” means the services selected by you in the most recent sales order form that you may enter into (the “Sales Order Form”), and any technical or attendant support services that are routinely offered by the Company THE COMPANY in connection with the Software, which are subject to change from time to time, in the Company’s sole and absolute discretion. For purposes of this Agreement, the term “Sales Order Form” includes any invoice, billing sheet, payment schedule, or other written notice of fee or charge (including email notices from the Company or any authorized reseller or master licensee through whom you are provided access to the Software and Services) in connection with Your Use of the Software and Services.
This Agreement is effective as of the later of the date you click the “I accept” and download the Software. By installing the Software, you agree to be bound by the terms and conditions of this Agreement. If you do not accept this Agreement, you will not be able to use these EHOPPER software or services.
You may be entitled to download updates to the Software that the Company generally makes available to other users of the Software, in the Company’s sole and absolute discretion.
1. LICENSE GRANT AND RESTRICTIONS.
EHopper Services LLC, a New York limited liability company, subject to its own license of the Software, grants you (“you”, “your” and “Licensee” means you the Licensee on whose behalf the Software is licensed and Services are sold) the following non-exclusive, limited rights on the condition that you comply with all of the terms and conditions of this Agreement.
License: This License is solely for commercial, in-store use by you within the United States, Puerto Rico, US Virgin Island and Canada, or other approved territory on a compatible tablet or mobile device (each a “CPU”), and is not for use on or in connection with any online sales or e-commerce transactions. You may install the Software on one (1) CPU per license.
Your license to use the Software is conditioned on your compliance with the scope of this license, and any use by you outside this scope will cause the agreement to terminate automatically, and shall cause your license to be revoked automatically.
You are not licensed or permitted under this Agreement and you agree that you shall not, nor shall you assist or permit others to, do any of the following: (a) modify, adapt, translate, embed, rent or sublicense (including offering the Software to third parties in any manner, whether on an applications service provider or a time-sharing basis); (b) assign, loan, resell, rebrand, transfer or distribute the Software, CDROM(s), or related materials or create derivative works based upon the Software or any part thereof; (c) decompile, reverse engineer, or disassemble the Software; (d) copy the Software in whole or part, alter, adjust, repair or circumvent any aspect of the Software, or use trade secret information contained in the Software, to develop software to interface with the Software; (e) remove, alter or obscure any confidentiality or proprietary rights notices (including copyright notices) of the Company or its licensors on or within the Software or any copies of the Software; or (f) make the software available to any third party via any server or on the Internet. The prohibitions in this paragraph shall survive termination of this Agreement.
Additionally, Licensee shall not use, nor shall it permit others to use the Software: (i) for any unlawful, invasive, infringing, defamatory, fraudulent or obscene purpose; (ii) to send any virus, worm, trojan horse or harmful code or attachment; (iii) to alter, steal, corrupt, evade, disable, destroy, trespass or violate any security or encryption of any computer file, database or network; (iv) so as to interfere with the use of the Company, its Suppliers, or connectivity partner network by other Licensees or authorized users; or (v) in violation of the acceptable use policies of the Company’s Suppliers or service providers, including its backbone providers. The prohibitions in this paragraph shall survive termination of this Agreement.
Unless you have entered into an agreement to use an affiliate’s payment processing services, which agreement expressly provides for an extended term, the Company may terminate this License to you any time upon thirty (30) days’ written notice (email notice sent to the email address provided by you will suffice, whether or not received by you).
2. RESERVATION OF RIGHTS AND OWNERSHIP.
The Software is licensed (not sold) to you, and the Company, for itself and its licensors, reserves all rights not expressly granted to you in this Agreement. In order to continue using the software under license, you must continue to abide by the terms and conditions in this Agreement. The Software is protected by copyright, trade secret and other intellectual property laws. The Company and/or its licensors own the title, copyright, and other worldwide intellectual property rights in the Software and all copies of the Software. This Agreement does not grant you any rights to trademarks or service marks of the Company or those of its licensors. You further agree that you will not challenge the Company’s or its licensor’s copyrights in or to the Software, and further shall not challenge their rights in or to the EHOPPER trademark.
