Terms of Service
Software & Service License Agreement
Updated May 29, 2013
These Terms of Service along with all materials referenced herein (the “Agreement”) constitute a legal agreement between an entity (“Customer” or “You”) and and Aloha Data Systems, Inc. (“ADS”) for access and use of the StoreTender™ Online store management system, which include associated website access, web subscription services, device drivers, software, components, media, printed materials, training materials, user’s manuals and guides, and other documentation (collectively and individually, the “Services”). By completing registration form and/or commencing use of the Services, you hereby accept and agree to be bound by the terms of this Agreement. This Agreement supersedes any prior proposal, representation, or understanding between the parties. If you do not agree to the terms of this Agreement, do not complete registration form or commence use of the Services.
If you subscribe to, or purchase, a Software Service you shall also be provided with an End User License Agreement (EULA) which is available for review when installing the software. Once you have read the EULA, if you do not agree to its Terms, please cancel your installation and inform us via support ticket that you wish to cancel your Subscription based on a refusal to accept the EULA. If you continue with the installation you will have accepted the terms of the EULA.
ADS may accept or reject any potential subscriber in its sole discretion. ADS reserves the right to verify the accuracy of the information you submit in connection with your registration and your account and you consent to such verification. ADS also reserves the right to validate the payment method information you provide at registration and account updates, including attempting a payment authorization to your credit card or debit card.
IMPORTANT – PLEASE READ THIS TERMS AND CONDITIONS OF SERVICE DOCUMENT CAREFULLY BEFORE COMPLETING REGISTRATION FOR AND/OR COMMENCING USE OF THE SERVICES. BEFORE COMMENCING USE YOU MUST FIRST ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BY ELECTRONICALLY CHECKING THE BOX MARKED “I HAVE READ AND AGREE TO THE TERMS OF SERVICE”.
BY USING, DOWNLOADING, INSTALLING, COPYING, OR ACCESSING THE SERVICES, OR BY CHOOSING THE “I AGREE” OPTION LOCATED ON OR ADJACENT TO THE SCREEN WHERE THESE TERMS MAY BE DISPLAYED, YOU AGREE TO THE TERMS OF THIS AGREEMENT. YOU MUST BE AT LEAST 18 YEARS OLD AND THE AGE OF MAJORITY AND LEGAL CONSENT IN THE JURISDICTION IN WHICH YOU LIVE OR RESIDE TO ENTER INTO THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS UNCHECK THE “I AGREE” BOX AND DO NOT PURCHASE, USE, DOWNLOAD, INSTALL, COPY, OR ACCESS THE SERVICES.
THE SERVICES ARE PROVIDED “AS-IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES. ADS IS NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES AND/OR MATERIAL CONTAINED WITHIN ADS WEB PROPERTIES (“ADS SITES”) OR SERVICES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES AND CANCEL YOUR ACCOUNT WITH US IN THE MANNER DESCRIBED BELOW. ADS SHALL NOT BE LIABLE FOR ANY DAMAGE TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY RESULTING FROM YOUR ACCESS TO, USE OF, OR BROWSING IN THE SERVICES, OR DOWNLOADING MATERIAL, IMAGES, DATA, TEXT, VIDEO, OR AUDIO FILES FROM ADS SITES REGARDLESS OF THE CAUSE. UNUSED SUBSCRIPTION SERVICES ARE NON-REFUNDABLE AND NON-TRANSFERABLE.
HARDWARE PURCHASES THROUGH ADS SITES ARE FINAL AND NON-REFUNDABLE. WARRANTY SERVICE (IF ANY) IS PROVIDED PER THE HARDWARE MANUFACTURER WARRANTY TERMS. NO HARDWARE WARRANTY SERVICE IS OFFERED OR PROVIDED BY ADS DIRECTLY.
1. TRIAL PERIOD
If you registered for a trial use of the Services (“Trial Period”), you must purchase the Services within the Trial Period or 7 days thereafter in order to retain any Customer Data (defined in Section 3 and Section 6) that you have posted or uploaded during the Trial Period. If you do not purchase the Services within the time specified, the Customer Data will no longer be available to you, and ADS will not be responsible for retention of that Customer Data. If you do not purchase the paid Services within 7 days after the Trial expiration, you may not be able to access the data and it may be permanently deleted.
