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Terms

Last Updated: April 10h, 2019

  1. Introduction

This End User License Agreement (the “Terms”) describe the terms and conditions and govern the access and use of the service made available by Innowi, Inc. (“ChecOut”) whether via the ChecOut Website, Our ChecOut Device or otherwise (“Service”). The Service consists of the proprietary operating system, firmware, applications, service plans, the website associated with the services (www.checout.com) (“ChecOut Website”) and any software, documentation, tools, components, and any updates thereto (including software maintenance, service information, help content, bug fixes, or maintenance releases) provided by ChecOut in connection with the service. If you have an agreement with an “Authorized Sublicensor” (as specifically identified therein), use of any ChecOut service plan and the applications listed in its description are governed by that agreement and not these Terms.

  1. Agreement

The activation by you, the business accepting payments through a Device (as defined below), (“you” or “your”), of your Device or the clicking to accept these Terms where this option is made available, represents your agreement to these Terms. These Terms form a legally binding contract between you and ChecOut in relation to your use of the Service. You represent and warrant that you have the right and authority to bind your business to these Terms and you are not barred or otherwise legally prohibited from accessing or using the Service.

  1. Your Use of the Service

ChecOut grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense or assign in any way, to access and use the Service for your internal business use solely in the United States to manage your establishment and/or conduct associated point of sale activities in accordance with these Terms.

  1. Restrictions

You shall not and shall not permit any third party to:

(a) access or attempt to access the Service (or any part) that is not intended to be available to you;

(b) access or use (in any format) the Service (or any part) through any time-sharing service, service bureau, network, consortium, or other means;

(c) without ChecOut’s advance written consent, use, ship or access the Service (or any part) outside or from outside of the United States;

(d) perform or attempt to perform any actions that would interfere with the proper working of the Service, prevent access to or use of the Service by other users, or impose a large load on ChecOut’s infrastructure, network capability or bandwidth; or

(e) use the Service (or any part) except as permitted in these Terms.

  1. Service Requirements and Limitations

5.1 You may access the Service through your tablet or other mobile or fixed form factor identified by ChecOut as compatible with and capable of accessing and/or supporting the Service (“Device”) using a wired (Ethernet) or wireless (Wi-Fi or cellular) connection to the Internet. You are solely responsible for the payment of any fees that may be imposed by your Internet/data provider. Your use of the Service accessed wirelessly or through the Internet is subject to: (a) the terms of any agreements you have with your Internet/data provider; and (b) availability, transmission range and uptime of the services and any wireless equipment.

5.2 You may use the Service to conduct point of sale activities offline. Transactions initiated offline will be queued and submitted for authorization when Internet connectivity to the ChecOut platform is restored. You assume all risk, responsibility and liability associated with any transaction that you choose to conduct while the Service is offline.

5.3 The Service does not function with every mobile device. ChecOut may alter which Devices are approved as compatible with the Service in ChecOut’s discretion.

5.4 You shall at all times comply with any operating procedures, requirements, or guidelines regarding your use of the Service that are posted on the ChecOut Website or otherwise provided or made available to you.

5.5 You agree that ChecOut shall not have any liability to you arising directly or indirectly from or otherwise concerning: (a) any termination, suspension, delay or disruption of the Service (including billing for the Service) by the Internet, any common carrier or any third party service provider; (b) any failure, disruption or malfunction of the Service, the Internet, or any communications network, facility or equipment beyond ChecOut or a third party’s reasonable control; (c) your failed attempts to access the Service or to complete transactions via the Service; or (d) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by you.

  1. Communicating with Customers through the Service

6.1 Each of your customers who desire to receive marketing materials, transaction receipts or other communications from you via text message or email must (a) give his appropriate consent in writing or (b) enter his phone number or email address in the appropriate space on the Device and provide such consent via a check box himself on the Device; you are NOT permitted to add or modify a customer’s consent indication on behalf of your customer.

