Updated December 10, 2019
This Merchant User License Agreement (the “Agreement”) dated as of the date of acceptance by means of a click-through, is made by and among ShopKeep Inc. a Delaware Corporation (“ShopKeep”) and the entity designated by the registration data provided herewith (“Licensee”) and applies to Licensee’s use of software downloaded from ShopKeep and Licensee’s use of services provided by ShopKeep (“ShopKeep Services”).
READ THIS LICENSE CAREFULLY BEFORE LOADING ANY SOFTWARE FROM SHOPKEEP OR USING THE SHOPKEEP SOFTWARE OR SHOPKEEP SERVICES. BY LOADING THE SHOPKEEP SOFTWARE OR USING THE SHOPKEEP SERVICES, LICENSEE ACCEPTS AND AGREES TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT.
SHOPKEEP RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS AGREEMENT BY PROVIDING NOTICE OF CHANGES ON THE SHOPKEEP WEBSITE. LICENSEE AGREES TO PERIODICALLY INSPECT THE SHOPKEEP WEBSITE TO STAY INFORMED ABOUT SUCH CHANGES. LICENSEE AGREES THAT LICENSEE’S CONTINUED USE OF THE SHOPKEEP SERVICE AFTER SUCH CHANGES ARE ANNOUNCED CONSTITUTES ACCEPTANCE OF SUCH CHANGES.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, LICENSEE AGREES THAT DISPUTES BETWEEN LICENSEE AND SHOPKEEP WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND LICENSEE WAIVES ITS RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
ShopKeep shall retain the ownership of the provided copy of ShopKeep software and the documentation provided therewith (referred to as a single entity, or as components, as “the Licensed Software”) which is licensed on a non-exclusive basis for use under the following conditions.
Subject to the terms hereunder, ShopKeep hereby grants to Licensee a limited, non-exclusive, non-transferrable, revocable license, without the right to sub-license, to install and operate the Licensed Software and to operate an account on the ShopKeep website and related applications solely for the benefit of Licensee and not for any third party, until the termination of this Agreement. Any rights not expressly granted hereunder are reserved. There are no implied rights of any kind. To the extent that the Licensed Software includes intellectual property rights of any third party (“Third Party Rights”), the license granted is to the extent that ShopKeep is able to license such Third Party Rights.
Free Account License
A free account includes access to one ShopKeep Register and ShopKeep BackOffice license for one location, one employee and up to US$5,000 in total sales of any tender type or combination of tender types per month. ShopKeep, at its sole discretion, may remove access, cancel or terminate Licensee’s free account at any time for any reason. If Licensee selects a credit card processing account, Licensee agrees to operate one ShopKeep account solely with one credit card processing Merchant ID in connection with this section. Reasons for such termination include, but are not limited to, accounts experiencing a period of inactivity or exceeding the usage and sales limits contingent with a free account. ShopKeep also reserves the right to contact Licensee at any time regarding Licensee’s free account and its option to upgrade to a paid software plan.
Licensee shall not (a) make copies of or further distribute the Licensed Software, including copying onto any other medium, (b) distribute, rent, sublicense, lease, resell, or assign the Licensed Software, (c) alter, modify or adapt the Licensed Software or the ShopKeep Services, including but not limited to, translating, decompiling, disassembling, reverse engineering, or creating derivative works, (d) export the Licensed Software without the appropriate foreign government licenses and without ShopKeep’s prior written approval, (e) resell, rent or otherwise provide access to the ShopKeep services to a third party, (f) take any action in an attempt to obtain any other ShopKeep user’s data, cause malfunction, crash, tamper with or otherwise impair the ShopKeep website and related applications, and their services, or (g) use or access the ShopKeep Services and related applications on platforms modified to circumvent the protections offered by the operating system. Any rights not expressly granted hereunder are reserved by ShopKeep.