For Services offered the following terms apply. This Agreement also incorporates by reference and includes ordering and payment terms provided to you on the website for the Services:
- Payments will be billed to you in U.S. dollars, and your account will be debited when you subscribe and provide your payment information, unless stated otherwise.
- You must pay with a valid credit or debit card acceptable to ADS.
- ADS will automatically renew your monthly or annual subscription(s) to the Services at the then-current rates, unless the Services are cancelled or terminated under this Agreement.
- ADS may, in it’s sole discretion, continue to renew Services at the original signup rate, but only with continuous timely payment. This concession is on a renewal-by-renewal basis, subject to change at any time prior to the creation and delivery of the next-due invoice.
- If any of your subscription(s) are suspended for non-payment, all future subscription renewals for all Services subscribed to by you will be priced at the current rates, whether or not they have specifically been suspended, ending any lower rate renewals you may have enjoyed prior to the suspension.
- Invoices are due in advance on or before the due date specified. We will automatically charge your renewal invoice to your valid credit or debit card on file (if one exists) on or up to 5 days before your invoice due date. You are emailed a copy of your invoice at least 20 days before the due date. Your invoice(s) are also available for review and payment by logging into the Client Area of our Site (https://www.storetenderonline.com/portal).
- Invoices not paid by the due date are subject to a one-time late fee of 10% of the invoice amount or $10.00, whichever is greater. Once an invoice enters collection for non-payment you will not be permitted to cancel the service prior to payment of the overdue invoice (i.e. retroactive cancellation).
3. YOU ARE RESPONSIBLE FOR YOUR CONTENT
You are responsible for all information, data, text, sound, photographs, graphics, video, messages or other materials (“Content”) uploaded, posted or stored through your use of the Services. You grant ADS a worldwide, royalty-free, non-exclusive license to host and use the Content in order to provide you with the Services. You agree not use the Services for any illegal purpose or in violation of any applicable local, state, federal or international law. You are responsible for any Content that may be lost or unrecoverable through your use of the Services. You must provide all required and appropriate warnings, information and disclosure. You agree that you will not use the Services to share, store, or in any way distribute Content that is not in accordance with the law. Any users suspected of having Content which involves fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other unlawful activity may have their account terminated, their Content erased, and may be reported to law enforcement officials in the appropriate jurisdictions. ADS is not responsible for the Content you submit.
You agree not to use the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:
- Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing , offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or “flaming” others, or criminal or civil liability under any local, state, federal or foreign law;
- Content or data that would impersonate someone else or 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 consent (or a parent’s consent in the case of a minor);
- Advertisements, solicitations, investment opportunities, chain letters, pyramid schemes, other unsolicited commercial communication or engaging in spamming or flooding;
- Virus, Trojan horse, worm or other disruptive or harmful software or data; and
- Any information, software or Content which is not legally yours and may be protected by copyright or other proprietary right, or derivative works, without permission from the copyright owner or intellectual property rights owner.
The Services may include a community forum to exchange information with other users of the Services and the public. Please use respect when you interact with other users. ADS does not support and is not responsible for the accuracy of content in these community forums. Do not reveal information in the community forum that you do not want to make public. Users may post hypertext links to content hosted and maintained by third parties for which ADS is not responsible.
ADS may freely use feedback you provide. You agree that ADS may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant ADS a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty-free license to use the feedback you provide in any way we see fit.
ADS may monitor your content from time to time. ADS may, but has no obligation to, monitor content on the Services. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect ADS or its customers, or operate the Services properly. ADS, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
4. SUBSCRIPTION SERVICES
ADS grants you a right to receive the Services subject to this Agreement.
Portions of the Services are located on servers that are controlled by ADS. Customer may access the Services, but has no right to receive a copy of the object code or source code to the Services.
You are responsible for and must have a high speed Internet connection and hardware and software that is compatible with the Services, as set out in the Documentation.