3. THIRD PARTY SERVICES AND WEBSITES.
(a) In connection with the promotion or your use of the Software, you may be made aware of or offered services, features, products, and promotions provided by third parties, apart from the Company (“Third Party Services”). If you decide to use Third Party Services, you are responsible for reviewing them and understanding the terms and conditions governing any Third Party Services. For purposes of this Agreement, any authorized reseller or master licensee of EHOPPER Software and Services through whom you have been provided such Software shall be a “Third Party” and its services and website shall be, without limitation, considered “Third Party Services” and “Third Party Websites”. You authorize the Company to use and disclose your contact information, including name and address, for the purpose of making the Third Party Services you choose available to you. You also agree that the third party, and not the Company, is responsible for the performance of the Third Party Services, and that you will look only to such third parties in connection with the provision or any failure to provide such Third Party Services.
(b) The Software also may contain or reference links to third party websites operated by third parties (“Third Party Websites”). These links are provided as a convenience only. Such Third Party Websites are not under the control of the Company or its licensors, and neither the Company nor its licensor is responsible for the content of any Third Party Website or any link contained in a Third Party Website. Neither the company nor its licensors review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites, and the inclusion of any link in the Software or Services is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by the Company, its licensors of any information contained in any Third Party Website. In no event will the Company or its licensors be responsible for the information or contained at such Third Party Website or for your use of or inability to use such Website. Access to any Third Party Website is at your own risk, and you acknowledge and understand that linked Third Party Websites may contain terms and privacy policies that are different from those of the Company. The Company is not responsible for such terms, policies and content, and you agree and acknowledge that neither the Company nor its licensors shall have any liability for them.
4. LICENSEE OBLIGATIONS.
In connection with this License You acknowledge and agree that you must: (a) provide for your own access to the World Wide Web and pay any service fees associated with such access, and (b) provide all equipment and services necessary for you to make sufficient connection to the World Wide Web to enable the Software and Services to be provided, including a tablet or other mobile device with an up-to-date compatible operating system, Ethernet, modem, and other equipment. You shall, at your own expense, provide all necessary preparations required to connect to the Software and Services and shall comply with the Company’s installation and maintenance specifications for delivery of the Software and the Services, and you are also solely responsible for the costs of any relocation of its equipment or installation of Software. You shall be responsible for the operation and maintenance of all hardware, software, cabling, services and components that are not provided to you by the Company, and if such items impair your use of the Software and any Services, you shall remain liable for any applicable payment to the Company for the Software and Services. Upon notice from the Company or any authorized reseller or master licensee, that any such component causes or is likely to cause a hazard, interference with or obstruction of the Services, you shall eliminate, repair or remedy such problematic component promptly, and the Company may disconnect the Software and Services immediately until such elimination, repair or remedy occurs. The Company shall not be responsible: (a) for the installation, operation, management or maintenance of any hardware, software, cabling or services not provided by the Company in connection with the Software and Services; (b) if any changes in the Software and Services cause hardware, software, configurations, cabling or services not provided by the Company to become obsolete or to require modification; (c) if any modification or configuration performed by you impairs the performance of the Software and Services hereunder; or (d) for the performance or availability of third party services or facilities provided hereunder. It is your responsibility to meet all legal and card network requirements and you must first notify the card brands and your credit card processor at least 30 days in advance of beginning to surcharge. For the avoidance of doubt, Company shall not be responsible for your compliance with surcharging your customers or using the surcharge feature. Notification is required before you may surcharge. Limit surcharging to credit cards only (no surcharging debit and prepaid cards). The surcharge amount cannot be more than your average MasterCard/Visa discount rate (calculated historically or based on the previous month) or the maximum surcharge cap. Disclose the surcharge as a merchant fee and clearly alert consumers to the practice at point of store entry, at the point of sale and on the consumers receipt. In an online environment, disclosure needs to be on the first page that references credit card brands. You must provide clear disclosure that you impose a surcharge that is not greater than your applicable merchant discount rate for credit card transactions. Currently, several states have surcharging restrictions. Please consult with your legal counsel to determine whether your practices comply with relevant international, federal, state and local laws, rules and regulations. By entering into this Agreement, You represent that, to the best of your knowledge and belief, your use of the Software and Services does not directly or indirectly infringe the legal or contractual rights of a third party. You further represent and warrant that all information provided by you in connection with its license of this Software and Services is accurate, current and complete.
