End User License Agreement (EULA)

August 6, 2018

This End User License Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of http://firstchoicepos.com and all its sub-domains (the “Site”) and/or the First Choice Point of Sale software (the “Software”) and related installation and customization services provided by First Choice POS Inc. (together with the Site and Software, the “Services”) and is an agreement between First Choice POS Inc. (“First Choice,” “us,” “we”) and you or the entity you represent (“you,” “your,” “user”). This Agreement: (i) incorporates any terms agreed between you and First Choice or provided to you, including but not limited to the Software Order Form and Merchant Application; and (ii) becomes effective immediately at such time as you install and/or access the Software. IF YOU DO NOT ACCEPT THIS AGREEMENT, WE WILL NOT GRANT YOU ANY LICENSE OR USE RIGHTS HEREUNDER. IF YOU ORDER THE SERVICES ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT TO FIRST CHOICE THAT YOU HAVE THE ACTUAL AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.

IMPORTANT NOTICE: THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL REQUIRE YOU TO SUBMIT ANY CLAIMS YOU MAY HAVE AGAINST FIRST CHOICE TO BINDING AND FINAL ARBITRATION.  IN ADDITION, UNDER THE ARBITRATION PROVISION, (A) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST FIRST CHOICE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (B) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE SECTIONS REGARDING ARBITRATION.

1. YOUR ACCOUNT AND SECURITY.

You will be responsible for creating and maintaining the confidentiality of your username and password. You are responsible for all activity occurring under your account. You agree that you will (i) immediately notify First Choice of any unauthorized use of your username or password and (ii) ensure that you properly exit any Services, Software, and/or the Site at the completion of your session. First Choice shall have no liability for any loss or damage arising from your account or your failure to comply with these requirements.

2. YOUR DATA AND CUSTOMER DATA.

2.1. By using the Site and/or Services, you hereby acknowledge that: (i) you, your Agents (as hereinafter defined), or your Customers (as hereinafter defined) may send, receive, upload, retrieve, and/or otherwise transmit or recover, information, images, text, files, materials, content and other data (collectively, “Subscriber Data”) to or from the Services; and (ii) you bear the entire and sole responsibility for the accuracy, reliability, usefulness, completeness, and contents, of any and all such Subscriber Data, including but not limited to any loss, liabilities or damages that arise or result from the Subscriber Data.

2.2. As between you and First Choice, you or your Customers or licensors own all right, title, and interest in and to Subscriber Data. You consent to our use of Subscriber Data to provide the Services to you and your Customers and for any other purpose set forth in this Agreement or consented to by you. For purposes of this Agreement, “Customer” shall mean any individual or entity that purchases goods and/or services from you by providing his, her, or its purchase and/or billing information to you, your employee, contractor, or other agent (collectively, your “Agents”), and your Agent inputting such Customer information into the Software under your account.

2.3. By providing or otherwise making available any Subscriber Data in connection with the Services, you hereby represent and warrant that you and/or your Agents own or have the necessary rights to, send, upload, transmit, provide or otherwise provide the Subscriber Data to the Services and to First Choice, and the provision of the Subscriber Data to, and use of the Subscriber Data by, with, or through the Services under this Agreement will not violate or infringe any third party intellectual property rights, or other rights, including but not limited to privacy, copyright, patent, trademark or trade secret rights, nor will it violate the terms of any agreement between you and a third party, including but not limited to any non-disclosure or confidentiality agreement.

2.4. By providing or otherwise making available any Subscriber Data in connection with the Services, you hereby represent and warrant that the Subscriber Data: (i) does not and will not contain any viruses, worms, malware, “Trojan horses” or any generally harmful, malicious, or destructive code; and (ii) is not spam, is not generated by any bots or harmful software, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (for example and without limitation, “phishing”) or mislead recipients as to the source of the material (for example and without limitation, “spoofing”).

