Last Updated: June 23rd, 2021
The Innowi Kiosk is an integrated, mobile Point-of-Sale (POS), Payment Processing, and Restaurant Management System designed, manufactured, owned, and sold by Innowi, Inc (the “Services”).
The information you provide is essential for us to be able to offer our Services. Such information may include “Personal Information”, i.e. information that directly, indirectly, or read as a whole identifies somebody as an individual.
- Sources from which Information is Collected
- Information from our Clients;
- Information from our Client’s Employees;
- Information from our Client’s Customers;
- Information inputted on the Innowi Kiosk;
- Information regarding the device used to access our website.
- Personal Information Collected through this Site
Personal Information is collected when you visit our Site, create an account, communicate with our customer service, subscribe to emails, or otherwise request information about our Service. The information we collect may include your name, email address, or phone number.
- Personal Information Collected through our Service
If you sign up for our Services we may collect the following information which may include: your name, address, birth date, government-identification-number, tax identification number, business license, banking details, payment processing details, and other information.
We may collect Personal Information from a Client’s Employees, this may include information connected with a Client’s Employees’ use of our Services, such as their name, address, birthdate, wage rates, salaries, hours worked.
We may also collect Personal Information from Client’s Customers who have made a purchase from our Client us using the Innowi Kiosk or has otherwise voluntarily inputted their Personal Information into the Innowi Kiosk. We may receive such information directly through our Service or by contacting our Clients. The information collected from a Client’s Customer may include their name, last four digits of the credit card number, transaction details such as amount of goods or services ordered/payment method/amount of payment, email address, and/or phone number.
- Personal Information Collected from Publicly Available, Third-Party Sources
We may collect information about general visitors to our site, a Client, a Client’s Employee, a Client’s Customer, or someone who has otherwise interacted with our Services, from publicly available, third-party sources or from our business partners. Such information may include contact/mailing list providers, information from credit card companies or banks, credit bureaus (if relevant), identity verification services, and business partners with whom Innowi has a business relationship.
- How We Use Personal Information
The following are the ways in which we may use your Personal Information:
- To provide, improve, maintain, test, and operate our Services, including to process transactions, compile transaction data, create Client’s order histories and profiles, create documentation, training manuals, and related professional services;
- To secure and protect our network, system and services by implementing measures that ensure that Client is limited in their access and viewing rights to our Service only as authorized. This may further involve accessing log information to resolve issues involving unauthorized use;
- To create, produce, deliver, and publish analytics compiled from sales transactions, including between Innowi and its Client’s, and between Client’s and their Customers;
- To fulfil any contractual, legal, ethical, or moral obligation, including in response to any requests for information from government institutions, public bodies, or other such entity;
- For marketing purposes. We may contact you directly for information via email or engage a third-party to do so. We may send you marketing or promotional information, request you to complete surveys, or provide feedback. We may ask you to subscribe to our newsletter and we will use your Personal Information to send you the newsletter via email. If you do not wish to receive marketing or promotional emails from us, you may unsubscribe by following the unsubscribe instructions included in each message.
- For sending digital receipts. Whilst using our Services, you may choose to receive digital receipts or other communications from Innowi or Innowi’s business partners via text message or email. Standard message and data rates may apply.
- How we Share your Information
- Who we share your information with
We may share your Personal Information with the following parties:
- Where applicable, our parent, subsidiary, or affiliate companies, including our agents and/or business partners;
- With third-parties such as hosting and database providers, payment processors, identity verification services, mail/e-mail/text messaging services, analytics providers, customer support services, user data management services, product delivery services, marketing research services, survey service providers.
- With relevant third-parties in the event of a merger or acquisition, divesture, sale of company stock or assets, financing deal, or dissolution of all or a portion of our business.
- With relevant third-parties if we believe sharing of Personal Information is necessary to: (a) protect our rights, property, security, or integrity of Services; (b) to enforce the terms of the General Terms of Service or other applicable agreements and/or policies; (c) to protect us and the users of our Service from harm or any illegal activity; (d) to investigate, prevent, detect, and resolve security breaches; and/or (e) to comply with applicable laws, rules, regulations, legal processes, or government requests.
