Terms & Conditions

Last Updated March 13, 2024

These Terms and Conditions (these “Terms”, together with the Privacy Policy, and any additional terms or documentation incorporated by reference in these Terms (collectively, this “Agreement”) constitutes a binding legal agreement between Modisoft Inc., a Texas corporation (“Modisoft”), or an affiliate of Modisoft (“Affiliate”), as applicable for the products and/or services hereunder (“we“, “our“, or “us“), and the person accepting or on whose behalf are accepted these Terms, whether directly (for example, by clicking an “accept”, “agree”, or other button on this website or in an communication from us to you), by reference or otherwise (“you” or “your“). This Agreement governs the products and/or services provided by us to you in connection with which you have accepted these Terms (the “Services”), including any software provided or made available or accessible by us to you in conjunction with the Services, including programs, components, internet-based services, content, technology, tools, updates, help content, and new releases thereof (the “Software”).This Agreement incorporates by reference all applicable program, subscription, activation, ordering, and pricing terms provided to you, whether online or offline, with regard to, and in connection with your purchase of, the Services (the “Services Terms”).

1. Legal Agreement

By accepting these Terms (for example, by clicking “I AGREE” or “ACCEPT” or “REGISTER” on the registration page on our website or otherwise) and/or accessing or using the Services, you represent that you have read, understand, and agree to be bound by this Agreement. If you do not agree to anything in these Terms or otherwise in this Agreement, you shall not access or use, and will not be granted any right to access or use, the Services or the Software. You and we expressly agree that this Agreement may be entered into via electronic signature, including in the form of a click.
If the individual expressing the acceptance of these Terms is an employee or agent of you, such individual hereby represents to have the authority to accept these Terms and enter into this Agreement as your authorized agent on your behalf and has all necessary authority to act on your behalf, including the authority to bind you to the terms and conditions of this Agreement.

2. Services

We will make commercially reasonable efforts to provide the Services under, and subject to, the terms and conditions of this Agreement, including the payment of the Fees (as defined in Section 6.a) pursuant to this Agreement.
We have the right, in our sole discretion, to revise, update, or otherwise modify the Services and establish or change limits concerning use of the Software and Services, temporarily or permanently, including to change, delete, limit, discontinue, or impose conditions on any feature or aspect of the Services, including Internet based services, pricing, technical support options, and other product-related policies, the amount of storage space you have at any time, and the number of times (and the maximum duration for which) you may access the Software in a given period of time (“Modifications”). We will try to provide you with reasonable notice of material Modifications on our website and/or by e-mail to your email address provided in the Registration Information (as defined in Section 2.d). We reserve the right to make any Modification effective immediately to maintain the security of the system or your Access Information or to comply with applicable Law (as defined in Section 4.b(10)), and will try to provide you with such notice within thirty (30) days after such Modification. You may reject any Modification by discontinuing use of the Software and Services and terminating this Agreement in accordance with Section 12.a(4). Your continued use of the Software or Services will constitute your acceptance of and agreement to such Modifications.
Your right to access and use the Services, including the Software, is limited to such individual user or individual users (employees or contractors) for which you have purchased the Services (including any specified individual users, category of individual users, and/or number of individual users) and for whom you paid the applicable Fees (each a “User”). Each User may only accesses and uses the Services, including the Software and any of Our Content (as defined in Section 3.b), solely for you and on your behalf as permitted in this Agreement. You shall ensure that any User accesses and uses the Services, including the Software and any of Our Content, solely for you and on your behalf, and as permitted in this Agreement, and that no person other than a User accesses or uses the Services, or the Software, or any of Our Content, through or for or on behalf of you. You will be liable for all acts, activities, and omissions of all Users, and all of your employees and contractors, related to the Services, the Software, or any of Our Content. Any such act, activity, omission, and violation shall be deemed to be your act, activity, omission, and violation. Any violation of this Agreement by any User or any of your employees or contractors shall be conclusively deemed to be a breach of this Agreement by you.
Access to and use of the Services will require setting up an account and register with us in the form provided to you. All data and information that you provide to us in connection therewith (“Registration Information”) will be complete, accurate, and current. You will promptly update any Registration Information in the event of any changes thereto. Following our receipt and processing of the Registration Data, we will set up an account for you (“Your Account”). We require you to set up and use specific IDs and passwords to access and use the Services (the “Access Information”). We reserve the right to require you and/or any User to others confirm your or a User’s identity and right to access or use the Services from time to time. You agree to keep secure and confidential, and not to share, any of the Access Information with any other person or permit any other person to access, know and/or use any of the Access Information, except solely for any User. Once a person ceases to be a User, you shall ensure that such person has no further access to or use of the Services, if necessary, by changing the Access Information. You will notify us immediately in writing of any loss, misappropriation, or misuse of any Access Information, in which case we may require an immediate change of the Access Information. You shall be fully responsible and liable for any and all activities after accessing or using the Services or any Software through your Access Information.
Your access to and use of the Services and our provision and performance of the Services (other than Data Entry Services, as defined below) will commence, after your acceptance of this Agreement, as follows:
1. if the Services are provided to you on an unpaid trial basis, our confirmation of Your Account to you; and
2. if the Services are provided to you not on an unpaid trial bases, upon both of the following to have occurred: (i) our confirmation of Your Account to you, and (ii) your payment of all applicable Fees owed at the beginning of this Agreement.

To the extent that any Services are services comprising solely the entry of data into our system for you (“Data Entry Services”), the provision and performance of the Data Entry Services will commence after your acceptance of this Agreement on either the first (1st) calendar day of the calendar month following our confirmation of Your Account to you or immediately our confirmation of Your Account to you, as determined by us, provided that, in case of the latter, no Fees will be prorated for any unused portion of a calendar month.

