Terms and Conditions
Updated November 18, 2021
Nature of License Granted
1. Legal Agreement. By clicking “I AGREE” (or “ACCEPT” or “REGISTER” on the registration page on our website) and/or accessing or using the Services, you indicate that you have read, understand, and agree to be bound by the terms and conditions set forth in this Agreement. If you do not agree to the terms and conditions set forth in this Agreement, you will not be able to access or use, or granted any rights in, the Services and/or Software, as applicable. Your access thereto may also be subject to your acceptance of separate agreements with Modisoft and/or its affiliates. If the person clicking on the “ACCEPT/AGREE/REGISTER” button is an individual working for you (an “Agent“), such person agrees to the terms and conditions of this Agreement on your behalf and certifies that he/she is your duly authorized Agent 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. Scope of 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, Modisoft hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited license during the initial term of your subscription (and any Renewal Term, as set forth herein), or for such other period of use as provided in the activation and ordering terms, to access and use the Services, solely for the purpose(s) described in our description for the Services, and, if applicable, solely by such number of authorized users for which you have paid the applicable Fees (the “Users”).
3. Restrictions on Use. Except as expressly permitted by this Agreement, you and your Users shall not, and shall not allow any third party to, directly or indirectly:
(a) use the Services beyond the scope of the license granted, or as expressly allowed, under this Agreement.
(b) license, sublicense, copy, assign, lease, loan, sell, resell, republish, upload, post, transfer, distribute, or commercially exploit the Services to any third party.
(c) modify, translate, adapt, or otherwise create any derivative works or improvements, whether or not patentable, of the Services or its content, in whole or in part.
(d) access or attempt to access any other Modisoft systems, programs, features, or data that have not been made available in the Services or for public use.
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code associated with, or utilized by, the Services or any part thereof.
(f) interfere with the proper working of the Services, prevent access to or the use of the Services by other licensees or customers, or impose an unreasonable or disproportionately large load on our infrastructure.
(g) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Services.
(h) use the Services (or their content) in violation of any federal, state, local, or international laws, regulations, statutes, or rules (collectively, “Laws”); or
(i) use the Services for purposes of competitive analysis of the Services, the development of competing products or services, or any other purpose that is to the commercial disadvantage of Modisoft.
(j) As a consideration for use of the Software Services and POS System and hardware purchased for our services, Merchant will open a merchant account with partner payment processing company of Modisoft, third-party processing companies are not allowed.
4. Intellectual Property Rights. You acknowledge and agree that the Services are provided under license, and not sold, to you. You do not acquire any ownership interest in the Services, any component thereof, or any other rights thereto under this Agreement, other than to use the same subject to all terms, conditions, and restrictions under this Agreement. Modisoft reserves all rights not expressly granted to you herein, and shall retain its entire right, title, and interest in and to the Services, Software, and all Intellectual Property Rights arising out of or relating thereto. You shall use commercially reasonable efforts to safeguard the Services from infringement, misappropriation, theft, misuse, or unauthorized access, and promptly notify Modisoft if you become aware of any infringement of the Intellectual Property Rights. For purposes of this Agreement, “Intellectual Property Rights” include, but are not limited to (is) the technology, content, derivatives, and modifications of the Services or Software by whomever made, (ii) the Modisoft branding, trademarks, service marks, or other copyrightable material, and (iii) any copyright, trade secret, and other intellectual property protections in accordance therewith.
5. Fees. You will be charged fees for the Services provided by Modisoft (the “Fees”) on a monthly or annual subscription basis. Unless otherwise indicated in program ordering and pricing terms provided to you on the website and/or in the program terms for the Services you have selected, all amounts payable hereunder are charged in U.S. dollars, and you shall make payments in U.S. dollars via (i) a credit or debit card, acceptable to Modisoft, 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.
6. Registration and Access. Modisoft will request certain information from you during the registration, sign-up, and ordering process for the Services (the “Registration Data”). This Registration Data must be accurate, current, and complete when initially provided, and you must promptly update such information upon any change thereto. You will be deemed to have accepted the Services, and your access to the Services will begin as follows:
(a) for trial versions of the Services, after (i) your acceptance of this Agreement, and (ii) our receipt and processing of the Registration Data; and
(b) for paid versions of the Services, after (i) your acceptance of this Agreement, (ii) our receipt and processing of the Registration Data, and (iii) and payment of all applicable Fees or other subscription charges.
Notwithstanding the foregoing, for Data Entry Services, your service may commence (i) on the first (1st) day of the month following completion of your registration, or (ii) immediately upon such completion, in which case the Fees will not be prorated for any unused portion of the month.
7. Federal Government Users. The Software is “commercial computer software”, as such term is defined at 48 C.F.R. § 2.101. Accordingly, if you represent the federal government or any contractor therefor, you shall receive only those rights with respect to the Services 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.
Term, Termination, and Transfer
8. Trial Period. If you registered for a trial use of the Services (“Trial Period“), you will have the agreed-upon duration of such period within which to purchase the Services you are using in order to retain any Content (as defined below) that you have posted, uploaded or entered into websites made available through the Services during the Trial Period. If you have not purchased the Services prior to the expiration of the Trial Period, all Content will be deleted. Modisoft is not responsible for any damages caused by the deletion of such Content. BY YOUR USE OF THE TRIAL VERSION OF THE SERVICES, YOU UNDERSTAND AND AGREE THAT UNLESS YOU PURCHASE THE FULL VERSION OF SUCH SERVICES PRIOR TO EXPIRATION OF THE TRIAL PERIOD (AS SPECIFIED ON THE WEBSITE OR DISCLOSED DURING THE ORDERING PROCESS), YOUR ACCESS TO AND/OR USE OF SUCH SERVICES WILL TERMINATE, AND ANY DATA YOU HAVE SUPPLIED, PROVIDED, OR ENTERED IN CONJUNCTION THEREWITH WILL BE LOST.