- Other types of information we may share
We may also share aggregated, anonymized, impersonal information that does not directly identify you. Such information may include device information or information derived from cookies or log files.
- How long we retain your Personal information
We may retain your Personal Information as long as reasonably necessary to provide our Services or to comply with any applicable laws. The reasons behind retaining your Personal Information generally include: (a) compliance with laws, regulations, government requests, or legal processes; (b) prevention of fraud; (c) collection of fees; (d) dispute resolution; (e) addressing bugs, errors, or other problems with our Service; (f) assisting with investigations; (g) enforcing the General Terms of Service; (h) any other purpose consistent with the applicable laws.
- Accessing and Changing your Personal Information
If you are a Client with a Innowi Kiosk Subscription, you may access, change, edit, or correct your personal information by logging into your Account.
If you are a Client’s Customer you may contact us at email@example.com if you believe we have information about you that must be corrected or changed. We may require verification of your identity before we can make the requested changes.
However, we may not be able to change your information if it has been archived or if any reasonable restrictions, including applicable laws, prevent us from doing so.
- Compliance with State Laws and Privacy Rights
Laws of the State of California permit California residents to request certain details about their information which we disclose to third-parties for marketing purposes. In case you are a California resident and would like us to disclose this information to you, please email us at firstname.lastname@example.org.
Though Innowi implements all reasonable commercial, administrative, technical, and physical safeguards to ensure the security of your Personal Information and other data we cannot guarantee that all internet, text based, or email transmissions and transactions are fully secure and protected from loss, unauthorized access, alteration, destruction, or unlawful disclosure, theft, misuse, or exploitation. We request that you take special care in deciding what information you share and make publicly available.
- Links to Third-Party Services
- Our use of Publicly Available Information
We do not target our Services to children under the age of Thirteen (13), neither do we knowingly collect Personal Information from children under the age of Thirteen (13). Should it come to your knowledge that a child under the age of Thirteen (13) has provided us Personal Information, please contact us at email@example.com and we will make all reasonable efforts to delete such information.
General Terms of Service
THROUGH USING ANY OF THE SERVICES, HARDWARE, OR SOFTWARE PROVIDED OR OTHERWISE MADE BY INNOWI YOU AGREE TO THESE GENERAL TERMS AND GIVE YOUR CONSENT TO BE BOUND BY THE TERMS ENCAPSULATED IN THIS AGREEMENT.
IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, PLEASE DO NOT USE THE INNOWI’S SERVICES, HARDWARE, OR SOFTWARE.
THIS AGREEMENT INCLUDES AN ARBITRATION AGREEMENT WHICH REQUIRES THAT ANY CLAIM AGAINST INNOWI SHALL BE PURSUED BY THE PLAINTIFF ON AN INDIVIDUAL BASIS RATHER THAN AS A MEMBER OF ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. THIS AGREEMENT PERMITS THE PLAINTIFF TO ONLY SEEK RELIEF ON AN INDIVIDUAL BASIS REGARDLESS OF WHETHER THE RELIEF CLAIMED IS MONETARY, INJUNCTIVE, OR DECLARATORY.
- These General Terms of Service constitute a legal agreement (the “Agreement”) between Innowi, Inc. (hereinafter “Innowi”, “we”, “us”, “our”) and the merchant (“you”, “your”, jointly referred to as the “Parties” and individually referred to as “Party”). This Agreement shall govern and regulate your access to and use of Innowi’s services, including but not limited to the ChecOut device hardware and components, the ChecOut software, website, web applications, dashboard, and any other products or services as may be introduced or incorporated to the existing service by Innowi from time to time (collectively referred to as the “Services”).
- The ChecOut Services are wholly owned by Innowi. All rights, title, interests, and intellectual property related to the Services vest in Innowi.
- Please read all our terms carefully. Should you have any confusion, please contact us at firstname.lastname@example.org.