5. LICENSEE CONDUCT ON THE EHOPPER WEB SITE.
THE EHOPPER Website is to be used solely in connection with your business. While using the EHOPPER Website, or any other website provided or hosted by the Company or its licensors, including but not limited to: ehopper.com, b2bsoft.com, btbsoft.com, b2bim.com, and all other, that the Company of its licensors may create in the future, Licensee may not:
(a) Restrict or inhibit any other user from using and enjoying any Service offered through such site;
(b) Post or retransmit any unlawful or fraudulent, information of any kind in connection with the Software, Services or the Company Websites, including without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or foreign law, including without limitation the U.S. export control laws and regulations;
(c) Access any user account apart from the account belonging to Licensee;
(d) Upload or transmit any information or software which contains a virus, trojan horse, worm or other harmful component;
(e) Post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through the Service for commercial purposes (other than as expressly permitted by the provider of such information, software or other material);
(f) Post, publish, transmit, reproduce, or distribute in any way information, software or other material obtained through the Service or the Company Website which is protected by copyright, publicity or privacy laws or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or other rights holder; or
(g) Upload, post, publish, reproduce, transmit or distribute in any way any component of the Service itself or derivative works with respect thereto, as the Service is copyrighted as a collective work under U.S. copyright laws.
6. NO OBLIGATION TO MONITOR
The Company has no obligation to monitor the Software, Service or Third Party Service available through or in connection with its Software. However, Licensee acknowledges and agrees that the Company has the right to monitor the Software and Service electronically from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Software and Services properly, or to protect itself or its subscribers. The Company will not intentionally monitor or disclose any private electronic-mail message unless required by law.
7. GENERAL PRACTICES REGARDING USE, STORAGE AND SERVICE ACCESS.
Licensee acknowledges that the Company may establish from time to time general practices and limits concerning use of the Software and Services, in its sole discretion, with or without notice, including without limitation, establishing the maximum amount of storage space Licensee have at any time, as well as limiting the number of times (and the maximum duration for which) Licensee may access the Software and Service in a given period of time. Licensee agrees that the Company has no responsibility or liability for the deletion or failure to store any Content, messages or other communications or transaction information maintained or transmitted by the Software or Services. Licensee understands that all Content, whether publicly posted or privately transmitted, is either your sole responsibility or the responsibility of the person from which such Content originated. This means that Licensee, and not the Company, is entirely responsible for all Content that Licensee uploads or otherwise transmits via the Software and Services. the Company does not control the Content uploaded or otherwise transmitted by Licensee or other Licensees and, as such, does not guarantee the accuracy, integrity or quality of such Content. “Content” means information, data, text (including but not limited to names of files, databases, directories and groups of the same), software, graphics, video, messages or other materials. Licensee therefore acknowledges that it is responsible for periodically backing up or downloading any data or Content that might be available in connection with the Software, and further acknowledges that the Company’s storage and making available of such Content or data is for convenience only, and that the Company shall have no liability in connection with or arising from any damage to, inaccuracies in, or inability of Licensee to access such Content or data, Licensee acknowledges and agrees that the Company shall have access to and may use Licensee’s client data, Licensee’s usage data, and other information for marketing and research purposes, to improve the Software and Services, to produce industry reports, for maintenance and support purposes, to provide Licensee with information regarding the Company’s affiliates or third party services, and further to satisfy any legal obligation that the Company reasonably believes it may have in such connection. You further agree that the Company shall have no obligation to you to retain the Content for more than thirty (30) days after termination of this Agreement, and may withhold providing you with access to Content pending payment by you of any fees or amounts that may be due under this Agreement.