9. Subscription Policy. The Services and/or Software are licensed on a monthly or annual subscription basis. Your Payment Method will be charged in advance of your subscription term, and Modisoft may apply such charges on any day between the first (1st) and fifteenth (15th) day of your subscription term. You authorize Modisoft to charge all Fees or other sums for the products or services you select as described herein or as published by Modisoft, including all applicable taxes, to the Payment Method specified in your account. If you pay any fees with a credit or debit card, Modisoft 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.
10. Renewal Terms. Once you have subscribed and provided payment information, your subscription term (i.e., monthly, or annual, as applicable) will automatically renew (each, a “Renewal Term“) until canceled in accordance with the terms of this Agreement. At the beginning of each Renewal Term, your Payment Method will be charged or debited at the then-current subscription rate to maintain access to the Services. Modisoft reserves the right to determine pricing for the Services and Software, including additional or increased Fees. Modisoft will make reasonable efforts to keep pricing information up to date. Modisoft, at its sole discretion, may 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. Policies, Fees, and other terms for your Services and/or Software with respect to any Renewal Term may be supplemented or replaced by terms provided to you in writing by Modisoft or on the website.
11. Cancellation. In the event you wish to cancel your subscription to the Services, you must notify Modisoft in accordance with the procedure set forth herein (a “Cancellation Request”) no later than fifteen (15) business days prior to the expiration of your current monthly or annual term, as applicable. No refunds will be provided with respect to any Renewal Terms charged to you due to untimely, incomplete, or otherwise defective Cancellation Requests.
(a) Cancellation Requests must be made via email (from the email account you have registered with Modisoft) to email@example.com and contain “Service Cancellation Request” in the subject line. Modisoft does not accept telephonic or other verbal requests under any circumstances.
(b) Your Cancellation Request must contain (i) your Modisoft ID and/or store account number, (ii) the store name and address, (iii) the name and phone number for your contact person, and (iv) the desired effective date of termination for the Services.
12. Termination by Modisoft. Modisoft may terminate this Agreement, and any current or future rights of yours to use the Services, immediately and without notice if:
(a) you breach the terms and conditions of, or your obligations pursuant to, this Agreement;
(b) you (i) file, or have filed against you, a petition for voluntary or involuntary bankruptcy (or similar action pursuant to any other insolvency law), (ii) make or seek to make a general assignment for the benefit of your creditors, or (iii) apply for, or consent to, the appointment of a trustee, receiver, or custodian for a substantial part of your property;
(c) Modisoft is unable to process your Payment Method upon Fees becoming due hereunder; or
(d) you provide inaccurate, incomplete, or outdated Registration Data, or fail to promptly update the same, or Modisoft has reasonable grounds to suspect your Registration Data is inaccurate, incomplete, or outdated.
13. Data Removal. Modisoft strongly recommends that you download any and all data or reports that may be saved on our servers while your account is active, prior to terminating any subscription for Services. It is the standard practice of Modisoft to delete all data stored, saved, or otherwise contained within your account thirty (30) days after your subscription is terminated, and no access to, or retrieval of, any data will be available after your subscription is cancelled.
14. Effect of Termination. Upon the expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and you shall cease using and destroy any copies of the Software and documentation related thereto. 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.
15. License Transfers. All license transfers are subject to the prior, written approval by Modisoft and may be subject to a transfer fee determined by us in our sole discretion. If you, or substantially all of your assets, are acquired by or merged into another business entity or sole proprietorship, please contact us via email at firstname.lastname@example.org regarding the transfer of your license.
16. Indemnification. To the fullest extent permitted by law, you are responsible for your use of the Services and the Software and shall defend, indemnify and hold harmless Modisoft, its Suppliers (as defined below), and their affiliates, officers, directors, employees, consultants, affiliates, subsidiaries, and agents (collectively, the “Indemnified Parties”) from and against every claim brought by a third party, and any related costs, damages, losses, liabilities, and expenses (including reasonable attorney’s fees) arising out of, resulting from, or connected with:
(a) your unauthorized use, or misuse, of the Services or Software;
(b) your breach or violation of any portion of this Agreement, any representation, warranty, or agreement referenced herein, or any applicable Laws;
(c) a claim that your Content infringes or misappropriates the intellectual property, confidentiality, privacy, or publicity rights, or otherwise violates any other right, of a third party;
(d) any dispute or issue between you and any third party.
Modisoft reserves the right, at its own expense, 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.
17. Export Restrictions. You acknowledge that this website, the Services, and any software made a part of the Services 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.
18. Passwords. You are solely responsible for securely managing your password(s) for the Services and to immediately contact Modisoft if you become aware of any unauthorized access to your account. You accept responsibility for any and all activities that occur under the credentials associated with your account.
19. Maintenance and Updates. Modisoft may, from time to time and in its sole discretion, perform maintenance upon the Software or Services and/or provide upgrades, bug fixes, patches, other error corrections, tools, utilities, improvements, third party applications, or general updates thereto (collectively, “Updates“). You acknowledge that Modisoft has no obligation to develop any Updates at all or for particular issues. You hereby agree to such Updates, all of which will be deemed Software. You further acknowledge that Modisoft may provide some or all Updates via download from a website designated by Modisoft and that your receipt thereof will require an internet connection, which connection is your sole responsibility. Modisoft has no obligation to provide Updates via any other media. Updates do not include any new version or release of the Software that Modisoft may issue as a separate or new product, and Modisoft has 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. Modisoft will attempt to provide prior notice of scheduled maintenance or other Updates, but cannot guarantee that such notice will be provided.