No rights in the Licensed Software or ShopKeep Services are granted, whether expressly or by implication, including, without limitation, any rights in any patents, copyrights, trademarks or trade secrets embodied therein, except in connection with the permitted uses expressly described herein.
Licensee agrees to timely pay the monthly fee for the ShopKeep Services . Licensee agrees to the Billing Policy, incorporated herein, and located here. Failure to comply with or otherwise pay fees due is a material breach of this agreement.
End Customer Personally Identifiable Information
The term Personally Identifiable Information means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Personally Identifiable Information includes, but is not limited to the following:
(1) A first and last name.
(2) A home or other physical address, including street name and name of a city or town.
(3) An e-mail address.
(4) A telephone number.
(5) A social security/insurance number.
(6) Any other identifier that permits the physical or online contacting of a specific individual or their identification.
(7) Information concerning a user that the Web site or online service collects online from the user and maintains in personally identifiable form in combination with an identifier described in this section.
NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY LIABILITY TO THE EXTENT THAT THE SAME MAY NOT BE EXCLUDED OR LIMITED UNDER GOVERNING LAW.
LICENSEE AGREES THAT THE LICENSED SOFTWARE AND SHOPKEEP SERVICES ARE PROVIDED “AS IS.” WITHOUT ANY WARRANTY OR CONDITION OF ANY KING, LEGAL, EXPRESS OR IMPLIED, ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, AND WHETHER AS TO MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO WARRANTY, CONDITION OR REPRESENTATION IS GIVEN, AND NO LIABILITY IS ACCEPTED, BY SHOPKEEP IN RELATION TO THIRD PARTY RIGHTS. ANY USE OF THE LICENSED SOFTWARE AND SHOPKEEP SERVICES IS AT LICENSEE’S SOLE AND ABSOLUTE RISK. IN NO EVENT, WILL SHOPKEEP OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS (“SHOPKEEP PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR THE SHOPKEEP SERVICES, ERRORS IN OR LOSS OF ANY DATA. SPECIFICALLY, SHOPKEEP IS NOT RESPONSIBLE FOR ANY COSTS INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF USE OF THE LICENSED SOFTWARE OR SHOPKEEP SERVICES, LOSS OF DATA, THE COSTS OF RECOVERING DATA, ANY LOSSES INCURRED ARISING IN ANY WAY FROM USE OF THE OFFLINE CREDIT PAYMENTS FEATURE, ANY CLAIMS BY THIRD PARTIES, OR FOR ANY OTHER SIMILAR COSTS, LOSSES, OR DAMAGES LICENSEE MIGHT INCUR. SHOPKEEP MAKES NO WARRANTY AND PROVIDES NO CONDITION OF ANY KIND AS TO THE SUITABILITY OR ADEQUACY OF THE LICENSED SOFTWARE OR SHOPKEEP SERVICES FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DUE TO THE HIGH DEGREE OF VARIANCE IN SALES TAX COLLECTION, CALCULATION, AND REPORTING REQUIREMENTS FROM JURISDICTION TO JURISDICTION, SHOPKEEP MAKES NO GUARANTEE, AND PROVIDES NO WARRANTY, CONDITION OR REPRESENTATION, THAT THE EXPECTED SALES TAX DUE AMOUNTS IN REPORTS WILL BE THE SAME AS THOSE CALCULATED BY THE LICENSEE’S TAX AUTHORITIES. SHOPKEEP PROVIDES AN ESTIMATE OF THE EXPECTED SALES TAX DUE SOLELY FOR THE CONVENIENCE OF THE LICENSEE. GIVEN THAT LICENSEE IS IN A BETTER POSITION THAN SHOPKEEP TO FORESEE AND EVALUATE ANY POTENTIAL DAMAGE OR LOSS WHICH LICENSEE MAY SUFFER IN CONNECTION WITH THE USE OF THE LICENSED SOFTWARE AND/OR THE SHOPKEEP SERVICES AND THAT SHOPKEEP CANNOT ADEQUATELY INSURE ITS POTENTIAL LIABILITY TO LICENSEE, LICENSEE ACKNOWLEDGES AND AGREES THAT THE EXCLUSIONS AND LIMITATIONS CONTAINED HEREIN ARE REASONABLE. TO THE EXTENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT WITH JURISDICTION TO BE UNENFORCEABLE, SHOPKEEP’S AGGREGATE LIABILITY SHALL NOT EXCEED $500. LICENSEE SHALL ACT AT ALL TIMES TO MITIGATE ANY LIABILITY.