8. FEES AND PAYMENT.
(a) At the outset of this License, there may be no charge to you to use this Software, provided that you adhere to the terms of the License. Notwithstanding the foregoing, in the event that the Company (or any authorized reseller or master licensee) provides written (including email) Sales Order Form to you that fees will be charged in connection with your continued use of the Software or Services, you agree to pay to the Company all fees for the Service or Software you license or use (including any overage fees), in accordance with the pricing and payment terms presented to you in such Sales Order Form. Where fees may be applicable, you will be billed using the billing method you select through your account management interface or as designated by you on a Sales Order Form, or Merchant Application. Payment by you of such fees is an express condition of this license, and non-payment of such fees will result in termination of your access to the Software and Services or unlicensed use, if such use continues. Fees paid by you are non- refundable, except as provided in these Terms or when required by law. In the event that fees are due under this Agreement, if Licensee is delinquent in any such payment on more than two (2) occasions in any twelve-month period, the Company may, upon written notice to Licensee, modify the payment terms to require full payment before the further provision of any Services or require other assurances to secure Licensee’s payment obligations hereunder. Licensee shall furnish financial information to the Company as the Company may, from time to time, reasonably request. Third Party Services, as well as any Services or Software upgrades or modules requested by Licensee may result in fees or other charges in addition to those set forth on the original Sales Order Form. Except as otherwise expressly stated in a particular Sales Order Form for the Services performed thereunder, the Company reserves the right to change the Services it offers to its Licensees generally and the related rates at any time, upon thirty (30) days’ notice. Licensee specifically acknowledges and agrees that it will not attempt to chargeback any fees authorized by it.
(b) Licensee is responsible for any taxes, duties, fees or surcharges that are imposed or authorized by regulatory and governmental entities, including but not limited to sales, use, gross receipts taxes, surcharges, franchise fees, occupational, excise, universal service (state and federal) taxes and surcharges, and shall pay to the Company or reimburse the Company for amounts paid by the Company relating to Services provided to Licensee.
(c) If Licensee’s Service is disconnected due to nonpayment or late payment by Licensee, Licensee shall be responsible for all costs incurred by the Company resulting from such disconnection.
(d) If Licensee Fees are subsidized by third parties and such third parties decline to pay same Licensee shall be responsible for those fees based on the pricing on any applicable sales order form.
9. DISCLAIMER OF WARRANTIES. THE SOFTWARE, SERVICES AND ANY CONTENT ACCESSIBLE THROUGH THE SOFTWARE OR SERVICES ARE PROVIDED “AS-IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD PARTY CONTENT OR SERVICE PROVIDERS, DEALERS AND SUPPLIERS (COLLECTIVELY “SUPPLIERS”) DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS OR IMPLIED OR STATUTORY, REGARDING THIS SOFTWARE, SERVICES, CONTENT, CDROMS AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NONINFRINGEMENT. THE COMPANY DOES NOT WARRANT OR REPRESENT THAT ANY HARDWARE OR HARDWARE INTERFACE PURCHASED OR LICENSED FROM THE COMPANY OR ITS SUPPLIERS OR OTHERWISE USED IN CONJUNCTION WITH THIS SOFTWARE OR SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, THREAT OF HACKERS, INTERRUPTION OR ERRORS, OR THAT THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS. FURTHER, THE COMPANY AND ITS SUPPLIERS DO NOT WARRANT OR GUARANTEE IN ANY WAY UNINTERRUPTED ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT OR DATA THROUGH THE SOFTWARE OR CONTINUED ACCESS TO ANY VERSION OF THE SOFTWARE (INCLUDING ANY TRIAL VERSION) OR TO THE DATA ENTERED INTO SUCH VERSION OF THE SOFTWARE AFTER THE TERM OR ANY TRIAL PERIOD IS OVER. IN THAT EVENT, TO THE EXTENT ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED APPLY DUE TO LOCAL LAWS, THESE ARE LIMITED IN DURATION TO SIXTY (60) DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SOFTWARE, OR THE SHORTEST POSSIBLE DURATION, WHICHEVER IS LONGER.
THE SOFTWARE AND ANY RELATED SERVICES OR CONTENT ARE DESIGNED TO OPERATE AND PROVIDE INFORMATION WITH THE UNDERSTANDING THAT THE COMPANY AND ITS SUPPLIERS ARE NOT ENGAGED IN RENDERING LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICE. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICE OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. THE COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THIS SOFTWARE, RELATED SERVICES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW. IT IS YOUR RESPONSIBILITY TO KEEP ABREAST OF CHANGES IN LAWS, REGULATIONS AND ACCOUNTING PRACTICES THAT AFFECT YOU AND YOUR BUSINESS.