ADS regularly upgrades and updates the Services. This means that the Services are continually evolving. Some of these changes will occur automatically, while others may require you to schedule and implement the changes. The changes may also mean that you need to upgrade your equipment in order to make efficient use of the Services. ADS will provide you with advance notice if this happens, whenever possible.
ADS recognizes that you may have legitimate business reasons for not upgrading to a new version of the Services as soon as the version becomes available. However, ADS will not support old versions indefinitely. When an old version is obsolete, ADS may remove your access to that version and require you to upgrade to a new version. See Long Term Support for further details.
ADS solely owns the intellectual property in the Services (except for third party components) and the Documentation.
Software license fees do not include fees for other services such as Support (Standard or Premium), Gateway service, Data Hosting or other services not specifically included in your agreement(s).
5. CONDITIONS OF USE
The Services provided to you are non-exclusive, non-transferable (except as provided in Section 9), and are for your internal business use only. Your right to use the Services is conditional upon the following restrictions. You many not:
- transfer to any other person any of its rights to use the Services;
- sell, rent or lease the Services;
- make the Services available to anyone who is not an “Authorized User”. An Authorized User is an employee of Customer, or a person to whom Customer has outsourced Services, who is authorized to access the Services as either a named or concurrent user;
- create any derivative works based upon the Services or Documentation;
- copy any feature, design or graphic in, or reverse engineer the Services;
- access the Services (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if Customer is an employee of a competitor of ADS;
- use the Services in a way that violates any criminal or civil law;
- cause excessive or unlicensed usage on our Services;
- load test the Services in order to test scalability; or,
- exceed the usage limits listed in the Order Form.
6. CUSTOMER DATA
Customer must provide all data for use in the Services, and ADS is not obliged to modify or add to the data. Customer is solely responsible for the content and accuracy of the data.
The Customer Data hosted or stored by your use of the Services belongs to ADS and Customer makes no claim to any right of ownership in it. Access to the Customer Data by the Customer is contingent on a current and active account for the Services. ADS may collect, share and/or license raw POS UPC/EAN “scan data” with our partners or affiliates.
ADS will keep the Customer Data confidential in accordance with Section 13 of this Agreement.
As a data protection measure, Customer Data stored on ADS server(s) relating to a Software Service (StoreTender) is backed up daily for protection against data loss due to hardware failure. We shall make all commercially reasonable efforts to create and maintain these backups for a 7 day period. The purpose of the backup is to protect the data against ADS hardware failure only and ADS uses a third-party service to perform these backups. ADS ASSUMES NO LIABILITY IF THE CREATION OR RETENTION OF THESE BACKUPS FAIL OR BECOME UNUSABLE.
If you damage, alter or delete your data due to use of any other method made available in the software, ADS shall be entitled to charge you a service fee for the restoration of that data from a backup if you request ADS to do so.
7. ADDITIONAL TERMS YOU AGREE TO
ADS does not provide legal, financial, accounting or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
We may tell you about other ADS services. You may be offered other services, features, products, applications, online communities, or promotions provided by ADS. If you decide to use any of these ADS services, additional terms and conditions and separate fees may apply. You acknowledge that in accessing some ADS services you may upload or enter data from your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You grant ADS permission to use information about your business and experience to help us to provide the ADS Services to you, including updating and maintaining your data, addressing errors or service interruptions, and enhancing the types of data and services ADS may provide to you in the future. You grant ADS permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally. We may use this data to improve services and to compare business practices with other industry standards. We may use your data to create, market or promote new ADS offerings to you and others. You also grant ADS permission to share or publish summary results relating to your data and to distribute or license such data to third parties.
We may tell you about third party products or services. You may be offered products or services by third parties who are affiliated with ADS (“Third Party Products”) or the Services may contain links to third party websites (“Third Party Sites”) and you agree that ADS can use your contact information, including name and address, for the purpose of offering these products to you. If you decide to use any Third Party Products or access any Third Party Sites, you are responsible for reviewing the third party’s separate product terms, website terms and privacy policies. You agree that the third parties, and not ADS, are responsible for their product’s performance and the content on their websites. ADS does not have ownership of these Third Party Products or Third Party Sites and assumes no liability for them.