Access to and use of the Services requires that you have and maintain throughout the Term sufficient software and hardware meeting our technical requirements. You will keep such software and hardware free from any virus, worm, Trojan horse, trap door, or other code of any kind designed for or having the effect of, in any manner, disrupting, disabling, harming, impeding, or interrupting, or executing malicious, harmful, or hidden procedures, routines, or data collection on, software or hardware, including the Software and the Services.
We do not covenant, agree, represent, warrant, or give any assurances that the Services or the Software are up-to-date. We may, from time to time and in our sole discretion, perform maintenance upon the Software or Services and/or provide upgrades, bug fixes, patches, error corrections, tools, utilities, improvements, third party applications, or general updates thereto (collectively, “Updates“). You agree that we have no obligation to develop, create, or make available any Updates at all or for particular issues. All Updates will be deemed to be Software. We may provide Updates via download from a website designated by us, and your receipt thereof will require an internet connection, which connection is your sole responsibility. Updates do not include any new version or release of the Software that we may issue as a separate or new product, and we have the sole discretion to determine whether any issuance qualifies as a new version, new release, or Update.
You acknowledge that Updates may result in interrupted service, delays, or errors in the Software or Services. We will attempt to provide prior notice of scheduled maintenance or other Updates, but cannot guarantee that such notice will be provided. We do not offer, and do not agree to or provide, any service level agreement, service levels, credit, compensation, uptime, minimum uptime, lack of downtime, or other similar features regarding any downtime or otherwise in connection with the Services or the Software.
From time to time, we may, in our sole discretion, include new or updated beta features in the Services (“Beta Features“). You understand that your use of any Beta Feature is strictly voluntary, and that once you use a Beta Feature, you may be unable to revert back to the prior (i.e., non-beta) version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to restore data created within the Beta Feature back to the prior version. All Beta Features are provided on an “as is” basis and may contain errors or inaccuracies that could cause failures, corruption, or loss of data and information from any connected device. You acknowledge and agree that all use of any Beta Feature is at your sole risk.
In connection with the Services, you may be offered or made aware of services, products, offers, and promotions provided by persons other than us (collectively, “Third Party Products“), and you authorize us to use and disclose your contact information, including your name and address, for the purpose of making Third Party Products you choose available to you. Your use of the Services may also make available to you reference links to websites operated by persons other than us (collectively, “Third Party Websites“). The provision of any Third Party Website link is not, and does not imply, an affiliation, sponsorship, endorsement, approval, investigation, verification, or monitoring by us of any data contained therein, or products or services made available thereby. ANY USE OF THIRD PARTY PRODUCTS OR THIRD PARTY WEBSITES IS DONE SOLELY AT YOUR OWN RISK, AND YOU ARE RESPONSIBLE FOR REVIEWING ANY TERMS, CONDITIONS, AND POLICIES GOVERNING SUCH USE AND, WHERE APPLICABLE, COMPLYING THEREWITH, WHICH MAY CONTAIN TERMS, CONDITIONS, AND/OR POLICIES THAT ARE IN ADDITION TO AND/OR DIFFERENT FROM THIS AGREEMENT. You hereby acknowledge and agree that we are not responsible or liable for (i) the performance of the Third Party Products, (ii) the content of, or any link contained on, Third Party Websites, (iii) any liabilities or damages of any kind or nature arising from, or in connection with, your use of Third Party Products or Third Party Websites.
You may be made aware of or offered services, features, products, applications, online communities, rewards, or promotions provided by us (the “Extra Services“). If you decide to use the Extra Services, you may be subject to additional terms and conditions governing the same and separate fees may apply. You acknowledge that in accessing certain Extra Services through the Services you may upload or enter certain data from your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You hereby grant us permission to use information about your business and usage experience to enable us to provide the Extra Services to you, including updating and maintaining your data, addressing errors or service interruptions, and to enhance the types of data and services we may provide to you in the future. You also grant us permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally to improve services and to compare business practices with other company standards. We may use your data to create, market, or promote new offerings to you and others.
Mobile access to the Services requires an active subscription, internet access, and may not be available for all mobile devices or telecommunication providers. You will need to check the Services website to ensure your mobile device and telecommunications provider is compatible with the Services. We are not, and will not be, obligated to provide a compatible version of the Services for all mobile devices or telecommunication providers, which are subject to change by us at any time with reasonable notice to you. You agree that you are solely responsible for these requirements, including any applicable changes, updates, and fees, as well as the terms of your agreement with your mobile device and telecommunications provider.
Depending on the Service Terms, the Services may include our making available certain “Cartzie” marketplace services and features (the “Cartzie Services”), through you may make available to customers of your retail business specific benefits, such as rewards or loyalty programs, remote ordering and pick-up, information, etc. (“Customer Benefits”). If you purchase the Cartzie Services, the Cartzie Services will be part of the Services under this Agreement, subject to your payment of any Fees applicable thereto. You are solely responsible and liable for selecting, identifying, offering, providing, and implementing the Customer Benefits. You shall provide and implement all Customer Benefits in accordance with the terms under which you agree to make the Customer Benefits available to a customer. A customer will access and use such Customer Benefits provided under the Cartzie Services through a “Cartzie” mobile software application (the “Cartzie App”). The customer’s downloading, installation, access, and use of the Cartzie App is governed solely by separate terms and conditions, which must be accepted by the customer prior to downloading, installing, accessing, and using the Cartzie App, which terms and conditions are an agreement separate from this Agreement. You will not have any rights related to the Cartzie App by virtue of a customer using the Cartzie App to access and use your Customer Benefits.