- ChecOut Account Registration
- Information necessary to use our Services: To use our Services, you are required to first apply for a merchant account with us (your “Account”). As part of the application, we will require your personal identification information, including but not limited to your name, phone number, email address, government-issued-identification, bank account details, and business license, or any other information that directly, indirectly, or read as a whole identifies you as an individual (your “Personal Information”). It is your responsibility to ensure that all information you provide is true, correct, accurate, updated, and complete.
- Password confidentiality: In the process of registering your Account, you will also be required to set a username and password to access our Services. You acknowledge that you are responsible for maintaining the confidentiality of your username and password.
- Information sharing with payment processors: Once we review your information, we will submit the relevant information in connection with your request to sign up for an Account to our processor. You agree that Innowi may share your Personal Information including bank account details with our processor for the purpose of providing the Services to you. Should our processor indicate that you are not authorized or permitted under the applicable law or rules to use the Services, Innowi reserves the right to immediately terminate this Agreement and your Account.
- Unauthorized access by third-parties: You agree that you will not do or allow to be done anything that would permit anyone who is not a registered user to gain access to and make use of our Services.
- Responsibility for account misuse: You accept full responsibility for any activity that occurs under your Account. You are fully liable for the activities of your employees that occur under your Account, regardless of whether such activity has been authorized by you. Innowi shall not be held liable for any loss, harm, or damage arising from the unauthorized use of your Account.
- Responsibility to inform Innowi in case of account misuse: You agree to promptly inform us if you become aware of any unauthorized activity under your Account and further agree to render full cooperation with Innowi to prevent the unauthorized use of your Account.
- Your License
- License terms: Through this Agreement, we grant you a limited, non-transferable, non-sub-licensable, nonexclusive, revocable license to use our Services. The Services are licensed, not sold, to you and you acknowledge that you have not acquired any license to use our Services in excess of or contrary to the terms of this Agreement.
- Restrictions on Use of Services
- Terms regulating your use of our Services: You agree that you will not, directly or indirectly, do or permit to be done the following acts: (a) reverse engineer, repurpose, decompile, disassemble, or otherwise attempt to discover the underlying structure, organization, sequence, source code, object code, algorithms of the Services; (b) copy, reproduce, alter, modify, translate, or otherwise create derivative works based on the Services; (c) rent, lease, distribute, pledge, assign, or otherwise transfer rights to the Services granted to you by way of this Agreement; (d) remove, obscure, or otherwise deface any label or proprietary mark from the Services; (e) make use of the Services for any fraudulent, unlawful, or unauthorized purpose in any manner that may undermine, damage, disable, impair, overburden, overload or otherwise interfere with the effective provision of the Services; (f) violate or breach any operating guidelines, procedures, rules, policies, or requirements regulating the use of and access to the Services; (g) perform, attempt to perform, or cause to perform any act that may interfere with the proper working and efficient provision of the Services or prevent our other customers from accessing our Services; (h) workaround, bypass, or circumvent any of the technical limitations of the Services or otherwise enable features, functionalities, or capabilities not intended to be offered through our Services; (i) use the Services for offering any product or service to your customers that is a prohibited item or otherwise constitutes any illegal good or service; (j) use the Services for the sale of firearms, firearm parts, ammunition, weapons, or other devices designed to cause physical harm; (k) use the Services in any way that may expose you, your employees, Innowi (including Innowi’s subsidiaries, affiliates, employees, and successors) and Innowi, Inc. (Including Innowi’s subsidiaries, affiliates, employees, and successors) to any risk, harm, or liability; (l) use the Services in any manner not expressly allowed under this Agreement; (m) access or attempt to access the Service or any part of it that is not expressly made available to you through this Agreement; (n) access or use, in any manner, the Service or any part of it through any time-sharing service, service bureau, network, consortium, or other means; (o) use, ship, or access the Service or any part of it outside or from outside the United States.