6.2 You (or your agents acting on your behalf) may only send marketing materials or other communications to a customer’s provided phone number, street address, and/or email address if the customer has specifically consented by checking (himself) the applicable box displayed on the Device.

6.3 NOTWITHSTANDING THE CAPABILITY OF THE SERVICE TO COLLECT AND STORE CUSTOMER INFORMATION AND TO ALLOW YOUR CUSTOMERS TO ELECT TO RECEIVE MARKETING MATERIALS FROM YOU, SOME STATES MAY LIMIT YOUR USE OF SUCH INFORMATION ONCE COLLECTED AND/OR YOUR DISCLOSURE OF SUCH INFORMATION TO THIRD PARTIES, EVEN IF THE CUSTOMER HAS PROVIDED HIS CONSENT. YOU AGREE THAT (A) YOUR USE OF CUSTOMER INFORMATION OBTAINED IN CONNECTION WITH THE SERVICE MAY BE SUBJECT TO LOCAL, STATE, AND/OR FEDERAL LAWS, RULES, AND REGULATIONS, (B) YOU ARE SOLELY RESPONSIBLE FOR KNOWING SUCH LAWS, RULES, AND REGULATIONS, AND (C) YOU WILL AT ALL TIME STRICTLY COMPLY WITH ALL SUCH LAWS, RULES, AND REGULATIONS.

6.4 You shall provide and obtain any disclosures and consents related to the E-Sign Act that may be required in connection with your communications and agreements with your customers through the Service.

  1. Third Party Services

The Service may contain links to services, products or promotions provided by third parties and not by ChecOut (“Third Party Services”). If you decide to use Third Party Services, you will be responsible for reviewing and understanding the terms and conditions associated with the Third Party Services (including obtaining and maintaining any required third party hardware and/or software that is required for the Third Party Services to work with the Service). ANY ACCESS OF OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THIRD PARTY SERVICES IS ACCESSED OR DOWNLOADED AT YOUR OWN RISK. CHECOUT WILL NOT BE RESPONSIBLE FOR ANY ACTIONS OR ANY FAILURES TO ACT OF ANY THIRD PARTY, AND EXPRESSLY DISCLAIMS ALL LIABILITY RELATED TO ANY THIRD PARTY SERVICES. CHECOUT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PROVIDER OF A THIRD PARTY SERVICE OR THIRD PARTY SERVICE ADVERTISED OR OFFERED THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. CHECOUT WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND PROVIDERS OF THIRD PARTY SERVICES.

  1. Account Registration

If and when prompted by ChecOut’s registration process to register and create a “Member” or “Merchant” account (“Account”), you agree to (a) provide true, accurate, current and complete information about yourself and/or your business, and (b) maintain and update this information to keep it true, accurate, current and complete. If any information provided by you is untrue, inaccurate, not current or incomplete, ChecOut has the right to terminate your Account and refuse any and all current or future use of the Service.

  1. Maintenance on the Service

9.1 ChecOut may perform maintenance on the Service which may result in service interruptions, delays, or errors. ChecOut will not be liable for any such interruptions, delays, errors, or bugs. ChecOut may contact you in order to assist you with the Service and obtain information needed to identify and fix any errors.

9.2 ChecOut may, at its discretion, release enhancements, improvements or other updates to any software. If ChecOut notifies you that such update requires an installation, you shall integrate and install such update into your systems within 30 days of your receipt of such notice. Failure to install any updates in a timely fashion may impair the functionality of the software or Service. ChecOut shall have no liability for your failure to properly install the most current version of any software or any update, and ChecOut shall have no obligation to provide support or services for any outdated versions.

9.3 Certain software can automatically install, download, and/or deploy updated and/or new components, which may include a new version of the software itself. You shall not, in any event or in any manner, impede the update process. You agree to assume full responsibility and indemnify ChecOut for all damages and losses, of any nature, for all adverse results or third party claims arising from your impeding the update process.