2.5. By submitting any Subscriber Data to First Choice, you hereby grant First Choice a royalty-free, fully-paid-up, sub-licensable, transferable, non-exclusive, perpetual, worldwide right and license to use, reproduce, modify, adapt, publish, and distribute the Subscriber Data (i) for the purpose of enabling First Choice to provide you with the Services; (ii) for the purpose of providing, through the Services, Subscriber Data and requested services to you and your Customers; (iii) for purposes of fraud analysis and detection; and (iv) for purposes of determining Customer purchasing habits in the aggregate and over time.  Notwithstanding the foregoing, First Choice shall not knowingly sell or license Subscriber Data that constitutes personally identifiable information to any third party for the purpose of engaging in unsolicited marketing or sales activities without your consent. Prior to termination of the Services, you may export your Subscriber Data from the Services for your use. If you request exportation of your Subscriber Data from the Services after the Services have been terminated, First Choice may decline to provide such exportation services or charge an additional fee in connection with providing the exportation services, in its sole discretion.

2.6.  You hereby understand and agree that at all times First Choice reserves the right (but does not assume the obligation), to be exercised in its sole discretion in the event it deems you to be in violation this Agreement, in First Choice’s sole discretion, either to (i) delete or remove any Subscriber Data for any reason; or (ii) terminate or deny access to and use of the Services, Software and/or Site to you or any other party, for any reason.  

2.7. You are responsible for your, your Agents, and your Customers’ use of any Subscriber Data and the Services. You will ensure that all your Agents comply with your obligations under this Agreement and that the terms of your agreement with each Customer are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by an Agent, you will immediately terminate such Agent’s access to the Subscriber Data, Software, Site, and Services.

3. ELIGIBILITY.

You must be 18 years of age or older to use the Site, Software and Services. If you are under the age of 18, please discontinue use of the Site, Software and Services. First Choice reserves the right to ask for proof of age and to withhold or terminate your use of the Site, Software, and/or Services if you are below the specified age requirement. Registration for or use of the Services is void in any jurisdiction where prohibited. You represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement. You hereby warrant that if you are a corporation or other legal business entity, that such entity is validly formed and existing under the laws of its jurisdiction and has duly authorized its agent or agents to enter into this Agreement. Your use of the Site and Services is governed by the First Choice privacy policy, which is available at https://wiki.firstchoicepos.com/first-choice-pos-privacy-policy/ (the “Privacy Policy”).

4. CHANGES.

4.1. We may change, discontinue, alter, or modify the Site, Software, or any of the Services, or a portion of the Site, Software or Services (including the Services as a whole) or change or remove features or functionality of the Site, Software, or Services from time to time. We will notify you of any material change to or discontinuation of the Services with prior written notice to you.

5. MONITORING OF YOUR ACTIVITY.  

5.1. Because First Choice wants to continue to improve the Site and Services for the benefit of you or any of your Agents or Customers, we may (but do not have an obligation to) monitor your activity on the Services.

5.2. Such monitoring may include, but not be limited to, the use of screen sharing capabilities in the Software to provide you and your Agents with support services.

5.3. By using the Site, Software, and/or Services, you specifically agree to First Choice monitoring you in this manner. You understand and agree that First Choice personnel may monitor your or your Agents’ activities on any device where the Software is installed at any time.

5.4. You understand, however, First Choice cannot and does not make any warranties or guarantees that: (i) the Site, Software, or Services, or any component thereof, will be made free from error or inaccuracy as a result of such monitoring or free from unauthorized and/or unacceptable use as a result of such monitoring; (ii) any statements or factual items presented by the Site, Software, or Services will be free from error or authenticated; or (iii) First Choice will take any action in the event of any non-compliance with this Agreement.

6. SET UP FEE AND SUBSCRIPTION FEE.

6.1 Any and all payments for use of the Services shall be made in U.S. Dollars.

6.2 In connection with installing the Software and setting up the Services for your use, First Choice charges a one-time setup fee (the “Set Up Fee”). If we have consented to your payment of the Set Up Fee in installments, any unpaid portions of the Set Up Fee shall be due upon termination of the Services. Under no circumstances shall the Set Up Fee be prorated or otherwise reduced once you have ordered the Services.