3. License

Subject to and conditioned upon your payment of all Fees and your strict compliance with the terms and conditions set forth in this Agreement, we hereby grant you a personal, non-exclusive, non-transferable, non-assignable, non-sublicensable, limited license during the Term (as defined in Section 12.a) to access and use the Services as provided or made available to you by us, any Software and any to the extent we provide or make available any Software to you as part of the Services, solely for the purpose(s) described in our description for the Services solely for the purpose of your internal operation of your business, and, if applicable, solely by such number of authorized users for which you have paid the applicable Fees (the “Users”) and, if applicable, solely for such business or locations for which you have purchased the Services and have paid the applicable Fees, all under and in accordance with the terms and conditions of this Agreement (the “License”).
Any software, code, technology, documentation, works, material, data, and information provided or made available or accessible by us or an Affiliate, or obtained or accessed from us or an Affiliate, or included in or resulting or derived from any of the Services or the Software or any use thereof (collectively, “Our Content”) may be accessed or used by you under the License only to the extent that we provide or make Our Content available to you as part of the Services. In no event do we grant, or do you receive, any license or rights to or related to any source code or source materials, whether expressly or implicitly.
If we sell, provide, or make available or accessible the Services or the Software only for a specific geographic territory, including by written agreement, notice, or technology (for example, geo blocking) (the “Territory”), the License is granted only for such Territory. We may at any time, by notice, technology implementation, or otherwise, remove parts of the Territory, such as we deem necessary to comply with applicable law or avoid liability, such removed parts of the Territory shall at that time be excluded from the Territory, and the term “Territory” in this Agreement no longer includes such removed parts.
If you are the U.S. federal government or an agency or entity of the U.S. federal government: The Software is “commercial computer software”, as such term is defined at 48 C.F.R. § 2.101. Accordingly, you will receive only those rights with respect to the Services and the Software as are granted to all other end users under license, in accordance with: (a) 48 C.F.R. § 227.7201 to § 227.7204, with respect to the Department of Defense and their contractors; or (b) 48 C.F.R. § 12.212, with respect to all other U.S. government licensees and their contractors.

4. Limitations and Restrictions

The License is the only license and right granted to you with regard to any Services, any Software, and any of Our Content.
Except as expressly permitted by this Agreement, the License expressly excludes any right to, and you and your Users shall not, and shall not agree or promise to, and shall not allow, induce, or assist any third party to, directly or indirectly:
1. access or use the Services or the Software outside or beyond the scope of the License, including outside the Territory;
2. grant or purport to grant any sublicense under the License or any license to or for the Services or the Software or any part thereof;
3. transfer, assign, sell, or resell, or purport to transfer, assign, sell, or resell, this Agreement, the License, or any part thereof or any right therein or thereunder;
4. copy, reproduce, publish, display, upload, post, transfer, or distribute the Services, the Software, or any of Our Content, or access, use, or exploit the Services, the Software, or any of Our Content as a service bureau or otherwise commercially for or on behalf of any third party;
5. make, develop, or create any modification, edits, translation, transliteration, customization, adaptation, derivative work, improvement, or derivative of or to or from or based on any Services, Software, or any of Our Content, in whole or in part (“Derivation”);
6. access, use, or attempt to access or use any services, software, systems, content, programs, features, or data that are not provided or made available or accessible by us to you under this Agreement;
7. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code or source materials of or associated with, or utilized by, the Services, the Software, any of Our Content, or any part thereof;
8. interfere with the proper working of, or prevent access to or the use of, any of the Services, Software, or any of Our Content by us, any Affiliate, or any other licensees or customers, or impose an unreasonable or disproportionately large load on our infrastructure;
9. remove, delete, alter, or obscure any proprietary notices (including any copyright, trademark, patent, or other intellectual property or proprietary rights notices) by us on or in connection with the Services, the Software, or any of Our Content;
10. use or utilize any of the Services, the Software, or any of Our Content in violation of any federal, state, local, foreign, or international laws, regulations, statutes, or rules (collectively, “Law”);
11. use the Services, the Software, or any of Our Content for purposes of competitive analysis of the Services, the Software, or any of Our Content, or the development of competing products or services; or
12. use the Services, the Software, or any of Our Content to effect, or for any purpose to effect, commercial harm or disadvantage to us or any Affiliate.
As a condition for your access to and use of the Services and the Software under this Agreement, and to protect our Services, you will open a merchant account only with payment processing company identified by us, and not any other payment processing company without our express prior discretionary written consent.

5. Generated Data

You agree that we shall have the sole ownership of all rights, title, and interest in and to, and the sole right to possess and control, all data and information generated by, or as a result of the use of, the Services or the Software, including all data collected with regard to any inventory, offers, sales, and transactions of your business, pricing information, sales timing and location, point-of-sale data, website transaction data, UPC, EAN, PLU, SKU, and other product identification data, private label data, cash register data, product categorizations, loyalty card data, location data, and the correlation of any such collected data(the “Generated Data”). All Generated Data shall be deemed to be Our Content.
We and any Affiliate shall have the sole right, directly and indirectly, to collect, store, process, analyze, manipulate, edit, use, utilize, offer, sell, license, assign, transfer, grant any right to, commercialize, exploit, include in reports or with other data or information, include or use in or for any Services or Software or to create any Derivation, share, provide, and distribute to any person all Generated Data (whether alone or included in or as part of any other material), for internal and external purposes, as we determine in our sole discretion (“Exploitation”). To the extent necessary under applicable law, or to the extent that you acquire or have any ownership or rights in or to any Generated Data, you hereby assign and transfer to us all such ownership and rights, and to the extent that such assignment is not enforceable under applicable law, you hereby grant us the sole and exclusive, irrevocable, perpetual, non-terminable, worldwide, transferable, directly and indirectly sublicensable right and license to engage in any Exploitation, all free from any payment or payment obligation to you or any person claiming through you. You will have no right or license to the Generated Data, and you may not engage in any, or induce or assist in any third party’s Exploitation, without our express discretionary prior written consent. We and the Affiliates have no, and you irrevocably, unconditionally, and forever release us and the Affiliates, and all person deriving any right from Generated Data from us or an Affiliate from all, liability, remedy, obligation, cause of action, and claim of any kind, under any law, anywhere in the world, related to any Generated Data and any Exploitation.
To the extent that you collect any Generated Data through your use of the Services or the Software, you will immediately transfer such Generated Data to us.
We give you, as part of the License, the limited right to use any Generated Data related to your inventory, sales, and other operation of your business (the “Business Generated Data”) solely for your internal use for the purpose of, and as reasonable for, the operation of your business covered by the License. You agree that you will not offer, sell, distribute, provide, or make available any Generated Data to any person without our express prior discretionary written consent, except solely to provide or make available any Business Generated Data to a contractor, advisor, or service provider engaged by you for your business with a need to know such Business Generated Data.
To the extent that we do not receive or have access to any personally identifiable information of any individual in the course of providing or performing the Services, you will not otherwise provide or make available or accessible to us any personally identifiable information of any individual, including any employee or individual contractor or customer of you or your business.