  1. Fees

You will be charged and agree to pay the applicable fee to use the Service, as displayed in the ChecOut App Market, and all applicable taxes (other than taxes based on ChecOut’s income), duties or other governmental assessments based on your use of the Service. If you dispute any amounts you are charged, you must notify ChecOut in writing within 30 days of incurring the charge that you dispute. If you notify ChecOut after 30 days, you agree ChecOut has no obligation to effect any adjustments or refunds. If you have an agreement with an Authorized Sublicensor for any ChecOut service plan, ChecOut will collect the amounts described in the first sentence of this Section from you for such plan on behalf of, and remit the amounts to, the Authorized Sublicensor.

  1. Term and Termination

11.1 These Terms commence on the date on which you first use the Service and continue for the subscription term you select. The subscription term will automatically renew upon expiration of the initial term and shall be equal in duration as the initial term, unless either party gives notice of cancellation prior to the expiration of the initial or any renewal term. The fee charged during any renewal term will be equal to the fee in effect during the immediately preceding subscription term, unless ChecOut provides advance notice of a fee change, which fee change will be effective upon the renewal term.

11.2 ChecOut may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without any notice and liability for any reason, including if in ChecOut’s sole determination you violate any provision of these Terms.

11.3 Upon termination of these Terms for any reason, you must immediately stop using the Service and your license to use the Service provided under these Terms shall end. Upon your termination of these Terms, ChecOut will provide you with a reasonable period of time to allow you to extract your Account Data (defined below) that ChecOut has stored on its servers as of the termination date. Subject to the foregoing sentence and applicable law and card association rule requirements, ChecOut will delete Account Data stored on ChecOut’s servers upon your termination of these Terms, and ChecOut will not be liable to you or any third party for termination of access to the Service or deletion of your Account Data.

11.4 The rights, obligations and limitations of Sections 5.2, 5.5, 9.2, and 9.3, and Articles 2, 11, 13, 14, 15, 16, 17, 18, 19 and 23 will survive termination of these Terms.

  1. Privacy and Data Use

All data collected via the ChecOut Website or in connection with your use of the Service, including customer information and information about your business and employees used with or stored in or by the Service, is collected by ChecOut. The use and sharing of such data is controlled by the Innowi, Inc.Privacy Policy (available at https://www.checout.com/privacy_policy).

  1. Protecting Information

13.1 You shall safeguard all confidential information ChecOut supplies or otherwise makes accessible to you using a reasonable degree of care. You shall only use ChecOut’s confidential information for the purposes of these Terms and shall not disclose ChecOut’s confidential information to any person, except as ChecOut may agree in advance and in writing. At ChecOut’s request, you shall return to ChecOut or destroy all of ChecOut’s confidential information in your possession or control.

13.2 You are solely responsible for ensuring that your account numbers, passwords, security questions and answers, login details and any other security or access information used by you to use or access the Service is kept safe and confidential. You must prevent unauthorized access to and use of any of your information or data used with or stored in or by the Service (collectively, “Account Data“). You are responsible for electronic communications sent to ChecOut or to any third party containing Account Data and for all uses of the Service in association with your Account Data, whether or not authorized by you. ChecOut has the right to rely on user names, password and other signor credentials, access controls for the Service or any software provided or approved by ChecOut to authenticate access to, and use of, the Service and any software. You must immediately notify ChecOut if you become aware of any loss, theft or unauthorized use of any Account Data (see ChecOut Service support center contact information below). ChecOut reserves the right to deny you access to the Service, in whole or in part, if ChecOut believes that any loss, theft or unauthorized use of any Account Data or access information has occurred.

13.3 You may submit comments or ideas about the Service, including about how to improve the Service. By submitting any idea, you agree that (a) ChecOut expressly disclaims any confidentiality obligations or use restrictions, express or implied, with respect to any idea; (b) your submission will be non-confidential; and (c) ChecOut is free to use and disclose the idea on an unrestricted basis without notifying or compensating you. You release ChecOut from all liability and obligations that may arise from ChecOut’s receipt, review, use or disclosure of any portion of any idea.