6.3 By ordering the Services, you hereby authorize First Choice to charge your bank account or credit card on a monthly basis for the subscription fee amount for your use of the Services (the “Subscription Fee”, and together with the Set Up Fee, the “Fees”). The Fees are non-refundable, and you are responsible for all recurring charges made prior to the effective date of cancellation of the Services. We may increase or decrease the Subscription Fee at any time, upon notice to you.

6.4 You understand and agree that First Choice will either (i) automatically withdraw the amount of the Fees from the bank account provided by you each month via ACH transfer, or (ii) automatically the charge the Fees to the credit card provided by you each month. You agree to ensure that all bank account, credit card, and other payment information supplied by you is accurate and correct and kept updated with First Choice at all times and that you are fully authorized to use such bank account, credit card, and other payment information for purposes of paying the Fees.

6.5 You understand that once payment is made for your Fees, you and your Agents will not seek to cancel, dispute, charge back, or otherwise seek a refund on any basis that is fraudulent, misleading, or untrue. All disputes initiated by you or your Agent shall result in the cancellation of the Services, and all outstanding amounts owed to First Choice for use of the Services, including but not limited to the Fees, shall become immediately due and payable.

6.6 First Choice is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by you, your Agents, or your Customers that are deceptive, fraudulent or otherwise invalid (“Fraudulent Actions”). By using the Services, you hereby release First Choice from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify First Choice of any Fraudulent Actions which may affect the Services. First Choice reserves the right, in its sole discretion, to terminate your account if you engage in, or permit any Agent or Customer to engage in, Fraudulent Actions.

7. EQUIPMENT AND ONBOARDING.

7.1 You acknowledge that First Choice’s ability to deliver some of the Services, including but not limited to equipment set up and Software customization, is dependent upon your full and timely cooperation, as well as the accuracy and completeness of any information and data you provide. Therefore, you agree that you and your Agents shall: (a) provide First Choice with access to, and use of, all reasonably required information, data, documentation, computer time, facilities, working space and office services; (b) appoint a representative who shall act as a liaison with First Choice, and have proper authority to act on your behalf, be available at all times when First Choice’s personnel are at your premises (or designate an alternate with the same level of authority in the event of unavailability caused by illness or other reasons), meet with First Choice’s representatives from time to time to review progress and resolve any issues relating to the Services, and receive and promptly review all email communications from us and notify us of anything that may impact our ability to provide the Services to you; (c) be responsible for delays to the delivery of Services caused by you or your Agents or resulting from your failure to fulfill any of your obligations; and (d) provide First Choice with full access to your premises. You acknowledge and agree that use of the Software and the Services requires use of the First Choice payment processing services, and that you may not use a third party payment processor. First Choice shall have the right to immediately terminate the Services if you use or attempt to use a third party payment processor in connection with the Services. In addition, a penalty of $200 per station per month may be incurred until termination.

7.2 You may provide your own equipment to run the Software and otherwise use the Services or you may purchase equipment from us. Required “Equipment” may include, but is not limited to, computers or tablets, monitors, keyboards, receipt printers, label printers, scanners, swipers, etc. You acknowledge and agree that First Choice shall not be responsible for any Equipment, including any Equipment purchased from us. Without limiting the generality of the foregoing, First Choice shall not be responsible for any malfunctioning or damaged Equipment. Consulting on or troubleshooting Equipment or third party software is expressly excluded from the Services. If the manufacturer of the Equipment has provided you with any warranties related to the Equipment, you acknowledge and agree that the applicable Equipment manufacturer shall be solely responsible for the performance of any such warranties.

7.3 If any Equipment includes third party software, your use of such software shall be subject to any applicable terms provided by such third party, including but not limited to any end user license agreement, any other “click-wrap” terms, or other electronic notices supplied with such software (collectively, “Third Party Terms”). You hereby authorize First Choice to accept any Third Party Terms on your behalf as your agent in the performance of First Choice’s obligations hereunder; provided, however, that First Choice shall not be obligated to do so. You acknowledge and agree that First Choice is not a party to any such Third Party Terms, regardless of whether First Choice accepts such Third Party Terms on your behalf, and that you are solely responsible for your compliance with such Third Party Terms.