- Terms regulating sales transactions: You represent, warrant, and covenant the following: (a) any sales transaction between you and your customer(s) which makes use of our Services will represent a bona fide sale of goods or services by you to your customer; (b) any sales transaction submitted by you will accurately describe the nature of the transaction including the goods or services sold; (c) you will fulfill all reasonable obligations to your customer and will be fully responsible for resolving all disputes with your customers including those arising from chargebacks or refunds; (d) all sales transactions initiated by you will comply with the applicable laws and rules relevant to the jurisdiction(s) wherein the transaction takes place; (e) you will neither store, retain, distribute any portion of the magnetic-stripe data following a sales transaction nor any other data the collection or retention of which is prohibited under the applicable laws and rules; (f) you will use the Services only for the purpose of operating your own business as per the details submitted by you to whilst signing up for a ChecOut Account and not for any other business, service, or offerings of third-parties; (g) in using the Services, you will not act as an intermediary or payment aggregator on behalf of any third-party nor use the Services to handle, process, transmit funds, or engage in a transaction involving the processing of cash advances for third-parties.
- Offline use of the Services: Transactions initiated offline, i.e. whilst disconnected from the internet, regardless of whether or not an offline transaction service is provided by Innowi at the time, will be queued and submitted for authorization when internet connectivity to the ChecOut device is restored. You assume all risk, responsibility, and liability associated with any transaction that you chose to conduct whilst the ChecOut device is offline.
- Responsibility to comply with user guidelines: You shall at all times comply with any operating procedures, requirements, or guidelines regarding your use of the Services that may either be posted on the ChecOut website or otherwise made available to you.
- Maintenance activities conducted by Innowi: Innowi may perform maintenance to ensure the effective provision of Services which, from time to time, may result in service interruptions, errors, or delays. You agree that Innowi will not be held liable or responsible for any such errors, transaction processing failures, bugs, or delays. Innowi may contact you to obtain information in order to identify and resolve any errors that may arise. You assume all risk, responsibility, and liability associated with any transaction you conduct whilst our Services are under maintenance.
- Responsibility to install updates: Innowi may, from time to time, at its discretion, issue updates to its software in order to improve the functionality of the ChecOut device, provide new features or enhancements, or any other lawful purpose. It shall be your responsibility to install all such updates within Thirty (30) days following the date the update is issued in order to ensure uninterrupted Services. Failure to install updates may result in impaired or defective Services. Should you fail to properly install the most recent version of ChecOut’s software at the appropriate time, Innowi shall incur no liability and neither shall it be Innowi’s obligation to provide support for any outdated software versions. The ChecOut device may automatically download, install, and update its software and you shall not, in any event or in any manner, impede the update process. You agree to assume full responsibility and to indemnify Innowi for all damages and losses, of any nature, for all adverse results or third-party claims arising from you impeding the update process.
- Limitation of Innowi’s liability: You agree that Innowi shall not incur any liability arising directly or indirectly from any termination, suspension, delay, disruption, or error in the Service (including billing for the Service) due to the internet, wireless service, payment processor, communications network, facility, equipment, or other technical aspect beyond Innowi’s reasonable control. You further agree that Innowi shall not be held liable for any loss arising from erroneous inputs made by you or your employees in the processing of a sales transaction.
- Intellectual Property
- Innowi’s Intellectual Property: Innowi retains all right, title, and interest to all information, content, and intellectual property, confidential or otherwise, related to the Service. All intellectual property connected, directly or indirectly, with existing or future ChecOut Services is protected by copyright, patent, trade secret, trademark, trade dress, design, and service mark laws of the United States, international conventions, and other relevant intellectual property and proprietary rights and applicable laws. Innowi’s Intellectual Property includes ChecOut’s names logos, emblems, brands, service marks, trademarks, trade names, taglines, or other proprietary designations (the “Marks”), all software, content of any materials, web screens, layouts, processing techniques, procedures, algorithms, methods, updates, and any changes, modifications, or alterations made to the aforementioned.