LICENSEE ACKNOWLEDGES AND AGREES THAT SHARING OF ITS ACCOUNT INFORMATION, LOGIN INFORMATION OR PASSWORDS SHALL BE AT ITS SOLE AND ABSOLUTE RISK AND THAT SHOPKEEP SHALL NOT BE LIABLE FOR ANY DAMAGE ARISING AS A RESULT OF SUCH SHARING.
THE FOREGOING EXCLUSIONS AND LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
Some countries do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to Licensee.
Licensee agrees to indemnify and hold ShopKeep and the ShopKeep Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) Licensee’s use of the ShopKeep Services (including any actions taken by a third party using Licensee’s account), and (b) Licensee’s violation of these terms. In the event of such a claim, suit, or action (“Claim”), ShopKeep will attempt to provide notice of the Claim to the contact information it has for Licensee’s account (provided that failure to deliver such notice shall not eliminate or reduce Licensee’s indemnification obligations hereunder).
Licensee may terminate this license at any time unless Licensee has agreed to a longer purchase commitment period. ShopKeep, in its sole discretion, has the right to suspend or terminate this license and Licensee’s account and refuse any and all current or future use of the ShopKeep Services for any reason at any time. Licensee’s duties to (i) pay amounts due and payable, (ii) refrain from any kind of reverse engineering or other act in violation of this agreement, (iii) indemnify ShopKeep and the ShopKeep Parties, and (iv) adhere to the terms regarding disputes with ShopKeep, including without limitation the arbitration agreement, shall survive termination or expiry of this Agreement. Upon termination or expiry, Licensee will destroy all copies of the Licensed Software and documentation onto which the Licensed Software or documentation has been installed. Upon termination or expiry, ShopKeep shall terminate the Licensee’s access to their ShopKeep account, the account itself and the data residing therein. LICENSEE MUST EXPORT THEIR ACCOUNT DATA PRIOR TO TERMINATION OR EXPIRY OF THIS AGREEMENT. SHOPKEEP SHALL NOT BE RESPONSIBLE FOR LICENSEE ACCOUNT DATA AFTER TERMINATION OR EXPIRY. In addition, ShopKeep reserves the right and Licensee acknowledges such right for ShopKeep to terminate service of Licensee’s account on 30 days’ notice if ShopKeep determines in its sole discretion that it is not capable of fully meeting the apparent requirements of Licensee.
Licensee agrees that the Licensed Software and the operation of the ShopKeep Services and its processes are the confidential information of ShopKeep and agrees not to disclose such software or such operation and processes to any third party. Licensee agrees that breach of this duty of confidentiality shall cause irreparable harm to ShopKeep for which monetary damages would be difficult to quantify or insufficient and therefore ShopKeep shall be entitled to immediate injunctive relief in the event of breach without an obligation of posting bond.
From time to time, ShopKeep will have Beta Software Programs (“Beta Program”) to make pre-release software, pre-release services, and related documentation, materials, and information (collectively, the “Pre-Release Software”) available to Beta Program participants for the purpose of providing ShopKeep with feedback on the quality and usability of the Pre-Release Software. The participants in a Beta Programs’ confidentiality obligations include, but are not limited to (a) the Beta Product (b) ShopKeep development or marketing plans that Licensee learns about as part of its participation as a tester, (c) Licensee’s participation in the Beta Program (d) verbal or written communications from ShopKeep employees, agents, contractors or other representatives regarding ShopKeep Materials and the Beta Product.