7.4 Upon your request, First Choice may import your existing data to the Services as part of the onboarding process. You shall be solely responsible for exporting such data from any prior service or system in a format acceptable to First Choice. First Choice shall have no responsibility or liability for any pre-existing data or the exporting of such data from a prior service or system, including but not limited to any defects in such data or any damages resulting therefrom.

7.5 You shall inform First Choice in writing in advance of anything that may impact First Choice’s ability to provide the Services (including but not limited to software upgrades, new operating systems, and patching of any operating systems or any additions to or removals from the environment), and First Choice shall not have any liability in relation to failure to provide the Services as a result of any such changes.

7.6 You represent and warrant that you shall: (a) inform First Choice of any damage to, loss of or alterations to Equipment without undue delay; (b) maintain the premises where Equipment resides at your own cost and as may be reasonably specified by First Choice from time to time; (c) provide at your own cost an adequate electricity supply and Internet connection for such Equipment; (d) not remove, alter or obscure any labels or markings on the equipment which identify First Choice or a third party owner; (e) take reasonable steps to ensure that the Equipment is operated in a proper manner in accordance with First Choice’s directions, and (f) obtain all necessary consents, licenses and permissions with respect to your premises to enable First Choice to perform the Services.

8. OWNERSHIP AND INTELLECTUAL PROPERTY.

8.1 “First Choice”, “First Choice Merchants”, “First Choice Point of Sale”, and the First Choice logos are trademarks of First Choice. All information appearing on or through the Site, Software or Services (inclusive of any websites, applications, software, and other materials associated therewith), including documents, copy, text, images, logos, design elements, graphics, as well as the arrangement and composition thereof, are the sole property of First Choice or its third-party licensors. Any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is expressly prohibited without the express written consent of the applicable copyright owner or licensor. First Choice reserves all rights in the Site, Software and Services that are not expressly granted. You acknowledge and affirm that other third party trademarks, names, and logos on this Site, Software, and the Services are the intellectual property of their respective third party owners.  Nothing in this Agreement shall be deemed to assign or transfer to you or your Agent or any Customer any rights to any such intellectual property.

8.2 As between you and First Choice, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Site, Software, and Services. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the Site, Software and Services solely in accordance with this Agreement. Except as provided in this Section 8.2, you obtain no rights under this Agreement from us or our licensors to the Site, Software, or Services, including any related intellectual property rights.

8.3 Under no circumstances shall title to the Software be transferred to you by First Choice. First Choice retains full and complete title to the Software, and all intellectual property rights therein. First Choice does not grant you the right to redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.

8.4 First Choice will be free to use, irrevocably, in perpetuity and for any purpose, all suggestions or feedback (collectively, “Feedback”) provided to First Choice by you, your Agents, any Customer, or your affiliates, and their respective employees, representatives, or other agents, with respect to the Site, Software and Services. The foregoing grant of rights is made without any duty to account to any of the foregoing persons or entities for the use of such Feedback.

8.5 Upon your request, First Choice may create and provide new features or otherwise customize the Software, Site and Services. Such new features and customizations shall be owned solely by First Choice and licensed to you under the terms set forth in this Section 8. Nothing herein shall prohibit First Choice from providing features or customizations requested by you to third parties.

9. THIRD PARTY TERMS OF USE

The Services may, from time to time, access third party content by accessing third party Application Programing Interfaces (“APIs”) within the Services. You understand and agree that the Services are not endorsed, certified or otherwise approved in any way by the third party providing such API and the provider of the API is not responsible for the Services. Notwithstanding any license provided under this Agreement (including the end user license granted under this Agreement), (i) any such third party API is provided “as-is,” without any warranties and all implied warranties, including the implied warranties of merchantability, fitness for a  particular purpose and non-infringement, are expressly disclaimed; (ii) you may not modify or create derivative works based on any part of any such third party API; (iii) you may not decompile, reverse-engineer, disassemble, and/or otherwise reduce any such third party API to source code or other human-perceivable form, to the full extent allowed by law; (iv) ownership of any such third party API and any services related to any such third party API remain with the owner of the API; and (v) the provider of any third-party API used in connection with the Services disclaims any and all liability on the part of the third-party API provider for any interruption in its services as accessed via the Services. If at any time any third party content provider ceases to make its API available to First Choice on reasonable terms, First Choice may cease to provide such features to you without entitling you to refund, credit, or other compensation.

