END USER TERMS OF SERVICE
CardFree End User Terms of Service
- General. Access to merchant (the “Service Provider”) services via your mobile device or computer is powered by the mobile technology and software solution owned by CARDFREE, Inc. (the “Licensor”) or its licensors. The Licensor is not the provider of any of the services available to you through the Software (defined below in Section 2) (collectively the “Third-Party Materials”). You acknowledge and agree that the Licensor is not responsible for any of the Third-Party Materials, including their accuracy, completeness, timeliness, validity, compliance, legality, decency, quality, or any other aspects of information, products or services made available to you through the Software. Third-Party Materials are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. In addition, the Licensor is not responsible for any errors, mistakes or defects affecting or otherwise relating to payments and/or the earning or redemption of points.
- Ownership. You acknowledge and agree that the Licensor (or its licensors) is the owner of all right, title and interest in and to the mobile technology solution and software made available to you hereunder, including but not limited to any downloaded software and the computer programs contained therein, as well as any accompanying user documentation, and all subsequent copies, updates or versions thereof, regardless of the media or form in which they may exist (all of which is collectively referred to herein as the “Software”). By accessing the Software or using the services powered by the Software, you agree to be bound by these End User Terms (this “Agreement”), which (i) constitute your agreement with Licensor, and (ii) shall be deemed to override and supersede any conflicting or contradictory provisions set forth in any other agreement to which you are a party or otherwise binding on you.
- License. Subject to the terms and conditions of this Agreement, you are hereby granted a personal, nonexclusive, revocable, nontransferable license to use the Software (in machine readable object code form only) in accordance with this Agreement and solely for its intended purpose. This is not a sale of the Software. All rights not expressly granted to you by this Agreement are hereby reserved by the Licensor. Nothing in this license will entitle you to receive hard-copy documentation, technical support, telephone assistance or updates to the Software. This license may be terminated at any time, for any reason or no reason, by you or the Licensor. Upon termination, (i) all rights granted to you under this Agreement will also terminate, (ii) you agree to immediately destroy all copies of any Software which had been downloaded to your mobile device or otherwise in your possession or control, and (iii) termination will not limit any of the Licensor’s rights or remedies at law or in equity.
- Restrictions. You shall not: (i) use the Software in any manner other than for its intended purpose; (ii) use the Software in any illegal or inappropriate manner or for any illegal or inappropriate purpose; (iii) modify, revise or create any derivative works of the Software; (iv) decompile, reverse engineer or otherwise attempt to derive the source code for the Software; (v) redistribute, sell, rent, lease, sublicense, transfer rights to, or otherwise commercially exploit the Software; or (vi) remove or alter any proprietary notices, legends, symbols or labels in the Software, including, but not limited to, any trademark, logo or copyright.
- Updates. The terms of this Agreement will govern any updates that replace and/or supplement the original Software, unless such update is accompanied by a separate license in which case the terms of that license will govern. The Licensor shall not, by virtue of this Agreement, be required to provide or make available to you any updates, improvements or additional modules. Notwithstanding the foregoing, Licensor may from time to time in its sole discretion develop and provide certain updates, which may include upgrades, bug fixes, patches, other error corrections and/or new features. Such updates may also modify or delete in their entirety certain features and functionality of the Software. You agree that Licensor has no obligation to provide any updates or to continue to provide or enable any particular features or functionality of the Software.
- Consent to Use of Data. You agree that the Licensor may collect and use technical data and related user information, including but not limited to technical and personal information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services (if any) related to the Software. By downloading, installing, using and providing information to or through the Software, you hereby grant us a perpetual, non-exclusive, royalty free right and license to copy, modify and use any information and data supplied by you or collected on your behalf so that we may enhance the Software and to reasonably perform under its agreement with Service Provider. The Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies. The Licensor has implemented internal privacy protections for personally identifiable information, however, you acknowledge that any personally identifiable information transmitted or disclosed online can be intercepted by others and used unlawfully. Licensor shall comply with all applicable laws and regulations; however, Licensor is not responsible to ensure that Service Provider also comply with all applicable laws and regulations.
