- all information related to your Account you submit (1) will be true, accurate, current, and complete; and (2) you will maintain the accuracy of such information and promptly update such registration information as necessary;
- you are at least 15 years of age and you are authorized to provide information to us through the Site, install the Site, and open an Account;
- not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use the Site;
- you will not access the Site through automated or non-human means, whether through a bot, script, or otherwise;
- you will not use the Site for any illegal or unauthorized purpose;
- your use of the Site will not violate any applicable law or regulation; and
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
CREATING YOUR ACCOUNT
You may be required to create an Account with us via the Site. You agree to keep your password confidential and will be responsible for all use of your Account and password. You may change settings and change, update, or delete information you provide by using the Site. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
YOUR USE OF THE SITE
You are responsible for providing and agree to (i) provide us with complete, correct, and accurate information about you when you open your Account and (ii) promptly update that information after it changes. The details of your Account can be updated within your Account via the Site. You are responsible for keeping your password and login information for the Site secret so that only you caprivacy-policyn access your Account on the Site. We are not responsible for any failure by you to keep your password secure or any unauthorized access to your Account. You agree to notify us immediately of any unauthorized use of your Account. Until you notify us of an unauthorized use of your Account, we will continue to process Transactions and charge them to your Payment Method, if applicable.
You are solely responsible for all fees or charges you incur in connection with your use of your mobile device with the Site, including but not limited to, data usage, texting, overages, per-minute charges, roaming, and other telecom or access charges and you acknowledge that such fees or charges may apply and that you are solely responsible for such charges and fees.
You agree to pay all Transaction Charges together with all other fees, charges, or assessments related to each Transaction.
You are responsible for all Transactions initiated using your Account and the related Transaction Charges. If you permit another person or persons to access or use your Account, we will treat this as if you have authorized such use and you will be liable for all Transactions incurred by those persons using your Account.
We will process the amounts for Transactions by charging your Payment Method at the time of your Transaction. If do not have at least one valid Payment Method with all necessary Payment Information, we may immediately suspend or block your ability to complete a Transaction. If your Payment Method is declined, your Account may be blocked or terminated. Additionally, we reserve the right to transfer the claims for unpaid Transaction Charges to third parties.
You are responsible for promptly updating all Payment Information in the event of any changes. We will have no liability for your inability to complete Transactions as a result of incorrect or outdated Payment Information.
We have no liability for any transaction fees, insufficient fund charges, or any other fee, penalty, or charge that is assessed as a result of charges made to any of your registered Payment Methods. You shall remain fully liable to us for the amount of any outstanding Transaction Charges.
You are subject to any applicable terms, conditions, restrictions, and other requirements of any Payment Provider related to any Payment Method and we have no liability for any transaction fees, insufficient fund charges, or any other fee or charge that is assessed by a Payment Provider in connection with your use of such Payment Provider for Transactions.
In connection with your Transactions, we may charge a pre-authorization amount against your credit or debit card, which may reduce the funds you have available for your use.
If, in good faith, you dispute any fees for a Transaction, you must provide written notice of the dispute to us within ten (10) days of the date of the Transaction. Your failure to comply with this procedure shall constitute your approval of such fees.
In the event that you owe us Transaction Charges in connection with your use of the Site, you will pay interest on all amounts not paid when due at the rate of 1.5% per month, or the highest lawful rate, whichever is less.
You may not access or use the Site for any purpose other than that for which we make the Site available. The Site may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
As a user of the Site, you agree not to:
- systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
- make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
- use a buying agent or purchasing agent to make purchases on the Site.
- use the Site to advertise or offer to sell goods and services.
- circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
- engage in unauthorized framing of or linking to the Site.
- trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
- make improper use of our support services or submit false reports of abuse or misconduct.
- engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
- interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
- attempt to impersonate another user or person or use the username of another user.
- sell or otherwise transfer your Account.
- use any information obtained from the Site in order to harass, abuse, or harm another person.
- use the Site as part of any effort to compete with us or otherwise use the Site and/or the content for any revenue-generating endeavor or commercial enterprise.
- decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site.
- attempt to bypass any measures of the Site designed to prevent or restrict access to the Site or any portion of the Site.
- harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site to you.
- delete the copyright or other proprietary rights notice from any Content.
- upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site.
- upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, 3.Payment of Software License Fees. Licensee agrees to pay the Total Monthly Fee via monthly credit card payments using Licensor’s automated payment service. Licensee agrees to execute and return the “Authorization Agreement for Automated Payments Service” to Licensor prior use of the Software on Licensee’s server.web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
- except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software.
- disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site.
- use the Site in a manner inconsistent with any applicable laws or regulations.
USER GENERATED CONTRIBUTIONS
The Site may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Site, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Contributions”).
Contributions may be viewable by other users of the Site and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary. When you create or make available any Contributions, you thereby represent and warrant that:
- the creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
- your Contributions are not false, inaccurate, or misleading.
- your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
- your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
- your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
- your Contributions do not advocate the violent overthrow of any government or incite, encourage, or threaten physical harm against another.
- your Contributions do not violate any applicable law, regulation, or rule.
- your Contributions do not violate the privacy or publicity rights of any third party.
- your Contributions do not contain any material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner.
- your Contributions do not violate any federal or state law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
- your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
MOBILE APPLICATION LICENSE
You shall not:
- decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application.
- make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application.
- violate any applicable laws, rules, or regulations in connection with your access or use of the application.
- remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the application.
- use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended.
- make the application available over a network or other environment permitting access or use by multiple devices or users at the same time.
- use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application.
- use the application to send automated queries to any website or to send any unsolicited commercial email.
- use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.
Apple and Android Devices
The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the Site:
- the license granted to you for our mobile application is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service;
- you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application;
- in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the mobile application;
- you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) you are not listed on any U.S. government list of prohibited or restricted parties;
- you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; and
TERM AND TERMINATION
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (i) ERRORS, MISTAKES, OR INACCURACIES ON OR IN CONNECTION WITH THE SITE, (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (vi) ANY ERRORS OR OMISSIONS ON OR IN CONNECTION WITH THE SITE OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
LIMITATIONS OF LIABILITY
IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM OR RELATED TO YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE ONE (1) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING OR FIFTY DOLLARS ($50).
BY USING THE SITE AND/OR THE SERVICES, YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE AND GIVE UP ANY AND ALL CLAIMS WHICH YOU MAY HAVE AGAINST US, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO OR ARE CONNECTED WITH THE USE OF THE SITE AND/OR THE SERVICES. YOU FURTHER WAIVE, RELEASE AND GIVE UP ANY AND ALL CLAIMS AND DEFENSES ARISING FROM OR RELATING TO ANY ACT, EVENT OR OMISSION. INCLUDING, WITHOUT LIMITATION, ANY CLAIM WHICH COULD BE ASSERTED NOW OR IN THE FUTURE UNDER (I) THE COMMON LAW; (II) ANY OF OUR POLICIES, PRACTICES, OR PROCEDURES; AND/OR (III) ANY FEDERAL AND/OR STATE STATUTES OR REGULATIONS.
Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
As part of your use of the Site, we may send reminders, alerts, or critical Site-related notifications via Messaging to your mobile device. You are responsible for any message-related charges and fees to your mobile device.
With each Transaction, you may receive Messaging relating to your Transaction or EZ Transaction service communications. You acknowledge and agree that the timely receipt of Messaging is not guaranteed. You further acknowledge and agree that the receipt of Messaging is dependent on the operation, coverage, and services of your mobile network provider and/or internet service provider. We shall have no responsibility or liability for the damages and/or costs incurred by you not receiving Messaging on time or at all or by the insufficient operation of your mobile network, mobile network provider, and/or internet service provider.
You may opt out of receiving SMS, email, and/or push notifications by making changes to your Account. You may not opt out from receiving certain in Site messages related to Site operation. For questions or assistance in receiving or opting out of receiving SMS, email, and/or push notifications, you may contact us via the methods provided in the Contact Us section below.
Opting out of Messaging may impair your ability to use the full functionality and features of the Site and may prevent you from receiving the full benefits of the Site.
By posting your Contributions to any part of the Site or making Contributions accessible to the Site by linking your account from the Site to any of your social networking accounts, you automatically grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute such Contributions (including, without limitation, your image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels.
This license will apply to any form, media, or technology now known or hereafter developed, and includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in your Contributions.
We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Site. You are solely responsible for your Contributions to the Site and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.
We have the right, in our sole and absolute discretion, (i) to edit, redact, or otherwise change any Contributions; (ii) to re-categorize any Contributions to place them in more appropriate locations on the Site; and (iii) to pre-screen or delete any Contributions at any time and for any reason, without notice. We have no obligation to monitor your Contributions.
