Conditions and Terms of Subscription Agreement
Effective March 19, 2015
IMPORTANT -- Please read the following terms and conditions before registering to use RetailPoint® Retail Management System. By using this service or any component of this service you are agreeing to this Terms and Conditions of Service Contract.
This Subscription Agreement (the “Agreement”) governs Your use of the RetailPoint II, LLC (“RP”) Application Services identified above or as You indicated on RP’s website, or any other services, tools, application program interface, software components, device drivers, media, printed materials, training materials, product documentation, support, any related updates, upgrades, and versions of the foregoing provided to You by RP (collectively the “Application Services”), regardless of the delivery mechanism. You must read and accept all of the terms and conditions in, and linked to, this Agreement prior to accessing or using the Application Services.
BY SELECTING THE ACCEPTANCE OPTION TAB TO ACCESS THE APPLICATION SERVICES AND/OR BY USING THE APPLICATION SERVICESS, YOU REPRESENT THAT YOU, ON YOUR OWN BEHALF OR ON BEHALF OF THE ENTITY LISTED ON THE SUBSCRIPTION AS THE USER, IF APPLICABLE: (1) HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, (2) ARE OVER THE AGE OF 18, AND (3) HAVE THE AUTHORITY TO ACCEPT THIS AGREEMENT ON BEHALF OF THE ENTITY LISTED ON THE SUBSCRIPTION, AND (3) YOU WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL, NON-ELECTRONIC SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE DECLINE OPTION TAB AND YOU SHALL NOT ACCESS OR USE THE APPLICATION SERVICES.
1. Term and Termination.
- 1.1 This Agreement is effective when You click the acceptance option presented with this Subscription or commence accessing the Application Services, whichever is earlier (“Effective Date”). RetailPoint II may at any time, terminate this Agreement with You if: (i) You have breached any provision of the Agreement or RetailPoint II is required to do so by law; or (ii) at either Party’s option on thirty (30) days’ prior written notice.
- 1.2 Upon termination or expiration of this Agreement, RetailPoint II shall not be required to return, or to provide you access to, any data or information that you have previously uploaded or supplied to RetailPoint II pursuant to your use of the Application Services, including, but not limited to, Your account information or any other data or other content which is associated with Your account.
2. License Grant.
- 2.1 Subject to the terms of this Agreement, the User Guide, and on receipt of the Fees set forth in this Agreement, RetailPoint II grants to You a nontransferable, nonsublicensable, nonexclusive, limited, and revocable ability to access the Application Services for the term of this Agreement. You acquire only the right to access the Application Services for processing Your business information as it relates to Your customers. You do not acquire any rights of ownership. RetailPoint II reserves all rights to the Application Services not expressly granted to You. You agree to use the Application Services only on the number of computers and in only the number of locations permitted by the Subscription.
- 2.2 You will only utilize and access the Application Services using a conventional web browser or Application Services approved for use in conjunction with the Licensed Application Services. You hereby grant RetailPoint II a worldwide, perpetual, royalty free, sub-licensable right and license to use, for any purpose, any and all data and information submitted to or collected by RetailPoint II in connection with your Subscription for and/or use of the Application Services, including, but not limited to, product description, product pricing, product inventory, and product sale transaction information and data but specifically excluding information prohibited by law to retain. You further acknowledge that all information and data, such as website pages, web services, data files, text, computer software, videos, audio files, photographs, animations or other materials (collectively, the “Content”) which you may have access to as part of, or through your use of, the Application Services are the sole property of RetailPoint II. You acknowledge and agree that RetailPoint II owns all legal right, title and interest, including any intellectual property rights, in and to the Application Services and the Content, (whether those rights happen to be registered or not, and wherever in the world those rights may exist). As applicable, the Application Services which you use may automatically download and install updates from time to time from RetailPoint II which shall also be considered Application Services.
3. Access Restrictions & Trademark Use.
- 3.1 You shall not, nor allow any third party through Your access: (i) permit other entities or individuals to use the Application Services; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction and provided that You have first requested from RetailPoint II the tools necessary to create interoperable programs), or create derivative works based on the Application Services; (iii) reproduce or copy the Application Services, in whole or in part; (iv) export, directly or indirectly, the Application Services to any person or entity outside the United States in violation of applicable U.S. export laws; (v) sell, rent, lease, or otherwise transfer rights to the Application Services; (vi) remove any proprietary notices or labels on the Application Services; (vii) separate, remove or replace any functionality of the Application Services independently of the Application Services; or (viii) engage in any activity that interferes with or disrupts the Application Services (or the servers and networks which are connected to the Application Services); or (ix) use the Application Services in violation of any local, state or federal law, regulation or ordinance.
