Inktavo / Printavo / InkSoft / GraphicsFlow / SignTracker Master Terms of Service

These Master Terms of Service (these "Terms of Service") set forth the terms and conditions upon which Inktavo, LLC, Inksoft, LLC, Printavo, LLC, GraphicsFlow, Inc. or any of their respective affiliated companies (collectively, as applicable, “Inktavo”, "Company", “we” or “us”) offers you, our customers, access to Company’s proprietary cloud-based software-as-a-service platform(s) made available through the websites located at uniform resource locators www.inktavo.com, www.inksoft.com, www.printavo.com, and www.graphicsflow.com and/or any Company mobile application (collectively, the “Site”), along with all Products (as defined below) and related Services (as defined below). Access to the Platform (as defined below) and Services is provided solely in accordance with, and subject to, these Terms of Service, the Order (as defined below), and any additional services agreement, other terms and conditions or terms of service applicable to specific Products or Services and any other applicable terms and conditions entered into by you and Company or otherwise as made available by Company through the Site from time to time, including the Privacy Policy (as defined below) (collectively, as may be updated from time to time, the “Additional Terms”).

THIS IS A LEGALLY ENFORCEABLE CONTRACT. BY SUBMITTING OR OTHERWISE AGREEING TO AN ORDER, CLICKING "I AGREE" OR BY ACCESSING OR OTHERWISE USING THE PRODUCTS, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE, THE ORDER, AND ANY APPLICABLE ADDITIONAL TERMS, ALL OF WHICH ARE HEREBY INCORPORATED INTO THESE TERMS OF SERVICE BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE AND SUCH ORDER AND ADDITIONAL TERMS, DO NOT ACCESS OR USE THE PRODUCTS.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A CORPORATION, LIMITED LIABILITY COMPANY, PARTNERSHIP OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCTS OR SERVICES.

FROM TIME TO TIME, COMPANY MAY MODIFY THESE TERMS OF SERVICE, EFFECTIVE IMMEDIATELY UPON POSTING SUCH MODIFIED TERMS OF SERVICE ON THE SITE. WHILE WE MAY NOTE THE DATE OF THE LAST UPDATE TO THESE TERMS OF SERVICE ON THE SITE AND PROVIDE ADDITIONAL NOTICE OF SUCH MODIFICATIONS, YOU ACKNOWLEDGE AND AGREE THAT YOU MUST PERIODICALLY CHECK THE SITE FOR ANY UPDATES. FOR ANY ORDERS THAT ARE ENTERED INTO AFTER THE TIME OF US POSTING ANY MODIFICATIONS TO THESE TERMS OF SERVICE, SUCH NEW ORDERS SHALL BE SUBJECT TO THE MODIFIED TERMS OF SERVICE. FOR ANY ORDERS THAT WERE IN EFFECT AT THE TIME OF US IMPLEMENTING SUCH MODIFICATIONS THAT DO NOT SPECIFY A SUBSCRIPTION OR SERVICE TERM LENGTH OR OTHER MINIMUM SUBSCRIPTION OR SERVICE PERIOD, YOUR CONTINUED ACCESS TO OR USE OF THE PLATFORM CONSTITUTES YOUR IMMEDIATE ACCEPTANCE OF THE MODIFIED TERMS OF SERVICE. FOR ANY ORDERS THAT WERE IN EFFECT AT THE TIME OF US IMPLEMENTING SUCH MODIFICATIONS THAT SPECIFY AN INITIAL SUBSCRIPTION OR SERVICE TERM LENGTH OR OTHER MINIMUM SUBSCRIPTION OR SERVICE PERIOD, UNLESS OTHERWISE EXPRESSLY AGREED BY THE PARTIES, SUCH MODIFICATIONS TO THESE TERMS OF SERVICE SHALL BECOME EFFECTIVE FOR ANY RENEWAL PERIOD UNDER SUCH ORDERS. EXCEPT TO THE EXTENT EXPRESSLY CONTEMPLATED BY THESE TERMS OF SERVICE, NO OTHER AMENDMENT, MODIFICATION OR SUPPLEMENT OF ANY PROVISION OF THESE TERMS OF SERVICE WILL BE VALID OR EFFECTIVE UNLESS MADE IN WRITING AND SIGNED BY DULY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.

Definitions.
1. “Affiliate” means, with respect to any entity, any other present or future entity Controlling, Controlled by, or under common Control with such entity, where the term “Control,” and its derivatives, of an entity means the legal, beneficial, or equitable ownership, directly or indirectly, of at least fifty percent (50%) of the capital stock or other ownership interest of such entity ordinarily having voting rights, or the power in fact to direct or cause the direction of the management of such entity or to elect the majority of such entity’s board members or other directors or managers.
2. “Agreement” means these Terms of Service along with all Orders and Statements of Work, any applicable Additional Terms, and all exhibits or attachments hereto or thereto, all of which are hereby incorporated herein by reference,
3. “API” means an application program interface that allows interoperability between Your website and applicable Products.
4. “Applicable Laws” means all laws, including acts, by-laws, rules, regulations, ordinances, decrees, orders, and codes (including any requirements for permits, certificates, approvals, and inspections) of any national, state, or local authority of any government, or or agency or subdivision thereof.
5. “Application” means any software application and associated software, code, APIs, and user interfaces, downloaded by Customer from the Site or the Platform or otherwise made available by Company in connection with the Platform, along with any Updates thereto made available to Customer by Company.
6. “Art” means the art, designs, Clipart, photography, graphics, other materials provided by Company, or derivative works of any of the foregoing included in applicable Products.
7. “Buyer” means the end customer to whom you sell or give customized or semi-customized goods or apparel for their personal use or their distribution to other individuals for personal use, including individuals or entities/organizations who use the Products to create customized or semi-customized goods or apparel, and as well as those individuals or entities/organizations who purchase goods or apparel customized or semi-customized by another Buyer using the Products.
8. “Clipart” means images or illustrations that do not contain text provided by Company as part of the Licensed Content included in applicable Products and any derivative works thereof.
9. “Company Property” means the Platform, Products, Site, Applications, Documentation, and Licensed Content, all as defined herein.
10. "Customer", “you” or “your” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Orders.
11. “Customer Content” means all content, including but not limited to text, materials, media, photographs, images, text, audio, files, or other materials, you or your Users, including Buyers, create, submit, post, promote, or display on or through the Customer Store or otherwise through or using the Platform or Products, excluding Licensed Content.
12. “Customer Data” means all data and information submitted by Customer or its Users, including Buyers, to Company through the Platform, Products, Application or Services, excluding Licensed Content and Non-Company Applications.
13. “Customer Store” means any website or other medium generated by the Products or otherwise to facilitate the Products, including any website from which Your Buyers can access the Products or to which content may be uploaded or created by you or your Buyers.
14. “Deliverable(s)” means deliverables specifically identified in any Order or Statement of Work or otherwise made available to Customer in connection with any Professional Services under this Agreement, as applicable.
15. “Documentation” means any user guides, technical manuals, operating rules, acceptable use policies, operation instructions, release notes, guides, on-line help files and other materials describing the Company Products and Customer’s use thereof as provided or made available by Company for use by Customer.
16. “Fonts” means the typefaces for text or fonts provided by Company as part of the font library included in applicable Products and any derivative works thereof.
17. “Intellectual Property Rights” means any and all tangible and intangible: (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (b) trademark and trade name rights and similar rights; (c) trade secret rights, (d) patents, patent applications, designs, algorithms and other industrial property rights; and (e) other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise.
18. “Licensed Content” means Art, Clipart, Fonts, Templates and other data, content, media, photographs, images (including image and product previews), text, audio, and information developed or generated by Company or acquired or obtained from publicly available sources or its third-party content providers and made available to Customer through the Platform, Products, Application or Services, as may be more fully described in the Documentation, in each case excluding Customer Data.
19. “Non-Company Application” means a Web-based, mobile, offline, or other software application functionality that interoperates with the Platform or any Company Product, that is provided by Customer or a third party.