6. Fees

You shall pay to us the fees for the Services as set forth in Services Terms (the “Fees”) on a monthly or annual subscription basis. Unless expressly stated otherwise in the Services Terms, all Fees, and other amounts payable under this Agreement, shall be paid in U.S. dollar currency (i) a credit or debit card, acceptable to us, or (ii) via electronic debit from a valid checking or savings account (collectively, the “Payment Method”). The Payment Method you provide must be accurate, current, and complete, and you agree to notify us promptly of any change thereto. All payments to us shall be made in immediately available unconditional irrevocable funds without any withholding, set-off, or deduction of any kind.
We may modify and change the Fees by written notice to you or by general notification on our website no less than thirty (30) days before such modification or change is effective. Such modification or change shall be effective as of the beginning of the next following Subscription Period, or later as stated in such notice or notification. If you do not agree with the change, you may terminate this Agreement under Section 12.b prior to the date on which such modification or change comes into effect. If you do not so terminate this Agreement, you agree to such modification or change.
We may, in our sole discretion and without any obligation or continuing obligation, make promotional offers with different features and different pricing terms as compared to its other customers. These promotional offers, unless made to you, will not apply to your offer or this Agreement.
All Fees for a Subscription Period are owed and due on the first day of such Subscription Period (as defined in Section 12.b). Your Payment Method will be charged in advance of your Subscription Period, and we may apply such charges on any day between the first (1st) and fifteenth (15th) day of your Subscription Period. You authorize us to charge all Fees and other amounts owed by you to us under this Agreement, including all applicable taxes, to the Payment Method. If you pay any fees with a credit or debit card, we may seek pre-authorization of such account prior to your purchase to verify that the credit or debit card is valid and has the necessary funds or credit available to cover your Fees.
Any sales, services, value added, use, and other tax imposed under applicable law applicable to any Fees (excluding any income tax assessed against us for receipt of any Fees) is added to the amount of such Fees and shall be owed and due by you to us together with such Fees. In the event that any tax, duty, levy, fee, cost, expense, charge, or other amount is deducted or withheld from the amount of any Fees when received by us (“Deduction”), you shall gross up or supplement the payment of such Fees such that the amount received by us is the full amount of such Fees without any such Deduction. If such Deduction is required to be paid by you to any government entity, you shall pay the amount of such Deduction as required under applicable law.
All payments of any Fees made to us are strictly non-refundable. With regard to any Fee owed by you to us, you hereby covenant that you will not, directly or indirectly, block any payment to be made, or challenge any payment made, through the Payment Method of such Fee or part thereof, or claim the repayment, reimbursement, or compensation for, or initiate any process for blocking or challenging such payment claim for repayment, reimbursement, compensation, blocked payment, or challenge (for example, by submitting a claim requesting a charge-back for any Fee paid through the Payment Method).
If you enter into a billing agreement with us in connection with this Agreement (the “Billing Agreement”), such Billing Agreement is hereby incorporated by reference into this Agreement as if expressly set forth herein, provided that the Billing Agreement or any of its terms, conditions, or provisions shall amend, modify, or change, or be deemed to amend, modify, or change any term, condition, or provision of these Terms or their interpretation or construction. The Billing Agreement shall continue for the full Term of this Agreement and automatically and immediately terminate and expire upon the termination or expiration of this Agreement. For the avoidance of doubt, any automatic renewal under Section 12.a(3) shall also be an automatic renewal of the term of the Billing Agreement.