GUIDELINES FOR REVIEWS
We may provide you areas on the Site to leave reviews or ratings. When posting a review, you must comply with the following criteria:
- you must have firsthand experience with the person/entity being reviewed;
- your reviews must not contain profanity, or abusive, racist, offensive, or hate language;
- your reviews must not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability;
- your reviews must not contain references to illegal activity;
- you must not be affiliated with competitors if posting negative reviews;
- you must not make any conclusions as to the legality of conduct;
- you may not post any false or misleading statements; and
- you may not organize a campaign encouraging others to post reviews, whether positive or negative.
We may accept, reject, or remove reviews in our sole discretion. We have absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our Affiliates or partners.
We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review. By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable, and sublicensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content relating to reviews.
As part of the functionality of the Site, you may be able to link your account with online accounts you have with third-party service providers (each such account, a “Third-Party Account”) by either: (i) providing your Third-Party Account login information through the Site; or (ii) allowing us to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account.
You represent and warrant that you are entitled to disclose your Third-Party Account login information to us and/or grant us access to your Third-Party Account, without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account, and without obligating us to pay any fees or making us subject to any usage limitations imposed by the third-party service provider of the Third-Party Account.
By granting us access to any Third-Party Accounts, you understand that (i) we may access, make available, and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “Social Network Content”) so that it is available on and through the Site via your account, including without limitation any friend lists and (ii) we may submit to and receive from your Third-Party Account additional information to the extent you are notified when you link your account with the Third-Party Account.
Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your account on the Site. Please note that if a Third-Party Account or associated service becomes unavailable or our access to such Third-Party Account is terminated by the third-party service provider, then Social Network Content may no longer be available on and through the Site. You will have the ability to disable the connection between your account on the Site and your Third-Party Accounts at any time.
PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. We make no effort to review any Social Network Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and we are not responsible for any Social Network Content.
You acknowledge and agree that we may access your email address book associated with a Third-Party Account and your contacts list stored on your mobile device or tablet computer solely for purposes of identifying and informing you of those contacts who have also registered to use the Site. You can deactivate the connection between the Site and your Third-Party Account by contacting us using the contact information below or through your account settings (if applicable). We will attempt to delete any information stored on our servers that was obtained through such Third-Party Account, except the username and profile picture that become associated with your account.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site (“Submissions”) provided by you to us are not confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you.
You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
THIRD-PARTY WEBSITES AND CONTENT
The Site may contain (or you may be sent via the Site) links to other websites (“Third-Party Websites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Site or any Third-Party Content posted on, available through, or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content.
You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
We may allow advertisers to display their advertisements and other information in certain areas of the Site, such as sidebar advertisements or banner advertisements. If you are an advertiser, you shall take full responsibility for any advertisements you place on the Site and any services provided on the Site or products sold through those advertisements. Further, as an advertiser, you warrant and represent that you possess all rights and authority to place advertisements on the Site, including, but not limited to, intellectual property rights, publicity rights, and contractual rights. As an advertiser, you agree that such advertisements are subject to our Digital Millennium Copyright Act (“DMCA”) Notice and Policy provisions as described below, and you understand and agree there will be no refund or other compensation for DMCA takedown-related issues. We simply provide the space to place such advertisements, and we have no other relationship with advertisers.
Any Promotions we offer will be subject to the Promotion Conditions set forth in the Promotion, in the communication to you providing such Promotion, or the Site. We, in our sole discretion, will determine whether you have met the Promotion Conditions, are qualified to receive the Promotion, or receive the Promotion, and you agree that our decisions in this regard are final and binding. You further agree that we will have no liability for our determinations with respect to the Promotion Conditions or Promotion, our termination or suspension of the Promotion, or the actions of any third party with respect to the Promotion, including the denial of, termination of, or failure to honor the terms of the Promotion or application of additional Promotion Conditions.
We reserve the right, but not the obligation, to:
- in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof;
- in our sole discretion and without limitation, notice, or liability, remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and
- otherwise manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site.
MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Site without notice at any time.
We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site. We cannot guarantee the Site will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors.
We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site during any downtime or discontinuance of the Site.
There may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to the Site, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by any errors, inaccuracies, or omissions on or in connection with the Site.
DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE AND POLICY
We respect the intellectual property rights of others. If you believe that any material available on or through the Site infringes upon any copyright you own or control, please immediately notify us using the contact information provided below (a “Notification”).
A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Site infringes your copyright, you should consider first contacting an attorney.
All Notifications should meet the requirements of DMCA 17 U.S.C. § 512(c)(3) and include the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by the Notification, a representative list of such works on the Site;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted;
- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed upon.
If you believe your own copyrighted material has been removed from the Site as a result of a mistake or misidentification, you may submit a written counter notification to us using the contact information provided below (a “Counter Notification”).
To be an effective Counter Notification under the DMCA, your Counter Notification must include substantially the following:
- identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled;
- a statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the United States, for any judicial district in which we are located;
- a statement that you will accept service of process from the party that filed the Notification or the party’s agent;
- your name, address, and telephone number;
- a statement under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- your physical or electronic signature.
If you send us a valid, written Counter Notification meeting the requirements described above, we will restore your removed or disabled material, unless we first receive notice from the party filing the Notification informing us that such party has filed a court action to restrain you from engaging in infringing activity related to the material in question.
Please note that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorneys’ fees. Filing a false Counter Notification constitutes perjury.
If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website adr.org.
Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party.
The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Marion County, Indiana.
Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Marion County, Indiana, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts.
In no event shall any Dispute brought by either Party related in any way to the Site be commenced more than one (1) year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (i) no arbitration shall be joined with any other proceeding; (ii) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration
The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (i) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (ii) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (iii) any claim for injunctive relief.
If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
We may maintain certain data that you transmit to the Site for the purpose of managing the Site, as well as data relating to your use of the Site. You are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site, sending us emails, and/or completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE.
You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
“Account” refers to the account you register with us and activate for the purpose of using the Site.
“Affiliates” mean any person or entity which directly or indirectly controls, is controlled by, or is under common control with us, whether by ownership or otherwise.
“Messaging” means, collectively, communications with you via SMS texts, in Site messaging, push notifications, or email.
“Payment Information” means information, including information of any type necessary to process payments in connection with any Transaction, related to payments via the Payment Methods.
“Payment Methods” means payment via a credit card we accept and any other payment methods we accept in the future as reflected in the Site.
“Payment Providers” mean, collectively, (i) issuers of credit cards, debit cards, prepaid cards, gift cards, or the like, (ii) banking or financial institutions, (iii) electronic or digital wallet companies, and (iv) any other entity through which payments are made to complete Transactions.
“Promotion” means any program, offer, or promotion for discounted or waived fees or charges related to the Site.
“Promotion Conditions” mean, collectively, the terms, conditions, qualifications, exclusions, completion requirements, participation requirements, and other restrictions stated for a Promotion.
“Transaction” means a purchase of our product(s) and/or service(s).
“Transaction Charges” include all service fees, convenience fees, processing fees, taxes, assessments or charges, and other costs, charges, and fees related to a Transaction.
In order to resolve a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at:
C.E.R. Development LLC
[Corporate Phone Number]
Software License Agreement
This Software License Agreement (“Agreement”) is made and entered into on [month] [day] 20___ by and between C.E.R. Development LLC (“Licensor”) located at 1028 E. Sleepy Hollow Dr., Greensburg, IN 47240 and ___Business _______________(“Licensee”) located at ____Address_________________________________.
WHEREAS, Licensor is the owner of, or is authorized to license the rights to, the Software (as defined below).
WHEREAS, Licensor desires to grant to Licensee and Licensee desires to obtain from Licensor a non-exclusive license to use the Software solely in accordance with the terms and on the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the terms and conditions hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties agree as follows:
1. Grant of Rights. Licensor grants Licensee a revocable, non-exclusive, nontransferable license to use the EZ Transaction application, including the web panel software, iPhone / iPad / iPod software and any related user documentation and images (collectively the “Software”) in accordance with this Agreement. “Software” also includes any updates, upgrades, modifications, revisions, and additions to the Software released by Licensor. “Use” means loading, storing, installing, executing, and/or displaying the Software. Licensor reserves the right, without liability or prior notification, to change the features or characteristics of the Software at any time. Licensor reserves all rights not granted.
2. Term. The term of this Agreement begins on ___________________ and shall continue for a term of twelve (12) months and shall be renewed unless terminated otherwise according to Article 12 (“Term”).
