End User License Agreement
Checkout Champ LLC (“Checkout Champ”) delivers industry-specific technology solutions designed to support the ecommerce and digital marketing needs of merchants, including through technology-enabled customer relationship management, checkout and funnel solutions (“Solutions”). We deploy the Solutions remotely through the cloud and make it accessible via online, web-based interfaces such as https, VPN or API. Certain additional capitalized words and phrases in these Terms of Service have special meanings that are provided in Section 16, or if not so defined, are indexed in Section 16. The English language version of these Terms of Service is the controlling version regardless of any translation.
IMPORTANT NOTE TO BE READ BEFORE ACCESSING OR USING THE OFFERINGS. Checkout Champ licenses the Offerings to you only upon the condition you accept all of the terms contained in the Agreement. Before you click indicating acceptance of the subscription of, and prior to using the Offerings, you should carefully read all the terms and conditions of the Agreement. By clicking that you agree to these Terms of Service you are consenting to be bound by and are becoming a party to the contract formed by these Terms of Service, the attached Exhibit and all policies, practices, rules, standards and guidelines (collectively, the “Policies”) related to the Offerings (the Terms of Service and the Policies, collectively referred to as, the “Agreement”) and also will be acknowledging that you have the authority to enter into this Agreement and bind yourself or your company, as applicable. If you do not agree to all of the terms of the Agreement, Checkout Champ is unwilling to license the Offerings to you, in which event do not click acceptance of its terms and stop the account setup process or any use of the Offerings.
1. Accessing Checkout Champ
These Terms of Service establish each of your and Checkout Champ’s legal rights and obligations. Prior to using the Offerings, you will be required to register and set up an account (“Account”). As part of this registration process, Subscriber will identify administrative user names and passwords for Subscriber’s Account who will have the greater configuration and parameterization Use Rights that we grant to such category of users (“Administrators”). Subscriber shall be responsible for: (a) providing true, accurate, current and complete information in all material respects; (b) verifying the Administrators and updating such information on a regular basis; and (c) notifying us immediately of an unauthorized use of the Offerings and/or the Account or any other known or suspected breach of security of the Offerings and/or Account of which Subscriber becomes aware. Failure to do so may result in suspension or termination of your Account and use of the Offerings. Account set up also includes our issuance or your creation of authentication credentials (e.g., user name/password). You and Users must maintain strict confidentiality of such credentials. You are responsible for all activity under the Account.
2. Use Rights, Metrics and related Terms
2.1. Use Rights and MetricsSubject to the terms and conditions of this Agreement, We grant to you, during the applicable Term, a personal, revocable, non-exclusive, non-assignable, non-transferable right to permit: (a) your Administrators to access the subscribed Offerings and create and edit security profiles and configure such Offerings parameters for Business Users; (b) your Business Users to access and perform, remotely through the applicable online interface, the executable features and functions, and perform and display the content and graphical components of the subscribed Offerings solely in connection with your internal business operations and within the configurations and parameters set by your Administrator; and (c) display and reproduce the documentation for the subscribed Offerings as reasonably required for such use (collectively, “ Use Rights”). Use Rights extend to updates we provide as part of the Cloud Services. The Agreement may list metrics, including number of users, data volume or other means to measure usage or fees (the “ Usage Metrics”). The Use Rights are subject to the Usage Metrics and any other restrictions in the Agreement. If you exceed Usage Metrics, we may suspend access to the Offerings until you have paid the required fees. You must bind Users to the Agreement and your Use Rights. Checkout Champ shall have the right to request from Subscriber its certification of compliance with the Usage Metrics (which are subject to Checkout Champ’s sole discretion).