Credit Card Processing Terms And Conditions
If Licensee has selected that credit card transaction processing will be provided automatically with the ShopKeep services, Licensee agrees to the following contractual provisions:
Licensee hereby authorizes ShopKeep to bind Licensee to the end-user license agreement proffered by its payment gateway provider(s) for the purpose of establishing Licensee as a customer of its payment gateway provider(s).
Licensee shall be responsible for the operation and connection of their point of sale equipment with the payment gateway provider(s)’s systems and services.
Licensee using Clover devices authorize Clover Network Inc. to handle the processing of payments separately from ShopKeep Services.
Licensee is liable for all fees charged to ShopKeep by its payment gateway provider(s) for Licensee’s use of the payment gateway provider(s)’s systems and services.
Licensee shall: (i) secure any credit card transaction data residing on the equipment owned, controlled or operated by Licensee from intrusion or unauthorized access, (ii) comply with all provincial, territorial, state and federal laws governing the disclosure and use of retail customer information, (iii) not use, disclose, store, sell or disseminate any credit/debit card-holder information obtained in a credit/debit card transaction processed through ShopKeep or its payment gateway provider(s), including but not limited to storing private cardholder credit/debit card information such as card numbers, expiration dates and CVV numbers, outside of the payment gateway, except as permitted by the card-holder, (iv) comply with the requirements of any debit/credit card or other payment brand rules, including those related to data security and customer data.
Licensee agrees that neither ShopKeep nor its payment gateway provider(s) shall be liable for any improperly processed transactions, illicit access to Licensee’s account with its payment gateway provider(s) or any of Licensee’s transaction data or unauthorized disclosure and use of passwords or its payment gateway provider(s)’s account access information.
Licensee agrees to immediately notify ShopKeep in the event of any security breach or suspected security breach of Licensee’s systems or unauthorized or suspected unauthorized access to Licensee’s transaction data.
LICENSEE HEREBY AGREES TO INDEMNIFY AND HOLD SHOPKEEP HARMLESS FROM ANY CLAIM, (INCLUDING ANY ASSOCIATED DAMAGES, COSTS AND REASONABLE LEGAL FEES INCURRED BY SHOPKEEP OR ITS AFFILIATES) BROUGHT AGAINST SHOPKEEP OR ITS AFFILIATES BY ANY THIRD PARTY ARISING FROM OR IN CONNECTION WITH ANY LOSS OR DAMAGE WHOLLY OR PARTIALLY CAUSED BY LICENSEE’S USE OF THE OFFLINE CREDIT PAYMENTS FEATURE IN ORDER TO ACCEPT CREDIT CARD TRANSACTIONS WITHOUT AUTHORIZATION WHERE SUCH TRANSACTIONS ARE SUBSEQUENTLY DENIED BY THE TRANSACTION PROCESSOR FOR ANY REASON.
LICENSEE AGREES THAT USE OF THE PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS OR SERVICES IS AT LICENSEE’S SOLE AND ABSOLUTE RISK AND THAT NEITHER SHOPKEEP, NOR ANY SHOPKEEP PARTY SHALL BE LIABLE IN ANY WAY OR UNDER ANY THEORY IN THE EVENT OF ANY CLAIM, DAMAGE OR EXPENSE INCURRED BY LICENSEE ARISING FROM USE OF THE PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS OR SERVICES. LICENSEE ACKNOWLEDGES THAT SHOPKEEP IS NOT RESPONSIBLE FOR ITS PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS AND THAT NO WARRANTY OR CONDITION WHATSOEVER, INCLUDING FOR MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER LEGAL, EXPRESS OR IMPLIED, ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, ARISES ON THE PART OF SHOPKEEP. LICENSEE AGREES THAT LICENSEE’S SOLE RECOURSE IN THE EVENT OF ANY CLAIM IS AGAINST ITS PAYMENT GATEWAY PROVIDER(S) AND LICENSEE HEREBY IRREVOCABLY RELEASES AND WAIVES ANY CLAIM IT HAS OR MAY HAVE, WHETHER OR NOT INCHOATE, AGAINST SHOPKEEP AND THE SHOPKEEP PARTIES ARISING FROM USE OF ITS PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS.