- Innowi’s license to its Intellectual Property: Innowi, its subsidiaries, affiliates, or successors own or have license to all rights, title, interest, copyright and other Intellectual Property rights worldwide in the Services, including any subsequent derivatives, iterations, or improvements to the Services.
- Prohibition of unauthorized use of Innowi’s Intellectual Property: You agree not to sell, rent, lease, loan, assign, sublicense, distribute, or otherwise transfer, copy or reproduce, modify, publicly perform or display, broadcast, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of such Intellectual Property other than as expressly authorized by this Agreement.
- Innowi’s limited right to use your trademark: You agree to grant us a nonexclusive right and license to display your trademark on our website or any other promotional material, including advertisements, trade publications, or other marketing material identifying you as a customer of Innowi. Innowi obtains no right in your trademark other than the limited right described in this subsection.
- Innowi’s Intellectual Property rights on software and user documentation: You agree that your use of the ChecOut software shall be solely on the basis of a non-exclusive, non-transferable, non-assignable, and revocable limited license for the period of your subscription to the Services. Moreover, Innowi may provide copies of documentation, training manuals, instruction manuals, or other guidelines to aid you and your employees in using our Services (the “User Documentation”). You agree that all Intellectual Property rights related to the User Documentation vest in Innowi.
- Prohibition on use of ChecOut’s Marks without prior written consent: ChecOut is the trademark, domain name, and/or service mark of Innowi, Inc. All other trademarks, domain names, or service marks are property of their respective owners. Use of any ChecOut trademarks or service Marks without its express written consent is strictly prohibited.
- Our Use of Your Feedback and Data
- We encourage all our users to communicate their suggestions, feedback, and recommendations to us by contacting us at email@example.com. You may send us your feedback in the form of general remarks, information, stories, documents, photos, or any other means of communication (your “Feedback”). You hereby agree to grant us, our partners, subsidiaries, affiliates, and successors a worldwide, nonexclusive, royalty-free, fully-paid, transferable, irrevocable, perpetual, and sub-licensable right to use, disclose, copy, display, publish, advertise, reproduce, adapt, distribute, prepare derivative works of, publicly perform, publicly display or otherwise exploit your Feedback for any reason, including to incorporate your Feedback into our Services, without restriction of any kind. Subject to the rights you have granted to us through this Agreement, you retain all your rights in the Feedback. You acknowledge that the Feedback you communicate to us will not be false, misleading, untrue, illegal, or factually incorrect.
- You acknowledge and agree that, in the course of providing our Services to you, Innowi may capture data related to you, your employees’, and your customers’ use of our Services (“Data”). Additionally, we may aggregate, use, disclose, compile, collect, store, distribute, and publish statistical or analytical data regarding the performance, operation, and provision of the Services. We may make such Data publicly available provided that any private or Personal Information stemming from your, your employees’, or your customers’ use of our Service shall not be publicly disclosed. Innowi retains all intellectual property rights in such Data.
- Agreement to pay applicable fees: You agree to pay the applicable fees, including the ChecOut device purchase fee, the monthly software subscription fee, and any other associated fees related to the provision of our Services.
- Responsibility to pay taxes: All fees are exclusive of taxes, levies, or duties implemented by taxing authorities (excluding taxes based on ChecOut’s income) (the “Taxes”). It will not be ChecOut’s obligation to determine whether Taxes apply, neither will ChecOut be responsible for collecting, reporting, or remitting, any Taxes to any tax authority arising from any transaction. It shall be your responsibility to pay any and all applicable Taxes.
- Change to fee structure: Notwithstanding anything contained in this Agreement and subject to the applicable laws, rules, and regulations, Innowi reserves its right to revise the applicable subscription fees at any time. Innowi will provide Thirty (30) days’ notice prior to the revised subscription fee’s being applicable.
- Responsibility to notify in case of disputed amounts: Should any dispute regarding the amount charged arise between the Parties, you agree that you will notify Innowi within Thirty (30) days of incurring the disputed charge. If you notify Innowi after Thirty (30) days, you agree Innowi has no obligation to effect any adjustments or refunds.