- Text Messages. Text messaging services, emails or other similar pass through fee services (collectively referred to as the “Pass Through Services”), if any are offered, are provided by the Service Provider and not by Licensor. You and the Service Provider are solely responsible for the content transmitted through text messages sent between you and the Service Provider. You must provide source indication in any text messages you send (e.g. mobile telephone number, “From” field in text message, etc.) You are responsible for any fees charged by third parties with respect to any Pass Through Services.
- Purchase of Alcoholic Beverages. By using Licensor’s mobile technology solution and software, you acknowledge and agree that (a) federal and state law require that the purchaser of alcoholic beverages be at least 21 years of age and alcoholic beverages may not be sold, delivered or given away to persons who are under 21 years of age, (b) you are 21 years of age or older and (c) you must be able to provide a valid form of identification to the Service Provider at the time of service. You further acknowledge and agree that the Licensor is not affiliated with the Service Provider and the Service Provider has the discretion to refuse service to anyone. Any issues in connection with your ability to purchase alcoholic beverages are solely between you and the Service Provider.
- Export Restrictions. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will comply with all applicable United States laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to any exporting or re-exporting of the Software.
- U.S. Government Restricted Rights. The Software is commercial computer software, as such term is defined in 48 CFR §2.101. Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 CFR §227.7201 through 48 CFR §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 CFR §12.212, with respect to all other U.S. Government licensees and their contractors.
- Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AS TO THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT OF USE OF THE SOFTWARE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERORMANCE, USAGE OR TRADE PRACTICE. NO WARRANTY IS PROVIDED THAT THE SOFTWARE WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. NO WARRANTY IS PROVIDED THAT THE SOFTWARE WILL MEET YOUR SYSTEM REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OF THE SERVICES TO BE PROVIDED ON THE SOFTWARE WITHOUT INTERRUPTION. YOU ACKNOWLEDGE THAT LICENSOR IS NOT RESPONSIBLE FOR ANY ERRORS RELATED TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION DOWNTIME, AND ANY SERVICES PROVIDED BY THE SERVICE PROVIDER. LICENSOR IS NOT RESPONSIBLE FOR THE ACTIONS OF THE SERVICE PROVIDER, INCLUDING BUT NOT LIMITED TO ITS COMPLIANCE WITH ALL APPLICABLE LAWS. YOUR USE OF THE SOFTWARE AND ANY MATERIAL OR SERVICES OBTAINED OR ACCESSED VIA THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Indemnification. You agree to indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney’s fees, arising from or relating to your use or misuse of the Software or your breach of this Agreement, including but not limited to the content you submit or make available through the Software.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS AFFILIATES OR LICENSORS (“LICENSOR PARTIES”) BE LIABLE FOR ANY LOSSES, DAMAGES, FEES AND COSTS ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED. FOR THE AVOIDANCE OF DOUBT, LICENSOR PARTIES SHALL NOT BE LIABLE FOR ANY LOSSES, DAMAGES, FEES AND COSTS IN CONNECTION WITH THE PURCHASE, SALE OR CONSUMPTION OF ANY ALCOHOL. IN ANY CASE, THE LICENSOR PARTIES’ LIABILITY ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES PAID BY YOU FOR THIS LICENSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Miscellaneous. This Agreement constitutes the entire agreement between you and the Licensor concerning the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Software. This Agreement will be governed by and construed in accordance with the laws of the state of California, excluding that body of laws pertaining to conflict of laws. If any provision of this Agreement is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable. All disputes relating to this Agreement are subject to the exclusive jurisdiction and venue of the Superior Court of San Francisco County or the United States District Court for the Northern District of California, and you expressly consent to jurisdiction and venue thereof and therein. This Agreement and all related documentation is and will be in the English language. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded.