CD ERA TERMSANd
CONDITIONS
These terms and conditions (these “Terms”) are the only terms that govern the provision of Services (as defined below)by CD ERA Technology Solution, a California corporation with address at 533 Airport Blvd, Suite 400, Burlingame, CA 94010 (“Company” or “CD ERA”).
(a) Services. CD ERAshall provide the services to User in accordance with these Terms, including multi-functional service interface for dining customers (“Customers”) to online orderingfor food, beverages and related products and services provided by User (“Ordering”)throughClover, and other similar services as may be made available by CD ERA(“Services”). CD ERAfacilitates the Ordering process with User and processes Customers’ payments to User, on behalf of and as agent for User. “User” means the contracting entity which installed the CD ERA software and utilize the Services of CD ERA throughthe device and system of Clover Network, Inc, a Delaware corporation with address at 255 Fiserv Drive Brookfield, WI 53045, the third-party payment platform providing the User with payment devices or servicesfor the purpose of payment transaction (“Payment Transaction”).
(b) Not a Party. Ordering and Payment Transactions that Customers submit through any of the CD ERA Services are transactions between Customer, Clover and User, and not with CD ERAor any of our affiliates. CD ERAis not the seller of any product or service offered by User and is not a party to any Payment Transaction facilitated through theServices. CD ERAis a third-party Servicesfor User and is not acting for or on behalf of a Customer in a Payment Transaction.
3.
License
(a) Grant of the License. Subject to User’s compliance with the Terms, CD ERAgrants to User a limited, non-transferable, non-sub-licensable, nonexclusive, revocable license during the term of these Terms to access and use the Services solely and exclusively for User’s internal business purposes. The Services are licensed, not sold, and User acknowledges that it does not acquire any license to use the Services in excess of the scope and duration of the license to the Services specified in the Terms. This license does not grant to User or any other party any right to copy, modify, enhance, or transfer the Services or otherwise disclose any Confidential Information disclosed by CD ERAto any third party, including without limitation any Intellectual Property Rights.
(b) Authorization. User is (a) solely responsible for maintaining the security and control of its premises and username(s) and access passwords to its CD ERA Account (as defined below); and (b) fully liable for all activity of its User’s employees, agents and contractors who are authorized to use the Services (“Employees”) and Customers that occur under its CD ERA Account, whether authorized by User or not. User agrees to immediately notify CD ERAif it becomes aware of any unauthorized activity under its CD ERA Account and will cooperate with CD ERAto prevent any further unauthorized activity.
(c) Communication. As part of the Services, CD ERAmay from time to time communicate with User using the contact methods provided by User at the time of application and/or during User’s use of the Services. User expressly agrees that if it or any of its Employees provide a mobile phone number or email address to CD ERA, CD ERAis authorized to contact User or Employees, including without limitation at that number or email address using autodialed or prerecorded message calls or text messages in order to provide transactional, servicing, and account-related messages to User.
4.
Account
User must have anaccount registered through the platformof the Services (“CD ERA Account”) to use the Services. CD ERA, in its sole discretion, may retain control of the ability to add any of the CD ERAServices to a User’s CD ERA Account or to cause User’s business to appear on the platform of the Services. To be listed on the Services software, User must provide CD ERAwith certain minimum required information via the CD ERAServices, including without limitation its hours of operation and menu items and pricing.
5. Rewards
TheServices may include a rewards program that provides point-based rewards for purchases made through the Services, which can be redeemed for products orgiftcard. The User hereby agrees to participate in the rewards program, provided that you will have sole discretion in customizing all prices and point allocations.
(a) Inconsistency of Records. In the event that any Customer seeks damage due to inconsistency between the records CD ERA andUser, the User shall be solely responsible for such inconsistency and CD ERA is not responsible for any redemption other thanrewards as recorded in the system of CD ERA.
(b) Confirmation of Redemption. The redemption of rewards shall be based on and only based on the confirmation clicked through text message by the Customer (“Confirmation”), which is not reversible once suchConfirmation is received by CD ERA. In the event that any Customer seeks return of rewards after such Confirmation, CD REA is not liable to reverse the redemption and it is the sole responsibility of User for the Customer’s request.
6. Users’ Obligations and Restrictions
(a) Compliance. User is solely responsible and liable for marketing, selling, pricing, packaging and provision of any products or services offered to Customers through the Services, all in compliance with applicable law and rules. User acknowledges and agrees that CD ERA is not in any way responsible for, and makes no representation or warranty regarding, whether User holds any required or applicable permit, license, registration or other credential for its business, whether representations by User to a Customer or any third party are true or accurate, or whether User complies with applicable law and rules, and CD ERA is not responsible for any of the foregoing or the quality of the products or services provided by User.
(b) Binding. User agrees to be bound by, and to take all necessary measures to ensure its Employees have read, understand, and are bound by, these Terms when User uses its CD ERA Account to access the CD ERA Services.
(c) Alcoholic Beverage. If User holds an alcoholic beverage license and sells alcoholic beverage products, the User may be required to approve each Ordering before the Ordering will be finalized, and only upon acceptance of the Ordering by the licensee will a Customer’s payment method be charged. The portion of the funds charged to a Customer’s payment method which pertains to Customer’s alcoholic beverage product purchase may be held in an account for the benefit of the alcoholic beverage supplier in compliance with applicable law and rules. CD ERA acts as a third-party technology provider on behalf of the User and has no responsibility or liability to a Customer or any other person for any alcoholic beverage products a Customer may purchase from a User or for any User’s compliance with applicable law and rules, including without limitation, local regulations regarding the sale of alcohol. User is responsible for (i) not enabling procurement of alcoholic beverage products by or for persons under twenty-one (21) years of age in the United States; (ii) ensuring the Customer provides bona fide government issued photo identification evidencing he/she is twenty-one (21) years of age or older, and (iii) ensuring that the Customer is purchasing alcoholic beverage products for his/her personal consumption and not for any commercial purpose or resale or for any person under twenty-one (21) years of age.
(d) Information. User must provide accurate and complete information in response to any questions on the CD ERA and keep such information current at all times, and CD ERA disclaims any liability or responsibility in connection with any information provided by User that is inaccurate, incomplete, or outdated. CD ERA reserves the right to suspend or terminate the access of any User who provides inaccurate, untrue, or incomplete information to any or all of the Services. While User may change most of the information User provides, CD ERA maintains control over certain standard labeling and design elements of the CD ERA Services, including but not limited to the Services software user interface for all listings on the CD ERA platform, which can only be changed or modified by CD ERA at the request of User.
(e) No Reverse Engineering. User will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on the Services; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services; (iv) remove or obscure any proprietary Notices (as defined below) or labels from the Services; (v) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with CD ERA’s provisioning of the Services (including but not limited to the use of automated systems or software (e.g. screen scraping) to extract data from the CD ERAServices or other aspects of the Services); (vi) violate or breach any operating procedures, requirements or guidelines regarding User’s use of the Services that are posted on or through the CD ERAServices or otherwise provided or made available to User; (vii) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third-party or provide it as a service bureau; (viii) conduct any penetration or vulnerability testing on the Service or CD ERA’s network; or (ix) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the User platform.
(f) User’s Representation and Warranties. User represents, warrants and covenants that (i) any sales transaction submitted by User will represent a bona fide sale of goods or services by User to a Customer; (ii) any sales transactions submitted by User will accurately describe the goods and/or services sold and delivered to a Customer; (iii) User will fulfill all of its obligations to each Customer for which User submits a transaction and will resolve any consumer dispute or complaint directly with Customer; (iv) User and all transactions initiated by User will comply with applicable law and rules; (v) except in the ordinary course of business, no sales transaction submitted by User through the Services will represent a sale to any principal, partner, proprietor, or owner of User’s entity; (vi) neither User nor any of its Employees shall retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by applicable law and rules, or theseTerms, or engage in the unauthorized use, transfer or disclosure of the same; (vii) User’s use of the Services will be in compliance with these Terms.
(g) Use for Its Own Business. User will only use the Services for its own business purposes and not for personal purposes or the purposes of any other User.
(h) No Violation. User will not use the Services in any way that violates applicable law or rules, these Terms, policies, or rules that are applicable to User or the CD ERA Services.
(i) Maintenance. CD ERAmay perform maintenance on the Services from time to time, which may result in service interruptions, delays, errors or bugs. CD ERAwill not be liable for any such interruptions, delays, errors or bugs. CD ERAmay contact User in order to assist CD ERAwith the Services and obtain information needed to identify and fix any errors. The Services do not function shall only be used on approved Cloverhardware.
(j) Description of Products. CD ERA is not responsible for and does not control any aspect of the products or services sold by User or the description of the products or services offered through the Services.