7. Use Of Service

The Services may include a feature that allows you to communicate, including exchange information, with other users of the Services and the public. Internet access is required to use these communication facilities. Please respect and interact with other users as you would in any public arena when using such features. You are responsible for exercising your judgment in evaluating and acting on (or ignoring) other users’ communication sessions and liable for all consequences thereof. We do not monitor or review any such communications endorse and are not responsible or liable for any such communication or any content thereof, including any damages incurred as a result of the submission, viewing, or use of any such content. You and other users may post hypertext links to content hosted and maintained by third parties. We do not monitor these linked sites and are not responsible or liable related thereto. Your access to any linked sites is at your own risk. Do not reveal information that you do not want to make public. If the Services include access to or use of discussion boards, you shall comply with applicable discussion board policies made available to you.
Your right to use the Services is personal to you. You are entirely responsible and liable for all text, software, music, sound, photographs, graphics, video, messages, materials, data, and information owned or provided by you that is used, displayed, distributed, uploaded, posted, or stored by or for you using the Services (“Your Content”). Generated Data shall be deemed not to be Your Content. You shall (i) provide all required and appropriate warnings, information, and disclosure, (ii) comply with all applicable Law and not use the Services for any illegal purpose, and (iii) take all other required and reasonably appropriate actions (collectively, “Information and Actions“) in connection with your use of the Services. If the Services do not provide adequate features for you to provide such Information and Actions, it is your obligation to not use the Services with regard to Your Content. You agree that you will not use the Services to share, store, or in any way distribute financial data that is not in complete accordance with the law. Any users suspected of having financial information which involves fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity proscribed by law may have their accounts terminated, their financial data erased, and they also may be reported to law enforcement officials in the appropriate jurisdictions. We do not own and are not responsible for any of Your Content, any loss, misappropriation, or infringement by or of Your Content. You are encouraged to archive Your Content regularly and frequently and you bear full responsibility for archiving your data and sole liability for any lost or irrecoverable data of Your Content.
You grant us a non-exclusive worldwide right and license, throughout the Term and thereafter as is reasonable, to use, utilize, reproduce, copy, edit, modify, create derivative works from, distribute, perform, display, and utilize Your Content and all trademarks, service marks, trade dress, designs, names, text, software, music, sound, photographs, graphics, video, messages, materials, data, and information that you provide to us for use in connection with the Services and the Software, including any of it for use and display in connection with any white-labelled version of the Software if you and we agreed on a white-labelled version under the Service Terms.
You agree that you and the Users shall not, and shall not allow any third party to, use the Services to upload, post, link to, publish, distribute, reproduce, or transmit any:
1. unlawful, fraudulent, libelous, slanderous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, inappropriate, or otherwise objectionable information of any kind, including any transmissions constituting or encouraging conduct that would constitute an attack or “flaming” other participants, or would constitute a criminal offense, give rise to civil liability, or otherwise violate any Law;
2. content or data to impersonate other individuals, falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their (or their legal guardian’s, if applicable) consent;
3. content or data that would, or would be reasonably likely, to infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, right of publicity, or any other intellectual property or proprietary right;
4. advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes, or other unsolicited commercial communication (except as otherwise expressly permitted by us in advance), or content that would reasonably be viewed as the product of spamming or flooding;
5. information or software which contains a virus, Trojan Horse, worm, or other disruptive or harmful component, or is obtained through the Services for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material); or
6. information, software, or other material obtained through the Services which is protected by copyright or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or right holder.
If you provide, submit, or makes available to us or an Affiliate any comment, suggestion, or recommendation regarding or related to the Services, the Software, and/or any of Our Content (“Submission”), we shall own and have the sole rights to, and you hereby assign, convey, and transfer unconditionally, irrevocably, and forever all rights, title, and interest in and to, the Submission. We will have the unrestricted, unlimited, perpetual, transferable, sublicenseable, worldwide right and license to use any Submission for any purpose, including to use, reproduce, modify, copy, distribute, display, perform, modify, edit, create derivative works from, and publish any Submission or any part thereof. We and the Affiliates shall not be liable to you, and you shall have no claim against us or an Affiliate, for any royalty, fee, or payment of any kind in connection with any use of any Submission or for the compensation or reimbursement of any cost, expense or liability incurred by you. We have no obligation or responsibility regarding any Submission. Any Submission is submitted at your own risk. You shall not use, utilize, commercialize, disclose, distribute, divulge, or make available any Submission without our express prior written consent.
You acknowledge that this website, the Services and the Software are subject to export control regulations administered by the U.S. Department of Commerce (15 C.F.R. Chapter VII) and agree to comply with the same at all times. You will not export or re-export the Services, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user; or to any end user who you know or have reason to know will utilize them in the design, development, or production of nuclear, chemical, or biological weapons. You further acknowledge that the Services may include technical data subject to such U.S. export regulations.
You are solely responsible and liable for all, and we have no responsibility or liability for any, of your business, operations, and locations, the use of the Services and the Software related thereto, and all transactions, promotions, offers, discounts, rewards or loyalty programs, or other aspects of your business, operations, or location, any pricing, promotional, or other data entered into your digital system, and any errors, mistakes, or malfunctions related to any of the foregoing, including any errors or miscalculations in setting up or implementing any promotions, multipack, or loyalty discounts, any pricing or labeling of any price of any product, or any determination, calculation, or payment of any sales taxes, use taxes, payroll taxes, or other fees or taxes related to your business, operations, or locations. Without limiting the foregoing, if suppliers of products, including branded products, offer participation programs granting consumers discounts or promotional benefits with a reimbursement of you for such discounts or promotional benefits, such programs and your participation therein is solely based on a legal relationship between you and such supplier or other originator of such program. We and the Affiliates are not responsible or liable for any such program or any performance, non-performance, or other matters arising from such program (for example, failure of reimbursing you for such discounts or promotional benefits). You will have rights and remedies related to any such program, including any damages, only against the supplier or other originator of such program but in no event against us or an Affiliate.

8. Privacy and Data use

Details about our privacy policies and practices can be found here. There may also be specific privacy statements governing the Services or Software you have selected. By continuing to use the Services and Software, you are agreeing to the terms of these privacy statements.
You acknowledge and agree that, as detailed in these Terms and our privacy policies and statements, we may collect, use, store, and disclose any Generated Data and other information regarding use of the Services and Software, which may include your personally identifiable information or the personally identifiable information of others, for any purpose. We have the unqualified right, but not the obligation, to monitor the Services, Software, and Our Content from time to time and to disclose any information as necessary or appropriate to (i) satisfy any law, regulation, or other governmental request, (ii) operate the Services properly, and (iii) protect itself or its users. We will not intentionally disclose any personal or private information unless required by law. We reserve the right to edit, refuse to post, remove, or refuse to remove any information or materials, in whole or in part, that, in its sole discretion, is alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.

9. Intellectual Property

We or an Affiliate solely owns, and shall retain sole ownership of, all rights, title, and interest in and to the Services, the Software (including all Updates and all documentation, source code, and source materials thereof or related thereto), all of Our Content and any part thereof, all Submissions, all Derivations (by whomever or whenever made, developed, discovered, or created), all technology, inventions, concepts, systems, methods, processes, works, ideas, reductions to practice, data, databases, and information in or represented by or reflected in any of the foregoing, or otherwise owned or held by us or any Affiliate, and all current and future trademarks, service marks, trade dress, designs, logos, domain names, internet addresses, URLs, tradenames, and other source identifiers and names of us or any Affiliates (including “CARTZIE” and “MODISOFT”) and all goodwill associated therewith, and any and all patents, patent applications, utility models, patent rights, copyrights (including all applications and registrations thereof), mask work rights (including all applications and registration thereof), trademark rights (including all registrations and applications thereof), trade secrets and trade secret rights, designs (including all applications and registrations thereof), data base rights and other intellectual property rights of any kind, anywhere in the world, in or to any of the foregoing (collectively and individually, “Our IP”).
Nothing in this Agreement or any performance under this Agreement, or any act or omission related to the Agreement constitutes, or shall be interpreted or construed to constitute, and neither we nor any Affiliate make or grant, any assignment, transfer, or conveyance of any right, title or interest, or any lien, security interest, or encumbrance, or (except solely for the License during the Term) any license or right to use, practice, or exploit, or any claim whatsoever in or to or under any of Our IP, whether expressly, implicitly, or otherwise.
You agree that neither you nor any User will acquire, by use or otherwise, and will not claim, any ownership, co-ownership, license, lien, encumbrance, or claim in or to or under any or other rights (except solely for the License during the Term) in, or challenge any ownership or right of us or any Affiliate, or any person deriving a right from us or an Affiliate, related to any of Our IP, or challenge the validity or enforceability of any of Our IP, or take any action that in any way may jeopardize or jeopardize our or an Affiliate’s ownership or rights in or to, any of Our IP. In any action against you under this Section 9 or in protection of the ownership or rights of Our IP, you shall pay us for all reasonable attorneys’ fees, expert witnesses, and other legal costs paid or incurred by us and/or any Affiliate in connection with such action.
If you or a User, or any of your personnel do or may own, hold, acquire, or have any right, title, interest, lien, encumbrance, license or right to use, practice, or exploit (except solely for the License during the Term), or claim in or to or under any of Our IP, you agree to assign, and you hereby assign, and you agree to cause such User and such personnel to assign, all such rights, title, interest, liens, encumbrances, licenses, and claims to us, without payment or payment obligation by us or any Affiliate. You shall, and shall cause such User and such personnel to, execute any document or take any reasonable action and provide any other reasonable assistance as requested by us to effect any such assignment or otherwise give effect to or implement the provisions of this Section 9.