20. General Expectations. The Services may include a feature that allows you to exchange helpful 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. Modisoft does not endorse and is not responsible for the accuracy of the content in these facilities and will not be liable for any damages incurred as a result of the submission, viewing, or use of any such content. Users may post hypertext links to content hosted and maintained by third parties. Modisoft has no obligation to monitor these linked sites and is not responsible for them. Your access to any linked sites is at your own risk. Do not reveal information that you do not want to make public. You also agree to comply with applicable Modisoft discussion board policies made available to you for the Services you have selected.
21. Content. Your right to use the Services is personal to you (and your company and its employees, if and only to the extent permitted by Modisoft). You are entirely responsible and liable for all information, data, text, software, music, sound, photographs, graphics, video, messages, or other materials (collectively, “Content“) uploaded, posted, or stored by you using the Services. You shall (i) provide all required and appropriate warnings, information, and disclosure, (ii) comply with all applicable Laws 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. 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. Modisoft does not own and is not responsible for the Content or data you submit on the website. You are encouraged to archive your data regularly and frequently and you bear full responsibility for archiving your data and sole liability for any lost or irrecoverable data.
22. Prohibited Actions. You agree that you and your 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:
(a) unlawful, fraudulent, libelous, slanderous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, inappropriate, or otherwise objectionable information of any kind, including without limitation 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 Laws;
(b) 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;
(c) 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;
(d) advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes, or other unsolicited commercial communication (except as otherwise expressly permitted by Modisoft), or content that would reasonably be viewed as the product of spamming or flooding;
(e) 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
(f) 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.
23. Software Use, Storage, and Access. Modisoft shall have the right, in its sole discretion and with reasonable notice posted on its website and/or sent to you at your email address provided in the Registration Data, to revise, update, or otherwise modify the Services and establish or change limits concerning use of the Software and Services, temporarily or permanently, including but not limited to:
(a) the amount of storage space you have on the Software at any time; and
(b) the number of times (and the maximum duration for which) you may access the Software in a given period of time.
Modisoft reserves the right to make any such changes effective immediately to maintain the security of the system or your Access Information or to comply with applicable Laws, and to provide you with electronic or written notice within thirty (30) days after such change. You may reject changes by discontinuing use of the Software and Services to which such changes relate. Your continued use of the Software or Services will constitute your acceptance of and agreement to such changes.
25. Permitted Disclosures. You acknowledge and agree that in order to provide you with access to and use of the Software and Services, Modisoft may provide your Access Information and Account Data to such other employee(s) or agent(s) who you may designate as a replacement user for your account (by following the procedures required by Modisoft to effectuate such replacement), and any other person you identify as an authorized user of the Software in the set-up interview form or in any subsequent communication to Modisoft (collectively, “Information Recipients“). You hereby grant Modisoft permission to aggregate any previous and/or future uploaded, non-personally identifiable account data with that of other users of the Services, and permit Modisoft to use that aggregated data to improve services, issue promotions, and provide ways for you to compare business practices with other users.
26. Monitoring of Services. Modisoft has the unqualified right, but not the obligation, to monitor the Services and 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. Modisoft will not intentionally disclose any private email message unless required by law. Modisoft reserves 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.
27. Collection and Use of Information. You acknowledge that Modisoft may, directly or indirectly, collect and store information regarding use of the Services, Software, and about equipment on which the Software is installed or through which it otherwise is accessed and used, through security measures that may be included within the Software and/or the provision of maintenance and support services. You agree that Modisoft may use such information for any purpose related to your use of the Software, Services, or on your equipment, including but not limited to improving the performance of the Software or developing Updates and verifying your compliance with the terms of this Agreement and enforcing Modisoft’s rights, including all Intellectual Property Rights in and to the Software.
Additional Products, Services, and Features
28. Third Party Products. In connection with the Services, you may be offered or made aware of services, products, offers, and promotions provided by persons other than Modisoft (collectively, “Third Party Products“), and you authorize Modisoft 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 Modisoft (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 Modisoft 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 THOSE OF MODISOFT. You hereby acknowledge and agree that Modisoft is not responsible 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.
29. Reward and Loyalty Programs. Modisoft offers a rewards program known as MRewards. In the event you sign up for MRewards or any other reward or loyalty program that we may offer, you acknowledge and agree to such Terms and Conditions as stated herein, and also agree to be bound by such terms and conditions as may be promulgated under such other reward or loyalty programs, which may be updated from time to time.
30. Extra Services. You may be made aware of or offered services, features, products, applications, online communities, rewards, or promotions provided by Modisoft (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 Modisoft 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 Modisoft may provide to you in the future. You also grant Modisoft 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 Modisoft offerings to you and others.
31. Sales Data. Sales Data. In connection with the Services, enhanced features may be available that allow you to submit detailed information about your purchases and sales of inventory. This content could include pricing information, sales timing and location, and UPCs, SKUs, or other product identifiers (collectively, the “Sales Data”). Should you elect to utilize such features, you hereby grant Modisoft an irrevocable and perpetual license to (i) sell, offer, or otherwise transmit all or any portion of the Sales Data to third parties, (ii) access, make full use of, or otherwise derive benefit from the Sales Data, and (iii) sublicense any of the foregoing. You hereby acknowledge and agree that Modisoft has no obligation to modify your sales Data in any way, even in the event such sales Data contains identifying information.