2.2 Conditions; Acceptable Use The Use Rights are subject to the Agreement and the only acceptable use of the Offerings. You and your Users are expressly prohibited from doing any of the following to the Offerings, or using it for purposes of, or in connection with: (a) engaging in any activity that violates payment card rules such as so-called load balancing whereby customer transactions are distributed across multiple merchants; (b) fraudulent activities; (c) reverse engineering, making machine code human readable or creating derivative works or improvements; (d) scraping, crawling, downloading, screen-grabbing, or other similar actions; (e) copying them; (f) commercially exploiting or providing them to third parties other than Users (whether by sublicense, sale or other means); (g) introducing, transmitting or storing malicious code; (h) interfering with their security or operation; (i) framing or mirroring them outside of your own intranets; (j) creating, benchmarking or gathering competitive intelligence; (k) removing, modifying or obscuring proprietary rights notices ; (l) defaming or harassing; (m); infringing another’s IPR including failing to obtain permission to upload/display works of authorship; (n) intercepting or expropriating data; (o) spamming, spoofing or otherwise misrepresenting transmission sources; and/or (p) use of a single Account for multiple business entities. You must comply with all applicable local, state, national and foreign laws, treaties and regulations applicable to your use of the Offerings including (i) U.S. export control laws such as export to embargoed, prohibited or restricted countries or access by prohibited, denied and specially designated persons; (ii) those related to data privacy, international communications and the transmission of technical or personal data; and (iii) those related to marketing and payment cards including the Controlling the Assault of Non-Solicited Pornography and Marketing Act, the Telephone Consumer Protection Act, and the Payment Card Industry Data Security Standards, promulgated by the card brands (e.g., Visa, Mastercard, American Express, and Discover) and any other card brands that process transaction’s through the Offerings. You are responsible for the acts and omissions of all Users that access and use of the Offerings. You acknowledge that the Offerings may contain features and functionality (including codes that act as keys to “lock” and “unlock” access to software) designed to render the Offerings technologically incapable of being used except as permitted by the Agreement.
2.3. Evaluation. Your subscription may expressly indicate that we are permitting you to use the Offerings on a trial basis (“Evaluation Rights”). If the subscription so indicates: (a) the Evaluation Rights are granted during the limited evaluation period identified (the “Evaluation Period”); and (b) the Offerings may have limited features and functions, may not be compatible with other systems and are not subject to any warranties or any specific support, maintenance or levels of service. If we do not charge you for Evaluation Rights our liability is limited to direct damages in the amount of U.S. $100. Unless other terms are already stated in the Agreement, upon expiration of the Evaluation Period your rights will automatically convert to full Use Rights subject to these Terms of Service and we will invoice you per Section 6.
2.4. Suspension We may immediately suspend you or a User’s right to access or use any portion or all of the Offerings if: (a) we determine that you or an User: (i) poses a security risk to or may materially harm the Offerings or any third party; (ii) may adversely impact the services, systems, or content of any other Checkout Champ customer; or (iii) may subject Checkout Champ, its affiliates or any third party to liability; or (b) we are otherwise required by applicable law or regulation to do so. In the event of a suspension, we will, where not prohibited by applicable law or regulation and reasonable under the circumstances, provide you with prior notice of any such suspension and an opportunity to take steps to avoid any such suspension. Any suspension shall be in effect for as long as reasonably necessary to address the issues giving rise to the suspension. Subscriber acknowledges that in the event of any such suspension, Subscriber will not have access to the Offerings (or a portion thereof) and thus, may be unable to access any Subscriber Data that is stored within the Offerings. Upon any suspension, Subscriber shall remain responsible for all Fees it has incurred through the date of suspension and for any Fees with respect to the Offerings to which Subscriber continues to have access. Our right to suspend is in addition to any right to terminate this Agreement (or portion thereof) pursuant to Section 7.2.
3. Third Party Software and Data
Certain Third Party Software and Data may already be fully integrated with the Offerings such that the user experience does not change and we do not charge as a separate line item (“Integrated Third Party Software and Data”). We have been authorized to resell, distribute, or otherwise provide our customers with the Integrated Third Party Software and Data and do so on either a sublicense or pass-through basis, subject to the separate terms and conditions of its owners and licensors may require us to flow-down to you. We do not have the authority to modify those terms and conditions but do hereby represent that we have the authority to so provide the Integrated Third Party Software and Data to you under the Agreement such that you may use it in connection with the Offerings. To the extent they vary materially from these Terms of Service, we will make any required flow-down terms available to you upon request.