(k) Payment Process. CD ERA is not responsible for and does not have control of Customer’s payment process, Clover device and payment through Services. Clover will receive and process the Payment Transaction as the agent of the User through the appropriate payment network, including the credit card or debit card networks
7.
Convenience Fee and Payment
Processing
(a) Definition. “Convenience Fee” means the fee charged by CD ERA for the Services provided to the Userwhen Consumersmake Payment Transactionsfor products and services provided by User through the CD ERA Services. User will pay all ConvenienceFee set forth in each Ordering on CD ERA.
(b) Calculation.ConvenienceFee is decided by the number of Ordering between Customer and User, no matter the amount of each Ordering or the number of Payment Transactions. ConvenienceFee for each Ordering is $0.15, as modified from time to time by CD ERA. User shall have the right to elect whether to charge the Convenience Fee from the User’s side or the Customer side. Inthe event that the User elects to have the ConvenienceFee to be charged from the User’s side, the total amount that the Customer pays is the listing price for the products provided by the User. While in the event that the User elects to have the Convenience Fee to be charged from the Customer side, the total amount that the Customer pays is the listing price for the products provided by the User in addition to the Convenience Fee for such Payment Transaction.Usershall pay all ConvenienceFees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
(c) Refund Policy. All amounts of Convenience Fee hereunder are due, payable, non-cancelable and non-refundableonce the Customer made the specified Payment Transaction through Clover system. None of Chargeback or OrderingCancellation, shall relieve the Users’ is still responsibility of for paying any Convenience Fees or other amounts due based on Services provided. “Chargeback” means a transaction that is reversed or charged back to User’s bank account if the transaction: (i) is disputed; (ii) is reversed for any reason by one or more payment network(s), Clover network, a User, or Clover’s financial institution; (iii) was not authorized; or (iv) is unlawful, suspicious or in violation of the Terms.“Ordering Cancellation” meansa previously submitted order to purchase or sell is demanded to cancel by Customer before it has been executed.
(d) Change of Convenience Fee. CD ERAreserves the right to change Convenience Fee or other feesand upon an immediate written Notice to User. Such Notice will include the effective date of the change(s). User’s continued use of the Services subsequent to any change inConvenienceFees, as applicable, will be deemed acceptance of such changes unless User closes its CD ERA Account prior to the effective date of such change and ceases all access to and use of the Services. If User does not accept such ConvenienceFee change under this sub-Section 7(d), then User may terminate theseTerms by providing CD ERAwritten Notice prior to the effective date of suchConvenience Fee change, and User shall only be liable to CD ERAfor the payment of ConvenienceFees for Services provided through the date of User’s Notice of termination.
(e) PeriodicClearing. Clover will make available processes Payment Transactions for Orderings on behalf of User as the agent of the User through the payment networks. User designates Clover as its agent for the purpose of receiving and processing Orderings and Payment Transactions made by Customers for products and services provided by User through the CD ERAServices. When a Customer pays for anOrdering placed through a Services, Clover will submit the charge to the Customer’s payment method, as the agent of User, in the amount of the Ordering (including any gratuities, fees and taxes) as well as any credits in connection with Chargebacks, refunds or adjustments. Clover, as the agent of User, will assist User in submitting the Payment Transaction to and make payment of Convenience Fee to CD ERA as regulated underClover payment terms and Clover shall have sole discretion on deciding the frequency of submitting such Payment Transaction to and making payment of Convenience Fee to CD ERA.
(f) Suspension due to Late Payment. In the event payments are not received by CD ERAwithin ten (10) days after becoming due, CD ERAmaysuspend performance for all Services until payment has been made in full.
User shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by User hereunder.
9.
Privacy Policy
The privacy and security of personal information is important to CD ERA. CD ERA’s privacy policyatwww.kioskcdera.com/privacy-policy(“Privacy Policy”) describes what information CD ERAcollects about individuals and how CD ERAmay use personal information. CD ERAencourages User and User’s Employees to read thePrivacy Policycarefully, as it forms a binding part of theseTermsand contains important information about individuals’ rights.
10.
Amendment and Modification
CD ERAreserves the right to modify any portion of these Terms at any time in its sole discretion by notifying User of any changes by electronic mail, posting of the updated Terms on its website or other platforms, or delivering an alert within the CD ERA Services. The changes will become effective, and shall be deemed accepted by User, upon the effective date stated or initial posting/delivery date (if none is stated) and shall be effective on a going-forward basis. If User does not agree to these Terms or any updated version of these Terms, its sole and exclusive remedy is to terminate User’s use of the CD ERAServices.