20. “Order” means the order form, subscription order or other ordering documents for purchases hereunder, including addenda thereto, that are entered into between Company and Customer from time to time in writing or electronically (including forms displayed on the applicable online purchasing portal made available through Site or other ordering functionality of the Site, Application or Platform). Each Order will be deemed incorporated into this Agreement by reference. Orders may be executed in counterparts, and/or by PDFs exchanged via email or other electronic means agreed by the Parties, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via electronic mail or other electronic transmission method (including pdf exchanged by email or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
21. “Personal Information” means any piece of information that, individually or in combination, does or can identify a specific individual, or from which a specific individual may be identified, contacted or located.
22. “Platform” means the Web-based, mobile, offline, or other software application functionality to which access is made available by Company through the Site and/or Application (or such successor websites or applications as selected by Company of which Customer is notified) as may be further described in the applicable Order, including all Products made available by Company in connection therewith, in each case along with any Updates thereto made available to Customer by Company, but expressly excluding any Non-Company Application.
23. “Products” means the Company’s proprietary cloud-based software-as-a-service applications, modules and products made available by Company through the Platform for subscription by Company customers pursuant to an Order and all Licensed Content made available through any of the foregoing, in each case along with any Updates thereto made available to Customer by Company, but expressly excluding any Non-Company Application.
24. “Services” means, collectively, the Support Services and any applicable Professional Services as set forth in an Order or Statement of Work hereunder, in each case including any Deliverables provided in connection therewith.
25. “Statement of Work” means a written statement of work attached to an Order and/or signed by both parties to which these Terms of Services are incorporated that sets forth the commercial terms, service descriptions and any other additional terms and conditions of certain Services to be provided by Company to Customer under this Agreement.
26. “Templates” means images or illustrations that do contain text provided by Company as part of the Licensed Content included in applicable Products and any derivative works thereof.
27. “Users” means those individuals for which Customer is authorized to grant access to and permit use of the Company Property and Services in accordance with the terms of the applicable Order and the Documentation applicable to the Products, including without limitation, as applicable, Buyers.
Eligibility; License and Restrictions.
1. Eligibility. In order to use the Company Property, you must meet a number of conditions, including but not limited to:
  1. You must not be in violation of any embargoes, export controls, or other Applicable Laws of the United States or other countries having jurisdiction over this Agreement, you or Company, and you must not be prohibited from receiving the Company Property under the laws of the United States or any other applicable jurisdiction.
  2. You must be the minimum age required to enter into a contract in the jurisdiction in which you reside, and, in any event, must not be less than 18 years of age. The Site and Company Property are directed to persons 18 years of age or older. If you provide information to Company through the Site or Platform, you represent and warrant that you are 18 years of age or older.
  3. You must not be signing up for our Service on behalf of an individual other than yourself.
  4. You must not be a direct competitor of ours, and you must not access the Company Property for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
  5. You must provide us with all Customer Data, including payment information, that we deem necessary to provide you with the Products and Services.
2. Limited License. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, Company hereby grants to the Customer a limited, non-exclusive, revocable, non-sublicensable and non-transferable license, during the applicable Subscription Term, to access and use, solely for the purposes specified in the applicable Documentation (or, if no such purposes are specified, for use solely in connection with Company’s internal business operations), the Platform and each of the Products for which you have a current subscription from Company pursuant to an applicable Order; and use the Documentation to facilitate the use of the Platform and such Products, in each case in accordance with the applicable Documentation, any applicable Additional Terms, and the terms and conditions of this Agreement.
3. License Restrictions.
  1. Customer will not (and will not permit any User or third party to): (a) make the Company Property or Services available to, or use any Company Property or Service for the benefit of, anyone other than Customer or its Users unless expressly stated otherwise in a Sales Order or the Documentation or Additional Terms for the applicable Products or Services, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Company Property or Service except as expressly stated otherwise in a Sales Order or the Documentation or Additional Terms for the applicable Products or Services, or include any Company Property or Services in a service bureau, managed service or outsourcing offering, (c) use any Company Property to post, send, store or transmit material that is infringing, libelous, or otherwise unlawful, tortious, violent, threatening, pornographic, racist, hateful, or otherwise objectionable in Company’s sole discretion, or to store or transmit material in violation of third party rights, including third party privacy rights, (d) use any Company Property to facilitate a business or business practice which is fraudulent, unfair, deceptive, or otherwise prohibited by consumer protection or other Applicable Laws; (e) use any Company Property or Service to store or transmit any virus, Trojan horse, worm, time bomb, or other routine, mechanism or code designed to disable, erase, alter, or otherwise harm any computer system, program, database, data, hardware or communications system, (f) interfere with or disrupt the integrity or performance of any Company Property or Service (or any third party data contained therein), (g) hack, crack, phish, SQL inject, or otherwise compromise the security or integrity of, or otherwise attempt to gain unauthorized access to, any Company Property or Service or Company’s or customers’ related systems, networks or data, (h) permit direct or indirect access to or use of any Company Property or Service, or to any of Company’s (or Company's licensors’) or any third party’s Intellectual Property Rights, in a way that circumvents a contractual usage limit, standard technical measure, or any other security mechanism, procedure, or protocol, (i) copy any Company Property or Service or any part, feature, function or user interface thereof, (j) use the Company Property or any Service other than (1) for its intended purpose, (2) in strict accordance with the Documentation and all Applicable Laws, (3) as authorized pursuant to this Agreement, (k) frame or mirror any part of any Company Property, other than as expressly permitted in the Documentation, (l) reverse engineer any Company Property or Service (except to the extent such restriction is permitted by applicable law), (m) cause undue strain or stress on the Company’s network from Your use of the Company Property through excessive API calls, traffic, data storage or other non-standard use, or (n) use the Products to post “spam”, transmit chain letters, generate or facilitate unsolicited bulk commercial email or engage in other similar activities. Any use of the Company Property in any way not expressly permitted by this Agreement or otherwise in a writing signed by Company is expressly prohibited, and may be actionable under Applicable Law.
  2. Further, you hereby agree to abide by any posted limitations relating to use, reproduction, or dissemination of the Company Property and with all User or other access or usage limitations applicable to your Order and the applicable Products as specified in this Agreement or on the Site. Without limitation of the generality of the foregoing, Customer will not (and will not permit any User or third party to): (a) download or use Art, Fonts or other Licensed Content, except for the express purpose of fulfilling a current order placed by Your Buyer; (b) copy or re-use Art, Fonts or other Licensed Content that You previously downloaded; (c) save, store, host, database, or distribute any Art, Fonts or other Licensed Content, outside of the Platform, or (d) remove, obscure or alter any proprietary notices or labels on the Licensed Content, or any component thereof.
  3. The Site, Platform and other Company Property are controlled within the United States of America. Those who choose to access the Company Property from locations outside of the United States do so on their own initiative, and are responsible for compliance with Applicable Laws. Company does not represent that the use of the Company Property is appropriate outside the United States of America. Company reserves the right to limit the availability of the Site, Platform and other Company Property for any person, geographic area, or jurisdiction at any time, in its sole discretion.
4. Updates. Company reserves the right to make changes, updates, modifications and enhancements of the Company Property(“Updates”) in its discretion during the Term provided that the terms and conditions of this Agreement shall continue to apply to any such Updates made available to Customer by Company. For the avoidance of doubt, this may include adding or removing available Licensed Content, adding or removing features or functionality of the Platform, Applications and Products, modifying or deleting available website, product or other templates, or replacing or modifying the Company Property in its entirety. Customer agrees that Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features of the Company Property nor dependent on any oral or written public comments made by Company regarding future functionality or features of the Company Property.
Services.
1. Availability. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, Company will make available the Platform for remote electronic access and use by Customer solely in accordance with the terms of this Agreement during the applicable Subscription Term; however, the Platform may be unavailable at times and Company does not make any representations, warranties or guarantees regarding uptime or availability of the Platform. For example, the Platform may be unavailable during scheduled maintenance, or as a result of system failures, or service downtime caused by Company’s third party suppliers, security, technical or legal issues or force majeure events. You agree that Company is not required to inform you of any such periods of unavailability even if anticipated or planned by Company, and you hereby release us from any liability relating to such unavailability. Without limitation on the foregoing, Company will use commercially reasonable efforts, circumstances permitting, to generally inform Users of such unavailability and provide information regarding any access interruptions and the restoration of access to the Platform, including by information posted on the Site or sent by email.
2. Support Services. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, Company may provide technical support and maintenance services for the Application and Platform during the applicable Subscription Term (the “Support Services”) to the extent indicated in any applicable Additional Terms, Orders and/or Statements of Work.
3. Professional Services. From time to time, Company and Customer may enter into Orders and/or Statements of Work that relate to professional services in addition to the Support Services to be provided by Company (“Professional Services”). Each Order or Statement of Work will set forth the Professional Services to be provided together with the applicable Fees, Deliverables, milestones and other pertinent information related to the scope of such Professional Services. Except to the extent expressly set forth otherwise in the applicable Order or Statement of Work, Company retains ownership of all Intellectual Property Rights in, to or associated with the Professional Services, including all Deliverables.
Access and Use of the Platform.
1. Customer Access and Use. Customer will not permit Users to access and use the Company Property, except solely during the Subscription Term specified in the applicable Order. Company has no obligation to verify the identity of any person who gains access to the Company Property through Customer’s account(s). Customer is solely responsible for monitoring its Users' access to and use of the Company Property, and for any failure by any User to comply with this Agreement; a failure to comply with this Agreement by a User is a failure by Customer. Customer will (a) be responsible for Users’ compliance with this Agreement, including all Additional Terms, Documentation and Orders, (b) be responsible for the accuracy, completeness, timeliness, reliability, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-Company Applications with which Customer uses Company Property or Licensed Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Company Property and Licensed Content, and notify Company promptly of any such unauthorized access or use, (d) use Company Property and Licensed Content only in accordance with this Agreement, including all Additional Terms, Documentation, Orders and Applicable Laws, and (e) comply with terms of service or other applicable contracts of any Non-Company Applications with which Customer uses Company Property or Licensed Content.
2. Access and Use by Buyers. In the event that your Buyers are permitted to access certain Products as specifically authorized pursuant to the Order and Documentation applicable to such Products, including as integrated into Your websites or otherwise made available to allow Buyers to create customized apparel or other goods for purchase through You or as otherwise as authorized thereby, the access and use by Buyers of all such Products shall be subject to the terms of use, privacy policy and other ancillary terms (e.g. terms of purchase, shipping and return policies, etc.) (collectively, the “Customer Website Terms”) displayed on each Customer Store. You shall be solely responsible and liable for (a) ensuring that the Customer Website Terms (i) are accurate, complete, and sufficient to meet all requirements under Applicable Law, including without limitation the Digital Millennium Copyright Act (as amended from time to time) (“DMCA”); (ii) contain terms that are substantially similar to, and no less protective of Company’s rights and interests in the Company Property than, the terms of this Agreement; and (iii) are displayed on the Customer Store in the manner required by Applicable Law and accepted by Buyers in a manner sufficient to form a binding contract between You and Buyers under Applicable Law; (b) compliance with all Applicable Law, including without limitation the DMCA, in connection with the operation of and Buyer’s access to the Customer Store; and (c) each Buyer’s compliance with the terms of the Customer Website Terms and this Agreement and any other acts or omissions of Buyers related to the Customer Store or Company Property. Company may, from time to time in its discretion, offer sample documents or terms for reference in connection with the Customer Website Terms (“Company Sample Terms”), provided, however, that you expressly acknowledge and agree that such Company Sample Terms are provided as an accommodation only on an “AS-IS, WHERE IS” basis without warranty or guarantee of any kind, and the provision of any such Company Sample Terms will in no way limit, disclaim or modify your obligations under this Section 4.2 (Access and Use by Buyers) or otherwise under this Agreement. Further, Company is under no obligation to provide Company Sample Terms and may update, revoke, modify or limit access to Company Sample Terms at any time without notice.
3. Security. Customer will implement and maintain appropriate and effective security procedures for the transmission of Customer Data to the Platform or Application, otherwise to Company. Customer will immediately notify Company upon becoming aware of any suspected security breach regarding transmissions to or from the Platform, Application or Company.
4. Suspension of Access. Company may in its discretion suspend Customer's access to, or reasonably restrict any use of, the Company Property, or any portion thereof, temporarily, in whole or in part, if, and so long as, in Company’s sole judgment, there is a risk to the security, integrity or availability of the Company Property or other risk that may interfere with the proper continued hosting or provision of the Company Property, or Customer or any User is misusing the Company Property, has breached this Agreement, or is or may be engaged in illegal activity. Company will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat at Customer's cost.
5. Technical Requirements. Customer is responsible at its own cost and expense for procuring any necessary third party components or services required to use the Platform, Application and Services as specified in the applicable Documentation. Company disclaims all liability arising from any Platform, Application or Service performance-related issues or other negative effects, losses or damages to the extent caused by: (a) any failure by Customer to operate the Platform, Application or Service in accordance with the technical requirements; or (b) any other products, services, or technology used by Customer in connection with the Platform, Application or Service.
6. Customer Materials. Except as otherwise expressly set forth in this Agreement, Customer shall be responsible for the provision of all Customer Data and Customer Content that are required or reasonably requested by Company in connection with Company’s provision of the Products and Services. Customer understands and agrees that Company’s ability to provide the Products and Services required under this Agreement is directly related to and dependent upon Customer’s ability to provide certain Customer Data and Customer Content that are accurate, noninfringing and complete to Company on a timely basis. Company shall not be in breach of this Agreement for any failure to perform under this Agreement if Customer does not deliver the requisite accurate, noninfringing and complete Customer Data or Customer Content to Company on a timely basis.
7. Third Party Offerings.
  1. Company may directly or indirectly use certain third party providers (“Third Party Providers”) and/or provide or make available Non-Company Applications or other content, data, materials, products, hardware, software, and services from third parties (collectively, “Third Party Offerings”), including without limitation through links to or integrations with third-party websites or applications such as (but without limitation) Third-Party Providers of payment processing -related services like Stripe and Payrix. The Third Party Offerings will not be deemed part of the Platform or Products. Customer acknowledges and agree that (a) without limitation of Section 4.7.3 below, access and use of Third Party Offerings, and any exchange of data between Customer and any Third Party Provider, is solely between Customer and the applicable Third Party Provider and is subject to any terms of use or service, end-user license agreement or other additional terms and conditions as made available by such Third Party Providers (the “Customer Third Party Agreement”); (b) access and use of Third Party Offerings may be subject to additional terms and conditions as made available by such Third Party Providers and Customer shall comply with all of your obligations relating to Third Party Providers and Third Party Offerings under the terms of any Customer Third Party Agreement; (c) Company does not warrant or support Third Party Offerings, whether or not they are designated by Company as “certified” or otherwise, and (d) Company is not responsible for the availability or content of any such Third Party Offerings, including any related opinions, advice, statements or advertisements. Further, without limitation of the foregoing, to the extent that any Third Party Offerings are made available directly to Customer by Company or as part of the Products, subject to the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, revocable, non-sublicensable and non-transferable sub-license, during the applicable Subscription Term, to access and use, for internal purposes only, such Third Party Offerings in connection with the Products, subject to and in accordance with any terms and conditions of the terms of service or use, license agreement or other applicable agreements for the Third Party Offerings between Company and the third party (“Third Party Terms”), provided that Company reserves the right to modify the Third Party Terms in the event Company adds or replaces Third Party Offerings or as modified by the third party pursuant to the Third Party Terms. Company will use commercially reasonable efforts to post the current Third Party Terms on the Platform and notify Customer through an alert on the Platform when Company has posted revised Third Party Terms. All sublicenses granted hereunder are solely for Customer’s use in connection with the Products and will terminate on the earlier of expiration or termination of (i) this Agreement or (ii) the applicable Third Party Terms.
  2. Company may, at any time in its discretion, modify, cancel or discontinue any available interoperability or integrations for the Platform, Application and Services with any Third Party Offerings, or any other support or assistance provided by Company in connection with any Third Party Providers or Third Party Offerings.
  3. If Customer installs or enables Third Party Offerings for use with the Platform, Application or Services, Customer acknowledges that Company may allow providers of those Third-Party Offerings to access Customer Data as required for the interoperation of such Third-Party Offerings with the Platform, Application and Services. Company shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by providers of Third Party Offerings.
8. Privacy. Each Party acknowledges and agrees that, subject to the terms and conditions of this Agreement, the use of the Company Property may result in the Parties having access to Personal Information, including Personal Information of your Buyers and other Users. Customer acknowledges and agrees that it has read and hereby agrees to Company’s privacy policy (or such successor URL determined by Company) (as may be updated from time to time in accordance with the terms thereof, the “Privacy Policy”). The Privacy Policy is incorporated into this Agreement by reference as Additional Terms.
9. Copyright. All Licensed Content included in or accessed through the Platform, Products or Applications is the property of Company or its content suppliers and protected by United States and international copyright laws. The compilation of all content on the Platform is the exclusive property of Company and protected by United States and international copyright laws. All Products and other software used to provide the Platform is the property of Company or its software suppliers and protected by United States and international copyright laws. Permission is granted to electronically copy and to print in hard copy portions of the Company Property for the sole purpose as expressly authorized in this Agreement. Any other use of Licensed Content or other Company Property, including reproduction, modification, distribution, republishing, republishing on third party sites, transmission, display or performance, in each case other than those as expressly authorized in this Agreement without the prior written permission of Company is strictly prohibited. You agree not to change or delete any proprietary notices from any Company Property. We respect the Intellectual Property Rights of others and we expect our Users to do the same. If you believe any Licensed Content or other materials displayed through the Site or Customer Store infringes upon your or a third party’s copyrights, please follow the steps outlined in Section 4.10 below.
10. Intellectual Property Rights Compliance.
  1. You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any Customer Content. You represent and warrant that such Customer Content does not contain material subject to Intellectual Property Rights, unless you have necessary permission or are otherwise legally entitled to post the Customer Content and to grant Company the license described in this Agreement, and that the content does not violate any Applicable Laws.
  2. You represent and warrant that you will not directly or indirectly circumvent any digital rights management measure or other standard technical measures applicable to any Customer Content.
  3. Company will take down works in response to valid DMCA takedown notices and/or other intellectual property infringement claims and will terminate a User's access to the Company Property if the User is determined to be a repeat infringer. If you believe that your content has been copied in a way that constitutes copyright or trademark infringement, or violates your publicity or other Intellectual Property Rights, please fill out our online infringement complaint form or you may submit written notice to our designated copyright agent at:
    
    Inktavo, LLC
    Attn: Copyright Agent
    copyrightagent@inktavo.com
    (800) 213 - 9317
    6001 W. Parmer Lane, Suite 370 #2039
    Austin, Texas 78727
  4. For us to process your infringement claim regarding content on the Site, Platform or Products, you must be the rightsholder or someone authorized to act on behalf of the rightsholder. We encourage you to use our online infringement complaint form to help ensure the requisite information is included in your notice. If you choose to write to us by e-mail or physical mail instead, your notice must include:
    - Identification of the copyrighted work(s), trademark, publicity rights, or other Intellectual Property Right that you claim is being infringed;
    - Identification of the allegedly infringing material that is requested to be removed, including a description of the specific location (i.e., urls) on the Site, Platform or Products of the material claimed to be infringing, so that we may locate the material;
    - Your contact information – at a minimum, your full legal name (not pseudonym) and email address;
    - A declaration that contains all of the following:
      - A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the Intellectual Property Rights owner, its agent, or the law;
      - A statement that the information in the notice is accurate; and
      - A statement under penalty of perjury that you are authorized to act on behalf of the owner of the intellectual property that is allegedly being infringed.
      - Your physical or electronic signature (of your full legal name).
  5. Please note that we will forward your notice of intellectual property infringement, including your contact information, to the party who will have their content removed so they understand why it is no longer available and can also contact you to resolve any dispute.
Payment Processing Products.
1. Payment Processing Products Generally. As described in the applicable Documentation, certain Company Products allow You to accept payments (the “Payment Processing Products”) via credit card, debit card, ACH, and a variety of other payment applications as determined by Company from time to time, including, as of the date of these Terms of Service, cards bearing the trademarks of Visa®, MasterCard®, Discover®, and American Express® and utilizing the payment applications from Apple Pay®, Google Pay® and other payment applications] (collectively, as may be updated by Company from time to time in its discretion, the “Networks”). In connection with the Payment Processing Products, your data will be transmitted to, and collected and stored by, third-party service providers including payment gateway services providers (“Payment Gateways”) and payment processors (“Payment Processors”). Company does not collect or store any payment card information. Company is not a depository institution and does not offer Banking Services or Money Service Business services as these terms are defined by the United States Department of Treasury. Without limitation of Section 5.2 or the Sub-Merchant Agreement, you acknowledge and agree that you are not a third party beneficiary under, nor do you have any rights under, our contracts with third parties including Payment Gateways, Payment Processors, Networks, or banks.
2. Additional Payment Processing Agreements. Company processes payments you receive from your Buyers via the Payment Processing Products. In order to serve in this role, we must enter into agreements with Networks, Payment Processors, Payment Gateways, and banks. These third parties require customers of the Payment Processing Products to enter into a Sub-Merchant Agreement with the Payment Processor(s) of record (each, a “Sub-Merchant Agreement”) and use of the Payment Processing Products requires your acceptance of the relevant Sub-Merchant Agreement(s). As of the date of these Terms of Service, Company uses Payrix Solutions, LLC, as a Payment Processor and its Sub-Merchant Agreement. Subject to the terms of the Sub-Merchant Agreement, Company may also permit Apple Pay® and Google Pay® as payment methods, each of which are subject to additional terms and conditions as further described in the Sub-Merchant Agreement. By accepting this Agreement and using the Payment Processing Products, you acknowledge and agree that you have read and accepted, and agree to be bound by and comply with, such applicable Sub-Merchant Agreement and payment method terms, as may be amended from time to time without prior notice to you. We may change, replace, or terminate the services of any Payment Gateway and/or Payment Processor at any time without your consent but we will use commercially reasonable efforts to notify you of any such changes. In the event of replacement of a Payment Gateway and/or Payment Processor, or the addition of a payment method, you understand and agree that you may be required to agree to be bound by additional terms and conditions associated with such a replacement. You agree that your continued use of the Payment Processing Products constitutes your agreement to such additional terms and conditions and you will be subject to such revised terms. You further understand and agree that any breach by you of any Sub-Merchant Agreement or any agreement with any Payment Gateway, Payment Processor, payment method or the like shall be deemed to be a breach by you of this Agreement.
3. Processing Fees. All monetary transactions made through your use of the Payment Processing Products are subject to fees that are deducted from your settlement. We reserve the right to change payment processing fees and other fees related to our payments services at any time. We will provide you with reasonable notice of changes via email, notice provided in our customer service portal, or other reasonable means. If you do not accept the pricing changes, then you have the right to terminate using the Payment Processing Products at any time. As described in the Sub-Merchant Agreement, you will remain liable for chargebacks, reversals, and other exception items after terminating use of the Payment Processing Products.
4. Payouts. Funds processed through the Payment Processing Products will be disbursed to you interest free, less any refunds, chargebacks, and any applicable fees including the processing fees. Funds processed through the Payment Processing Products shall be disbursed periodically as described in [the Documentation/Sub-Merchant Agreement] Notwithstanding anything to the contrary herein, you acknowledge and agree that we may withhold, suspend or delay disbursement of funds to you if we are required to withhold such amounts by Applicable Law, if you are delinquent in any amount owed to us under this Agreement, or otherwise in order to protect us against the risk of, among other things, existing, potential or anticipated chargebacks, fraud or your failure to fulfill your responsibilities under the Agreement. Such withholding, suspension or delay may be temporary or permanent as determined by Company in its discretion.
5. Refunds. It is your responsibility to communicate your refund policy to Buyers. You shall ensure that your refund policy is consistent with the Agreement. All refunds will be charged to you along with any applicable processing fees. All communications or disputes regarding refunds are between you and your Buyers. We may force a refund of any charges that we reasonably believe are fraudulent or if we receive complaints from a substantial number (as determined by us in our discretion) of Buyers with respect to your products or site. You are still responsible for processing and associated fees with respect to refunded amounts.