4. The Services
As may be more fully agreed and described in the Agreement, we will perform services to set-up and implement the Solutions in its Cloud-based production environment and integrate feeds or other interfaces within the agreed scope (the “Implementation Services”). The Implementation Services will include these services to the extent set forth in the Agreement. Following completion of the Implementation Services and payment therefor, we will perform ongoing services during the Term to manage, support, and maintain the Solutions in, and make them available from, our cloud infrastructure in accordance with the terms of the Agreement (the “Cloud Services”). From time to time, Subscriber may request, and, if agreed, Checkout Champ will perform, development services related to the Solutions (“Development Services”). Development Services and all resulting deliverables will be accepted by Subscriber upon payment or fifteen (15) days after their performance, whichever occurs first. Subscriber may not withhold, condition, or delay payment or acceptance of the Development Services or their results after that time. Checkout Champ also offers various add-on services, either provided internally or through third-party providers that the Subscriber can select from time to time (“Add-On Services”). The Add-On Services are optional and are listed along with their fees in Exhibit A hereto which is incorporated into the Agreement by this reference.
5. . IPR Ownership; Data Rights
5.1. Offerings As between you and Checkout Champ, all IPR in and to the Offerings and Checkout Champ Data and all of its derivative works and improvements as well as anything created under Section 4 and any suggestions, recommendations or other feedback you provide regarding the Offerings, are owned or licensed by, and are proprietary to, Checkout Champ. Your rights in and to them are limited to the scope of the Use Rights. To the extent you provide access under your Use Rights to a government agency, and for all purposes related Federal Acquisition Regulations, Defense Federal Acquisition Regulations or their state analogs, no IPR ownership is transferred or rights granted to a government agency. The Offerings are “commercial computer software”, “commercial computer software documentation” and “restricted data” provided under “Limited Rights” and “Restricted Rights” and only as commercial end items . To the extent the Offerings permit certain actions which may effect your use of product or service provided by a third party, we rely on you that your use of the Offerings are permitted under such third party provider terms (“Third Party Terms”). We shall have no responsibility or liability for any breach of such Third Party Terms.
5.2. Subscriber Data As between you and Checkout Champ, all IPR in and to Subscriber Data are owned by you. You hereby grant to us a worldwide, perpetual, irrevocable, non-exclusive, license to possess and use the Subscriber Data in any lawful manner in order to deliver the Offerings. You hereby represent and warrant to us that you have all right and authority, including that you have obtained all necessary consents and permissions and have satisfied all requirements under applicable law, necessary to lawfully transfer Subscriber Data, including Personal Data components, to us for use in the Offerings and as otherwise contemplated hereby. To the extent Subscriber Data may include Personal Data you hereby expressly consent to our possession, use and sharing of the Personal Data to the same degree as described by the foregoing license. As between you and Checkout Champ, you are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of Subscriber Data. Notwithstanding anything to the contrary, Checkout Champ and its affiliates have the right to retain, transfer, duplicate, analyze, modify and otherwise use Subscriber Data in an anonymized form that does not identify you or any individual.
6. Fees, Taxes and Payments.
6.1 Fees, Payments and Taxes Fees for the Use Rights and Services (the “Fees”) and any other additional payment information are listed in Exhibit A. Fees shall be payable in United States dollars, in accordance with the terms of this Section 6 in effect at the time such Fees become due. Other than hourly rates which may be increased pursuant to the terms set forth on Exhibit A, Checkout Champ shall have the right to increase the Fixed Monthly Fee upon the anniversary of this Agreement not to exceed five percent (5%), note: this does not affect the monthly percentage. Fees do not include Subscriber Taxes. If Checkout Champ has the legal obligation to pay or collect Subscriber Taxes, Checkout Champ will invoice Subscriber and Subscriber will pay that amount unless Subscriber provides Checkout Champ with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.2 Method of Payment Subscriber expressly authorizes Checkout Champ to automatically charge Subscriber’s credit card, charge card, debit card, bank account direct debit, or PayPal account, for any and all applicable Fees associated with Subscriber’s Account hereunder. Subscriber will provide the information and authorization set forth in the credit authorization form set forth in Exhibit B. By submitting card information or other payment information to us, you represent and agree that: (a) you are fully entitled to use that card or account; (b) all payment information provided is complete and accurate; (c) credit card transactions may cost up to 4% more than cash transactions to reflect our direct pass-through of the fees we are charged for accepting credit cards; and (d) that sufficient funds exist to pay us the amount(s) due. We are not responsible for any amounts relating to insufficient funds, including chargebacks and Subscriber shall pay all associated amounts. If Subscriber provides Checkout Champ with a credit card, charge card, or debit card we may request and receive updated card information from your card issuer, such as updated card numbers and expiration date information when your card has expired. If we receive such updated information, we will update your Account information accordingly and Checkout Champ reserves the right to charge any renewal card issued to Subscriber as a replacement without any additional Subscriber consent.