(a) Definition. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to User under theseTermsor prepared by or on behalf of CD ERAin the course of performing the Services,shall be owned by Company.Companyhereby grants User a license to use all Intellectual Property on a non-exclusive, worldwide, non-transferable, non-sublicensable, and perpetual basis to the extent necessary to enable User to make reasonable use of the Services.
(b) User Marks. User hereby grants Companya nonexclusive, royalty-free right and license to use and display User’s Marks on its website, CD ERA Services, marketing collateral and other public disclosures, or to otherwise identify User as a customer of CD ERA. “UserMarks” means User’s business name, logo, trademarks, service marks, images, domain names and other similar content provided to CD ERA for use with the Services.CD ERAobtains no rights in the User Marks except for the limited right described in this sub-Section 11(b). User retains all right, title and interest in and to the User Marks. All use of the User Marks by CD ERAwill inure to User.
(c) User’s Representation.User agrees and acknowledges that any use or display by User of a trademark or other mark owned by the CD ERAshall comply with these terms, rules and regulations and shall cease use of and remove all such trademark(s) from display upon termination of theseTerms.
(b) User’s Representation.User understands that CD ERAhas disclosed or may disclose Confidential Information relating to the CD ERA’s business under theseTerms. User agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use or divulge to any third person any such Confidential Information, in each case except as expressly permitted the Privacy Policy. CD ERAagrees that the foregoing obligations will not apply with respect to Confidential Information after five (5) years following the disclosure, or any Confidential Information that Usercan document (i) is or becomes generally available to the public by CD ERAor a third party not bound by a confidentiality obligation; (ii) was inUser’s possession or known by its prior to receipt from theCD ERA; (iii) was rightfully disclosed to CD ERAby a third party not bound by a confidentiality obligation; or (iv) was independently developed without use of any Confidential Information of the CD ERAas demonstrated by User’s written records.
(c) Disclosure. Notwithstanding any provision of theseTerms to the contrary, CD ERAmay disclose User’s Confidential Information, in whole or in part (i) to its representatives or potential representatives who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential, consistent with the terms of theseTerms; (ii) as required by law (in which case User shall, if permitted by applicable law and rules, provide CD ERA with prior written notification thereof and the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure in each case to the extent permitted by applicable law, or (iii) otherwise in accordance with CD ERA’s Privacy Policy. User will remain primarily responsible for any breach of this Section 12 by any of its representatives with whom it sharesCD ERA’s Confidential Information as permitted by this Section 12.
(a) The Services, which may permit User to process ordering on Clover compatible mobile device, will only be compatible with Clover mobile device but not with another third-party carrier. User’s use of the Services may be subject to the terms of User’s agreements with Cover’s mobile device.
(b) CD ERA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF USERABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. CD ERAAND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS USER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CD ERA AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (I) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (II) THE QUALITY OF THE SERVICES WILL MEET USER’S REQUIREMENTS. USER ACKNOWLEDGES THAT NEITHER CD ERA NOR ITS THIRD-PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CD ERA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, CD ERA DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY CD ERA, THE SERVICES ARE PROVIDED TO USER ON AN “AS IS” BASIS.
CD ERAmay terminate theseTermsas
well as the Services, if:
(d) Without cause by providing 30-day written notice in advance to the User.
No party shall be liable or
responsible to the other party, nor be deemed to have defaulted under or
breached theseTerms, for any failure or delay in fulfilling or performing any
term of theseTerms (except for any obligations of User to make payments to CD
ERAhereunder), when and to the extent such failure or delay is caused by or
results from acts beyond the impacted party’s (“Impacted Party”)
reasonable control, including, without limitation, the following force majeure
events (“Force Majeure Event(s)”): (i) acts of God; (ii) flood, fire,
earthquake, OTHER POTENTIAL DISASTER(S) OR CATASTROPHE(S), SUCH AS EPIDEMICS,
or explosion; (iii) war, invasion, hostilities (whether war is declared or
not), terrorist threats or acts, riot or other civil unrest; (iv) government
order, law, or action; (v) embargoes or blockades in effect on or after the
date of theseTerms; and (vi) national or regional emergency; and (vii) other
similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give Notice within ten (10) days of the Force
Majeure Event to the other party, stating the period of time the occurrence is
expected to continue. The Impacted Party shall use diligent efforts to end the
failure or delay and ensure the effects of such Force Majeure Event are
minimized. The Impacted Party shall resume the performance of its obligations
as soon as reasonably practicable after the removal of the cause. In the event
that the Impacted Party’s failure or delay remains uncured for a period of ten
(10) consecutive days following written Notice given by it under this Section 16,
the either party may thereafter terminate theseTerms upon five (5) days written
Notice.