6. Reconciliation and Charge Backs; Debit of Your Account. You are solely responsible for your individual transaction reconciliations for each disbursement. You are solely responsible for communications or disputes regarding chargebacks. You are solely responsible for payment of all chargebacks and ticketing and associated fees of any kind whatsoever against any merchant account established by Company for the purpose of consummating financial transactions conducted on your behalf. For any negative transactions including any refunds and/or chargebacks, Company reserves the right to offset such negative transactions against disbursements to you, or, if any disbursement is less than such offset, to require immediate payment, or debit your bank account, in the amount of the balance of such offset. You agree that Company may, without prior notice to you, debit your bank account for the full amount of any negative or debit balance including chargebacks and reversals if at the end of any disbursement there is a negative or debit balance in your account. If Company is unable to collect on any refunds and/or chargebacks using offset of your disbursement or debit of your bank account, Company shall have the right to invoice you any unpaid balance which shall be subject to interest that Company is entitled to charge pursuant to the Terms of Service.
7. Transaction Limits. We or relevant third parties including Payment Gateways, Payment Processors, Networks, or banks, may set transition limits with respect to use of the Payment Processing Products, in our or such parties’ sole discretion.
8. Reserve. You acknowledge and agree that in addition to other rights afforded to us under these Terms of Service, we may establish a reserve account to satisfy any of your actual or potential delinquent obligations under the Agreement, or any other agreement between you and Company (the “Reserve Account”). We may (but are not required to) apply funds in the Reserve Account toward and may set off any funds that would otherwise be payable to you against the satisfaction of any amounts which are due from you. The Reserve Account will not bear interest, and you will have no right or interest in the funds in the Reserve Account. Upon satisfaction of all your obligations under such agreements, we will pay to you any funds then remaining in the Reserve Account. Any funds in the Reserve Account may be commingled with other funds and need not be maintained in a separate account. The parties’ rights and obligations under this Section shall survive the termination of the Agreement.
9. Additional Customer Responsibilities for Payment Processing Products. Without limitation of your other obligations under these Terms of Service, in connection with your access to and use of the Payment Processing Products, you agree to:
  1. Administer security within your technical systems and environments used in connection with the Payment Processing Products (the “Customer Solution”) (e.g., granting of rights to a user with the Customer Solution).
  2. Maintain your authorized users’ desktops and provide authorized users with network access to the Payment Processing Products.
  3. Use reasonable precautions to ensure security for integration between your Customer Solution and the Payment Processing Products.
  4. Maintain compliance with the then-current Payment Card Industry Data Security Standard (“PCI DSS”).
  5. Maintain and observe all reasonable security measures to protect your Customer Solution from unauthorized control, tampering, or other unauthorized access.
  6. Comply with all Applicable Laws, including Applicable Laws regarding privacy and protection of consumer data, and comply with the Visa Cardholder Information Security Program, the Mastercard Site Data Protection Program and all other applicable rules of card associations, including American Express®, MasterCard®, Discover® and Visa®, as well as the General Data Protection Regulation (“GDPR”) as related to Cardholder Information of Buyers within the European Union.
  7. Provide all disclosures to and obtain all consents from each Buyer, in each case as required by the card associations and Applicable Law, prior to transmitting information relating to such end user to the Payment Processing Products or relevant Payment Gateway. Without limitation of the foregoing, as a prerequisite to using the Payment Processing Products, you agree to post the following information and policies on your website and provide notices thereof to your Buyers: (1) refund policy, (2) customer service contact information, (3) delivery policy; (4) privacy policy, and (5) terms of use and terms of sale.
10. Appointment of Company and/or the applicable Payment Processor as “Payee Agent”. You hereby appoint Company and/or the applicable Payment Processor as your agent for the sole and limited purpose of receiving, holding and settling payment to you. You agree that a payment received by Company and/or the applicable Payment Processor, on your behalf, completes your Buyer’s payment to you, regardless of whether such payment actually settles to you. In the event that Company or the applicable Payment Processor does not make any such payment to you as described in these Terms of Service, you will have recourse against only Company and not such Buyer, as such payment is deemed made by such Buyer to you upon receipt by Company and/or the applicable Payment Processor.
Fees and Payment.
1. Fees. Unless otherwise provided in the applicable Order or Documentation, access to Products and Services are purchased as subscriptions for the term stated in the applicable Order. Customer agrees to pay, as applicable, the activation, connection, monthly, non-recurring and any other fees indicated in each applicable Order (the “Fees”) in accordance with the terms and conditions set forth therein and this Article 5. Unless otherwise expressly set forth in the applicable Order, (a) all Fees are quoted and payable in United States dollars, (b) Fees are based on Product and Service subscriptions purchased and not actual usage, (c) payment obligations are non-cancelable and amounts paid are non-refundable, and (d) quantities purchased cannot be decreased during the relevant Subscription Term.
2. Discounts. Company may make discounts or coupons available to Users from time to time in its discretion, provided that Company may refuse to honor such discounts or coupons for any reason including, but not limited to, fraud, mistake on the part of our publication of information, actual or expected financial hardship, sale of all or part of our business, or any other reason.
3. Payment. Customer will provide Company with current, valid, complete and accurate information for an accepted credit card or other payment method then-currently approved and offered by Company (“Payment Method”) on its initial Order, and shall be responsible for providing any updated Payment Method information to Company during the Term. By submitting any Order and/or Statement of Work or otherwise providing its Payment Method information, Customer hereby explicitly authorizes Company to charge such Payment Method for all Fees for Products and Services listed in the Order for the Initial Subscription Term and any Renewal Subscription Term(s), as well as for any additional Fees applicable to additional Products or Services or other amendments to such Order mutually agreed by the Parties. You acknowledge that the amount billed each month may vary for reasons that include changes that You initiate to Product or Service selection and changes to the Fees charged by Company as permitted under this Agreement. You authorize us to charge Your Payment Form for such varying amounts. You acknowledge that the Monthly Fee is billed and charged one month prior to the Services being provided and that the Monthly Fee is fully earned upon payment and non-refundable, except as otherwise provided herein or in another writing signed by Company. Such authorization shall remain in effect throughout the Term unless Company receives written notification from Client expressly indicating Client’s revocation of such authorization. Unless otherwise stated in the applicable Order, all payments shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. If the Order specifies that payment will be by a method other than a credit card, Company will invoice Customer in advance and otherwise in accordance with the relevant Order. Unless otherwise expressly set forth in the applicable Order or Additional Terms, all invoiced Fees will be due and payable by Customer within ten (10) days after their respective invoice date. Customer is solely responsible for maintaining complete and accurate billing and contact information with Company. Where a credit card is declined for any reason (including but not limited to expiration, insufficient credit, or precautionary anti-fraud measures), Company reserves the right to delete the relevant User’s account data and terminate their access to the Company Property without notice. Without prejudice to any of Company’s rights under this Section 8, Company may choose to first contact the relevant User and give them an opportunity to correct the failed payment issue prior to engaging in such a deletion
4. Taxes. All Fees do not include any applicable taxes, and Customer will be responsible for paying any and all applicable sales, software license, use, value added, excise, property, withholding tax or any other taxes due in connection with the performance of this Agreement (“Taxes”) whether imposed on Customer or Company; provided, however, that Customer shall not be required to pay any Taxes applicable to Company’s net income. If Company pays any Tax that is payable by Customer in accordance with the foregoing, Customer shall reimburse Company for the amount of such Tax upon receiving an invoice therefor.
5. Fee Increases. Unless otherwise expressly set forth in the applicable Order, Statement of Work or Additional Terms, in a provision specifically referencing and overriding this Section, Fees may be increased or otherwise modified from time to time by Company. Any such increases or modifications to the Fees shall take effect following notification to you through the Site, email or otherwise as permitted hereunder provided that for then-outstanding Orders such increased or modified Fees shall be implemented upon the next renewal of your then-current Subscription Term following such notification (e.g., for month-to-month subscriptions, upon the commencement of the following month). You acknowledge and agree that your continued access to or use of the Platform and/or Application after Company provides such notice constitutes your immediate acceptance of any such modified Fees. If you do not agree to such increased or modified Fees, you may terminate the Subscription Term for the applicable Products and/or Services for which the Fees have been increased or modified by providing notice of such cancellation to Company, with such cancellation effective upon expiration of your then-current Subscription Term.
6. No Setoff. All amounts due under this Agreement to be paid by Customer to Company will be paid in full and Customer will not be entitled to assert any credit, set-off or counterclaim against Company in order to justify withholding payment of any such amount in whole or in part.