10. COMPLIANCE WITH LAW.

Any use of the Site, Software, and/or Services, including but not limited to uploading, making available, or otherwise using any Subscriber Data, must be lawful and you expressly agree to avoid any use that is potentially or actually unlawful, harassing, libelous, abusive, threatening, harmful, bigoted, racially offensive, obscene or otherwise objectionable, or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law, regulation or judicial ruling. You shall not falsely claim to be or represent any third parties including but not limited to First Choice personnel or another user. You further specifically agree that your use of the Services shall comply with the Payment Card Industry Data Security Standard and all relevant financial information privacy and security laws and regulations, including by only using the Services on secure systems and computers. You are solely responsible for ensuring that the tax rate settings within the Software and Services are accurate to your jurisdiction.

11. TERMINATION.

You may terminate your subscription to the Services at any time after the Services have been provided to you for six (6) months. Such termination shall be effective upon the last day of the calendar month following the month in which you notify us in writing you are terminating your subscription. Under no circumstances shall you be entitled to any pro rata refund for a partial month of Services if either you terminate your subscription or First Choice terminates your account prior to the end of a calendar month. You agree that, upon termination of this Agreement, you will either destroy (or permanently erase) all copies of the Software and return all related materials.

You understand and agree that First Choice may, in its sole discretion and at any time, terminate your password, your account, or any Subscriber Data, for any reason. First Choice may also, in its sole discretion and at any time, discontinue any service or limit or restrict any user’s access thereto, for any reason. You understand and agree that First Choice may take any one or more of these actions without prior notice to you, in the event it deems you to be in violation this Agreement (including but not limited to failure to pay the Fees), and shall provide you two (2) weeks prior written notice in the event First Choice does not deem you in violation of this Agreement. Should First Choice take any of these actions, it may, in its sole discretion, immediately deactivate and/or delete any or all information about and concerning your account, including your Subscriber Data. You understand and agree that First Choice shall not have any liability to you or any other person for any termination of your access to any service and/or the removal of information concerning your account. You agree not to use or attempt to use the Site, Software, or Services for any fraudulent, unlawful, harassing or abusive purpose, or so as to damage or cause risk to our business, reputation, employees, subscribers, facilities, or to any person. Improper uses include, but are not limited to:

  1. The violation of any applicable law or regulation;
  2. The uploading or use of materials, content, and/or Subscriber Data that you do not have the right or authorization to upload, use, or transmit;
  3. The uploading or use of materials, content, and/or Subscriber Data that infringes a third party’s rights;
  4. Uploading or using Subscriber Data that in First Choice’s sole discretion and judgment is considered unlawful, defamatory, infringing, libelous, slanderous, indecent, improper, offensive, in bad taste, inconsistent or disparaging to First Choice’s business, its trade name, and public image;
  5. Attempting to intercept, collect or store data about third parties without their knowledge or consent, in an unlawful fashion with the intention to cause harm to any such third-party;
  6. Deleting, tampering with or revising any material or content uploaded by any other person or entity;
  7. Accessing, tampering with or using non-public areas of the Site, Services, or any First Choice website or First Choice’s computer systems and network;
  8. Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
  9. Attempting to access or search the Site or Services with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by us or other generally available third party web browsers;
  10. Sending or attempting to send unsolicited messages, including without limitation, “pyramid schemes”, “spam”, “chain mail”, “junk mail”, or any similar form of solicitation;
  11. Using or attempting to use the Site or Services to send altered, deceptive or false source-identifying information;
  12. Attempting to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of the Site, Software or Services;
  13. Interfering or attempting to interfere with the access of any other user, host or network, including without limitation, sending a “virus” to the Site, Services, or any other user, overloading, “flooding,” “spamming,” “crashing,” or “mail bombing” the Site or Services; or
  14. Impersonating or misrepresenting your affiliation with any person or entity.

12. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.

ALL SERVICES ARE PROVIDED TO YOU “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS. FIRST CHOICE DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD TO ANY INFORMATION, PRODUCT, SOFTWARE, OR THE SERVICES FURNISHED BY IT UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FIRST CHOICE DOES NOT GUARANTEE THAT ANY FIRST CHOICE MATERIALS, INFORMATION, THE SITE, SOFTWARE, OR SERVICES WILL BE ERROR-FREE, OR CONTINUOUSLY AVAILABLE, OR FREE OF VIRUSES OR OTHER HARMFUL MATERIALS. FIRST CHOICE SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS RELATING TO YOUR OR YOUR AGENT’S ABILITY TO ACCESS OR USE THE SITE, SOFTWARE, OR SERVICES AND ANY COMPONENTS THEREOF, INCLUDING BUT NOT LIMITED TO ANY LOSS OF BUSINESS RESULTING THEREFROM, OR THE RESULTS OR INFORMATION DEVELOPED OR PRODUCED FROM USING THE SITE, SOFTWARE, OR SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FIRST CHOICE DOES NOT GUARANTEE THAT THE SITE, SOFTWARE, AND SERVICES WILL BE CONTINUOUSLY AVAILABLE AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR LOST SALES, LOST DATA, OR OTHER DAMAGES AS A RESULT THEREOF. YOU ARE SOLELY RESPONSIBLE FOR THE PAYMENT OF ANY TAXES OR OTHER GOVERNMENT FEES RELATED TO ANY CUSTOMER TRANSACTIONS FACILITATED BY THE SITE, SOFTWARE, AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO SALES TAX, AND FOR ENSURING THAT ANY TAX RATE SETTINGS WITHIN THE SOFTWARE OR SERVICES ARE ACCURATE.

FIRST CHOICE IS NOT RESPONSIBLE FOR AND SHALL NOT BE HELD LIABLE FOR ANY DAMAGE TO PERSONS, PROPERTY, OR PREMISES THAT MAY RESULT FROM THE PRESENCE OF FIRST CHOICE PERSONNEL ON YOUR PREMISES, INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO EQUIPMENT, DATA, OR INVENTORY.

FIRST CHOICE EXPRESSLY DISCLAIMS ANY AND ALL INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES IN ANY EVENT EVEN IF ADVISED BEFOREHAND OF SUCH DAMAGES AND IN NO EVENT SHALL FIRST CHOICE BE LIABLE FOR SUCH DAMAGES RESULTING FROM THE ACTIONS OR CONDUCT OF YOU, YOUR AGENTS, YOUR CUSTOMERS, OR ANY OTHER USER OF THE SITE, SOFTWARE, OR SERVICES.  

TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, FIRST CHOICE’S LIABILITY FOR ANY LOSS, CLAIM, DAMAGE OR LIABILITY OF ANY KIND INCLUDING THAT WHICH MAY BE DUE TO FIRST CHOICE’S ACTUAL OR ALLEGED NEGLIGENCE, SHALL NOT EXCEED THE AMOUNT YOU PAID FOR THE USE OF THE SERVICES, BUT IN NO CASE WILL OUR LIABILITY TO YOU EXCEED $500. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR THE USE OF THE SITE, SOFTWARE, AND/OR SERVICES, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM US, REGARDLESS OF THE CAUSE OF ACTION.

ALL USERS WHO ARE CALIFORNIA RESIDENTS, HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES IN RELEVANT PART: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY ARE ABSOLUTELY NECESSARY FOR FIRST CHOICE TO OFFER THE SOFTWARE AND SERVICES AND/OR OPERATE THE SITE, AND ACCORDINGLY SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL BE OF FULL EFFECT AND FORCE, EVEN IF THEY CAUSE ANY USER’S REMEDIES UNDER THIS AGREEMENT TO FAIL OF THEIR ESSENTIAL PURPOSE.