6.3 Billing Checkout Champ will bill its monthly licensing and any recurring Fees on date of enrollment or at the conclusion of any promotional trial period, and on the 1st or the 15th of each month. Your payment date will be determined by the date enrolled. If you signed up for the service between the 1st and the 14th, your payment date will be the 1st. If you signed up between the 15th and the last day of the month, your payment date will be the 15th. Any special programming requests shall be billed at the time an invoice is generated and submitted to the Subscriber. Transaction counts are calculated from the billing date to the day prior to the next billing period.
6.4 Failure to Make Payment If we do not receive timely payment for any reason or upon any Subscriber chargeback, we may: (a) suspend your Use Rights and Account and our performance; (b) charge the maximum monthly interest allowed by law up to one and one-half percent (1.5%) per month; and (c) seek cost of collection, including reasonable attorneys’ fees. Payment obligations are noncancelable and fees paid are non-refundable.
7. Term and Termination.
7.1. Term of these Terms of Service The Agreement as it applies to the subscribed Offering commences on the Effective Date and continues for ninety (90) days unless earlier terminated in accordance herewith (the “Initial Term”). Thereafter, the Agreement shall auto renew for one (1) year periods (each, a “Renewal Term”) unless either Party provides the other Party with thirty (30) days advanced notice of termination (the Initial Term and all Renewal Terms, collectively, the “Term”). Upon notice of termination, the fees accrued up to that date will be calculated and billed for previous usage of Checkout Champ and any third-party services.
7.2. Termination If an obligation under an Agreement is materially breached, the non-breaching party may provide written notice specifying the nature of the breach and the breaching party will have 30 days from receipt of notice to cure. If not so cured, the nonbreaching party may terminate the Agreement by providing a second written notice of immediate termination. In addition, the Agreement, including all Use Rights under them, shall terminate automatically and immediately upon your insolvency or any attempt by you to obtain protection from creditors or wind down operations or any attempted assignment or transfer by you in breach of Section 11. In addition, we may terminate the Agreement immediately: (a) if you or your Users breach Section 2; (b) if we reasonably believe that (i) your conduct may be harmful to our business, such as failing to make payments due hereunder, or (ii) your conduct may be harmful to other Checkout Champ customers and users, or (c) if we become aware of any investigation or action taken by a regulatory agency or law enforcement against Subscriber. Checkout Champ may terminate any Renewal Term upon at least sixty (60) days written notice to Subscriber prior to the end of the current Renewal Term. If the Agreement is terminated by either party or expires pursuant to its terms, then you must pay any outstanding amounts due to us, and shall promptly return our Confidential Information to us, including all copies and embodiments thereof or, if requested to do so by us, will destroy the Confidential Information and certify in writing to such destruction. If we terminate the Agreement, payment obligations during the remainder of any unexpired Term will be immediately due in full. Upon any termination of the Agreement, Checkout Champ reserves the right to delete any and all information in Subscriber’s Account, at Checkout Champ’s discretion at any time after the date that is thirty (30) days after the termination of the Agreement; provided that if requested by Subscriber, Checkout Champ shall return to Subscriber any such information during such thirty (30) day period in a form reasonably requested by Subscriber and at Subscriber’s expense.