32. Use With Mobile Device. 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. Modisoft is not obligated to provide a compatible version of the Services for all mobile devices or telecommunication providers, which are subject to change by Modisoft 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.
33. Beta Features. From time to time, Modisoft may, at its 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.
Limitations on Warranties, Liability, and Damages
34. General. YOUR USE OF THE SERVICES, INCLUDING ANY SOFTWARE AND CONTENT THEREIN, IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MODISOFT AND ITS AFFILIATES, LICENSORS, THIRD-PARTY CONTENT AND SERVICE PROVIDERS, DISTRIBUTORS, RESELLERS, AND SUPPLIERS (COLLECTIVELY “SUPPLIERS“) HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, CONTENT, AND RELATED MATERIALS, INCLUDING BUT NOT LIMITED TO 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. MODISOFT AND ITS SUPPLIERS MAKE NO WARRANTIES WITH RESPECT TO THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, QUALITY, OF THE SERVICES OR ANY ASSOCIATED CONTENT, INCLUDING CONTENT POSTED ON OR LINKED FROM THE SERVICES. MODISOFT AND ITS SUPPLIERS MAKE NO WARRANTIES THAT THE SERVICES 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 SUCH 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
35. Compliance with Laws. MODISOFT AND ITS SUPPLIERS ARE NOT ENGAGED IN RENDERING LEGAL, FINANCIAL, ACCOUNTING, OR ANY OTHER PROFESSIONAL SERVICE. IF SUCH ASSISTANCE IS REQUIRED, YOU SHOULD SEEK THE SERVICE OF A COMPETENT PROFESSIONAL. MODISOFT AND ITS SUPPLIERS 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 BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), 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.
36. Limitation of Liability and Damages. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF MODISOFT, ITS AFFILIATES, AND SUPPLIERS, AND YOUR EXCLUSIVE REMEDY FOR ALL MATTERS OR CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, SHALL BE LIMITED TO THE AMOUNT PAID BY AND/OR DUE FROM THE REGISTERED USER FOR THE SERVICES TO MODISOFT, ITS AFFILIATES, OR ITS SUPPLIERS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MODISOFT, ITS AFFILIATES, AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR (B) 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, USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET MODISOFT SYSTEMS REQUIREMENTS, TAX POSITIONS TAKEN BY YOU, ARISING OUT OF OR CONNECTED IN ANY WAY WITH THE SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF MODISOFT, ITS AFFILIATES, AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MODISOFT AND YOU, AND MODISOFT WOULD NOT HAVE PROVIDED YOU WITH ANY SERVICES OR SOFTWARE WITHOUT SUCH LIMITATIONS.
37. Amendment. Modisoft may change the terms and conditions hereof from time to time effective upon posting of the modified Agreement on its website, which changes shall become effective upon such posting. Please review the Agreement periodically on this website for changes. Modisoft has the right to change or add to the terms of this Agreement, and to change, delete, limit, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Internet based services, pricing, technical support options, and other product-related policies, upon reasonable notice, including but not limited to posting information concerning such change in the Services selected by you or on an Modisoft sponsored website. Your continued use of the Services or Software after Modisoft’s publication of any such changes shall be deemed to constitute your acceptance of such modification(s), addition(s), deletion(s), or other change(s) hereto.
38. Governing Law and Venue. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby (each, a “Proceeding”) 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 each party irrevocably submits to the exclusive jurisdiction of such courts in any such 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 any Proceeding brought in any such court.
39. Dispute Resolution. 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.
40. Force Majeure. Modisoft 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, 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 Modisoft’s reasonable control.
41. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth in the Registration Information (or to such other address as may be designated by a party from time to time in accordance herewith.
42. Integration. This Agreement, together with the all other documents that are incorporated by reference herein, constitutes the sole, complete, and entire agreement between you and Modisoft with respect to the subject matter contained herein, including but not limited to setting forth the entire liability of Modisoft, its affiliates, and its Suppliers, and your exclusive remedy 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.
43. Waiver. 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.
44. Reformation. 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.
45. Interpretation. 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 means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. 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.
CARTZIE SERVICES AGREEMENT
Modisoft has designed and developed a mobile application known as “Cartzie” and offers an online platform that allows Retailers to advertise and market their products for sale and delivery to consumers, as well as offer a rewards and loyalty program to customers using the application (the “Software”); and
WHEREAS, Retailer desires to enter into this Agreement with Modisoft for certain services for use of the Modisoft Software;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the Parties hereto agree as follows:
1. SERVICES AND SOFTWARE
(a)Modisoft Service. Modisoft, through the Cartzie Software, provides an marketplace connection, using web-based technology that allows consumers to connect to delivery contractors to place order for food, beverages, and/or other goods from various convenience stores, liquor stores, smoke shops, delicatessens, restaurants and other businesses (the “Services”). Once such orders are made, the Software notifies the Retailer that a delivery opportunity is available, and the Software facilitates completion of the delivery to the consumer through the use of delivery Contractors (defined below). Modisoft and the Software is not a retail store, restaurant, delivery services, or food preparation business. Through the online platform, customers can access Retailer products, promotions, rewards and loyalty. Modisoft does not own, buy, sell or control the sale of any products sold on the platform or mobile application and holds no license to do so. All the products offered, ordered, sold or delivered under this agreement will be sole responsibility of retailers.
(b)The Parties’ Relationship. Neither Modisoft nor Cartzie is a merchant or delivery service. Modisoft and Retailer agrees that they are independent businesses whose relationship is governed by these terms. Nothing in the parties’ agreements, relationship, or transactions shall create or be construed as creating an agency, partnership, fiduciary, or joint venture relationship between Modisoft and Retailer (or any of Retailer’s employees, representatives, or agents), Retailer’s customers, or any Contractors. Except as otherwise set forth herein, each Party shall be responsible for its own expenses, profits and losses.
