These terms of service and the Privacy Notice(s) below (together, these “Terms”) form a contract between You and CHARGEBEE INC. (referred to as “Us”, “We”, “Our”) and govern Your right to access the Websites and the use of and access to the Services by You, Your Affiliates, Users and End-Customers as part of a Subscription during the Term. By accessing or using the Services or Websites or authorizing or permitting any User or End-Customer to access or use the Services or Websites, You are agreeing to be bound by these Terms. In the event of a conflict between these terms of service and Our Privacy Notice, these terms of service shall prevail. If You are using Our Services for an organization, You are agreeing to these Terms on behalf of that organization and in these Terms, “You” or “Your” refers to that organization. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and should not access or use the Services and/or Websites.
In these Terms, You and We are individually referred to as a “Party” and collectively as “Parties”. You, as an individual, must be eighteen (18) years or older to access the Websites and register for and use the Services.
When used in these Terms with the initial letters capitalized, in addition to the terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of You for access and use of the Services. You may have multiple Subscriptions which may be subject to separate and distinct Plans. For the avoidance of doubt, reference to an Account herein refers to (i) Your trial account where a live account has not been activated; or (ii) Your trial account and live account where the live account has been activated.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Applicable Data Protection Law: means all laws and regulations applicable to the processing of Personal Data under these Terms, including laws and regulations of the United States, European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including, the California Consumer Privacy Act (“CCPA”), the GDPR and any applicable national laws made under it where You are established in the European Economic Area; and the Swiss Federal Act on Data Protection (as may be amended or superseded) You are established in Switzerland.
Confidential Information: means all information disclosed by one Party to the other Party which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information may also include information disclosed to a disclosing Party by third parties. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (b) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (c) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files and records prior to the time of disclosure; (d) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving Party without the use of or reference to the Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession.
“controller”, “processor”, “processing” or similar terms shall have the meanings given under Applicable Data Protection Law
Data Processing Addendum: means the data processing addendum available here as updated periodically and which is incorporated into these Terms by reference; or a separate addendum that the Parties have executed in this regard, as the case may be, pursuant to which We shall Process Personal Data forming part of Your Service Data.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services provided or made available by Us to You or Users through the Services or otherwise.
End-Customer: means Your customers and/or any person or entity other than You or Users with whom You interact using the Services.
Group Companies: means CHARGEBEE INC. and its Affiliates.
Personal Data: means any information relating to an identified or identifiable natural person from the data which is submitted by You in respect of the provision and use of the Services, or as defined under Applicable Data Protection Law.
Pricing Agreement: means a pricing agreement or an order form referencing these Terms and executed or approved by You and Us with respect to Your Subscription, which agreement may detail, among other things, the Plan applicable to a Subscription, the associated Subscription Fees and other details of the Subscription.
Privacy Notice: means Our privacy notice available here as updated periodically and which is incorporated into these Terms by reference.
Plan: means the pricing plan that You choose in connection with a Subscription for the associated functionality and services.
Remaining Subscription Fees: means an amount equal to the number of whole months remaining in the Term at the time of termination multiplied by the highest Subscription Fees for the Services earned by Us in a calendar month during the Term.
Services: means Our cloud-based billing platform and related products and services that You subscribe to, and/or any new services or features that We may introduce as a Service to which You may subscribe to, and any updates to the Services, including individually and collectively, any software, APIs and Documentation.
Service Data: means all electronic data, information, text, messages or other materials, including Personal Data of End-Customers and Users, submitted to the Services through an Account in connection with Your access and use of the Services.
Subscription: means Your subscription to the Services through a Plan of Your choice for Your access and use of an Account. You may have multiple Subscriptions for the various Services offered by Us which may be subject to separate and distinct Plans.
Subscription Fee: means the fee payable by You to Us for access to the Services under these Terms and any relevant Pricing Agreement(s).
User: means those individuals You authorize as users within an Account to use the Services by way of designated login credentials.
Websites: means the websites that We operate.
2Right to Use the Services
2.1 Applicability. These Terms govern Your right to access and use the Services as part of a Subscription during the Term.
2.2 Right to use the Services. Subject to Your (including Your Users’ and End-Customers’) compliance with these Terms and solely during the Term, We grant You a limited, non-exclusive, non-transferable, non-assignable (except to the extent expressly permitted by Section 14.4 (Assignment)), worldwide (subject to applicable law) and revocable right to access and use the Services that You have subscribed to for Your own internal business purposes. You may use the Documentation solely in connection with Your use of the Services. Your Affiliates may be added as Users under Your Account.