8.1 Non-Disclosure ObligationsConfidential Information may be provided or disclosed by one party (the “Disclosing Party”) orally, in writing, or in graphical, machine-readable, or other form to the other party (the “Receiving Party”) in connection with the performance of the Agreement. The Receiving Party shall hold the Disclosing Party’s Confidential Information in strictest confidence and shall not make any use or disclosure of the Disclosing Party’s Confidential Information to any individual or entity during the Term and thereafter without the express written consent of the Disclosing Party in each instance, except to the Authorized Recipients of the Receiving Party. The Receiving Party shall handle all Confidential Information received with the same degree of care as it uses to maintain the confidentiality of its own confidential information, which shall in no event be less than reasonable care. As between the parties, all Confidential Information shall remain the sole and exclusive property of the Disclosing Party and other than the licenses expressly granted in the Agreement, no disclosure or permitted use of the Confidential Information under the Agreement shall be construed as the grant of any right, title, or interest, by license or otherwise, in or to such Confidential Information. The remedy at law for breach or threatened breach of this Section 8 may be inadequate, and in addition to any other remedy available, the non-breaching party shall be entitled to seek injunctive relief.
8.2 Exceptions to ObligationsThe Receiving Party shall have no obligation under this Section 8 with respect to any Confidential Information disclosed to it which: (a) the Receiving Party can demonstrate was already known to it (without obligation of confidentiality) at the time of its receipt hereunder; (b) is or becomes generally available to the public other than by means of breach of this Agreement or any other agreement any party may have with the Disclosing Party; (c) is independently obtained from a third party (other than any Authorized Recipient) without obligation to maintain confidentiality and whose disclosure to the Receiving Party does not violate a duty of confidentiality; or (d) is independently developed by or on behalf of the Receiving Party without use of, reference to, or reliance on any Confidential Information of the Disclosing Party. The Receiving Party acknowledges that the privacy and data security laws in some jurisdictions may prohibit or render ineffective some or all of the foregoing exclusions. If the Receiving Party is required by a court, regulator, or other body of competent jurisdiction to disclose the Disclosing Party’s Confidential Information, the Receiving Party may disclose only so much of the Disclosing Party’s Confidential Information as is legally required, provided that, where practicable and permissible, the Receiving Party has given notice of such compelled disclosure to the Disclosing Party and has given the Disclosing Party a reasonable opportunity to object to such disclosure and has provided reasonable assistance in obtaining and enforcing a protective order or other appropriate means of safeguarding any Confidential Information so required to be disclosed.
Each party represents and warrants that it has the full corporate right, power and authority to enter into the Agreement. Subscriber additionally represents and warrants that: (a) the individual completing the Agreement has the authority to legally bind Subscriber; (b) neither any Agreement, nor the performance of its obligations hereunder, shall knowingly make Checkout Champ liable to any third-party claim of interference with contract or business expectancies or any related or similar claims. TO THE MAXIMUM EXTENT PERMITTED BY LAW (A) WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE AND NON-INFRINGEMENT); AND (B) WE DO NOT WARRANT THAT THE OFFERINGS MEET YOUR REQUIREMENTS, OPERATES WITHOUT INTERRUPTION, OR IS ERROR FREE. THE OFFERINGS ARE MADE AVAILABLE ON AN “AS IS” BASIS AND WE DISCLAIM ANY WARRANTY REGARDING THE AVAILABILITY, ACCURACY OR CONTENT OF THE OFFERINGS. CHECKOUT CHAMP MAKES NO GUARANTEES, REPRESENTATIONS OR WARRANTIES AS TO THE LEVEL OF LEADS OR SIGNUPS GENERATED THAT SUBSCRIBER CAN EXPECT BY ENTERING INTO THIS AGREEMENT AND SUBSCRIBING TO THE OFFERINGS OR ANY ECONOMIC BENEFIT YOU MAY GAIN FROM USE OF THE OFFERINGS.