User shall not assign any of its
rights or delegate any of its obligations under theseTerms without the prior
written consent of CD ERA. Any purported assignment or delegation in violation
of this Section is null and void. No assignment or delegation relieves User of
any of its obligations under theseTerms.
18. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in theseTerms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19.
Arbitration
(a) Agreement to Arbitrate. This Section is referred to as the “Arbitration Provision.” Except where prohibited by applicable law and rules, User agrees that any and all disputes or claims that have arisen or may arise between User and CD ERA, whether arising out of or relating to these Terms or in connection with User’s use of the Services or our websites, shall be resolved exclusively through confidential, final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Provision. User agrees that, by agreeing to these Terms, User and CD ERA are each waiving the right to a trial by jury or to participate in a class action. User’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Provision. Notwithstanding the foregoing, this Arbitration Provision shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate, provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Provision. In any event, any action or proceeding by User against CD ERA relating to any dispute must commence within one (1)year after the cause of action accrues.
(b) Prohibition of Class and Representative Actions and Non-Individualized Relief. Except where prohibited by applicable law and rules, User and CD ERA agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both User and CD ERA agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
(c) Pre-Arbitration Dispute Resolution. CD ERA is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to the participant’s satisfaction by contacting CD ERA’s support team. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of dispute. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If CD ERA and User do not resolve the claim or dispute, despite good faith attempts, within sixty (60) calendar days after the Notice is received, User or CD ERA may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by CD ERA or User shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which User or CD ERA is entitled.
(d) Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Provision. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Provision, the applicable terms of this Arbitration Provision will control unless the arbitrator determines that the application of the inconsistent Arbitration Provision terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Provision. The arbitrator can award issues relating to, without limitation, the scope, enforceability, and arbitrability of this Arbitration Provision. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless CD ERA and User agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If User’s claim is for $10,000 or less, CD ERA agrees that User may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video conference hearing or by an in-person hearing as established by the AAA Rules. If User’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
(e) Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules, unless otherwise provided in this Arbitration Provision. Any payment of attorneys’ fees will be governed by the AAA Rules.
20. Compliance with privacy law
The App Provider makes the following additional commitments,
representations, and warranties to Customer:
The App Provider will only
process Customer Data and Personal Information on behalf of, and as Service
Provider of, the Customer, and not collect, retain, use, or disclose that data
for any purpose other than to perform the App Provider’s obligations under this
Agreement, as permitted under CCPA and other applicable privacy and data
protection laws (collectively, “Privacy Laws”). In no event will the App
Provider “sell” (as defined by Privacy Laws) any such personal information.
The App Provider will not collect, use, retain, disclose, sell, or
otherwise make Customer Data or Personal Information available for App
Provider’s own commercial purposes or in a way that does not comply with the
CCPA or other Privacy Laws.
App Provider will limit personal information collection, use, retention,
and disclosure to activities reasonably necessary and proportionate to provide
the Services set forth in the Agreement or another compatible operational
purpose.
App Provider will reasonably cooperate and assist Customer with meeting
Customer's CCPA and Privacy Law compliance obligations and respond to
CCPA-related inquiries, including responding to verifiable consumer requests,
taking into account, the nature of App Provider's processing, and the
information available to App Provider. App Provider will make available to
Customer, in a manner consistent with the functionality of the Service and App
Provider’s role as a Service Provider of Personal Information of data subjects,
the ability to fulfill data subject requests to exercise their rights under
Privacy Laws.
If App Provider receives a request from Customer’s data subject to
exercise one or more of its rights under Privacy Laws in connection with the
Services, App Provider will redirect the data subject to make its request
directly to Customer. Customer will be responsible for responding to any such
request including, where possible, by using the functionality of the Services.
App Provider shall comply with reasonable requests by Customer to assist with
Customer’s response to such a data subject request.