- Innowi reserves all rights that have not be specifically and expressly granted to you in this Agreement. As defined in Section 6 (Intellectual Property), Innowi own all rights, title, interest, copyright, and other Intellectual Property in the Services as they may exist now or come to exist in the future.
- We care and respect the security of our users, their Personal Information, and confidential data. While we work to protect the security of your Account and Data, Innowi cannot guarantee that unauthorized third-parties will not be able to defeat our security measures. You provide Personal Information at your own risk. You agree to keep your password secure and notify us promptly of any unauthorized access or use of your account.
- Term of the Agreement and Termination
- Commencement, Subscription terms, and Automatic Renewal: The date of commencement of this Agreement shall be the date on which you first use the Service and will continue for the term of subscription which you select. The subscription term will automatically renew once the term expires and shall be equal in duration to the original subscription term. Unless prior notice is given for cancellation of the subscription term, the subscription term shall automatically renew upon the expiration of the previous term. The fee charged during any renewal term will be equal to the fee in effect during the immediately preceding subscription term, unless Innowi provides advance notice of a fee change, which fee change will be effective upon the renewal term.
- Termination due to non-payment of subscription fees: Innowi may terminate or suspend your ChecOut Account in the event that you fail to make any payment due within Thirty (30) days after Innowi has provided you with notice of such failure.
- Termination for other reasons: Innowi may terminate or suspend your ChecOut Account in the case that: (a) you breach any material provision of this Agreement and fail to cure such breach within Thirty (30) days after ChecOut has provided notice of such breach; (b) you provide inaccurate, untrue, or incomplete information or fail to comply with ChecOut’s registration requirements; or (c) you incur excessive refund requests or chargebacks.
- Termination of ChecOut Account without notice: Innowi may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without any notice and liability for any reason, including if in Innowi’s sole determination you violate any provision of this Agreement.
- Effect of Termination: Regardless of the reason for termination, you must immediately cease your use of the Service upon termination of your ChecOut Account. Your license to use the Service provided under this Agreement shall end upon termination. Innowi will delete your ChecOut Account data stored on Innowi’s servers upon the termination of this Agreement subject to the applicable law, which may require Innowi to retain your Data or Personal Information for a certain period of time following termination. Innowi will not be liable to you or any third-party for any loss arising from termination of access to the Service or deletion of your data.
- Your Responsibilities
- Compliance with applicable laws: You shall comply fully with the requirements of all applicable federal, state and local laws and regulations related to your use of the Service and provision and use of Personal Information, cardholder data, customer or employee information, and other point of sale data in connection with the Service. You shall not use the Service for illegal purposes.
- Responsibility for acquiring necessary permits: You are solely responsible for obtaining all required permits, consents and licenses and monitoring legal developments applicable to the Service and the operation of your business, interpreting applicable laws and regulations, determining the requirements for compliance with all applicable laws and regulations, and maintaining an on-going compliance program.
- Responsibility for ensuring accuracy of information: You are solely responsible for ensuring the accuracy, quality, integrity, legality and appropriateness of all information and data regarding your business that you provide to Innowi and its service providers in connection with the Service. In addition, if applicable, you are solely responsible for verifying that all information and data loaded onto a device by Innowi or its service providers at your request are accurate prior to your business use of the ChecOut device. Innowi and its service providers disclaim any and all liability arising out of any inaccuracies with respect to any information or data you provide.
- Representations and Warranties
- The parties represent and warrant to the other party that it has the power and authority to enter into this Agreement. You represent and warrant to us that: (a) you are at least Eighteen (18) years of age: (b) you are validly existing, in good standing and have the right, power, and authority to enter into and perform under the terms of this Agreement; (c) any information you provide in connection with our Services, including any Personal Information, business information, or bank account information, or other information is accurate and truthful; (d) any sales transaction submitted by you is genuine and arises from a genuine sale or service that you directly sale or provide; (e) the sales transactions you perform accurately describe the goods or services sold and delivered to your customer(s) along with the correct amount of goods or services sold; (f) you, all transactions initiated by you, and your use of the Service will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including the Health Insurance Portability and Accountability Act (HIPAA) and any applicable tax laws and regulations and card association rules and regulations; (g) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the consumer; (h) except in the ordinary course of business, no sales transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service; (j) you are not engaged in and will not accept payment for any illegal activity; (k) you are a legal resident of, or a business entity authorized to conduct business in, the jurisdiction which you operate.