10. Indemnity and Liability
You will indemnify, defend and hold us and all or affiliates, subsidiaries, brands, officers, directors, employees, members, managers and representatives harmless from all third party claims or causes of action (including investigations) and any resulting damages, costs, expenses, or fines (including reasonable legal costs) arising from Subscriber Data, your breach of an Agreement including engaging in any of the prohibited uses described in Section 2.2 and the warranty in Section 5, any third party point of sale or other system or service you request that we integrate to or interface with and/or your breach of Third Party Terms. WE ARE NOT liable for ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, reliance, OR PUNITIVE damages OR LOST OR IMPUTED profits OR LOST DATA AND OUR TOTAL liability for all claims arising in connection with ALL AGREEMENTS WILL be limited to direct damages in AN amount equivalent to the fees actually received by US UNDER THE AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING ASSERTION OF THE CLAIM. You must bring all claims and causes of action within six months of their being discovered or six months after expiration or termination of the Agreement out of which the claim arises, whichever occurs first. The limitations and exclusions in this Section apply to all claims or causes of action under whatever theory brought and regardless of whether we were advised of the possibility of the claim.
You may not assign or transfer the Agreement, including any Use Rights hereunder unless you make a request in writing in advance and we reply in writing consenting to your request. We may require you and the proposed assignee/transferee to agree to additional terms or pay additional fees. We do not give blanket consents, so you will follow these procedures for each additional or subsequent transfer or assignment you or your permitted assignees/transferees wish to make. Any change in the ownership or control of Subscriber or your parent entity will be considered a transfer requiring our written consent to the same extent as other attempted assignments or transfers. As used herein, the term “control” has the meaning given to it under the United States Securities Exchange Act of 1934.
Subscriber agrees that during the Term and for twelve (12) months thereafter, Subscriber will not develop, offer, sell or distribute a competing technology to the Offerings. A competing technology is defined as a product or service that seeks to acquire customers for the purpose of offering purpose of offering a customer relationship management or campaign management software system or a customer checkout or funnel solution. Notwithstanding anything to the contrary in this Section 12, Subscriber shall be permitted to develop and utilize a service similar to the Offerings solely for use by Subscriber in connection with its own marketing activities and online checkout process, except where Subscriber pirates, copies, or reengineers Checkout Champ technology, functionality or intellectual property. Subscriber understands that violation of this clause is grounds for immediate termination of the Agreement by Checkout Champ with no liability on the part of Checkout Champ and further Subscriber understands that Checkout Champ may seek equitable relief to stop the violation and competing activity as well as any other relief available under the law.
13. Disputes; Governing Law
13.1 Governing LawThe laws of the Commonwealth of Puerto Rico will govern all Agreements without regard to the principles of conflicts of laws. All Disputes arising out of (or relating to) an Agreement shall be resolved as set forth below.
13.2 Consent to Arbitration.IF EITHER YOU OR CHECKOUT CHAMP WANT TO BRING A CLAIM OR CAUSE OF ACTION AGAINST THE OTHER UNDER AN AGREEMENT, OR IF ANY DISPUTE ARISES BETWEEN THE PARTIES AS A RESULT OF AN AGREEMENT OR YOUR USE OF THE OFFERINGS, EACH PARTY AGREES TO USE ARBITRATION AS THE SOLE AND EXCLUSIVE MEANS TO BRING SUCH A CLAIM OR CAUSE OF ACTION OR TO RESOLVE SUCH A DISPUTE. YOU UNDERSTAND THAT BY AGREEING TO THE FOREGOING AND THE MORE SPECIFIC ARBITRATION TERMS BELOW, EACH OF YOU AND CHECKOUT CHAMP ARE GIVING UP THEIR RIGHT TO FORM OR BE A PART OF A CLASS ACTION OR OTHER REPRESENTATIVE LAWSUIT. YOU ARE NOT, HOWEVER, WAIVING YOUR ABILITY TO RECOVER DAMAGES. ALTHOUGH ARBITRATION PROCEDURES ARE DIFFERENT FROM COURT PROCEDURES, AN ARBITRATOR CAN AWARD YOU INDIVIDUALLY THE SAME DAMAGES AND RELIEF AS A COURT, AND JUDGMENT ON THAT AWARD MAY BE ENTERED AND ENFORCED IN ANY COURT OF COMPETENT JURISDICTION.