3. Access to Server. During the Term of this Agreement, Licensee acknowledges and agrees that Licensor shall have the right to remotely access Licensee’s server to maintain the Software. Licensee agrees to provide Licensor with the required information in a timely manner and agrees to notify Licensor immediately of any changes in the information.
4. Modifications and Technical Support.
4.1 Technical Support, Error Corrections and Updates. During the Term of this Agreement, Licensor will provide Licensee with technical support, error corrections, bug fixes, patches or other updates to the Software licensed hereunder via access to Licensee’s server. Licensee agrees that these terms and conditions govern any technical support, bug fixes, patches or other updates provided by Licensor pertaining to this Software or any other subject matter.
4.2 Other Modifications. Licensee may, from time to time, request that Licensor incorporate certain features, enhancements or modifications into the Software. Licensor may, in its sole discretion, undertake to incorporate such changes and distribute the Software so modified to all or any of Licensor’s licensees.
4.3 Title to Modifications. All such error corrections, bug fixes, patches, updates or other modifications shall be the sole property of Licensor.
5. License Fees and Payment. In consideration of the license rights granted in Article 1 above, Licensee shall pay the license fees or other consideration for the Software and services as set forth on Schedule A attached hereto. Schedule A is integral to this Agreement and is incorporated herein by this reference with the same force and effect as if set forth herein as agreements of the parties.
6. Protection of Software.
6.1 Proprietary Notices. Licensee agrees to respect and not to remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the Software or output generated by the Software, and to reproduce and include the same on each copy of the Software.
6.2 Restrictions. Licensee agrees not to, without limitation, modify, reverse engineer, disassemble, or decompile the Software, or any portion thereof. Licensee may not market, distribute, sell, transfer, sublicense, assign or otherwise convey the Software or copies of the Software to others. Except as specifically set forth herein, Licensee may not copy the Software in whole or in part, except for Licensee’s backup or archive purposes.
6.3 Ownership. Licensee further acknowledges that the Software, whether internet-based or not, in any form provided by Licensor is the sole property of Licensor and/or its affiliates. Licensee shall not have any right, title, or interest to any such Software thereof except as provided in this Agreement, and further shall secure and protect all Software consistent with maintenance of Licensor’s proprietary rights therein.
6.4 Access to Software. Licensee agrees that only the Licensee shall have access to the Software. Licensee agrees not to allow access to the Software to any person or entity who is knowingly an actual or potential competitor of Licensor or its affiliates.
7. Protection of Licensee Data. The parties agree that the Licensor is the data collector and data processor and Licensee is the data controller, in regards to any personal data used in connection with the Software as described below.
7.2 Licensor’s Obligations. Licensor shall (a) maintain the Personal Data separately from the personal data of other licensees, (b) make the Personal Data available to Licensee at all times, (c) not disclose the Personal Data to any unauthorized third party without Licensee’s express written consent, and (d) take all reasonable measures to maintain the confidentiality of the Personal Data as set forth below in Section 8.3.
7.3 Indemnification. Licensee agrees to indemnify and hold Licensor harmless against any and all third party claims (including claims by third party providers engaged by Licensee) arising from or relating to Licensor’s breach of this Agreement or as a result of any violation of any applicable law or regulation by Licensor.
8.1 Acknowledgement by Licensee. Licensee hereby acknowledges and agrees that the Software constitutes and contains valuable proprietary products and trade secrets of Licensor and/or its suppliers and its customers, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, Licensee agrees to treat (and take precautions to ensure that its employees, consultants, or independent contractors treat) the Software as confidential in accordance with the confidentiality requirements and conditions set forth below in Section 8.3.
8.2 Maintenance of Confidential Information. Each party agrees to keep confidential all confidential information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to use of disclosure to others not parties to this Agreement of such confidential information as can be established to: (a) have been known publicly; (b) have been known generally in the industry before communication by the disclosing party to the recipient; (c) have become know publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (d) have been known otherwise by the recipient before communication by the disclosing party; or (e) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information.
8.3 Injunctive Relief for Licensor. Licensee acknowledges that the unauthorized use, transfer or disclosure of the Software will (a) substantially diminish the value to Licensor of the trade secrets and other proprietary interests that are the subject of this Agreement; (b) render Licensor’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (c) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use or confidentiality of the Software, Licensor shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief, in addition to all other remedies available at law or in equity to restrain Licensee from such breach or threatened breach. Licensee agrees that Licensee shall be responsible for any breach of this Agreement by any of its employees, agents, independent contractors, officers, directors, and representatives.