- Disclaimer of Warranties
- EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, INNOWI AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARDS TO THE SERVICES. THIS INCLUDES BUT IS NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, RELIABILITY, AVAILABILITY, SUITABILITY, ACCURACY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT THE SERVICE IS SECURE, FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICE DOES NOT INFRINGE THE RIGHTS OF ANY PERSON, OR THAT THE QUALITY OF SERVICES WILL MEET YOUR REQUIREMENTS. INNOWI DOES NOT WARRANT OR GUARNATEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED, OR REMEDIED OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD-PARTIES. USE OF THE SERVICE IS AT YOUR OWN RISK AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS”.
- Limitations on Liability and Damages
- IN NO EVENT SHALL INNOWI OR ITS AFFILIATES, RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS, BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INNOWI AND ITS’ AFFILIATES CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ANY INDEMNITIES), REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED THE AMOUNT OF FEES RECEIVED BY INNOWI UNDER THESE TERMS FOR THE IMMEDIATELY PRECEDING SUBSCRIPTION TERM.
- You will indemnify, defend and hold Innowi harmless (including Innowi’s employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies or the card associations’ rules; (b) your wrongful or improper use of the Service; (c) any transaction submitted by you through the Service (including without limitation the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (e) your violation of any law, rule or regulation of the United States or any other country; or (f) any other party’s access and/or use of the Service with your usernames, password and any other sign on credentials/access controls for the Service or any software provided or approved by Innowi to authenticate access to, and use of, the Service and any software.
- Defining “Dispute”: The term “Dispute” signifies any claim or controversy arising between you and Innowi, its processors, suppliers, licensors, affiliates, agents, directors, employees, including any claims relating to this Agreement or other aspect of your relationship with Innowi.
- Limitation: An action or proceeding pertaining to a Dispute must commence within One (1) year after the cause of action accrues.
- Arbitration Agreement
Section 18 of this Agreement shall hereinafter be referred to the “Arbitration Agreement”.
- Obligation to resolve disputes informally: With respect to any Dispute you may have with Innowi, you agree to first contact us and make reasonable effort to resolve the Dispute with us informally. In the event that a settlement is not reached between you and Innowi informally, you agree to resolve any claim, dispute, or controversy arising out of or in connection with this Agreement through binding arbitration or, for claims which qualify as such, in the small claims court. Should the Parties fail to resolve the dispute within Sixty (60) calendar days, either Party may commence an arbitration proceeding.
- Applicability of Federal Arbitration Act and AAA Rules: By agreeing to this Agreement, you agree that the U.S Federal Arbitration Act shall govern the interpretation and enforcement of this arbitration provision. Any arbitration entered into shall be conducted by a neutral arbitrator and be administered by the American Arbitration Association (“AAA”) as per the Consumer Arbitration Rules and procedures in effect for the AAA at the time, except as provided in this Arbitration Agreement.
- Exclusive authority vesting with the arbitrator: The arbitrator shall have exclusive authority to resolve any dispute arising from the interpretation, applicability, or enforcement of this arbitration clause. The arbitrator shall decide all issues, including but not limited to issues relating to scope, enforceability, and arbitrability of this Arbitration Agreement. Subject to the AAA Rules, the arbitrator can award the same damages or relief on an individual basis that a court of competent jurisdiction may otherwise award. The final decision of the arbitrator shall be binding upon the parties and may be entered as an enforceable judgment in a court of competent jurisdiction.
- Waiver of right to jury trial and participation in a class action: You agree to waive your right to a jury trial or to participate in a class action. Your rights will be determined by a neutral arbitrator rather than a judge or jury.