ShopKeep EMV Liability Promise
- Merchant Qualification
All Licensees that subscribe for ShopKeep point of sale services:
Are subscribed for ShopKeep point of sale services and have ordered an EMV-capable iCMP or iPP320 or iPP350 or Link/2500 credit card reader from ShopKeep;
Are currently using a third-party credit card processor who referred the Licensee to ShopKeep through our official Partner Program;
Are in good standing at the time of presentation to ShopKeep of the EMV related liability shift chargeback in question.
- Duration of the Liability Shift Protection Offer
ShopKeep’s EMV related liability shift protection is in place for eligible EMV related charged back transactions that occur on or after October 1, 2015 and are presented to ShopKeep before December 31, 2019 (which date may be extended by ShopKeep in ShopKeep’s sole discretion) for ShopKeep merchants that meet ShopKeep’s Merchant Qualification set out above.
- Types of Transactions that May Qualify
EMV related chargeback transactions that a Licensee verifies were processed using a chip enabled card on an EMV-capable iCMP or iPP320 or iPP350 or Link/2500 credit card reader provided by ShopKeep that contained a counterfeit magstripe that was swiped to process the transaction, and a signature was captured by the Licensee in connection with processing the transaction.
- Types of Transactions that Do Not Qualify
Other non-EMV related liability shift chargeback transactions, including those charged by a Licensee’s customers and charged back in connection with a failure to perform services, delivery of defective products, credit cards that have been stolen, card-not–present transactions or for lack of authorization, do not qualify.
- Process Requirements to Request Protection
A Licensee must contest their liability for the EMV related chargeback transaction with their processor within the time period and on the terms required by their processor and in accordance with the requirements set by their processor. If the Licensee does not prevail on the appeal and the processor concludes that the Licensee should remain liable for the chargeback solely due to the EMV related liability shift, and the Licensee believes that the chargeback may qualify for ShopKeep’s EMV Liability Shift Protection, then the Licensee must submit the notice that it received from its processor and all materials related to the appeal to ShopKeep. ShopKeep will notify the merchant if additional information is required. If ShopKeep determines that the Licensee chargeback is covered by ShopKeep’s EMV Liability Shift Protection, ShopKeep will refund the amount of the EMV related transaction that was charged back.
- Covered Limitation Amounts
A maximum total of up to $500 of ShopKeep approved EMV related chargebacks for each Licensee will be eligible for refund by ShopKeep. In no event will any Licensee be eligible for more than a total of $500 for all EMV related chargebacks incurred by any Licensee pursuant to ShopKeep’s EMV Liability Promise.
ShopKeep reserves the right to amend this Agreement at any time in ShopKeep’s sole discretion.
Licensee acknowledges and agrees that the availability of ShopKeep’s mobile application is dependent on the third party stores from which Licensee downloads the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which Licensee must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. Licensee agrees to comply with, and Licensee’s license to use ShopKeep’s application is conditioned upon Licensee’s compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of this Merchant User License Agreement, the more restrictive or conflicting terms and conditions in this Merchant User License Agreement apply.