Integrated Merchant Processing is available to all StoreTender users, provided the merchant obtains and maintains a paid Gateway account, as provided by ADS. Fees for Gateway services are available upon request by contacting email@example.com.
ADS may be required by law to send you communications about the Services or Third Party Products. You agree that ADS may send these communications to you via email or by posting them on the appropriate ADS Site. If you later decide that you do not want to receive future communications, please review the Privacy statement provided on the StoreTender™ Online website to review your communications choices.
You are responsible for securely managing your password(s) for access to the Services. If you become aware of any unauthorized access to your Services or account, you agree to contact ADS as soon as possible. The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve and enhance the features and performance of the Services. You agree to receive these updates automatically as part of the Services.
8. PROVISION OF THE SERVICES BY ADS
ADS may, at its sole discretion, improve, enhance, modify or change the Services and Terms at any time. You acknowledge and agree that the form and nature of the Services may change from time to time without prior notice to you.
ADS may, at its sole discretion, suspend or cease providing the Services at any time. Your sole remedy for any such suspension or cessation of the Services shall be a pro rata refund of any prepayment, if any, that you may have made for future use of the Services.
You acknowledge and agree that ADS may stop (permanently or temporarily) providing certain features within the Services to you with or without prior notice to you. If you wish to discontinue your use of the Services after such a change, you may cancel your account and your access to the Services at any time by submitting a cancellation request on your Account page of the Site. Your sole remedy in the case of a change in features to the Services is to discontinue your subscription to the Services without refund.
ADS may disable your account in the event that timely prepayment for the Services is not received (if you have selected a fee-based level of the Services), if you fail to exclusively and regularly utilize the Services of an ADS preferred credit/debit card transaction processor (in the case of certain free versions of the Services), or if you are otherwise in breach of the Agreement. You acknowledge and agree that if ADS disables access to your account, you may be prevented from accessing the Services, your account information or any other data or other content which is associated with your account, including product description and pricing information, inventory data, and transaction data and reports.
9. USE OF THE SERVICES BY YOU
You agree to use the Services only for purposes that are permitted by (i) the Agreement and (ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
You agree to use the Services only on the number of computers and in only the number of locations permitted by your current subscription licensing level.
You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services), and that you will only utilize and access the Services using software approved for use in conjunction with the Services by ADS.
You will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
You agree that you are solely responsible for (and that ADS has no responsibility to you or to any third party for) any breach of your obligations under the Agreement and for the consequences (including any loss or damage which ADS may suffer) of any such breach.
You hereby grant to ADS a worldwide, perpetual, royalty-free, sublicensable right and license to use, for any purpose, any and all data and information submitted to or collected by ADS in connection with your registration for and/or use of the Services, including, but not limited to, product description, product pricing, product inventory, and product sale transaction information and data.
Your continuing use of the Services is contingent upon your prepayment of the ADS current subscription fee for the Services. ADS reserves the right to modify its fees for the Services at any time. You further agree and acknowledge that ADS may, from time to time, add or delete credit/debit card transaction processors from its list of supported vendors, and that any such change may require you enter into a new merchant agreement with a new supported vendor. ADS does not represent or warrant that any supported vendor will be willing to enter into any merchant agreement with you for the processing of credit/debit card transactions. Cancellations fees, if any, or other fees accessed by the processor are the sole responsibility of the Customer and in no way is ADS liable or responsible to pay such fees. Any change to your choice of supported vendor will be provided at no charge to you. However, the “new” supported vendor may be required to pay a Change Fee prior to any changes being made. The status of the vendor (Preferred or supported) determines the amount of the fee, if any. You agree that if you are changing from a Preferred vendor to a supported vendor, you will allow (and provide information to) the Preferred vendor (or another Preferred vendor, at ADS’ discretion) to provide you with a competitive rate quote to assure that you are receiving the best possible pricing.
You agree that ADS shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made by you. Customer agrees to take full responsibility for all taxes and fees associated with such products and/or Services sold.