8.4 Survival. The obligations under this Article 8 will survive the termination of this Agreement or of any license granted under this Agreement for whatever reason.
9. Warranties and Liability.
9.1 Limited Warranty. Licensor warrants that the Software will substantially perform its functions when used and maintained by Licensor.
9.2 Limitations. Notwithstanding the warranty provisions set forth in Section 9.1 above, all of Licensor’s obligations with respect to such warranties shall be contingent on Licensee’s use of the Software in accordance with this Agreement and in accordance with Licensor’s instructions, as such instructions may be amended, supplemented, or modified by Licensor from time to time. The warranty set forth in Section 9.1 shall not apply and is void if: (a) the failure of the Software to perform its functions has resulted from unauthorized modifications, accident, abuse, misapplication, misuse, extreme power surge or extreme electromagnetic field; or (b) the Software has been used in combination with or operated with third party products not approved by Licensor for use with the Software.
9.3 Licensee’s Sole Remedy. Licensor’s entire liability and Licensee’s exclusive remedy shall be, at Licensor’s option: (a) correct the error, (b) make an update generally commercially available, or (c) work out a reasonable alternative. A reasonable alternative includes, but is not limited to, a temporary method of circumventing the error. THESE ARE LICENSEE’S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF THE WARRANTY SET FORTH IN SECTION 9.1; provided Licensor receives written notice from Licensee describing the breach of warranty claim with sufficient detail.
9.4 Disclaimer of Warranties. LICENSOR DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE SOFTWARE WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 9.1 ABOVE ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY LICENSOR. THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF LICENSOR HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF LICENSOR IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF LICENSOR AS SET FORTH HEREIN.
9.5 Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH LICENSOR IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY LICENSOR OF THE RISK OF LICENSEE'S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH LICENSEE'S USE OF THE SOFTWARE. ACCORDINGLY, LICENSEE AGREES THAT LICENSOR SHALL NOT BE RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE LICENSING OR USE OF THE SOFTWARE. Any provision herein to the contrary notwithstanding, the maximum liability of Licensor to any person, firm or corporation whatsoever arising out of or in the connection with any license or use of any Software delivered to Licensee hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to Licensor by Licensee for the Software whose license or use gives rise to the liability. The essential purpose of this provision is to limit the potential liability of Licensor arising out of this Agreement. The parties acknowledge that the limitations set forth in this Article 9 are integral to the amount of consideration levied in connection with the license of the Software and any services rendered hereunder and that, were Licensor to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
10.1 Licensor shall indemnify, hold harmless and defend Licensee against any action brought against Licensee to the extent that such action is based on a claim that the unmodified Software, when used in accordance with this Agreement, infringes a United States copyright and Licensor shall pay all costs, settlements and damages finally awarded; provided, that Licensee promptly notifies Licensor in writing of any claim, gives Licensor sole control of the defense and settlement thereof and provides all reasonable assistance in connection therewith. If any Software is finally adjudged to so infringe, or in Licensor’s opinion is likely to become the subject of such a claim, Licensor shall, at its option, either: (a) procure for Licensee the right to continue using the Software (b) modify or replace the Software to make it noninfringing, or (c) refund the fee paid, less reasonable depreciation of the Software. Licensor shall have no liability regarding any claim arising out of: (i) use of other than a current, unaltered release of the Software unless the infringing portion is also in the then current, unaltered release, (ii) use of the Software in combination with non-Licensor software, data or equipment if the infringement was caused by such use or combination, (iii) any modification or derivation of the Software not specifically authorized in writing by Licensor or (iv) use of third party software. THE FOREGOING STATES THE ENTIRE LIABILITY OF LICENSOR AND THE EXCLUSIVE REMEDY FOR LICENSEE RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT OR OTHER PROPRIETARY RIGHT BY THE SOFTWARE.
10.2 Except for the foregoing infringement claims, Licensee shall indemnify and hold harmless Licensor, their officers, agents and employees from and against any claims, demands, or causes of action whatsoever, including without limitation those arising on account of Licensee’s modification or enhancement of the Software.
11. Export Law Assurances. Licensee agrees and certifies that the Software or any other technical data received from Licensor will not be exported outside the United States except as authorized and as allowed by the laws and regulations of the United States. Licensee further agrees that the Software will not be exported to any country currently on the United States Bureau of Export Administration’s list of embargoed countries.