- Bar from seeking injunctive or equitable relief: This Arbitration Agreement shall also prevent either party from seeking injunctive or other equitable relief from the ordinary courts, including for matters related to data security, Intellectual Property, or unauthorized use or access to the Service.
- Arbitration Agreement to survive Termination: This Arbitration Agreement shall survive termination of this Agreement and the termination of your ChecOut Account.
- Restraining orders or preliminary injunctions may still be sought: Notwithstanding anything contained in this arbitration clause, neither party is precluded from pursuing an action in court, using the ordinary remedies available under the law, for the sole purpose of obtaining a restraining order or preliminary injunction in the appropriate circumstances.
- Resolving inconsistency between AAA Rules and Arbitration Agreement: Should any inconsistency between the terms of the AAA Rules and this Arbitration Agreement arise, the terms of this Arbitration Agreement shall control the arbitration. This is unless it is determined by the arbitrator that the application of the terms of this arbitration clause shall lead to an unfair result.
- Location of arbitration: Unless agreed to otherwise by the parties, any arbitration hearing shall take place at Santa Clara, California. If the parties are unable to reach an agreement regarding the location of the arbitration, the matter shall be decided by the AAA. If your claim against ChecOut is for $10,000 or less, ChecOut agrees that you may choose whether the arbitration is conducted solely on the basis of documents submitted to the arbitrator, or through a telephonic hearing, or through an in-person hearing as per the AAA Rules. For claims exceeding $10,000, the right to a hearing will be determined by the AAA Rules.
- Decision of the arbitrator: In any case, a well-reasoned written decision that sufficiently explains the essential findings, conclusions, and determinations upon which the award is based shall be issued by the arbitrator.
- Costs: All costs connected with the arbitration, including the filing, administration, attorney and arbitrator fees will be governed by the AAA Rules unless otherwise agreed to by the parties or unless otherwise provided in this Arbitration Agreement.
- Confidentiality of award and settlement proceedings if any: All aspects of the arbitration proceedings including the final ruling, decision, and award shall be strictly confidential and shall only be for the benefit of the parties. In the case that Innowi attempts to reach a settlement with you, you agree not to disclose the amount of any settlement offer made by Innowi to you until after the arbitrator determines the amount, if any, to which you are entitled.
- Severability of Arbitration Agreement: If it is decided by a court or arbitrator that any term or provision of this Arbitration Agreement is invalid or otherwise unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and comes close to expressing the original intention of the term or provision found to be invalid or unenforceable. Should the entirety of this Arbitration Agreement be found to be invalid by a court or arbitrator, the remainder of this Agreement shall still continue to apply and remain in force.
- All claims to be brought in individual capacity: ALL CLAIMS MUST BE BROUGHT BY THE PARTIES’ IN THEIR INDIVIDUAL CAPACITY RATHER THAN AS A PLAINTIFF OR CLASS MEMBER OF ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS IT IS OTHERWISE AGREED, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. NOTHING IN THIS ARBITRATION AGREEMENT OR GENERAL TERMS SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
- Governing Law
- This Agreement and any Dispute that arises will be governed by the laws of the State of California and/or any other applicable federal law without regard to its choice of law or conflicts of law principles.
- Intimation of changes to the Agreement: Innowi reserves the right to determine the form, means, and forum of providing notifications to you and you agree to receive legal notices, if any, electronically, subject to Innowi’s sole discretion. This Agreement may be revised from time to time and the most current version shall be uploaded to the ChecOut website. You will be notified if any change, revision, or alteration is made. By continuing to use Innowi’s Services after revisions become effective, you agree to be bound by the new terms. If you do not agree to the new terms, please stop using ChecOut.
- Entire Agreement and Severability
- This Agreement and any rights or licenses granted hereunder may not be transferred or assigned by you to any third-party. Any such transfer shall be deemed null and void.
- No Waiver
- A waiver of any of the terms of this Agreement shall not be deemed a continuing waiver of such term. ChecOut’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.