These terms apply to Licensee’s use of all the ShopKeep Services, including ShopKeep’s iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
- Both Licensee and ShopKeep acknowledge that the Terms are concluded between Licensee and ShopKeep only, and not with Apple, and that Apple is not responsible for the Application or the content;
- The Application is licensed to Licensee on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the ShopKeep Services for Licensee’s private, personal, non-commercial use, subject to all the terms and conditions of these terms as they are applicable to the ShopKeep Services;
- Licensee will only use the Application in connection with an Apple device that Licensee owns or controls;
- Licensee acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, Licensee may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to Licensee will be to refund to Licensee the purchase price, if any, of the Application;
- Licensee acknowledges and agrees that ShopKeep, and not Apple, is responsible for addressing any claims Licensee or any third party may have in relation to the Application;
- Licensee acknowledges and agrees that, in the event of any third-party claim that the Application or Licensee’s possession and use of the Application infringes that third party’s intellectual property rights, ShopKeep, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- Licensee represents and warrants that it is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that it is not listed on any U.S. Government list of prohibited or restricted parties;
- Both Licensee and ShopKeep acknowledge and agree that, in Licensee’s use of the Application, Licensee will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
- Both Licensee and ShopKeep acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these terms, and that upon Licensee’s acceptance of these terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms against licensee as the third-party beneficiary hereof.
The Licensee represents and warrants that it has the due right and power to enter into this Agreement, entering into this Agreement will not cause the breach of any agreement Licensee has with a third party and that all of the registration information provided to ShopKeep is accurate in all respects.
Licensee may not assign, delegate or transfer these terms or its rights or obligations hereunder, or its ShopKeep Services account, in any way (by operation of law or otherwise) without ShopKeep’s prior written consent. ShopKeep may transfer, assign, or delegate these terms and our rights and obligations without consent.
Choice of Law and Forum
This Agreement shall be governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, U.S.A. as applied to contracts performed entirely within the state and without regard to the conflicts of laws provisions thereof. Any dispute arising under this Agreement shall be exclusively heard in the state or federal courts residing in New York County, New York, U.S.A. Each party hereto consents to the jurisdiction of such courts with regard to matters arising in connection with this Agreement and waives any claim it has that such a forum is inconvenient.
Please read the following ARBITRATION AGREEMENT carefully because it requires Licensee to arbitrate certain disputes and claims with ShopKeep and limits the manner in which Licensee can seek relief from ShopKeep. Both Licensee and ShopKeep acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these terms, ShopKeep’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these terms, and that upon Licensee’s acceptance of these terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these terms against Licensee as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York County, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. ShopKeep will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. ShopKeep will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that Licensee’s claim is frivolous.
(c) Small Claims Court; Infringement. Either Licensee or ShopKeep may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where Licensee lives or works. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. LICENSEE AND SHOPKEEP WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. Licensee and ShopKeep are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between Licensee and ShopKeep over whether to vacate or enforce an arbitration award, LICENSEE AND SHOPKEEP WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
- e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither Licensee nor ShopKeep is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. Licensee has the right to opt out of the provisions of this section by sending written notice of its decision to opt out to the following address: 460 Park Ave S, 7th floor, New York, NY 10016 postmarked within thirty (30) days of first accepting these terms. Licensee must include (i) its name and residence address, (ii) the email address and/or telephone number associated with its account, and (iii) a clear statement that Licensee want to opt out of these terms’ arbitration agreement.
(g) Exclusive Venue. If Licensee sends the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either Licensee or ShopKeep to litigate any dispute arising out of or relating to the subject matter of these terms in court, then the foregoing arbitration agreement will not apply to either party, and both Licensee and ShopKeep agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York County, New York, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of Licensee’s relationship with ShopKeep.
Licensee will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with Licensee’s activity in connection with the Services, provided that the ShopKeep may, in its sole discretion, do any of the foregoing on Licensee’s behalf or for itself as it sees fit. The failure of either Licensee or ShopKeep to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these terms shall otherwise remain in full force and effect and enforceable. Licensee hereby acknowledges and agrees that it is not an employee, agent, partner, or joint venture of ShopKeep, and Licensee does not have any authority of any kind to bind ShopKeep in any respect whatsoever.
Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, Licensee and ShopKeep agree there are no third-party beneficiaries intended under these terms.
This Agreement (including the documents referenced herein) is the entire agreement between the Licensee and ShopKeep and supersedes all prior agreements and understanding between the parties in respect of the subject matter hereof, whether written or oral.