- 3.2 Either Party may use the other’s name, logo, or mark in order to communicate internally and externally the contractual relationship of the Parties and to promote such party’s services in a commercially reasonable manner; provided that, such consent may be rescinded on receipt of written notice. Each Party agrees that it will not use any trademark, trade name, service mark, logo, or domain name in any way that is intended to or likely to cause confusion about the owner or authorized user of such trade names, trademarks, service marks, logos, or domain names of the other.
Your access to the Application Services is contingent on Your prepayment of the Subscription Fees prior to commencement of the Application Services in an amount of the monthly Subscription Fee. After the initial payment, You agree to allow RetailPoint II to automatically charge Your credit card on a monthly basis for the Subscription Fees due for Application Services in the upcoming month as may be modified pursuant to the terms herein. You agree that all Subscription payments are non-refundable, non-transferable, and non-assignable by You. You further acknowledge that the origination of these charges to Your account must comply with U.S. law, and RetailPoint II or Your financial institution may cancel automatic payment of your credit card account at any time, with or without prior notice to You. RetailPoint II reserves the right to change the Subscription Fee or institute new charges for access to or use of the Application Services. RetailPoint II may amend your pricing plan, including any charges thereto, at any time either by (a) posting pricing plan changes on the account Maintenance area of the website, or (b) sending information regarding the pricing plan changes to the email address You provided to RetailPoint II. You are responsible for regularly reviewing such pricing information. Continued use of the Application Services, or non-termination of your account, after changes are either posted or emailed to you constitutes your acceptance of the prices as modified.
You can cancel automatic payment at any time by visiting the Account Maintenance area of the website, or by contacting us directly at 800-694-1826. If You cancel automatic payment, You will not receive any refund, but You will continue to have access to the Application Services until the end of the month in which you notified RetailPoint II of the cancellation of automatic payment. RetailPoint II may disable Your account in the event that timely prepayment for the Application Services is not received or Your breach of this Agreement. You acknowledge and agree that if RetailPoint II disables access to the Application Services, You may be prevented from accessing the Application Services, Your account information or any other data or other content which is associated with Your Subscription, including but not limited to product descriptions and pricing information, customer data and sales history, inventory data, and transaction data and reports. You acknowledge and agree that any merchant agreement You may have comprises a separate contract between You and the merchant service provider, and that RetailPoint II is not a party to, and has no obligations relative to, any such agreement.
You agree to utilize the Application Services in such a manner that all applicable federal, state, county, municipal, and other applicable taxes are accurately applied to each financial transaction facilitated by the Application Services. Further, You agree to pay all taxes on the Application Services that RetailPoint II is required by law to collect, including transaction, local, value-added, sales, and service taxes. Provided that, in no event will you be responsible for any taxes on RetailPoint II’s income.
If You have questions regarding any charges that have been applied to your account, You must contact RetailPoint II within thirty (30) days of the charge date. Failure to do so will waive your ability to dispute such charges.
5. Modification to the Agreement and User Guide.
In addition to the terms herein, RP may issue an online guide governing the terms of Your use of the Application Services, as updated from time to time, accessible via www.retailpoint.com (the “User Guide”). RetailPoint II reserves the right to modify or replace the terms and conditions of this Agreement and/or the User Guide, at any time, in RetailPoint II’s sole discretion effective immediately upon posting the revised version on the website www.retailpoint.com (the “Site”) with a downloadable document available. Continued use of the Application Services by You following the posting of a revised version of this Agreement on the Site will constitute Your acceptance of the modified terms and conditions. If You do not agree to the changes, You must stop using the Application Services and provide notification of termination to RetailPoint II in accordance with. RetailPoint II may at its discretion provide other methods by which You are required to accept changes to this Agreement in Subscription to continue Your use.
6. EXCLUSION OF WARRANTIES
- 6.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE APPLICATION SERVICES IS AT YOUR SOLE RISK AND THAT THE APPLICATION SERVICES ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS.