13.3 Arbitration ProceduresExcept for the right of a party to seek injunctive relief in any U.S. court of competent jurisdiction, all claims, causes of actions and disputes (collectively, “Disputes”) that cannot be resolved by the parties after a good faith effort at negotiation shall be submitted for arbitration administered by the American Arbitration Association ("AAA"). The AAA will apply the Commercial Arbitration Rules (excluding any rules or procedures governing or permitting class actions). You can get procedures (including the process for beginning an arbitration), rules, and fee information from the AAA website (www.adr.org). The party seeking to commence arbitration must first notify the other party in writing at least 30 days in advance of initiating the arbitration. Notice to Checkout Champ should be sent to our mailing address “ATTN: Arbitration Demand.” We will provide notice to your email address(es) and street address(es), if any, associated with the Agreement at the time the notice is sent, if any. The notice must describe the nature of the claim and the relief being sought. Regardless of such notice, no arbitration may be commenced if barred by the statute of limitations applicable to the Dispute. The arbitrators shall have no power to award punitive damages or any other damages not measured by the prevailing party’s actual damages or damages in excess of the limitations set forth in Section 10. Even if other portions of these arbitration provisions are held to be invalid or unenforceable, the arbitrators shall not have the power award or impose any remedy that could not be made or imposed by a court sitting in the jurisdiction and venue agreed to by the parties and deciding the matter in accordance with the governing law agreed to by the parties. All aspects of the arbitration including the result shall be treated as confidential and shall not be disclosed unless required by legal, audit, or regulatory requirements. The amount of any settlement offer made by either of us prior to arbitration cannot be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. The arbitration proceedings are subject to the US Federal Arbitration Act and hereby declared to be self-executing, and it shall not be necessary to petition a court to compel arbitration. The award of the arbitrators shall be binding and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. Unless you and Checkout Champ agree otherwise, the arbitration will occur in U.S. English and take place in San Juan, Puerto Rico. Payment of any fees will be decided by the applicable AAA rules.
13.4 Class Action WaiverYOU AND CHECKOUT CHAMP AGREE THAT EACH MAY BRING CLAIMS TO THE FULLEST EXTENT LEGALLY PERMISSIBLE AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Checkout Champ agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. If for any reason the class action waiver set forth above cannot be enforced as to some or all of the Dispute, then the agreement to arbitrate will not apply to that Dispute or portion thereof. Any Disputes covered by any deemed unenforceable class action waiver provision may only be litigated in a court of competent jurisdiction, but the remainder of the agreement to arbitrate will be binding and enforceable. For the avoidance of doubt, the parties do not agree to class arbitration or to the arbitration of any claims brought on behalf of others.
We reserve the right to modify these Terms of Service upon 90 days notice provided that such modifications shall apply only to subscriptions entered into thereafter. Headings and captions are used for convenience of reference only. The Agreement may be executed in separate counterparts (each of which is an original and all of which will be deemed one and the same instrument). Notices must be sent by certified mail or reputable overnight courier to the address specified for each party and deemed given three business days after sending; provided, that we may rely on the email you provided to us to provide you with all notices required under the Agreement. Failures in performance beyond a party’s reasonable control are excused. Unenforceable provisions will be reformed to permit enforceability with maximum effect to the original intent. Waiver of a breach is not waiver of other or later breaches. Nothing in an Agreement is intended to create an agency, partnership, joint venture, or franchise between the parties and neither party has the authority to act in the name or on behalf of or otherwise to bind the other. In performing its obligations under the Agreement, each party is acting as an independent contractor of the other and is solely responsible for the supervision, daily direction, and control of its own employees and for the payment of their salaries and benefits and related compensation (including employer-source deductions). We may issue a press release or make other public announcements concerning the Agreement. We may use your name and logo externally in a manner consistent with your corporate communications policies (to the extent made available to us) but in all events reasonably. To the extent required by the licensors of Third Party Software and Data we provide, such licensors are the express, intended third party beneficiaries of the Agreement.