10. LIMITATION OF LIABILITY AND DAMAGES. YOU AGREE THAT IN NO EVENT WILL THE COMPANY OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS, COST, LIABILITY OR DAMAGE INCURRED AS A RESULT OF YOUR RECEIPT OF, OR PARTICIPATION IN, THIRD PARTY SERVICES OFFERED IN CONNECTION WITH THE SOFTWARE OR SERVICES. THE ENTIRE CUMULATIVE LIABILITY OF THE COMPANY AND ITS SUPPLIERS FOR ANY REASON ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE OR ANY SERVICES SHALL BE LIMITED TO THE GREATER OF $100 OR THE HIGHEST AMOUNT PAID BY YOU TO COMPANY (OR IF YOU PAY AN AUTHORIZED RESELLER OR MASTER LICENSEE, TO SUCH RESELLER OR MASTER-LICENSEE) FOR A SINGLE MONTH’S USE OF THE SOFTWARE AND SERVICES DURING THE PREVIOUS TWELVE MONTHS, UNLESS OTHERWISE SEPARATELY AGREED BY THE COMPANY IN WRITING. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, THE LOSS, CORRUPTION OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS OR INVESTMENT, TAX POSITIONS TAKEN BY YOU, USE OF THE SOFTWARE WITH HARDWARE OR OTHER SOFTWARE THAT DOES NOT MEET THE COMPANY’S SYSTEMS REQUIREMENTS OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY, ITS SUPPLIERS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU. THE COMPANY WOULD NOT BE ABLE TO HAVE PROVIDED THIS SOFTWARE OR SERVICES WITHOUT SUCH LIMITATIONS. YOU FURTHER AGREE AND ACKNOWLEDGE THAT YOU ARE ENTERING INTO THIS AGREEMENT WITH SOLELY THE COMPANY, AND THAT YOU WILL LOOK ONLY TO THE COMPANY, AND TO NO OTHER PARTY, IN CONNECTION WITH ANY CLAIMS, SUITS OR CAUSES OF ACTION ARISING FROM THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, SERVICE INTERRUPTION, CORRUPTION OR LOSS OF DATA, OR ANY FAILURE TO PERFORM THE SERVICES HEREUNDER.
THE FOREGOING LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES SET FORTH IN PARAGRAPH 9 SHALL APPLY TO ANY CLAIMS THAT YOU MAY BRING AGAINST AN AUTHORIZED RESELLER OR MASTER LICENSEE IN CONNECTION WITH OR ARISING FROM THE EHOPPER SOFTWARE AND SERVICES.
11. CONSENT TO CONDUCT BUSINESS ELECTRONICALLY/ RELEASE OF INFORMATION.
(a) Consent to Electronic Communications. the Company may be required by law to send “Communications” (as defined below) to you that may pertain to the Software, the use of information you may submit to the Company, and the Third Party Services you choose. Additionally, certain of the Third Party Services you choose may require Communications with the third parties who administer these programs. You agree that the Company, on behalf of itself, and others who administer such services (as applicable), may send Communications to you by email and/or may make Communications available to you by posting them at one or more of our sponsored websites, such as www.btbsoft.com. You consent to receive these Communications electronically.
The term “Communications” means any notice, record, agreement, or other type of information that is made available to you or received from you in connection with the Software and the Third Party Services.
(b) Consenting to Do Business Electronically. The decision whether to do business electronically is yours, and you should consider whether you have the required hardware and software capabilities described below. Your consent to do business electronically, and our agreement to do so, applies to this Agreement, the Software and any applicable Third Party Services.
(c) Communication Requirements. In order to access and retain an electronic record of Communications, you will need: a computer, a monitor, a connection to an Internet service provider, an Internet browser software that supports 128-bit encryption, and an e-mail address. We do not provide ISP services. You must have your own Internet service provider.