ADS makes no representations, warranties or assurances that the Customer’s equipment will be compatible with the ADS service. ADS has posted a list of compatible equipment on its Site, for which compatibility was based on information currently available from the equipment manufacturer(s). ADS is not responsible for changes or modifications by manufacturers of their equipment or drivers which render the equipment unusable with ADS Services.
10. TRAINING AND SUPPORT
Unless Customer and ADS enter into a separate agreement, ADS will not provide any training or on-site support to Customer relating to the Software and Services. ADS may provide Customer with (a) commercially reasonable website and email support for the Software and Services during normal business hours; and (b) updates and enhancements for the Software and Services, to the extent that ADS generally makes such updates and enhancements available to Customers without a separate charge.
Monthly or Annual Subscriptions include Standard Support and Updates at no additional cost, during the term of the active subscription.
Lifetime Subscriptions (retired) receive Standard Support and Updates for a period of 1 year from the date of sign-up. Annually thereafter each paid software license will be subject to a mandatory Standard Support and Updates renewal fee. Subscribers are invoiced for these fees approximately 30 days prior to their renewal. The renewal shall be charged to the credit card on file with ADS on the due date. Pricing for these fees varies by product and license type. Pricing is available on our website or you may contact firstname.lastname@example.org and request pricing for your specific product, if not listed. If you are hosting your data on our servers, Lifetime subscriptions also include Data Hosting as part of the Standard Support and Updates service. Older “Purchased” licenses have a separate billing for Data Hosting.
If your Lifetime Subscription Standard Support and Updates fees are due and unpaid, your Standard Support and Updates service may be terminated. Additionally, the software license to use the associated product will be suspended until the fee is paid.
ADS shall not be obligated to provide Support Services to you. The discontinuation of Support under this paragraph shall not be interpreted as a termination or breach of this Agreement.
11. PROPRIETARY RIGHTS
You acknowledge that all information and data, such as Site pages, Services, data files, text, computer software, videos, audio files, photographs, animations or other materials (collectively, the “Content and/or Customer Data”) which you may have access to as part of, or through your use of, the Services are the sole property of ADS. You acknowledge and agree that ADS owns all legal right, title and interest in and to the Services and the Content, including any intellectual property rights which subsist in the Services and the Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
You may not use ADS trademarks, trade names, service marks, logos, or domain names. You agree that you will not use any trademark, trade name, service mark, logo, or domain name in any way that is intended to or likely to cause confusion between you and ADS, its properties and Services.
12. INFORMATION WE COLLECT
We may collect the following information: name and job title, contact information including email address, demographic information such as postcode, preferences and interests and other information relevant to customer surveys and/or offers. Payment information collected is secure and not hosted or stored by ADS.
13. WHAT WE DO WITH THE INFORMATION WE COLLECT
- We require certain information we collect to understand your needs and provide you with a better Service, and in particular for the following reasons:
- Internal record keeping.
- We may use the information to improve our products and Services.
- We may collect and share raw POS UPC/EAN “scan data” with our partners or affiliates.
- We may periodically send promotional emails about new products, special offers or other information which we think you may find interesting using the email address which you have provided.
- From time to time, we may also use your information to contact you for market research purposes.
- We may contact you by email, phone, fax or postal mail.
- We may use the information to customize the website and Services to be more intuitive.
We are committed to ensuring that your information is secure. In order to prevent unauthorized access or disclosure we have put in place suitable physical, electronic and managerial procedures to safeguard and secure the information we collect online.
15. PROPRIETARY RIGHTS NOTICE
All rights in and to the Services and Software not expressly granted to you in this Agreement are reserved and retained by ADS and its licensors without restriction, including ADS’ right to sole ownership of the Services. Without limiting the generality of the foregoing, you agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the Services outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the software components of the Services, or otherwise attempt to discover any source code or trade secrets related to the Services; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Services; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Services for any purpose without the express written consent of ADS; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with ADS other than in the name of ADS or (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Services.