15. Entire Agreement and Survival
The Agreement is the entire agreement between the parties with respect to the Offerings and supersede all previous or contemporaneous written and verbal agreements or proposals relating to the same subject matter and cannot be modified except by written agreement referencing the specific provisions modified. Purchase orders or similar documents issued by you or your agents are void and of no effect. If your procurement processes require use of an internal purchase order neither it nor its terms shall supersede, replace, or amend these Terms of Service. Sections 5, 8, 10, 12, 13 and those portions of Sections 6, 7.2, 14 and 15 that by their nature should survive, each shall survive termination or expiration of these Terms of Service.
16. Definitions and Interpretation
The word “including” is exemplary meaning “including without limitation” or “including, but not limited to.” The words “shall,” “will,” and “must” are obligatory and require performance of the stated condition, etc. The word “may” is intended to be permissive, imparting a right, but not an obligation, to perform. References to days mean calendar days unless otherwise indicated. This Section defines, in both their singular and plural forms, all capitalized terms used in these Terms of Service, other than those grammatically required to be capitalized.
"AAA" is defined in Section 13.3.
“Add-On Services” is defined in Section 1.
"Agreement" is defined in the second paragraph of these Terms of Service.
“Account" ” is defined in Section 1
"Authorized Recipients" means those employees, consultants, or agents of a Receiving Party and those third party suppliers of the Receiving Party to whom disclosure is necessary to perform under the Agreement, who are bound to duties of nondisclosure and restrictions on use of third parties’ confidential information at least as restrictive as those set forth in Section 8.
"Business Users" means those employees or independent contractors designated by your Administrators to have the limited Use Rights we grant to such category os users.
Checkout Champ:"Checkout Champ,” “we,” “us,” or “our" means Checkout Champ LLC, a Puerto Rico a limited liability company."Checkout Champ Data"means information and/or campaign methodologies generated by the Offerings, regardless of whether or not the information or campaign methodology was generated as a result of Subscriber's use of the Offerings.
"Cloud Services" is defined in Section 4.
"Confidential Information" means information, data, or materials in either tangible or intangible form that are trade secrets of, proprietary and confidential to, the Disclosing Party or its affiliates, or its or their clients or business partners, including as may be so designated by statue, regulation, or common law, including by the form of the Uniform Trade Secrets Act and privacy laws adopted under applicable law, or which are marked as "Confidential" or which, by their nature and the context of their disclosure, should reasonably be known to be confidential.
"Development Services" is defined in Section 4
"Disclosing Party" is defined in Section 8.1
"Dispute" is defined in Section 13.3.
"Effective Date" means the date you set up an Account and subscribe to the Offering
Evaluation:"Evaluation Period" is defined in Section 2.3"Evaluation Rights" is defined in Section 2.3
"Fees" is defined in Section 6.1
"Implementation Services" is defined in Section 4
"Initial Term" is defined in Section 7.1
"Integrated Third Party Software and Data" is defined in Section 3
"IPR" means intellectual property rights (including copyrights, trademarks and patents), proprietary rights (including trade secrets), and moral rights (including rights of authorship and modification) throughout the world.
"Offerings" means the Solutions and the Services, collectively.
"Personal Data" means those portions of Subscriber Data that are defined as "personal information", "personally identifiable information", "non-public personal information", "personal data" or the like under applicable law.
"Policies" is defined in the second paragraph of these Terms of Service.
"Receiving Party" is defined in Section 8.1
"Renewal Term" is defined in Section 7.1
"Services" means the Implementation Services, Cloud Services, Development Services and Add-On Services, collectively.
"Solutions" is defined in the first paragraph of these Terms of Service.
Subscriber:"Subscriber”, you”, "your”means the purchaser and/or end user."Subscriber Data"means all data entered into the Offerings by Subscriber."Subscriber Taxes" means applicable sales, use, value-added, or excise taxes or government charges all of which are payable by you, excluding taxes on our income
"Term" is defined in Section 7.1
"Third Party Terms" is defined in Section 5.1
"Usage Metrics" is defined in Section 2.1
"Use Rights" is defined in Section 2.1
"User" means the Administrators and Business Users, collectively.