7. Overdue Charges and Chargebacks. If any Fees are not paid by Customer by the due date, Company may, without prejudice to any other right or remedy, (a) charge interest on a day to day basis both before and after any judgment at a rate equal to the lesser of 1.5% per month or the maximum amount permitted by Applicable Law, from the due date for payment to the date of actual payment, and/or (b) condition future subscription renewals and Orders on payment terms shorter than those specified in Section 6.2 (Payment). Where a User conducts a chargeback against Company, Customer and that User shall be jointly and severably liable to Company for the full amount of the chargeback. In addition to and without limitation of the foregoing, Customer shall pay on demand all of Company’s reasonable attorney fees, collection agency fees, court costs, disbursements, and other costs incurred by Company to collect any amounts due to Company under this Agreement in accordance with this Section or otherwise resulting from Customer’s breach of Section 6.2 (Payment). For the avoidance of doubt, Fees assessed on a periodic basis (e.g., monthly or annually) shall be payable by Customer throughout the applicable Subscription Term, in accordance with this Agreement, regardless of whether Customer has used any Products or Services.
8. Suspension of Service and Acceleration. If any amount owing by Customer under this Agreement or any other agreement between Customer and Company is ten (10) or more days overdue, Company may, without limiting Company’s other rights and remedies, accelerate Customer’s entire unpaid Fee obligations under this Agreement or such agreements so that all such obligations become immediately due and payable, and suspend the Platform, Services and any other services to Customer until such amounts are paid in full.
Proprietary Rights.
1. Ownership of Company Property. This is a subscription agreement for use of the Platform and applicable Services and not an agreement for purchase or sale. Customer acknowledges that: (a) it is obtaining only a limited right to use the Company Property and applicable Services and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder, no ownership rights are being conveyed to Customer under this Agreement; and (b) the Platform is offered as an online, hosted solution and Customer has no right to obtain a copy of any Company Property used to provide the Platform. Customer acknowledges and agrees that Company and its licensors shall retain all ownership right, title, and interest in and to the Company Property and all Intellectual Property Rights embodied therein or associated therewith. Customer shall have no right, title, or interest in or to the Company Property other than the limited license rights expressly set forth in this Agreement.
2. License to Customer. Subject to the terms and conditions of this Agreement, including without limitation payment of all applicable Fees, Company hereby grants to Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to use the Licensed Content and, unless otherwise expressly set forth in the applicable Order, Statement or Work or Additional Terms, any Deliverables, provided or otherwise made available to Customer by Company in connection with this Agreement solely for Customer’s internal business purposes in accordance with the applicable Documentation and any usage limitations set forth in the Order, Statement or Work and/or Additional Terms.
3. Ownership of Customer Data and Customer Content. Subject to the terms and conditions of this Agreement, Customer owns and shall retain all ownership right, title, and interest in and to the Customer Data and Customer Content and any and all Intellectual Property Rights embodied therein. Company shall have no right, title, or interest in or to the Customer Data or Customer Content other than the rights expressly set forth in this Agreement.
4. License to Company. Customer hereby grants to Company and its Affiliates a fully-paid up, nonexclusive, irrevocable, transferrable, sublicensable, worldwide license to process, reproduce, store, display, modify, translate, create derivative works from, make available and otherwise use Customer Data and Customer Content during the Term in connection with the performance of Company’s obligations under this Agreement and for Company’s current and future business purposes, including without limitation developing, maintaining, promoting and improving the products, services and content provided by Company.
5. Aggregated Data. Customer hereby acknowledges and agrees that, without limitation of the license granted under Section 7.4 or any applicable terms of the Privacy Policy, Company and its Affiliates shall have the right to collect and analyze Customer Data, Customer Content and other data and other information relating to the provision, use, and performance of various aspects of the Company Property and Services (collectively, “Compiled Data”) and, that once any such Compiled Data is aggregated and de-identified or anonymized in a manner that does not designate or identify Customer or its Users as the source of such data (“Aggregated Data”), Company owns and shall retain all ownership right, title, and interest in and to the Aggregated Data and any and all Intellectual Property Rights embodied therein. Customer hereby irrevocably assigns to Company, on behalf of Customer and all Users, any and all right, title or interest that Customer and/or any Users may have in or to the Aggregated Data. For clarity, Company shall be entitled to process, reproduce, store, distribute, display, modify, translate, transmit, create derivative works from, make available, sell, license, commercialize and otherwise use the Aggregated Data during the Term and after any expiration or termination of this Agreement for any and all purposes and applications, including without limitation advertising, marketing, developing, maintaining, improving, offering and delivering Company’s current and future products and services.
6. Feedback. If Customer (including any User) provides any comments, questions, recommendations, suggestions, or related information to Company, by any means, concerning the Company Property or Services (collectively, “Feedback”), Customer hereby grants Company a perpetual, irrevocable, royalty-free, fully paid-up, worldwide, transferable, sublicensable license to use, copy, modify, create derivative works of, publicly display, publicly perform, distribute and otherwise exploit, without any attribution or compensation to Customer or any User, any and all Feedback for any and all purposes and applications, including without limitation in connection with the Company Property and Services or any of Company’s other products or services provided that, for clarity, neither Customer nor Users have any right to compel any such use.
Representations and Warranties; DISCLAIMER.
1. Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it has the full power and authority to enter into this Agreement; (b) the individual entering into this Agreement on its behalf is authorized to do so; and (c) this Agreement constitutes a valid and legally binding obligation of such party, enforceable against such party in accordance with its terms.
2. Additional Representations and Warranties of Company. Company represents, warrants and covenants that: (a) the Platform and Application will perform substantially in accordance with the then-currently applicable Documentation when used in accordance with the terms and conditions of this Agreement, and (b) the Services will be provided in a professional, workmanlike manner with reasonable care and skill; provided, however, in each case Company will not be responsible for any non-conformity or non-compliance that: (a) arises out of Customer’s use of the Company Property or Services other than as expressly permitted under this Agreement and the Documentation or any other unauthorized use, reproduction, or distribution of the Company Property or Services; (b) arises out of any modification or alteration of the Company Property or Services by anyone other than Company; (c) arises out of the use of Company Property in combination with any other software or equipment not approved in writing by Company; or (d) would have been avoided by use of the then-current release of any software or if the Customer had followed Company’s reasonable written instructions ((a) through (d), collectively, “Excluded Claims”).. For any breach of the foregoing warranties, Customer’s sole and exclusive remedy is that Company will, at Company’s sole option, (i) use commercially reasonable efforts to (a) make such alterations, modifications or adjustments to the Company Property or Services to cure the breach without materially reducing the features or functionality thereof, or (b) replace the Company Property or Services with a substantially similar substitute that conforms to such warranty; or (ii) if none of the foregoing remedies can be achieved after the exercise of commercially reasonable efforts, terminate this Agreement or the applicable Order and refund to the Customer: (A) all amounts prepaid by the Customer to Company as Fees attributable to the license or subscription with respect to the affected Company Property for the period during which such Company Property failed to conform to the warranties under this Section, and (B) if applicable, a pro rata portion of any prepaid Fees for Support Services for the then-current annual Support Services period terminated in accordance therewith.
3. Additional Representations and Warranties of Customer. Customer hereby represents, warrants and covenants to Company, on behalf of Customer and all Users, that: (a) Customer and/or the User submitting any Customer Data or Customer Content has collected, compiled and generated the Customer Data or Customer Content in compliance with all Applicable Laws and any applicable privacy policies and third party terms or contracts; (b) the provision of all Customer Data and Customer Content to Company hereunder is in compliance with all Applicable Laws and any applicable privacy policies and third party terms or contracts; (c) Customer or such User has all rights necessary to grant Company the right to use and disclose all Customer Data and Customer Content in accordance with the terms of this Agreement; (d) the provision of all Customer Data or Customer Content to Company, and Company’s access, storage, processing and other use of the Customer Data and Customer Content in connection with the performance of its obligations or exercise of its rights under this Agreement will not violate any Applicable Law or otherwise infringe, misappropriate or violate any rights of a third party, including any privacy rights or Intellectual Property Rights of any third parties; (e) there are no threatened or pending proceedings involving any Customer Data or Customer Content; (f) all Customer Data and Customer Content provided or otherwise made available to Company is accurate, noninfringing, complete and current, and (g) unless otherwise expressly indicated in the Documentation for the particular Product, or to the extent reasonably necessary to utilize the Platform for its intended purpose in accordance with the terms and conditions of this Agreement, Customer Data shall not contain any Personal Information.