16. U.S. GOVERNMENT RIGHTS
If the use of the Services is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Services, including its rights to use, modify, reproduce, release, perform, display or disclose the Services or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
17. TERM; TERMINATION
The Effective Date of this Agreement shall be the first day in which Customers “Account(s)” are activated and made available for usage on the Services and shall continue in full force and effect so long as Customer continue to use the Services. Customer may terminate their Account at any time by accessing their account profile on the ADS Site and selecting the cancellation option, cancelling all accounts which access the Services, or via email to email@example.com. Cancellation requests submitted will become effective either immediately or at the end of customers current billing period, based on your cancellation request submission. However, we may retain your data after you cancel. There are no refunds for “unused” Services due to customer cancellation prior to the end of the current billing period (i.e. “pro rata” refunds).
ADS may terminate your Account at any time for any reason, including, without limitation, if:
- you have breached any provision of the Agreement, or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Agreement;
- ADS is required to do so by law;
- you fail to timely establish or regularly utilize a merchant account with a preferred credit/debit card transaction processor identified in Section 2 above by ADS (if you are using a version of the Services that requires such);
- you fail to timely prepay the applicable fee for the level of fee-based Services for which you have registered;
- you fail to pay any invoice due to ADS on or before the due date, or
- the provision of the Services to you by ADS is, in ADS’ sole opinion, no longer commercially viable.
Upon termination of this Agreement, ADS shall not be required to return, or to provide you access to, any data or information that you have previously uploaded or supplied to ADS pursuant to your use of the Services, including, but not limited to, your account information or any other data or other content which is associated with your account, including product description and pricing information, inventory data, and transaction data and reports.
18. EXCLUSION OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
IN PARTICULAR, ADS DOES NOT REPRESENT OR WARRANT TO YOU THAT:
- YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS;
- YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR;
- ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES, INCLUDING ANY TRANSACTIONS FACILITATED BY THE SERVICES, WILL BE ACCURATE OR RELIABLE;
- THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED;
- THAT THE SERVICES ARE COMPATIBLE WITH ANY PARTICULAR COMPUTER, COMPUTER PERIPHERALS, OR OTHER HARDWARE, INCLUDING ANY PARTICULAR CASH DRAWER, BARCODE READER, CREDIT/DEBIT CARD SCANNER, PRINTER, OR POLE-TYPE OR OTHER DISPLAY.
- AS COMPUTER VIRUSES, TROJANS, AND OTHER MALICIOUS SOFTWARE COMPONENTS ARE FREQUENTLY CREATED AND DISTRIBUTED, THERE IS NO WARRANTY THAT, AS A RESULT OF USING THE SERVICES, YOUR COMPUTER SYSTEMS WILL NOT BECOME INFECTED BY ANY COMPUTER VIRUS, TROJAN, OR OTHER MALICIOUS SOFTWARE COMPONENT. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOUR COMPUTER SYSTEMS INCLUDE RELIABLE AND REGULARLY UPDATED ANTI-VIRUS SOFTWARE, AND THAT REGULAR AND FREQUENT BACKUPS ARE MADE OF YOUR COMPUTER SYSTEMS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ADS OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
ADS FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE.
NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT ADS’ WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADS AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT ADS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE LIMITATIONS ABOVE MAY NOT APPLY TO YOU. IF ANYONE BRINGS A CLAIM AGAINST US RELATED TO YOUR ACTIONS OR CONTENT ON THE SERVICES, OR ACTIONS OR CONTENT BY OR FROM SOMEONE USING YOUR ACCOUNT, YOU WILL INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE LEGAL FEES AND COSTS) RELATED TO SUCH CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND ADS’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
19. LIMITATION OF LIABILITY
SUBJECT TO THE PROVISIONS IN PARAGRAPH 18 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT ADS, ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE TO YOU FOR:
- ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
- ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF: (i) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS OR ACCURACY OF THE SERVICES OR ANY PORTION THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY MATHEMATICAL OR NUMERICAL ERRORS RELATING TO ANY FINANCIAL TRANSACTIONS FACILITATED BY THE SERVICES; (ii) ANY CHANGES WHICH ADS MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (iii) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; (iv) YOUR FAILURE TO PROVIDE ADS WITH ACCURATE ACCOUNT INFORMATION; (v) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; AND/OR
(vi) ANY LOSS OR DAMAGE WHICH RESULT FROM THE ACTS OR OMISSIONS OF ANY CREDIT/DEBIT CARD TRANSACTION FACILITATED BY THE SERVICES, REGARDLESS OF WHETHER ANY SUCH CREDIT/DEBIT CARD TRANSACTION INVOLVED A TRANSACTION PROCESSOR IDENTIFIED BY, PREFERRED BY OR RECOMMENDED BY ADS.