10. Warranties and Representations

You warrant and represents that (i) you have the right and authority to enter into this Agreement and to perform all your obligations under this Agreement and that this Agreement is a legally binding agreement for you, (ii) you will access and use the Services solely in accordance and compliance with the terms, conditions, and provisions of this Agreement, and all applicable Law, and (iii) you will ensure that any employee of you accessing and using the Services on your behalf will comply with all terms, conditions, and provisions of this Agreement and applicable Law.
YOUR USE OF THE SERVICES, THE SOFTWARE, AND ANY OF OUR CONTENT IS ENTIRELY AT YOUR OWN RISK. THE SERVICES, THE SOFTWARE, AND ALL OF OUR CONTENT ARE PROVIDED AND MADE AVAILABLE “AS IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, THE AFFILIATES, AND ANY THIRD PARTY LICENSOR, VENDOR, AND CONTENT OR SERVICE PROVIDER RELATED TO THE SERVICES OR THE SOFTWARE (“SUPPLIER”) HEREBY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO ALL AND ANY PART OF THE SERVICES, THE SOFTWARE, AND ANY OF OUR CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, AND SIMILAR LAWS OF ANY JURISDICTION. WITHOUT LIMITING THE FOREGOING, WE AND THE AFFILIATES AND SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, QUALITY, OF THE SERVICES, THE SOFTWARE, OR ANY OF OUR CONTENT, INCLUDING ANY CONTENT POSTED ON OR LINKED FROM THE SERVICES, OR THAT THE SERVICES, THE SOFTWARE, OR ANY CONTENT ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT, OR DESTRUCTION, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ASSUME ALL RISKS ASSOCIATED WITH USING OR RELYING ON THE SERVICES, THE SOFTWARE, OR ANY OF OUR CONTENT. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES OR CONDITIONS ARE LIMITED IN DURATION TO SIXTY (60) DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER.
WE AND THE AFFILIATES ARE NOT ENGAGED IN RENDERING LEGAL, FINANCIAL, ACCOUNTING, MEDICAL, OR ANY OTHER PROFESSIONAL SERVICE. IF SUCH ASSISTANCE IS REQUIRED, YOU SHOULD SEEK THE SERVICE OF A COMPETENT PROFESSIONAL. WE AND THE AFFILIATES EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE, OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE FEDERAL OR STATE STATUTES, LAWS, OR REGULATIONS, INCLUDING THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, THE GRAMM-LEACH-BLILEY ACT OF 1999, AND THE SARBANES-OXLEY ACT OF 2002. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICES IS IN ACCORDANCE WITH APPLICABLE LAW.
THE FOREGOING DISCLAIMERS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU, AND WE WOULD NOT HAVE PROVIDED YOU WITH ANY SERVICES OR SOFTWARE WITHOUT SUCH DISCLAIMERS.

11. Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, THE AFFILIATES, AND SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES RELATING TO TELECOMMUNICATION FAILURES, INTERNET AND ELECTRONIC COMMUNICATIONS FAILURES, DELAYS, OR LIMITATIONS, LOSS, CORRUPTION, SECURITY, OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS, OR INVESTMENT, ARISING OUT OF OR CONNECTED IN ANY WAY WITH THE SERVICES, THE SOFTWARE, OR ANY OF OUR CONTENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF WE, THE AFFILIATES, OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TO THE EXTENT ANY LIABILITY FOR DAMAGES IS NOT EXCLUDED UNDER SECTION 11.a OR IS NOT EXCLUDABLE UNDER APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF US, THE AFFILIATES, AND SUPPLIERS, AND YOUR EXCLUSIVE REMEDY FOR ALL MATTERS OR CLAIMS ARISING FROM OR RELATING TO THE SERVICES, THE SOFTWARE, ANY OF OUR CONTENT, AND THIS AGREEMENT SHALL BE LIMITED WITH REGARD TO ANY LIABILITY RELATED TO AN EVENT, CIRCUMSTANCE, OR SERIES OF EVENTS OR CIRCUMSTANCES, TO THE AMOUNT OF FEES PAID BY YOU TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR CIRCUMSTANCE, OR THE FIRST OF SUCH SERIES OF EVENTS OR CIRCUMSTANCES, GIVING RISE TO SUCH CLAIM, PROVIDED THAT THE TOTAL AND AGGREGATE LIABILITY OF US, THE AFFILIATES, AND SUPPLIERS UNDER AND RELATED TO THIS AGREEMENT, THE SERVICES, THE SOFTWARE, AND ANY OF OUR CONTENT, REGARDLESS OF ANY EVENTS OR CIRCUMSTANCES, IS LIMITED TO, AND CAPPED AT, THE AMOUNT OF THE FEES PAID BY YOU TO US.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU, AND WE WOULD NOT HAVE PROVIDED YOU WITH ANY SERVICES OR SOFTWARE WITHOUT SUCH LIMITATIONS.
To the fullest extent permitted by law, you are responsible for your use of the Services and the Software and any of Our Content and shall defend, indemnify and hold harmless us, the Affiliates, all Supplier, and the officers, directors, employees, consultants, affiliates, subsidiaries, and agents of us, any Affiliate, or any Supplier (collectively, the “Indemnified Parties”) from and against every claim, action, litigation, and proceeding, and all damages, losses, liabilities, costs, and expenses (including reasonable attorney’s fees and legal costs) arising out of, resulting from, or connected with (i) your business or operations, any products and services related to your business or operations, any transactions by you related to your business or operations, or Your Content, (ii) your unauthorized use, or misuse, of the Services, the Software, or any of Our Content; (iii) any claim by any person related to your business, your operations, and any transactions, products, and services thereof or to which the Services or the Software relate (including any claims related to any Customer Benefits or allegation of your failing to provide any Customer Benefits); (iv) your breach or violation of this Agreement or any term, condition, provision, representation, warranty, or agreement hereof; (iv) any infringement, or alleged infringement, of any third party’s intellectual property rights or confidentiality, privacy, publicity or other right of a third party, or misappropriation of any third party’s intellectual property or other property as a result of your access to or use of the Services, the Software, or any of Our Content (except solely if such infringement or alleged infringement is caused solely by the Services, the Software, or any of Our Content as and when made available by us to you without consideration of any of Your Content or any modifications, adaptations, combinations, or specific uses or purposes of you); or (v) any negligence (including in the event of any contributory or comparative negligence of us or an Affiliate) or willful misconduct or violation of law by you or any User or any of your personnel. We reserve the right to assume on behalf of any of the Indemnified Parties the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), in which case you agree to cooperate with our defense of those claims.