- 6.2 IN PARTICULAR, TO THE GREATEST EXTENT ALLOWED BY LAW, RETAILPOINT II DOES NOT REPRESENT OR WARRANT THAT: (i) YOUR USE OF THE APPLICATION SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE APPLICATION SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (iii) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE APPLICATION SERVICES, INCLUDING ANY TRANSACTIONS FACILITATED BY THE APPLICATION SERVICES, WILL BE ACCURATE OR RELIABLE; (iv) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE APPLICATION SERVICES WILL BE CORRECTED; OR (V) THE APPLICATION SERVICES ARE COMPATIBLE WITH ANY PARTICULAR COMPUTER, COMPUTER PERIPHERALS, OR OTHER HARDWARE, INCLUDING ANY PARTICULAR CASH DRAWER, BARCODE READER, CREDIT/DEBIT CARD SCANNER, PRINTER, OR POLE-TYPE OR OTHER DISPLAY; (VI) AS A RESULT OF USING THE APPLICATION SERVICES, YOUR COMPUTER SYSTEMS WILL NOT BECOME INFECTED BY ANY COMPUTER VIRUS, TROJAN, OR OTHER MALICIOUS SOFTWARE COMPONENT. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOUR COMPUTER SYSTEMS INCLUDE RELIABLE AND REGULARY UPDATED ANTI-VIRUS SOFTWARE, AND THAT REGULAR AND FREQUENT BACKUPS ARE MADE OF YOUR COMPUTER SYSTEMS.
- 6.3 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM RETAILPOINT II OR THROUGH OR FROM THE APPLICATION SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
- 6.4 RETAILPOINT II FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE.
- 6.5 NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT RETAILPOINT II’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND RETAILPOINT II’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7. LIMITATION OF LIABILITY
7.1 AS ALLOWED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT RETAILPOINT II, ITS MEMBERS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE TO YOU OR ANY ENTITY FOR: (I) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; (II) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF: ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS OR ACCURACY OF THE APPLICATION SERVICES OR ANY PORTION THEROF, INCLUDING, BUT NOT LIMITED TO, ANY MATHEMATICAL OR NUMERICAL ERRORS RELATING TO ANY FINANCIAL TRANSACTIONS FACILITATED BY THE SERVICES; (III) ANY CHANGES WHICH RETAILPOINT II MAY MAKE TO THE APPLICATION SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE APPLICATION SERVICES (OR ANY FEATURES WITHIN the APPLICATION SERVICES); (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; (V) YOUR FAILURE TO PROVIDE RETAILPOINT II WITH ACCURATE ACCOUNT INFORMATION; (VI) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; AND/OR (VII) ANY LOSS OR DAMAGE WHICH RESULT FROM THE ACTS OR OMISSIONS OF ANY CREDIT/DEBIT CARD TRANSACTION FACILITATED BY THE APPLICATION SERVICES, REGARDLESS OF WHETHER ANY SUCH CREDIT/DEBIT CARD TRANSACTION INVOLVED A TRANSACTION PROCESSOR IDENTIFIED BY, PREFERRED BY OR RECOMMENDED BY RETAILPOINT II.
8. Exclusive Remedy.
The exclusive remedy for RetailPoint II’s breach of this Agreement shall be, at RetailPoint II's option, (a) providing the Application Services; or (b) a refund of Your most recent subscription fee payment, if any, paid to license the Application Services.
You agree to indemnify and hold RETAILPOINT II, and its members, related entities, affiliates, officers, agents, and employees harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your use of the Application Services in any manner contrary to these Terms, RetailPoint II’s User Guide, or resulting from Your provision of inaccurate or incomplete information to RetailPoint II in connection with your use of the Application Services.
10. General Legal Terms
- 10.1 These Terms and the User Guide, if any, constitute the entire legal agreement between You and RetailPoint II and govern your use of the Application Services, and completely replace any prior agreements between you and RetailPoint II in relation to the Application Services. In the event of a direct conflict of specific terms in the Agreement and the User Guide, this Agreement shall govern.
- 10.2 You agree that RetailPoint II may provide You with notices, including those regarding changes to the Terms, to the email or regular U.S. mail address You provided, or postings or downloadable documents on the http://www.RetailPoint.com website. You may change Your email or regular U.S. mail address provided above by emailing RetailPoint II.
- 10.3 You agree that if RetailPoint II does not exercise or enforce any legal right or remedy which is contained in the Terms (or which RetailPoint II has the benefit of under any applicable law), this will not be taken to be a formal waiver of RetailPoint II’s rights and that those rights or remedies will still be available to RetailPoint II.
- 10.4 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable, to the fullest extent possible.
- 10.5 The Terms, and your relationship with RetailPoint II under the Terms, shall be governed by the laws of the State of Indiana without regard to its conflict of laws provisions. You and RetailPoint II agree to submit to the exclusive jurisdiction of the courts (federal or state) located within Hamilton County, Indiana to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that RetailPoint II shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. RetailPoint II hereby reserves the right to assign this Agreement without Your agreement.