  1. Intellectual Property

14.1 All right, title and interest in and to all confidential information and intellectual property related to the Service (including Marks, all software, the content of any materials, web screens, layouts, processing techniques, procedures, algorithms, and methods and any updates, changes, alterations, or modifications to or derivative works from such intellectual property), owned, developed or licensed by ChecOut at any time or employed by ChecOut in connection with the Service, shall be and remain, as between ChecOut and you, ChecOut’s or its affiliates’, ChecOut’s vendors’ or licensors’ (as applicable) sole and exclusive property and all right, title and interest associated with the Service not expressly granted by ChecOut in these Terms are deemed withheld. You may not use Marks in any manner, including in any advertisements, displays, or press releases, without ChecOut’s prior written consent. “Marks” means ChecOut’s names, logos, emblems, brands, service marks, trademarks, trade names, taglines or other proprietary designations.

14.2 You shall not, and shall not permit any third party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover by any means any source code, underlying ideas or algorithms of the Service, (or any part), except to the extent that such restriction is expressly prohibited by law; (b) modify, translate, or alter in any manner, the Service (or any part) or the Marks; (c) create derivative works of or based on the Service (or any part), or the Marks; (d) except for backup and archival purposes, directly or indirectly copy the Service (or any part); (e) republish, upload, post, transmit, disclose, or distribute (in any format) the Service (or any part) except as permitted in these Terms; or (f) remove, relocate, or otherwise alter any proprietary rights notices from the Service (or any part) or the Marks.

14.3 If ChecOut provides you with copies of or access to any software or documentation, unless otherwise expressly stated in writing, that software and documentation is provided on a personal, non-exclusive, non-transferable, non-assignable, revocable limited license for the period of your subscription to the Service and solely for you to access and use the software and documentation to receive the Service for its intended purpose on Devices owned or licensed by you.

14.4 You shall not take any action inconsistent with the stated title and ownership in this Section 14. You will not file any action, in any forum that challenges the ownership of any part of the Service, any related software, materials or documentation. Failure to comply with this provision will constitute a material breach of these Terms.

  1. ChecOut Service Disclaimer

USE OF THE SERVICE IS AT YOUR OWN RISK AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” AND CHECOUT DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU OR ANY OTHER PERSON, INCLUDING ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR ERROR FREE OR THAT THE SERVICE IS SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR DOES NOT INFRINGE THE RIGHTS OF ANY PERSON.

  1. Your Responsibilities

16.1 You shall comply fully with the requirements of all applicable federal, state and local laws and regulations related to your use of the Service and provision and use of any cardholder data, customer information and other point of sale data in connection with the Service. You shall not use the Service for illegal purposes.

16.2 You are solely responsible for obtaining all required permits, consents and licenses and monitoring legal developments applicable to the Service and the operation of your business, interpreting applicable laws and regulations, determining the requirements for compliance with all applicable laws and regulations, and maintaining an on-going compliance program.

16.3 You are solely responsible for ensuring the accuracy, quality, integrity, legality and appropriateness of all information and data regarding your business that you provide to ChecOut or its service providers in connection with the Service. In addition, if applicable, you are solely responsible for verifying that all information and data loaded onto a Device by ChecOut or its service providers at your request are accurate prior to your business use of such Device. ChecOut and its service providers disclaim any and all liability arising out of any inaccuracies with respect to any information or data you provide.

  1. Limitations on Liability and Damages

IN NO EVENT SHALL CHECOUT OR ITS AFFILIATES OR ANY OF CHECOUT’S OR ITS’ AFFILIATES RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS, BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

CHECOUT’S AND ITS’ AFFILIATES CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING THOSE ARISING OUT OF OR RELATED TO THESE TERMS AND ANY INDEMNITIES), REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED THE AMOUNT OF FEES RECEIVED BY CHECOUT UNDER THESE TERMS FOR THE IMMEDIATELY PRECEDING SUBSCRIPTION TERM.