12. Trial Period; Term and Termination

This Agreement commences upon the acceptance of these Terms and continues, unless and until terminated earliest under Section 12.d or the following provisions (the “Term”), as follows:
1. if you registered for a trial use of the Services, for the specified duration of such trial (the “Trial Period“), at the end of which this Agreement will terminate and expire if you have not purchased the Services under this Agreement prior to the expiration of the Trial Period;
2. if you have not registered for a trial use, by written notice of termination to us effective no later than the end of thirty (30) calendar days from the acceptance of these Terms;
3. if you have not registered for a trial use and not timely terminated under clause (2) of this Section 12.a, or if you timely purchased the Services under this Agreement before the end of the Trial Period, this Agreement continues for consecutive Subscription Periods, with the term automatically renewing at the end of each Subscription Period for another Subscription Period unless and until terminated in accordance with Section 12.b;
4. by written notice of termination as set forth in Section 2.b or 13.a, if such notice of termination is given promptly, which termination shall be effective immediately.
The “Subscription Period” means either one (1) calendar month (whereby the initial Subscription Period, if the acceptance of these Terms does not occur on the first day of a calendar month, shall run from such acceptance until the end of the calendar month next following the calendar month during which such acceptance occurred) or a period of one (1) year (whereby the initial Subscription Period, if the acceptance of these Terms does not occur on the first day of a calendar month, shall run from such acceptance until the first anniversary of the last day of such calendar month). We or you may terminate this Agreement to the end of a Subscription Period by written notice of termination to the other no later than fifteen (15) business days before the end of such Subscription Period.
For you to terminate this Agreement under Section 12.a(2), or to the end of a Subscription Period under Section 12.b, or under Section 12.a(4), you must (i) send an email (from the email account you have registered with us) to billing@modisoft.com and contain “Service Cancellation Request” in the subject line (we do not accept telephonic or other verbal requests, or other means of termination, under any circumstances, and (ii) include in such e-mail (aa) your Modisoft ID and/or store account number, (bb) the store name and address, (cc) the name and phone number for your contact person, and (dd) the effective date of such termination for any termination under Section 12.a(2) or Section 12.b (i.e., the date within the initial thirty (30) calendar days under Section 12.a(2) or the end of such Subscription Period under Section 12.b). Failure to comply with any such requirements will cause the termination to be invalid and ineffective.
In addition, we may terminate this Agreement by notice of termination to you effective immediately if: (i) you breach the terms and conditions of, or your obligations pursuant to, this Agreement; or (ii) you file, or have filed against you, a petition for voluntary or involuntary bankruptcy (or similar action pursuant to any other insolvency law), or make or seek to make a general assignment for the benefit of your creditors, or apply for, or consent to, the appointment of a trustee, receiver, or custodian for a substantial part of your property; or (iii) we are unable to process your Payment Method upon Fees becoming or being due; or (iv) you provide inaccurate, incomplete, or outdated Registration Data, or fail to promptly update the same, or we have reasonable grounds to suspect your Registration Data is inaccurate, incomplete, or outdated. In our sole discretion, in any of the foregoing events, we may suspend rather than terminate this Agreement, pending a decision whether to terminate or reinstate this Agreement.
In the event of any termination or expiration of this Agreement, we may immediately irretrievably delete any and all of Your Content, and may thereafter not provide you with any Business Generated Data, without being liable for any damages, losses, or consequences thereof. YOU UNDERSTAND AND AGREE THAT THE LICENSE AND YOUR ACCESS TO AND/OR USE OF THE SERVICES AND THE SOFTWARE WILL TERMINATE, AND ANY OF YOUR CONTENT AND BUSINESS GENERATED DATA MAY BE IRRETRIEVABLY LOST, UPON THE EXPIRATION OF TERMINATION OF THIS AGREEMENT UNDER SECTION 12.a, SECTION 12.b, OR SECTION 12.d. We strongly recommend that you back up all Your Content and download all Business Generated Data before any expiration or termination of this Agreement. In accordance with our standard practice, we may irretrievably delete all of Your Content and Business Generated Data within your account thirty (30) days after the expiration or termination of this Agreement.
All payments of Fees are final. No refunds of any Fees will be provided with respect to any Renewal Terms charged to you due to untimely, incomplete, or otherwise defective Cancellation Requests, provided that, only if you terminate this Agreement timely under Section 12.a(2), you may request a full refund of Fees paid by you to us in writing without thirty (30) days after such termination, which refund will be processed within ten (10) business days of receiving your request. Please note that refunds will not be issued if the termination of this Agreement is not made under Section 12.a(2) within thirty (30) calendar days after acceptance of these Terms, and provided further that no refund will be given or allowed on Add-On Services.
Upon the expiration or termination of this Agreement, the License will immediately terminate, and you will cease accessing and using, and attempting to access or use, the Services and the Software, and irretrievably delete and destroy any copies or manifestations of any of Our IP in your direct or indirect possession or control. Upon our request, you shall certify your full compliance with the foregoing provisions of this Section 12.g. No expiration or termination shall (i) affect your obligation to pay all Fees that may have become due before such expiration or termination, or (ii) entitle you to any refund. The provisions, terms, and conditions in Sections 5, 6, 7.c, 7.e., 7.g, 8, 9, 10, 11, 12.e, 12.f, and 13, and this Section 12.g, and all definitions of the terms used in such Sections, shall survive the termination and expiration of this Agreement and continue to be in effect thereafter.