4. Warranty Disclaimers. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS SECTION 8, , COMPANY DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND COMPANY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY WILL NOT BE RESPONSIBLE FOR ANY THIRD PARTY OFFERINGS OR OTHER THIRD PARTY SOFTWARE, SERVICE OR HARDWARE COMPANY PROVIDES OR USES IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, COMPANY DOES NOT MAKE ANY WARRANTY OR OTHER COMMITMENT (A) THAT THE OPERATION OF THE COMPANY PROPERTY OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED OR ERROR FREE; (B) THAT ANY DEFECT, ERROR OR MALFUNCTION IN THE COMPANY PROPERTY OR SERVICES IS CORRECTABLE OR WILL BE CORRECTED; (C) REGARDING THE USE, OR THE RESULTS OF, USE OF THE COMPANY PROPERTY OR SERVICES IN TERMS OF THEIR ACCURACY, QUALITY, RELIABILITY, CORRECTNESS, TIMELINESS, COMPLETENESS, AVAILABILITY OR OTHERWISE.
Indemnification.
Customer will indemnify, defend, and hold harmless Company and its Affiliates and each of their respective officers, directors, employees, representatives, agents, licensors and licensees (collectively the “Company Indemnified Parties”) from any and against all claims, suits, demands and actions ( and for all resulting damages, fines, penalties, judgements, assessments, losses, liabilities, costs and expenses (including reasonable attorney and professional fees) incurred by the Company Indemnified Parties arising in connection with or resulting from: (a) any Customer Content, Customer Data or Customer Store, including without limitation (1) any claim that Customer’s provision of the Customer Content or Customer Data to Company in connection with this Agreement or Company’s use of the Customer Content, Customer Data or Customer Store pursuant to this Agreement fails to comply with Applicable Law or infringes, misappropriates or violates any rights of a third party, including any privacy rights or Intellectual Property Rights or (2) any products, services, content or information displayed, offered or sold through the Customer Store; (b) Customer’s use of the Company Property or any products, services, content or information obtained through the Company Property; (c) Excluded Claims; (d) failure to comply with Applicable Laws or any applicable third party contract terms by Customer or its Users; (e) any breach or violation of any Sub-Merchant Agreement, any agreement with any Payment Gateway, Payment Processor, payment method or any regulations, policies, rules or guidelines of a payment card or brand by Customer or its Users; or (f) any transaction submitted or processed through the Payment Processing Products by Customer, its Users or any third party using access credentials of Customer or its Users.
Confidentiality.
1. Definition. “Confidential Information” means all confidential or proprietary information disclosed by or on behalf of a party (in this capacity, the “Disclosing Party”) to the other party (in this capacity, the “Receiving Party”) or its Representatives (as defined below), whether orally, in writing or in any other format or medium, in connection with the performance of this Agreement, that is identified as confidential or is reasonably apparent to be confidential given the nature of such information and the circumstances of disclosure. Confidential Information will not, however, include any information that (a) at the time of disclosure hereunder is generally known to the public or thereafter becomes generally known to the public without breach of this Agreement by the Receiving Party or any of its Representatives, (b) was known to the Receiving Party at the time of its disclosure by or on behalf of the Disclosing Party hereunder without breach of any obligation owed to the Disclosing Party, (c) is received by the Receiving Party or any of its Representatives from a third party without breach of any obligation of confidentiality owed to the Disclosing Party with respect to such disclosure or (d) was independently developed by the Receiving Party or any of its Representatives without reference to or use of the Disclosing Party’s Confidential Information. For the avoidance of doubt, (i) the terms and conditions of this Agreement will be deemed the Confidential Information of Company, (ii) the Company Property is the Confidential Information of Company, and (iii) without limitation of the rights granted under Section 7.4, the Customer Data is the Confidential Information of Customer.
2. Permitted Use. The Receiving Party shall: (a) use the Disclosing Party’s Confidential Information solely to accomplish the purpose of this Agreement or as otherwise permitted under the express terms of this Agreement; (b) not disclose the Disclosing Party’s Confidential Information to any third party without first obtaining the written consent of the Disclosing Party, except as otherwise expressly permitted in this Agreement; and (c) protect the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care used to protect its own confidential and/or proprietary information from unauthorized use or disclosure, but in no event with less than reasonable care. The Receiving Party will be permitted to disclose the Disclosing Party’s Confidential Information to its Affiliates and those of its and its Affiliates’ respective directors, officers, employees, agents, subcontractors and consultants (with respect to a Party, together with such Party’s affiliates, collectively, such Party’s “Representatives”) who need to know such Confidential Information in order to accomplish the purpose of this Agreement; provided, that such persons or entities are bound to the Receiving Party by obligations of confidentiality and non-use with respect to such Confidential Information that are substantially similar to those contained herein. The Receiving Party shall be liable for any unauthorized use or disclosure of the Disclosing Party’s Confidential Information by any of the Receiving Party’s Representatives. The Receiving Party shall notify the Disclosing Party in writing promptly upon learning of any such unauthorized use or disclosure of the Disclosing Party’s Confidential Information and shall use all reasonable efforts to mitigate such unauthorized use or disclosure and prevent any further unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Notwithstanding anything in this Agreement to the contrary, Company shall (y) be permitted to (i) disclose Customer’s Confidential Information, on a limited basis, to Company’s lender(s) or prospective acquirer(s), provided that any such lender or prospective acquirer is bound by obligations of nondisclosure and limited use at least as stringent as those contained herein and (ii) use the Customer Data in accordance with Section 7.4; and (z) own all Aggregated Data in accordance with Section 7.5.
3. Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is required pursuant to Applicable Law, or by order of a court or governmental or regulatory body of competent jurisdiction; provided, that the Receiving Party promptly notifies the Disclosing Party of such disclosure in writing and provides reasonable assistance to the Disclosing Party in seeking such protective action as it deems appropriate. Thereupon, the Receiving Party may only disclose such Confidential Information as is legally required and only to an authorized person, entity or agency, to the extent required by Applicable Law and subject to the maximum available confidentiality restrictions.
4. Return of Confidential Information. Subject to the terms and conditions of Section 11.4, at any time upon the Disclosing Party’s request, the Receiving Party shall, at the Disclosing Party’s sole discretion: (a) return to the Disclosing Party all tangible or electronic Confidential Information of the Disclosing Party then in the possession of the Receiving Party or its Representatives, or (b) destroy all such Confidential Information, including any copies thereof, in accordance with the Disclosing Party’s instructions (and confirm such destruction in writing to the Disclosing Party). Notwithstanding the foregoing, the Receiving Party may retain copies of the Disclosing Party’s Confidential Information disclosed hereunder that are contained in routine system backups or are necessary to fulfill its ongoing obligations or exercise its ongoing rights under this Agreement (including without limitation the rights to Customer Data granted under Section 7.5), subject to the ongoing obligation to maintain the confidentiality of such information in accordance with the terms of this Section 10.
5. Publicity. Customer agrees that Company shall have the right, but not the obligation, to include Customer’s name and logo on the Site and in other marketing materials and content promoting the Platform and Services. Customer shall not use Company’s name, logo, or other proprietary indicia in any public materials or releases except as expressly authorized under this Agreement or otherwise explicitly approved by a duly authorized representative of Company in each instance.
Term and Termination.
1. Term and Renewal of Orders and Agreement. Each Order shall begin on the subscription start date indicated in the Order or, if no such subscription start date is so indicated, on the date upon which the Order is entered into by the parties (“Order Effective Date”) and continue for the initial the term of access to the Platform or period for provision of Services as specified in the applicable Order (“Initial Subscription Term”). At the conclusion of the Initial Subscription Term indicated in the applicable Order, unless otherwise expressly stated in the Order, each Order shall automatically renew for additional periods equivalent to the Initial Subscription Term or one (1) year, whichever is shorter (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, collectively, the “Subscription Term”), unless notice of termination is given at least thirty (30) days prior to the expiration of the Initial Subscription Term or the then-current Renewal Subscription Term, as applicable. The pricing during any such Renewal Subscription Term shall be the same as that during the prior term unless Company has given Customer written notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. The term of this Agreement shall continue for so long as any Order remains in effect, unless terminated as provided for herein (the “Term”).