(d) Withdrawal of Consent. If you later decide that you do not want to receive future Communications electronically, write to us at EHOPPER SERVICES LLC , 17 Battery Pl Ste # 715, New York, NY 10004 or email us at email@example.com, with the term WITHDRAWAL OF CONSENT in the subject line. Clearly state your desire to withdraw consent of electronic communication. If you withdraw your consent to receive Communications electronically, we reserve the right to terminate your use of the Software, Services and Third Party Services.
(e) Changes to Your Email Address. In order to provide you with the Communications, you agree to notify us promptly of any change in your email address. You can do so by emailing us at firstname.lastname@example.org (please include both your old and new email addresses).
12. TERMINATION AND END OF TERM.
(b) Termination Fees. Except where early termination occurs due to force majeure (as defined below), if Licensee terminates this Agreement prior to the end of any Term specified in a Sales Order Form, Licensee shall immediately pay all charges that would be due to the Company through the end of the Term (the “Termination Fee”), calculated based on the remaining number of months of the Term, at a monthly rate based on the total monthly charges for the month immediately prior to the Termination. Licensee acknowledges that such Termination Fee is not a penalty but is in the nature of a liquidated damage in connection with such early termination. The Company also shall be entitled to its reasonable attorneys’ or collection fees in connection with recovery of such liquidated damages, and this liquidation of damages provision shall not limit in any way the Company’s rights or remedies to seek and recover from Licensee damages or injunctive relief arising from, or in connection with, causes of action that the Company may have other than for early termination.
(c) Effect of Termination. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Licensee of its obligation to pay all fees that have accrued or are otherwise owed by Licensee, including Termination Fees. Upon expiration or termination of this Agreement: (i) the rights granted to Licensee under this Agreement will cease immediately upon the effective date of such termination and be of no further force or effect; and (ii) Licensee shall immediately surrender to the Company any device that stores the Software.
13. INDEMNITY. Licensee shall indemnify and hold the Company harmless from and against all loss, liability, damage and expense, including payment of the Company’s reasonable attorneys fees, caused or claimed by Licensee’s customers, officers, employees, agents, vendors, partners or contractors and arising from claims or demands: (a) for damages to property or for injury or death to persons, including without limitation any disability, death or Worker’s Compensation benefits; (b) arising from or relating to data transmitted, received or stored on or over the Company’s network by or through Licensee; (c) for infringement of a third party’s proprietary rights based on any information, materials or access to property provided by Licensee; or (d) relating to the use by Licensee of any Software or Services provided under this Agreement. This provision shall survive termination of this Agreement. This indemnity and hold harmless provision shall apply to all claims Licensee may bring against any reseller or master licensee of the Company’s Software and Services relating to subject matter of this indemnity provision; to the extent that any such reseller or master licensee may seek contribution or indemnity from Company in connection with such claims, Licensee shall defend, indemnify and hold Company harmless Company to the same extent as if the claims against Company were brought by a third party – which is to say that Licensee will provide Company with a full indemnity in such instance, including in connection with the payment of Company’s reasonable attorneys’ fees.
(a) Equitable Remedies. Licensee acknowledges that any breach or threatened breach by Licensee of any of the agreements or other or provisions contained in Paragraphs 1, 5, 12 and 13 of this Agreement will result in irreparable and continuing harm to the Company for which the Company would not have adequate remedy at law. Therefore Licensee acknowledges and agrees that in the event of any such breach or threatened breach (or any other breach or act which may otherwise be recognized to be cause irreparable harm), in addition to any other remedy which the Company may have at law or in equity, the Company shall be entitled to such injunctive relief or other equitable remedies to restrain Licensee from violating the provisions of this Agreement and Licensee hereby consents to the granting of such injunctive relief or other equitable remedy by any court of competent jurisdiction, without the Company having to prove the inadequacy of the available remedies at law or any actual damages (and without being required to post a bond or other security). Any such remedy sought or obtained shall not be considered either exclusive or a waiver of the rights of the Company to assert a claim for any other remedies it may have at law or in equity.