(c)Service Fee. Retailer shall pay Modisoft a monthly service fee as per the prevailing rate for Modisoft service or as agreed by both the parties for its use of the Software.
(d)Access to and Use of Services. Retailer may, on a non-exclusive basis, during the Term access and use Services as set forth in these Terms and through authorized means to:
i. Review, accept, decline, monitor, process and execute purchase orders and transactions with end users of legal drinking age; and
ii. Review market analyses, industry trends and other informational reports provided by Modisoft but solely for Retailer’s own educational and internal purposes. The software enabling Retailer’s access to and use of Services is in the form of “software as a service.” Modisoft is not liable if Retailer does not have compatible technology or if it accesses or uses the wrong version of Services or software. Retailer may not solicit, induce, or suggest to any end consumer who uses Modisoft’s services to use a competitive service or Retailer’s own services or solicit, induce or suggest to any end consumer to cease using Modisoft’s services.
(e)Payment for Services. As consideration for use of the Software Services to be provided by any contractor, all payments for the Services are made through the Cartzie application. Retailer will open a merchant account with a payment processing company agreed to and authorized by Modisoft. Retailer is responsible for the payment of all credit card fees and charges of the payment processing company.
(f)Delivery Fees/Charges. Retailer may arrange for delivery through their own third-party delivery channel or use the delivery and/or fulfillment partners of Modisoft (collectively, “Contractors”). Retailers using Modisoft-partnered Contractors will be billed for delivery charges which will be collected two times per week, or as otherwise agreed to by Modisoft. Retailer shall execute a Bank ACH authorization to collect the applicable delivery fees for fulfillment of any orders completed through a Modisoft delivery partner.
(g)Tips. The Software will provide customers the option to tip the Contractor for delivery of the online orders. Tips will be deposited to the Retailer’s bank account. If Retailer utilizes Modisoft’s Contractors, Retailer will be billed to collect back the tip to reimburse the same to delivery company/contractor. Retailer shall provide Modisoft a Bank ACH authorization to collect the applicable tip amount two times per week from the Retailer’s bank account.
(h) Retailer Authority.
i. All offers, deals, promotions, rewards, loyalty and solicitations, selection of products, sales including acceptance of online orders, payments, shipments or delivery of the products are at the express direction and control of Retailer, exercising its management and pricing decisions. Retailer represents and warrants that it holds and will continue to hold permit/license for the products marketed and offered to consumers. Retailers offering delivery orders for Alcoholic products (beer, wine, liquor and other alcohol) shall only accept the orders which are to be delivered within the Retailer’s Delivery Zone permitted by the Alcohol licensing authority of concerned city/state.
ii. Retailer shall, at all times, be solely responsible for controlling and managing all aspects of the sale and delivery of any products including alcoholic beverages, the selection and pricing of inventory, receipt and acceptance of orders, and the processing of payments, chargebacks and refunds.
iii. Neither Modisoft and/or Cartzie shall be responsible for the legal or illegal decisions, acts or omissions of Retailer or any third-party service provider contracted by Retailer to carry out Retailer’s activities. Retailer must perform its activities in accordance with the laws, rules and regulations governing its retail license, including taking legally required steps to verify the age of any person to whom Retailer may furnish alcoholic beverages and in determining whether a transaction or furnishing any products thereunder is safe and appropriate.
iv. Retailer is responsible for all costs and expenses in connection with the sale of products, including but not limited to shipping costs, defected or damaged product costs and exercise and sales taxes
v. Alcoholic Products. If Retailer offers alcoholic beverages for delivery, Retailer represents and warrants that (a) Retailer shall comply with all federal, state and/or local laws regarding the preparation, sale and delivery of alcohol applicable to it, including all applicable state alcoholic beverage commission requirements (as updated); (b) Retailer currently holds, and will continue to maintain, adequate permits and licenses required by any state alcoholic beverage commission to authorize them to offer alcoholic beverages for instore and delivery and will immediately notify Modisoft of any changes thereto; (c) Retailer shall be primarily responsible for ensuring compliance with state alcoholic beverage commission packaging and preparation requirements, including, when required by law, ensuring that all alcohol orders are accompanied by a food order that was prepared on-premise and that alcoholic beverages are either in the original container sealed by a manufacturer (as such requirements may be modified or superseded by regulatory, legislative, or executive action); and (d) Retailer shall accept returns of alcohol orders that were undeliverable for any reason. Furthermore, if any Contractor delivers alcoholic beverages from Retailer, the Contractor represents and warrants that (e) he/she currently holds, and will continue to maintain, either a Carrier Permit, Consumer Delivery Permit, or other permit under any Alcoholic Beverage Code of the applicable state authorizing it to deliver alcoholic beverages; (f) Retailer will be responsible for complying with all state alcoholic beverage commission requirements applicable to it, and has implemented processes and procedures, software features, and/or other precautionary measures designed to ensure compliance; and (g) orders including alcoholic beverages will only be offered to Contractors who are twenty-one years of age or older and who have undergone a background check in the last twelve months, if not sooner, and who will be responsible for ensuring that the recipient of such order is twenty-one years of age or older and not intoxicated. For the avoidance of doubt, both parties acknowledge and agree that Retailer shall have and maintain exclusive control over all alcoholic beverages purchased, stored, or sold by it, including sole control over all prices and funds from a transaction involving the sale of alcoholic beverages, and that title to all alcoholic beverages will pass directly from Retailer to the end-user and shall at no time pass to Modisoft or any Contractor.