App Provider must notify the Customer immediately if it receives any
complaint, notice, or communication that directly or indirectly relates either
party's compliance with Privacy Laws relating to provisioning of the Services.
21. General Provisions
(a)
Waiver.The failure of either party to enforce any right or provision in theseTerms
will not constitute a waiver of such right or provision unless acknowledged and
agreed to by such party in writing; and any waiver with respect to a specific
circumstance will not constitute a waiver of the same provision or any other
provision of theseTerms for any subsequent circumstance unless expressly
provided by such written agreement, except that CD ERA may modify these Terms
to comply with, and as a result of, amendments to applicable laws and rules.
The Section headings are provided merely for convenience and will not be given
any legal import in the interpretation or enforcement of these Terms.
(c)
Insurance. During the term of these Terms, User shall, at its own expense,
maintain and carry insurance in full force and effect which includes, but is
not limited to, commercial general liability including product liability with
financially sound and reputable insurers. Upon CD ERA’s request, User shall
provide CD ERA with a certificate of insurance from User’s insurer evidencing
the insurance coverage specified in these Terms. User shall provide CD ERA with
five (5) days’ advance written Notice in the event of a cancellation or
material change in User’s insurance policy. Except where prohibited by law, User
shall require its insurer to waive all rights of subrogation against CD ERA’s
insurers and CD ERA.
(d)
Governing Law and Jurisdiction. All
matters arising out of or relating to these Terms are governed by and construed
in accordance with the internal laws of the State of California without giving
effect to any choice or conflict of law provision or rule of the State of Californiathat
would cause the application of the laws of any jurisdiction other than those of
the State of California. The parties agree that the
Northern District of California or the courts of the State of California in
each case located in the City of Pleasanton and County of Alameda shall have
exclusive jurisdiction to hear and determine any dispute between them.
CompanyMerchant Solutions
Address:533 Airport Blvd, Suite 400, Burlingame, CA 94010
Telephone:_______________+1 (855) 485-6393
Email:support@kioskcdera.com
(f) Electronic Communications.CD ERAmay be required to provide User with certain disclosures, notices and communications (collectively, “Communications”) in written form. User agrees to receive all Communications regarding its use of any of the Services, including without limitation through the Services, electronically instead of in paper form, including by sending electronic mail to the e-mail address User registered with CD ERA, or by posting a notice or communicating with User through the Service software. Communications include these Terms or other agreements or policies to which User must agree in order to use the Services, including updates to those agreements and policies; customer service matters; and any other communications related to User’s use of the Services. Communications in electronic format will be considered to be in “writing” and are considered received by User upon posting CD ERA Services, or Service software, or sending to User via electronic mail, regardless of whether User has accessed that Communication.User should print or electronically save a copy of any electronic Communication and retain it for User’s records.
(g) Consent to electronic Communications.User’s consent to electronic Communications is valid until User revokes it. However, consent to electronic Communications is a condition of the Services, and if User revokes its consent, User will no longer be permitted to use the Services. User agrees it is responsible for keeping its e-mail address registered with CD ERAaccurate and up to date.
(h)
Indemnification. User will indemnify,
defend and hold harmless CD ERA and its directors, officers, employees,
affiliates and agents from and against any and all third-party proceedings,
claims, losses, damages, demands, liabilities, fines imposed by regulatory
authorities to the extent permitted under applicable law and rules, costs and
expenses whatsoever, including all reasonable legal and accounting fees and
expenses and all reasonable collection costs, incurred by CD ERA, its
directors, officers, employees, affiliates and agents to the extent resulting
from or arising out of (i) User’s use of the Services, other than those
attributable to CD ERA’s gross negligence or willful misconduct, or for which CD
ERA is responsible; (ii) CD ERA’s processing activities on behalf of User; (iii)
the business of User; (iv) any sales transaction conducted by CD ERA on behalf
of User; (v) any noncompliance with any applicable law and rules by User or its
Employees; (vi) User’s, or any Employees’ breach or nonperformance of any
provision of these Terms; (vii) User’s or its Employee’s reliance on any report
or other information generated through the Services; (viii) any Tax assessment
or (ix) any claims against CD ERA related to the use by CD ERA of any Userdata
or any of User’s intellectual property.
(j)
Survival.Provisions of these Terms, which by their nature should apply beyond
their terms, will remain in force after any termination or expiration of these
Terms including, but not limited to, the following provisions: Confidential
Information, Governing Law and Jurisdiction, Arbitration,
and Survival.