THE LIMITATIONS ON ADS’ LIABILITY TO YOU IN PARAGRAPH 19 ABOVE SHALL APPLY WHETHER OR NOT ADS HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
20. CLASS ACTION WAIVER
IN ANY DISPUTE, NEITHER AFFILIATE NOR ANY OTHER PERSON SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST ADS OR OTHER PERSONS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. CUSTOMER ACKNOWLEDGES THAT IT IS GIVING UP ITS RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY SUCH CLAIM.
21. EXCLUSIVE REMEDY
The exclusive remedy to Customer for breach of this Agreement by ADS shall be, at ADS’ option, (a) providing the Services; or (b) a prorated refund of your most recent unused subscription fee payment, if any, paid to license the Services.
22. DISPUTE RESOLUTION BY BINDING ARBITRATION
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration, and administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by Nevada law. The arbitrator will be an expert in the field of Internet services and will be bound by the terms of this Agreement. The arbitrator’s award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
ANY CUSTOMER SEEKING ARBITRATION PURSUANT TO THIS AGREEMENT WILL PURSUE SUCH ARBITRATION ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION OR REPRESENTATIVE BASIS PURSUANT TO THIS AGREEMENT.
You agree to indemnify and hold harmless ADS and its affiliates, officers, agents, and employees from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your use of the Services in any manner contrary to this Agreement or resulting from your provision of inaccurate or incomplete information to ADS in connection with your use of the Services.
24. CHANGE TO AGREEMENT TERMS
ADS may make changes to this Agreement from time to time. When these changes are made, ADS will make a new copy of the Agreement available at a web page or downloadable document accessible via the https://www.storetenderonline.com website.
You agree that if you use the Services after any date on which the Terms have been changed pursuant to Paragraph 8, your use will constitute acceptance of the updated Terns. Accordingly, you should check for changes to the Terms prior to each use of the Services.
25. GENERAL PROVISIONS
When you use the Services, you may (as a result of, or through your use of the Services) use a service or download software which is provided by another person or company. Your use of these other services or software may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals.
This Agreement constitutes the entire legal agreement between you and ADS and govern your use of the Services, and completely replace any prior agreements between you and ADS in relation to the Services.
You agree that ADS may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings or downloadable documents on the https://www.storetenderonline.com website.
You agree that if ADS does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which ADS has the benefit of under any applicable law), this will not be taken to be a formal waiver of ADS’ rights and that those rights or remedies will still be available to ADS.
If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable, to the fullest extent possible.
This Agreement will be deemed to be a contract made under the laws of the State of Nevada, and will be construed in accordance with the laws of Nevada without regard to principles of conflicts of law. The exclusive forum and venue for the adjudication of any rights, claims or disputes arising out of or in connection with this Agreement shall be the federal or state courts located in Clark County, Nevada. The parties specifically waive the right to a jury trial in connection with any dispute arising out of this Agreement, or between the parties for any reason. Notwithstanding this, you agree that ADS shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of this Agreement shall govern. The parties hereby confirm that they have requested that this Agreement and all related documents be drafted in English.
If any term or provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
Except as explicitly stated otherwise, legal and other notices shall be delivered to ADS by U.S. mail at 7670 W Lake Mead Blvd., Suite 145, Las Vegas, NV 89128, or to you at the email address you provided us (a) at time of enrollment in the Services, or (b) through a subsequent notice of an address change if listed on your Account profile. Email notices to you shall be deemed given twenty-four (24) hours after email is sent, unless ADS is notified that the email address is invalid. Alternatively, ADS may provide notice by certified mail, postage prepaid and return receipt requested if your address is listed on your Account profile. In such case, notice shall be deemed given upon receipt or three (3) days after the date of mailing, whichever is earlier.