13. Miscellaneous

We may change the terms and conditions hereof from time to time by giving you notice thereof, which change shall be effective upon such notice. If you do not agree with such change, you shall give us written notice thereof and terminate this Agreement and discontinue all use of the Services and Software. Your continued use of the Services or Software after such notice shall be deemed to constitute your agreement with such change.
Any notice under this Agreement by us may be given, and shall be deemed to be given in writing, to you when sent to the e-mail address identified in your Registration Information or as an online notification upon your seeking to access the Services and shall be effective when received by your e-mail address, whether in the inbox or other folder.
You and we are independent contractors, each without the power or authority to bind, contract or commit the other, and will always represent themselves to any third parties only as an independent contractor without such power or authority. You are not a partner, joint venturer, co-owner or otherwise a participants in a joint or common undertaking with us or an Affiliate You shall take steps necessary to avoid the appearance or belief by a Licensee that Licensee is an agent with the authority to bind us or an Affiliate. Your employees and personnel are not, and shall not be construed to be, employees or personnel of us or an Affiliate, and we or an Affiliate shall not be liable for, have any obligations to, and may not be bound by such employees or personnel. Neither you nor we have any authority (express, implied or otherwise) to enter into any contracts or commitments in the name of, or on the behalf of, the other or bind the other in any respect whatsoever.
This Agreement and the rights and obligations hereunder shall not be assigned or delegated by you without the express prior written consent of us, which shall be in our sole discretion. We may condition such consent on payment of a transfer fee as determined by us in our sole discretion. We may, at any time, assign this Agreement, or assign any of its rights and/or delegate any of its obligations hereunder to any person or entity, with or without notice to you. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of each of you and us and the successors and permitted assigns of you and us.
Each Affiliate is an intended third party beneficiary with regard to any term, condition, or provision of this Agreement applicable to an Affiliate. Otherwise, you and we do not intend any third party to be a third party beneficiary under this Agreement, and nothing in this Agreement shall be construed for any third party to be a third party beneficiary or to confer any third party beneficiary rights or status on any third party.
You agrees that damages alone may be an insufficient remedy for violations of the terms of these Terms (other than the obligation to pay Fees) or the Privacy Policy and that we or an Affiliate, may suffer irreparable damage as a result of such a violation. Accordingly, we and any Affiliate (which is an intended third party beneficiary under all terms, conditions, and provisions in these Terms applying to any Affiliate) shall be entitled, in the event of such a violation or threatened or anticipatory violation, to seek injunctive relief or equivalent relief to enforce these Terms, or to enforce or defend any of Our IP, without obligation to post a bond, which injunctive or equivalent relief shall be in addition to any and all other rights or remedies available to us or an Affiliate including damages.
The validity, enforceability, and performance of this Agreement, and any dispute and the resolution of any dispute under this Agreement, and the interpretation and construction of this Agreement or any term, condition, or provision thereof, and all other matters related to this Agreement, shall be governed by the law of the State of Texas, without regard of any conflict of laws or international private law that would result in the application of the law of any other jurisdiction. In the event that the U.N. Convention on the International Sale of Goods has any application to the agreement, the parties disclaim the application thereof.
Subject to Section 13.f, any dispute or claim arising out of or related to this Agreement, or the interpretation, making, performance, breach, validity, or termination thereof, shall be finally settled by binding arbitration in Houston, Texas under the Commercial Arbitration Rules of the American Arbitration Association (the “AAA Rules”) by one neutral arbitrator appointed in accordance therewith. The arbitrator shall apply Texas law to the merits of any dispute or claim, without reference to rules of conflict of law. The arbitrator shall have the power to decide all questions of arbitrability. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration requirement and without any abridgment of the powers of the arbitrator. YOU HEREBY AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.
Subject to Section 13.h, any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Texas, in each case located in Houston, Harris County, and you and we hereby irrevocably submit to the exclusive jurisdiction of such courts for such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for such suit, action, or proceeding brought in any such court.
If we or an Affiliate institute legal proceedings pursuant to these Terms against you, we and the Affiliate will be entitled to recover from you, and you shall pay to us or the Affiliate, all reasonable attorneys’ and expert fees and other legal costs and expenses paid or incurred by us or the Affiliate in such proceedings if we or the Affiliate prevail in such proceedings.
We will not be responsible or liable to you, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, pandemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or your equipment, loss and destruction of property, or any other circumstances or causes beyond our reasonable control.
This Agreement, together with the all other documents that are incorporated by reference herein, constitutes the sole, complete, and entire agreement between you and us with respect to the subject matter contained herein, including setting forth the entire obligations and liability of us, and your exclusive rights and remedies, with respect to the Services, the Software, and their use, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute, regulation, or other Law means such statute, regulation, or other Law as amended from time to time and includes any successor legislation, regulation, or other Law. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The ancillary documents referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.