2. Termination for Cause.
  1. In the event that either party is in material breach of the terms of this Agreement, the non-breaching Party may terminate this Agreement on thirty (30) days prior written notice (or five (5) days in the event of a breach of Customer’s payment obligations hereunder); provided however, that this Agreement shall not be terminated as provided for herein in the event that the breaching Party cures the breach to the reasonable satisfaction of the non-breaching Party within such notice period or takes material steps reasonably satisfactory to the non-breaching Party to do so within such notice period.
  2. Either party may terminate this Agreement by delivering written notice to the other party upon the occurrence of any of the following events: (a) a receiver is appointed for the other party or its property; (b) the other party makes a general assignment for the benefit of its creditors; (c) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) the other party becomes insolvent or is liquidating, dissolving or ceasing business operations.
3. Additional Termination Rights. Company may terminate this Agreement for any reason upon notice to Customer, provided that Customer shall not be required to pay any future Fees attributable to Services not yet performed as of the effective date of such termination without cause or for the remainder of the Subscription Term after the effective date of such termination without cause, and any prepaid Fees attributable to Services not yet performed as of the effective date of such termination without cause or for the remainder of the Subscription Term after the effective date of such termination without cause will be refunded to Customer. Customer may terminate this Agreement at any time upon notice to Company, provided that Customer shall not be entitled to any refunds as a result of such termination.
4. Effects of Termination. In the event of any expiration or termination of this Agreement, Customer and its Affiliates shall immediately cease any access to or use of the Company Property. Except as otherwise specified in the Order or applicable Documentation, Customer acknowledges that following expiration or termination of this Agreement or any Order it shall have no further access to any Customer Data from Company, and Company may delete all Customer Data that has been stored by Company pursuant to this Agreement or such applicable Order.
5. Survival. All rights and obligations that accrued prior to termination or expiration of this Agreement or by their nature are intended to survive the termination or expiration of this Agreement, shall survive expiration or termination of this Agreement, including without limitation the provisions of Sections 1, 2.3, 4.6, 4.8, 5, 7, 8.4, 8.5, 9, 10, 11.4, 11.5, 12, and 13.
Limitations of Liability.
1. No Liability for Third Parties. YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU. YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY FAILURE ON THE PART OF A PAYMENT PROCESSOR TO DIRECT PAYMENTS TO THE CORRECT DESTINATION, OR ANY ACTIONS ON THEIR PART IN PLACING A HOLD ON YOUR FUNDS. YOU AGREE THAT WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OUR COMPANY OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR WEBSITE WHICH PREVENT ACCESS TO OUR WEBSITE TEMPORARILY OR PERMANENTLY.
2. Disclaimer of Damages. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES OF ANY KIND ARISING UNDER ANY THEORY OF LIABILITY (INCLUDING TORT), OR FOR DAMAGES OR LOSSES FOR LOSS OF PROFITS, LOSS OF PRODUCTION OR EXPECTED SAVINGS, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOSS OR CORRUPTION OF DATA OR INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3. Limitation of Liability. COMPANY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND UNDER ANY THEORY OF LIABILITY) SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID BY THE CUSTOMER TO COMPANY UNDER THE ORDER UNDER WHICH THE LIABILITY ARISES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
4. Applicability. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Notwithstanding any provision of this Agreement, if your jurisdiction has provisions specific to waiver or liability that conflict with the limitation set forth in this Section 12 then our liability is limited to the smallest extent possible by Applicable Law. Specifically, in those jurisdictions where the following is prohibited, we do not disclaim liability for: (a) death or personal injury caused by our negligence or that of any of our officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future. IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
Miscellaneous Legal Terms.
1. Export Compliance. The Company Property may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to access the Company Property without prior written permission from Company once granted by the appropriate jurisdiction. The rights and obligations of Customer shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. Customer shall not, directly or indirectly, export, re-export or transship the Company Property in such manner as to violate such laws or regulations in effect from time to time.
2. Audit Right. Upon Company’s written request, Customer will furnish Company with a signed certification certifying that the Company Property is being used by Customer and its Users pursuant to the terms of this Agreement, including any access and user limitations. With prior reasonable notice of at least ten (10) business days (but not more than once in any calendar year), Company (or its delegate) may audit Customer’s use of the Company Property; provided such audit is during regular business hours and Company complies with any reasonable confidentiality and security requirements of Customer in connection with such audit. Customer is responsible for Company’s reasonable, documented audit costs only in the event the audit reveals that Customer’s use of the Company Property is not materially in accordance with the terms of this Agreement.
3. Independent Contractors. The parties to this Agreement are independent contractors. Neither party shall have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other party. This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of a business organization or agency relationship.
4. Force Majeure. Company shall not be considered in default of performance under this Agreement or otherwise liable to Customer for any delay in performing, or failure to perform, in the event that such performance is delayed or prevented by circumstances or events beyond its reasonable control, including, without limitation, fire, flood, earthquake or similar natural disasters, riot, war, terrorism, civil strife, labor disputes or disturbances, material shortages or rationing, actions or requirements (including laws, regulations, orders, advisories, disapprovals or failure to approve) of any governmental or public health agencies or authorities (whether national, statewide, municipal, or otherwise), communication or utility failures, epidemic, public health emergency, quarantine restriction, or casualties.
5. Equitable Relief. Each party acknowledges and agrees that its breach of any confidentiality or proprietary rights provision of this Agreement may cause the other party irreparable damage, for which the award of damages may not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
6. Notices. Except as otherwise set forth herein, any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight courier service (e.g., Federal Express), or by first class mail (certified or registered), to the other party addressed as set forth on the Order or to such other address of which a party provides notice to the other party. In addition, Company may provide any such notices under this Agreement to you by email to the address as set forth on the Order (or to such other address of which you provide notice to Company). Notices will be effective upon receipt. You hereby acknowledge and agree that all agreements, notices, disclosures, and other communications that we provide to you electronically as permitted under this Agreement satisfy any legal requirement that such communications be in writing.
7. Waiver and Modification. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties.
8. Assignment. Customer shall have no right to transfer or assign this Agreement or any Order or the Customer’s rights or obligations under this Agreement or any Order, whether by operation of law or otherwise, in whole or in part without Company’s express prior written consent, and any attempted transfer or assignment in violation of the foregoing shall be null and void. Company may transfer, assign or subcontract this Agreement or any Order or Company’s rights or obligations under this Agreement or any Order, in whole or in part, without the consent of Customer. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
9. No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
10. Severability. If for any reason any provision of this Agreement is adjudicated to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
11. Controlling Law and Venue; Limitations on Claims. This Agreement shall be interpreted according to the laws of the State of Texas without regard for or application of choice or conflict of law rules or principles. With respect to all disputes arising in connection with or relating to this Agreement or the Services, Customer and Company irrevocably consent to the exclusive personal jurisdiction and venue of the state and federal courts located in Collin County, Texas. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
  
  ANY PROCEEDING TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM RELATING TO THIS AGREEMENT SHALL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER PARTY SHALL HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. FURTHER, THE PARTIES EXPRESSLY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
  
  WITHOUT LIMITATION OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO CLAIM AGAINST COMPANY OF ANY KIND UNDER ANY CIRCUMSTANCES WILL BE FILED MORE THAN ONE YEAR AFTER CUSTOMER KNOWS OF, OR IN THE EXERCISE OF REASONABLE CARE COULD KNOW OF, SUCH CLAIM OR AN ACT OR OMISSION OF COMPANY THAT WOULD GIVE RISE TO SUCH CLAIM
12. California Users and Residents.
  1. Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Company must be addressed to our agent for notice and sent via certified mail to that agent. For our agent’s most current contact information, please send a request to copyrightagent@inktavo.com.
  2. Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
13. Headings. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
14. Entire Agreement; Order of Precedence. This Agreement, including all Additional Terms, Orders, and Statements of Work, and exhibits or attachments hereto or thereto, all of which are hereby incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Except as explicitly stated elsewhere in the Agreement, in the event of a conflict or inconsistency between the provisions of the components of the Agreement, then the following order of precedence shall apply: (a) the Order’s terms and conditions shall take precedence over any other component of the Agreement; (b) then the Additional Terms; and (c) then these Terms of Service.

Last Updated: 05/23/2023