13. HOLD HARMLESS AND INDEMNIFICATION.

By using the Site, Software and/or Services, you agree to defend, indemnify, and hold harmless First Choice, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (i) your and your Agents’ use of the Site, Software, and/or Services; (ii) breach of this Agreement, breach of any agreement with a third party, or violation of applicable law by you, you Agents, or any Customer; (iii) any Subscriber Data or the combination of any Subscriber Data with other applications, content or processes, including any claim involving unauthorized disclosure or alleged infringement or misappropriation of third-party rights by any Subscriber Data or by the use of any Subscriber Data; or (iv) a dispute between you and any Agent, Customer, or other user of the Site, Software or Services. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process.

14. GOVERNING LAW AND ARBITRATION.

If there is any dispute arising out of the Site, Software, or Services, by using the Site and/or Services, you expressly agree that any such dispute shall be governed by the laws of the State of New York, U.S.A. and the federal laws of the United States of America, without regard to its conflict of law provisions and excluding that body of law known as conflicts of law and the United Nations Convention on Contracts for the Sale of Goods. Any dispute under this Agreement will be resolved by final and binding arbitration under the rules of the American Arbitration Association in an arbitration proceeding conducted in New York, New York. Each party waives any right to adjudicate any dispute in any other court or forum, except that a party may seek interim relief before the start of arbitration in a state or federal court sitting in New York, New York, to protect its confidential information. The Parties will abide by any decision in the arbitration and any court having jurisdiction may enforce it. The parties submit to the jurisdiction of the federal and state courts sitting in New York, New York to compel arbitration or to confirm an arbitration award. The prevailing party shall be entitled to reimbursement of attorney fees and costs. Use of the Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section 14. First Choice’s performance under this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement shall abridge First Choice’s rights to comply with any governmental, court and law enforcement requests or requirements relating to your use of the Site, Software, or Services or information provided to or gathered by First Choice with respect to such use.

15. SEVERABILITY.

If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law.

16. NO PARTNERSHIP.

In no event shall your use of the Site, Software, or Services create a partnership, joint venture, broker relationship, employee-employer, agency, or franchiser-franchisee relationship. First Choice’s relationship with you is that of an independent contractor. You shall be solely responsible for the payment of any taxes, fees, and similar governmental charges related to your business and any Customer transactions, other than applicable income taxes imposed on First Choice related to its receipt of the Subscription Fee hereunder.

17. ENTIRE AGREEMENT, INUREMENT.

It is hereby acknowledged that this Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter. This Agreement may not be assigned by either party without the prior written consent of the other party, which consent may not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either party in connection with a merger, consolidation, sale of all of the equity interests of the party, or a sale of all or substantially all of the assets of the party to which this Agreement relates. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.

18. NO THIRD PARTY BENEFICIARIES.

This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.

19. U.S. GOVERNMENT END USERS.

The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all United States government end users acquire only those rights in the Software and Services that are provided by this Agreement.

20. CLASS ACTION/JURY TRIAL WAIVER.

WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE OR SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND FIRST CHOICE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

21. PERSONAL GUARANTEE.

In exchange for First Choice Merchants and First Choice POS services (the Guaranteed Parties) acceptance of, as applicable, the Agreement, you unconditionally and irrevocably guarantee the full payment and performance of Client obligations under the agreements, as applicable, as they now exist or as modified from time to time, whether before or after termination or expiration of such agreements and whether or not you have received notice of any amendments of such agreements. You waive notice of default by Client and agree to indemnify the Guaranteed Parties for any and all amounts due under the agreements. The Guaranteed Parties shall not be required to first proceed against Client to enforce any remedy before proceeding against you. This is a continuing personal guaranty and shall not be discharged or affected for any reason. You understand that this is a Personal Guaranty of payment and not of collection and that the Guaranteed Parties are relying upon this Personal Guaranty in entering into the agreements, as applicable.