If applicable, Retailer represents and confirms that it is licensed by the alcoholic beverage commission and/or any other licensing authority of the city/state of business operation of Retailer, namely ____________________________ to sell and deliver alcoholic beverages under the license/permit number ____________________. Retailer will maintain all licenses, permits and authorizations necessary to sell and deliver products in the State of ______________. Retailer is solely responsible for compliance of applicable laws, rules and regulations, including but not limited to alcoholic beverage control laws, laws governing the sale and delivery of products, and any other obligations under this Agreement. Upon Modisoft’s request, Retailer shall provide a copy of its current retail alcoholic beverage license to Modisoft.
vi. Customer Verification. Retailer agrees and acknowledges that any information or affirmation by customers/consumers for their name/identity in connection with the use of Modisoft and/or the Cartzie Software is not independently verified. Retailer also acknowledges that any affirmation by customers/consumers that they are over twenty-one (21) years of age is provided without independent investigation or verification or any representation as to be accurate or reliable. Retailer shall promptly notify Modisoft in writing of any notice, complaint, deficiency or other communication from any relevant alcohol beverage commission and/or licensing authority related to the Retailer’s permits or Retailer’s ability to make proper use of the Cartzie Software.
2. TERM AND TERMINATION.
- Term. This Agreement becomes effective on the date Retailer registers with Modisoft or first accesses Services, whichever is earlier, and will continues monthly until terminated.
- Either Party may terminate this Agreement for any reason at any time upon 30 days prior written notice to the other Party. Once the contract is terminated Modisoft will close all the Cartzie and Software-related services available to Retailer. Retailer is responsible for saving any data and/or information Retailer may need for future use. Modisoft and/or Cartzie is unable to retrieve and provide data after the termination date.
- Any material breach of a provision of this Agreement is grounds for termination by the non-breaching party. However, the non-breaching party shall provide a written notice of the alleged breach and afford the breaching party an opportunity to cure said alleged breach upon mutually agreeable terms.
3. LICENSE GRANT AND RESTRICTIONS.
- License Grant. Subject to the terms of this Agreement, Modisoft grants Retailer a worldwide, non-exclusive, non-transferable, non-sublicensable, non-assignable (except in connection with a permitted assignment of this Agreement), non-perpetual, revocable right and license to (i) access and use the Software for the purpose of accessing and using the Services in accordance with all laws, rules and regulations of the jurisdiction in which Retailer is located. The foregoing licenses may only be exercised by Retailer and its end users.
- Restrictions. Retailer shall use the Software and the Services solely for its business purposes as contemplated by this agreement. As such, Retailer agrees that only Modisoft shall have the right to alter, maintain, enhance, or otherwise modify the Software. Retailer shall not (i) reverse engineer, disassemble, de-compile, decrypt or discover the proprietary technologies or all or any portion of the Software, create or derive works from the Software for the purpose of resale or use by Retailer, anyone acting in concert with Retailer, any division, affiliate, parent or subsidiary of Retailer, or any other person or entity; (ii) merge the Software into another software product or service; (iii) translate the Software products or services into another language format; (iv) make the Software or any derivative therefrom available to anyone other than Authorized Users; (v) sublicense, sell, publish, rent, lease, or lend the Software; (vi) remove, alter or obstruct copyright notices, trademarks, branding or other legends on the Software, documentation or related materials or as reasonably designated by Modisoft; or (vii) transfer the Software in violation of this Agreement or applicable laws.
4. TITLE AND OWNERSHIP; INTELLECTUAL PROPERTY.
(a) Except as otherwise expressly provided herein, Modisoft’s Software and any other content, technology and information developed by Modisoft (i) is and will remain the exclusive property throughout the world of Modisoft; (ii) is protected by applicable copyright law and international treaty; and (iii) may not be reproduced, displayed, published or distributed without the express prior written consent of Modisoft. Retailer acknowledges and agrees that no title to the Software is transferred pursuant to this Agreement, and that Retailer does not obtain any rights, express or implied, in Modisoft’s Software, other than the rights expressly granted in this Agreement. To the extent that Retailer create any derivative work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted), any such derivative work is owned by Modisoft and all right, title and interest in and to each such derivative work automatically vests in Modisoft. Modisoft has no obligation to grant you any right in any such derivative work, except as otherwise expressly provided in one or more of the supplemental service and product agreements).
(b) In the event that any idea, code, technology or information is developed solely by or jointly with Retailer to be used in connection with any Modisoft content, code or technology, Modisoft will be the sole and exclusive owner of the resulting technology and will not in any manner be prohibited from utilizing, developing and/or marketing similar ideas, codes, technologies or information. To the extent that the Parties work together to create features or functionality in code, technology or other information, Modisoft shall be the sole and exclusive owner of the resulting technology and Retailer grants to Modisoft and its successors and assigns the irrevocable worldwide non-exclusive paid up, royalty-free license to use, develop, modify, reproduce, distribute, or otherwise disseminate such jointly developed ideas, suggestions, code, technology or other information for any and all purposes. Retailer will not challenge, directly or indirectly, in any manner whatsoever the right, title in interest of Modisoft and/or Modisoft’s system, nor the validity or enforceability of such rights under all applicable laws, nor will Retailer, directly or indirectly, register, apply for registration, or attempt to acquire in its name any legal protection in any jurisdiction for any proprietary rights therein, or attempt to reverse engineer, or take any other action that may adversely affect Modisoft’s right, title or interest therein. Retailer will not purport to sell or otherwise transfer Modisoft’s system and/or any of Modisoft’s product and/or service except as otherwise expressly authorized in writing by Modisoft.
(a) Confidential Information. The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (the “Disclosing Party”) provided to the other party (the “Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, the Software constitutes Confidential Information of Modisoft. Retailer agrees that it will use reasonable efforts to protect such Confidential Information as is used to protect its own confidential and/or proprietary information. Disclosures of such information shall be restricted to those individuals who are directly participating in the development, integration or customer service efforts provided for under this Agreement.
(b) Exceptions. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
(c) Use and Disclosure of Confidential Information. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 6(d), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
(d) If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole expense, in opposing or seeking protective limitations on disclosure.
Retailer shall indemnify and hold harmless Modisoft from any and all loss, damage, claim, demand, cause of action, liability or expense (i) on account of damage to real, tangible and/or intellectual property, loss of business and/or injuries, including without limitation death, to all persons to the extent caused by the negligence, gross negligence or willful misconduct of the Retailer, Retailer’s employees, contractors or agents and arising out of or in connection with this Agreement, or (ii) resulting from the failure of Retailer to comply with any law applicable to it, or (iii) resulting from a security breach of its systems or software, or (iv) arising out of any claim asserted against Modisoft by a third party asserting that software or other products or technology incorporated in or comprising the Retailer’s electronic system and related software and technology violates such third party’s copyright, patent rights, trade secret rights or other intellectual property rights, or (v) arising out of the breach, violation or failure to perform any provision, representation, warranty or requirement of this Agreement. The foregoing indemnities will be contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action for which indemnity is sought, cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action, and obtaining the indemnifying party’s prior written agreement to any settlement or proposal of settlement (which agreement will not be unreasonably withheld, conditioned or delayed). Modisoft is granted the right but not the obligation to retain counsel of its choice to defend any such claim or action and Retailer shall reimburse Modisoft all fees, cost and expenses associated with such defense incurred by Modisoft.
7. REPRESENTATIONS AND WARRANTIES; ADDITIONAL RESPONSIBILITIES; WARRANTY DISCLAIMER.
- Representations and Warranties of Modisoft. Modisoft makes the following representations and warranties under this Agreement:
- It has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party;
- It will comply with all applicable laws, rules and regulations in its performance of this Agreement, including without limitation
- All applicable data protection and privacy laws,
- All applicable laws related to third party intellectual property and other proprietary rights;
- Modisoft further agrees to
- Use commercially reasonable efforts to ensure the Software is delivered in a prompt and efficient manner using due care; and
Maintain its own equipment, proprietary systems and programs used in connection with providing the Software. Modisoft further represents that it will, at it own expense, promptly correct any errors which are due to the malfunction of Modisoft’s computers, operating systems, or programs used in connection with providing the Software to Retailer.
Modisoft Responsibilities. Modisoft shall use commercially reasonable efforts to make the Software generally available 99.9% of the time, except for
- Planned downtime (of which Modisoft shall endeavor to give reasonable advance notice); or
- Any unavailability caused by circumstances beyond Modisoft’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Modisoft’s possession or reasonable control, and network intrusions or denial of service attacks.
Representations and Warranties of Retailer. Retailer makes the following representations and warranties under this Agreement:
- It has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party;
- The operation of its business, including without limitation the preparation and sale of food, beverage and other items, if any, will at all times comply with all applicable laws, rules and regulations in performing its obligations and activities under this Agreement, including without limitation (including those relating to regulatory permits and licenses, food safety and sanitation, the sale of alcoholic beverages and other regulated products, data protection and privacy laws, and third party intellectual property or proprietary rights, as applicable);
It holds and will maintain for the entire term a retail license and permitted and required by the licensing board or authority for the city, county, and/or state (each as applicable) in which Retailer operates its store(s), as well as any alcohol beverage licensing commission for each state in which Retailer operates;
The prices charged through the Modisoft Cartzie Software will not be higher than those charged to Retailer’s other customers for take-out or delivery of Retailer’s products.
Products displayed and promoted on the Cartzie mobile application are the responsibility of the Retailers and they assume responsibility to hold valid license to sell and deliver such products.
Retailer is solely responsible for maintaining current and accurate information in its account and portal, including information regarding its location, hours of operation, availability to make deliveries, scope of service area, inventory, store sales, pricing, policies for consumers and contact information for its manager of record.
Retailer shall promptly review orders made through the mobile application service. Retailer is expected to complete the order within thirty (30) minutes from the Point of Sale to execute payment processing of payment card for the customer. Failure to process transaction on timely manner can risk the any payment authorization being voided by the cardholder.
Retailer is expected to verify customers to ensure orders received are legitimate and that a person of legal age with valid identification will be available to receive delivery in case of alcoholic beverage orders.
Retailer shall use its best efforts to deliver accepted orders within one (1) hour of the placement of the order accepted through the Cartzie mobile application, or such other delivery service.
Retailer can use their Contractors to deliver the products. They also have the option to use Contractors offered by Modisoft through the Cartzie Software to deliver the products.
Retailer shall not use customer data for any reason other than to fulfill delivery orders and marketing required for the promotion of the Cartzie application or the promotion of Retailer. Violation of this clause may lead to immediate termination of the agreement.
In case of delivery of age restricted items such as alcoholic beverage products, Retailer and its agents and employees delivering the order will verify the identity of the customer through valid and acceptable Government-issued documentation to confirm that the customer is twenty-one (21) years old or any other age required by the laws of the jurisdiction of the delivery address. Retailer is also responsible for verifying that any individual receiving delivery of alcoholic beverage products is not visibility intoxicated as defined and required by the laws for receiving alcohol products delivery. Retailer and delivery agent shall comply all the relevant laws of any state alcoholic beverage commission and/or licensing authorities in this regard.
Retailer shall define the delivery zone that complies with laws governing deliveries set forth in the alcoholic beverage code/rules of the business jurisdiction of the Retailer and the delivery address of the ordering customer. Retailer will deliver alcoholic products only in the permitted jurisdiction as per their respective license/permit.
Retailer shall be solely responsible for compliance with all applicable federal, state, or local laws related to online sale and delivery of Alcoholic Beverages.
To the maximum extent permitted by applicable law, and except as expressly provided herein, the Cartzie Software and services and intellectual property provided through or in connection with the Software (Including third party materials, software and services) are provided to Retailer on an” As Is”, “Where Is” and “As Available” Basis without Warranty of any kind, (All of which are hereby disclaimed), and modisoft HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, NON-INTERFERENCE AND NON-INFRINGEMENT, and all warranties implied from any course of dealing or usage of trade. MODISOFT DOES NOT WARRANT THAT THE FAVOR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. To the maximum extent permitted by applicable law, Modisoft makes no representation, warranty or guaranty of any results of any kind for Retailer. Modisoft may introduce Retailer to third party delivery or fulfilment service provider. Modisoft will not assess legality or ability of any third party service provider and make no warranty or guaranty as to their reliability. Retailer acknowledges that the operation of the Cartzie Software may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Modisoft shall not be responsible to Retailer or others for any such interruptions, errors, or problems or an outright discontinuance of the Cartzie Software nor for any guarantee of results with respect to the Modisoft services or Cartzie Software. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.
- Compliance with Laws. Retailer represents and warrants that, during the term of this Agreement, it will comply with all laws, rules and regulations applicable to the use of the Software, including any laws, rules and regulations applicable to Retailer’s industry.
9. LIMITATION OF LIABILITY.
To the Maximum Extent permitted by Applicable Law, In no event shall Modisoft’s aggregate liability exceed the amounts actually paid or payable by Retailer in the six (6) month period immediately preceding the event giving rise to such claim to the maximum extent permitted by applicable law, in no event must Modisoft be liable for any indirect, punitive, special, exemplary, incidental, consequential or exemplary damages, loss of use, data or profits, or any other damages or losses of any type of kind arising out of, or in any way connected with these terms or any services or intellectual property provided by Modisoft (including any third party materials, software from or arising out of the sale, purchase, Delivery or consumption of alcoholic beverages, including any claim, demand or damages arising from any transaction between Retailer and any consumer through use of services, from or out of any relationship between Retailer and any third party service provider, or from or out of any advertising through services, however caused and under any theory of liability, whether in contract, strict liability or even if Modisoft has been previously advised of the possibility of such damages. Modisoft will not be a party to transactions, disputes or indulge any negotiations between Retailer and any third parties. Each party acknowledges that the foregoing limitations are an essential element of the agreement between the parties and that in the absence of such limitation these terms would be substantially different.
- Governing Law. These Terms should be governed by and construed in accordance with the Laws of the State of Texas, without regard to the conflict of law principles thereof. The Parties irrevocably and unconditionally agree that any legal proceeding arising under or in connection with these Terms, except for those seeking injunctive relief, will be brought exclusively in the state or federal court located in state of Texas. The Parties each agree to submit to the exercise of personal jurisdiction of such courts for the purpose of litigating all such claims or disputes and waive any objection as to inconvenient forum.
- Dispute Resolution. 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 American Arbitration Association Commercial Arbitration Rules (together the “AAA Rules”) by one neutral arbitrator appointed in accordance with the AAA Rules. 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. RETAILER AGREES 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.
- Assignment. Retailer may not assign this Agreement to any third party without first obtaining Modisoft’s prior written consent, but otherwise this Agreement shall be binding upon and inure to the benefit of the parties’ respective successors and assigns.
- Force Majeure. Failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, emergency, unavailability of services or materials, or other causes beyond the reasonable control of the party and which could not have been avoided by the party’s use of due care shall not be deemed a breach of this Agreement, and if any time period for performance is involved, such period shall be deemed extended accordingly. This provision does not apply to the payment of monies.
- Severability. The provisions of this Agreement are severable. Should any provision, part of a provision or term be declared or determined by any court of competent jurisdiction to be illegal or invalid, the validity and enforceability of the remaining parts, terms, and provisions shall not be affected thereby.
- Notice. Any notice or writing required or permitted to be given or delivered to a party under this Agreement will be deemed effective if given in writing and sent by world-class overnight courier service (such as Airborne, DHL, UPS, or Federal Express) or by registered mail or certified mail, postage prepaid, return receipt requested, addressed to the party at the address set forth in the introductory paragraph or such other address as the party will have designated by notice made in accordance with the provisions of this paragraph. Notice shall be deemed effective if given via electronic mail (email). Notice by any other means shall be deemed effective when actually received and understood by the other party
- Terms and Conditions. The Terms and Conditions applicable to the Modisoft Services and Software is available at https://modisoft.com/terms-and-conditions/ and is incorporated herein by reference. Modisoft may update these Terms and Conditions at any time by posting an amended Terms & Conditions on its website. Any amended Terms and Conditions shall become effective upon posting.
- Entire Agreement. These terms and the registration form completed by Retailer contain the entire agreement and understanding between the Parties and supersede and replace all other prior and contemporaneous agreements between the Parties. These Terms may not be amended by Retailer except in a written instrument signed by Modisoft.
- Amendment. This Agreement may not be amended or modified by the Parties in any manner, except by written mutual consent.