  1. Indemnity

You will indemnify, defend and hold ChecOut harmless (and ChecOut’s employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to:

(a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms, including without limitation any violation of our policies or the card associations’ rules;

(b) your wrongful or improper use of the Service;

(c) any transaction submitted by you through the Service (including without limitation the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you);

(d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights;

(e) your violation of any law, rule or regulation of the United States or any other country; or

(f) any other party’s access and/or use of the Service with your user names, password and any other sign on credentials/access controls for the Service or any software provided or approved by ChecOut to authenticate access to, and use of, the Service and any software.

  1. Representation and Warranties

You represent and warrant that:

(a) you are validly existing, in good standing and have the right, power, and authority to enter into and perform under these Terms;

(b) any sales transaction submitted by you (i) is genuine and arises from a genuine sale or service that you directly sold or provided, (ii) accurately describes the goods or services sold and delivered to a purchaser and (iii) represents the correct amount of goods or services purchased from your business;

(c) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the consumer;

(d) you, all transactions initiated by you and your use of the Service will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations and card association rules and regulations;

(e) except in the ordinary course of business, no sales transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity;

(f)you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service; and

(g) you are not engaged in and will not accept payment for any illegal activity, in the legal jurisdiction(s) in which you do business or provide goods and/or services.

  1. Consent to Electronic Communication

20.1 You agree that ChecOut, its affiliates and its third party subcontractors and/or agents, may use, in addition to any live agent calls, an automatic telephone dialing system, an artificial or pre-recorded voice, or both, to contact you at the telephone number(s) you have provided, and/or may leave a detailed voice message if you are unable to be reached, even if the number provided is a cellular or wireless number or if you have previously registered on a Do Not Call list or requested not to be contacted for solicitation purposes.

20.2 You consent to receiving commercial electronic messages, including e-mail messages, SMS and text messages, and telephone calls, from ChecOut, its affiliates and its third party sales contractors and/or agents.

  1. Amendment

ChecOut has the right to change or add to these Terms at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Service with notice that ChecOut in our sole discretion deem to be reasonable in the circumstances, including such notice on ChecOut’s Website or any other website maintained or owned by ChecOut. Any use of the Service after ChecOut’s publication of any such changes or providing notice shall constitute your acceptance of these Terms as modified.

  1. Assignment

These Terms, and any rights or licenses granted hereunder, may not be transferred or assigned by you (including by operation of law, transfer of voting control of you or otherwise) without ChecOut’s prior written consent, but may be assigned by ChecOut without restriction.

  1. General Provisions

These Terms are a complete statement of the agreement between you and ChecOut and describe the entire liability of ChecOut and its vendors and suppliers (including processors) and your exclusive remedy with respect to your use and access to the Service. In the event of a conflict between these Terms and the Privacy Policy, the Privacy Policy shall prevail. These Terms shall be governed and construed in accordance with the laws of the State of New York without regard to its conflicts of laws provisions. You and ChecOut agree to submit to the exclusive jurisdiction of the courts located within the County of Suffolk, New York to resolve any legal matter arising from these Terms. If any provision of these Terms is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These Terms do not limit any rights that ChecOut may have under trade secret, copyright, patent or other laws. Except for ChecOut’s affiliates and as otherwise stated herein, no persons shall be third party beneficiaries to these Terms. No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such provision or any other provision, and ChecOut’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Notices sent to your last known e-mail address or postal address, as indicated in our records, shall constitute effective notice to you under these Terms.

  1. Contacting ChecOut

If you have any questions about these Terms, please contact ChecOut at info@ChecOut.com or 877-CHECOUT. Except as otherwise stated in these Terms, all notices to ChecOut required or permitted in these Terms relating to the Service shall be in writing and sent by postal mail to: Innowi, Inc. Attention: Investigation Department, 3240 Scott Blvd., Santa Clara, CA 95054. Notices shall be effective when actually received or, if sent by courier, when delivered.