12. Default and Termination.
12.1 Events of Default. This Agreement may be terminated by Licensor if any of the following events of default occur (“Events of Default”): (a) if Licensee materially fails to perform or comply with this Agreement or any provision hereof; (b) if Licensee fails to strictly comply with the provisions of Section 8 (Confidentiality) or makes an assignment in violation of Section 14 (Assignment); (c) if Licensee becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (d) if a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by Licensee; or (e) if such a petition is filed by any third party, or an application for a receiver is made by anyone and such petition or application is not resolved favorably within ninety (90) days.
12.2 Effective Date of Termination. Termination due to a material breach of Articles 1 (Grant of Rights), 6 (Protection of Software), or 8 (Confidentiality) shall be effective on notice. In all other cases, termination shall be effective thirty (30) calendar days after notice of termination to Licensee if any of the Events of Default have not been cured within such thirty (30) calendar day cure period.
12.3 Obligations on Termination. Within five (5) business days after termination of this Agreement, Licensee shall cease and desist all use of the Software and shall delete all copies and records of the Software in Licensee’s possession or under its control, and Licensor shall destroy or return all Personal Data to Licensee.
13. Notices. All notices, authorizations, and requests in connection with this Agreement shall be deemed given (a) five (5) calendar days after being deposited in the U.S. mail, postage prepaid, certified or registered, return receipt requested; or (b) one (1) business day after being sent by overnight delivery, by facsimile with a transmission confirmation, or by email with delivery confirmation to firstname.lastname@example.org.
14. Assignment. Licensee shall not assign, sublicense, or transfer this Agreement or its rights hereunder without the prior written consent of Licensor. Any attempt to do so is void. Licensor shall have the right to assign this Agreement or its rights hereunder and may contract with other licensees.
15. Governing Law; Jurisdiction and Venue. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Indiana regardless of its choice of laws provisions. Any legal suit, action, or proceeding arising out of or relating to these Terms or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Indiana in each case located in the City of Indianapolis and County of Marion County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. The prevailing party will have the right to collect from the other party its reasonable attorneys’ fees, costs, and necessary disbursements incurred in interpreting or enforcing this Agreement through appeal.
17. Severability. If any provision of this Agreement shall be held invalid or unenforceable after hearing or proceedings before a court of competent jurisdiction, such provision shall be deemed deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect so long as the deleted provision does not eliminate or otherwise substantially change the economic benefits of this Agreement to either party or significantly impair the rights or increase the obligations of either party. The parties shall make good faith efforts to replace each such deleted provision by a valid and enforceable provision mutually agreeable to the parties.
18. Construction. In the event of a dispute hereunder, this Agreement shall be interpreted in accordance with its fair meaning and shall not be interpreted against Licensor on the ground that such party drafted or caused to be drafted this Agreement or any part hereof, nor shall any presumption or burden of proof or persuasion be implied by virtue of the fact that this Agreement may have been prepared by or at the request of Licensor or its counsel.
19. Miscellaneous. The recitals set forth above constitute an integral part of this Agreement and are incorporated herein by this reference with the same force and effect as if set forth herein as agreements of the parties. This Agreement and the attached Schedule A, each amended from time to time, constitute the entire agreement between Licensor and Licensee and supersede all prior and contemporaneous negotiations, understandings, agreements, inducements, electronic correspondence, and conditions of any nature whatsoever, whether oral or written and whether or not executed by Licensor or Licensee, with respect to the subject matter of this Agreement. This Agreement may not be supplemented, modified, amended, released or discharged except by an instrument in writing signed by each party's duly authorized representative. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.
Schedule A – Fees and Payment to the Software License Agreement
Licensor and Licensee further agree to the following terms and conditions:
1.Licensee Venues. The parties agree that only the following Licensee venues may use the Software during the Term:
2.Software License Fees. Licensee agrees to pay the following Software license fees on a monthly basis: $29.95
Total Monthly Fee: $29.95
3.Payment of Software License Fees. Licensee agrees to pay the Total Monthly Fee via monthly credit card payments using Licensor’s automated payment service. Licensee agrees to execute and return the “Authorization Agreement for Automated Payments Service” to Licensor prior use of the Software on Licensee’s server.
4. Taxes and Other Charges. Licensee agrees to pay, without limitation, all sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing of the Software.