(b) Severability and Waiver. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms and provisions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term or provision. The waiver by the Company SOFT of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
(c) Governing Law. This Agreement shall be governed by the laws of the State of New York without reference to its or any other state’s conflicts of law principles. Except for a “Intellectual Property Disputes” as defined below, the parties agree that all disputes, controversies, or claims between them (and including claims against the Company’s Suppliers) arising out of or relating to this Agreement or concerning the respective obligations hereunder of the parties hereto, shall be settled and determined by final and binding arbitration by a panel of a single arbitrator in accordance with and subject to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), or in the event that such entity is not in operation at the time such proceeding may be commenced, pursuant to the corresponding procedures of JAMS. The location of such arbitration shall be New York County, New York. Each party shall bear its own administrative costs and expenses of the arbitration proceeding, including arbitrator’s fees. Licensee waives the right to bring any class arbitration or join as a class member any class arbitration against the Company.
With respect to “Intellectual Property Disputes”, each party hereby irrevocably submits to the exclusive personal jurisdiction of the courts of the State of New York, sitting in New York County, and the courts of the United States for the Southern District of New York. “Intellectual Property Disputes” shall be defined as those disputes (i) involving or relating to unauthorized use or copying of the software or improper use of the Company’s trademark rights, and/or (ii) any challenge to, or the enforcement of (including declaratory actions regarding the ownership, validity or infringement of) the intellectual property rights licensed hereunder.
Each party irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court, any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum and the right to object, with respect to any such suit, action or proceeding brought in any such court, that such court does not have jurisdiction over such party. In any such suit, action or proceeding, each party waives, to the fullest extent it may effectively do so, personal service of any summons, complaint or other process and agrees that the service thereof may be made by certified or registered mail, addressed to such party at its address as set forth in the preamble hereinabove. Licensee further waives the right to a jury, and the right to join in (or bring as a class member) a class action against the Company in connection with any claim arising from or in connection with the Software, the Services, any third party services provided via or in connection with the Software.
In the event that a Court Dispute involves a counterclaim by a party that would ordinarily be heard in arbitration, such counterclaim shall be severable from the Court Dispute, and shall proceed in arbitration, as if such dispute had been brought as an independent claim.
(d) Limitation on Actions. Any action for breach of this Agreement or any other action otherwise arising out of this Agreement must be commenced by the party asserting such action within one (1) year from the date the right, claim, demand, or cause of action first occurs (or 1 year from reasonable discovery of the occurrence of the act or omission giving rise to such cause of action, if such cause of action is not reasonably discoverable), otherwise, such action shall be barred forever and waived by such party.
(e) Assignment. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part by Licensee, and any such attempted assignment shall be void and of no effect, without the advance written consent of the Company. The Company may freely assign, delegate, sublicense or transfer its rights and obligations hereunder.
(f) Force Majeure. Neither Party shall be liable for any delay or failure in performance due to war, acts of terror, riots, embargoes, strikes, accidents, fire, acts of God, supplier or vendor failure, outage or malfunction of local or long distance telecommunications services, utility outage or other occurrence beyond such Party’s direct control (each, a “Force Majeure Event”). The non-performing Party shall notify the other Party of a Force Majeure Event, and if a Force Majeure Event continues for more than sixty (60) days, the Company or Licensee may cancel this Agreement with no further liability (except for any amounts due and not paid by Licensee) as a result of such Force Majeure Event.
(g) Attorneys’ Fees. In any action to enforce the terms of this Agreement, the Company will be entitled to reasonable attorneys’ fees and other costs and expenses incurred by it in connection with such action or arbitral proceeding, including any appeal.
(h) Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, (iii) by email if to the Company at email@example.com, if to Licensee at the email address provided on the Sales Order Form, or (iv) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatories of this Agreement and the relevant Sales Order Form, or to such other address or individual as the parties may specify from time to time by written notice to the other Party.
(i) Authorized Individual. By downloading this agreement and installing the Software, you represent that you have read and understand all of the Terms and Provisions herein, and further that you, as an individual, are authorized to represent and to bind the Licensee to these terms.
(j) Survival. In addition to as expressly set forth herein, Paragraphs 2, 3, 5, 6, 7, 9, 10, 12, 13 and 14 shall survive termination of this Agreement.