2.3 Pre-Release Offerings. We may make pre-released features and functionalities available to You from time to time (“Pre-Release Offerings”). Such Pre-Release Offerings may be referred to as an EAP, beta, non-GA offering, or otherwise. You may choose to sign up for Pre-Release Offerings at Your sole discretion. All restrictions and Your commitments under these Terms shall apply to Your access and use of Pre-Release Offerings. We may disable, modify or discontinue Pre-Release Offerings at any time in Our sole discretion without notice to You. By using the Pre-Release Offerings, You acknowledge and agree that: (i) the Pre-Release Offerings shall be used only for evaluation and testing purposes; (ii) We provide the Pre-Release Offerings on an “AS IS” and “AS AVAILABLE” basis, without any warranties; (iii) We shall not be liable for any liability arising from or relating to the Pre-Release Offerings, including Your use or inability to use such Pre-Release Offerings; (iv) any feedback provided on the Pre-Release Offerings is Our property to use without obligation to You or any other third party; and (v) any and all information pertaining to the Pre-Release Offerings shall be deemed to be Our Confidential Information.
3.1Account Activities. You are solely responsible for
- 3.1.1. Your (including Your Users’ and End-Customers’) access and use of the Services in compliance with these Terms;
- 3.1.2. providing Us with and keeping current complete and accurate registration and Account information;
- 3.1.3. maintaining the confidentiality of unique login information, credentials and passwords associated with Your Account, and the privacy and security of Your Account;
- 3.1.4. all activities that occur within Your Account and notifying Us immediately of any unauthorized access or use of Your Account, log-in information, credentials or passwords, or any unauthorized activity in Your Account;
- 3.1.5. ensuring that Your use of the Services to store, process and transmit Service Data is compliant with applicable laws and regulations, including Applicable Data Protection Laws;
- 3.1.6. immediately ceasing use of the Services for a prohibited activity or purpose if We inform You that a specified activity or purpose is prohibited with respect to the Services;
- 3.1.7. the accuracy, quality and legality of Service Data, the means by which You acquired Service Data and Your use of Service Data with the Services or Other Services; and
- 3.1.8. determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes.
3.2 Your Conduct while using the Services. You agree, on behalf of Yourself and Your Users, not to (i) use the Services or permit the Services to be used to perform any billing, processing of data, or any related services for any third party, or otherwise license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than Users and End-Customers in furtherance of Your internal business purposes as expressly permitted by these Terms; (ii) use or permit the use of the Services or any software, hardware, application or process in a manner that interferes, disrupts, or otherwise breaches the security, integrity, policies or procedures of the Services, or any servers, systems or networks connected to the Services, or harasses or interferes with Our other customers’ use and enjoyment of the Services; (iii) or attempt to decipher, decompile, reverse engineer, disassemble, reproduce, copy or otherwise access or discover or attempt to derive the source code or underlying program of any software making up the Services or gain unauthorized access to the Services or Our other customers’ accounts, servers, systems or networks; (iv) falsely imply any sponsorship or association with Us; (v) remove, modify, infringe upon, or misuse any trademarks, trade names, service marks, service names, logos or brands, copyright or other proprietary notices on the Services or the Documentation, or add any other markings or notices to the Services or the Documentation; (vi) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, discriminatory or promotes any financial exploitation or a criminal activity; (vii) modify, port, adapt, translate or create any derivative work based upon the Services or the Documentation or use the Services to evaluate its functionality or performance for competitive purposes, including for developing any similar application, product or service; (viii) use the Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103 unless expressly agreed to otherwise in writing by Us; (ix) use the Services to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, worms or cancelbots or any other similar harmful software (“Malicious Software”); (x) use the Services for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, pyramid schemes, or sending electronic communications (including unsolicited e-mails) in violation of applicable law; (xi) use or attempt to use the Services in violation of applicable laws and regulations, including PCI DSS, or in violation of third party rights, these Terms, the Documentation or API policies; or (xii) access or use the Services if You are a competitor of the Group Companies.
4Intellectual Property Rights
4.1 All right, title and interest in and to all of Our patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and other intellectual property and/or proprietary rights in or related to the Services, including the Websites and Documentation, and any part of it (collectively, “Our Intellectual Property Rights”), are owned or licensed by and shall remain exclusively with Us and/or the Sub-Processors. Subject to the limited rights expressly granted by Us to You in Section 2 (Right to Use the Services) of these Terms, You do not have any right, title to or interest in Our Intellectual Property Rights. You hereby grant Us (i) a limited license to process and disclose Service Data for the purposes of and as permitted under these Terms; (ii) a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to request and incorporate any feedback, suggestions, recommendations, enhancement requests about the Services that You may provide Us; and (iii) a fully paid-up, royalty-free, worldwide, transferable license to use Your name and logo to identify You as Our customer on the Websites or in other sales or marketing materials, provided that We will not issue any press release without Your prior consent.
4.2 If We reasonably believe that Your use of the Services is likely to be enjoined, or if the Services are held to infringe a valid United States patent, copyright or trademark and all use of such Services by You is thereby enjoined, We shall, at Our expense and sole option, (i) procure for You the right to continue using the Services as set forth hereunder, (ii) replace the Services with other non-infringing services or software of substantially equivalent functionality or (iii) modify the Services so that there is no infringement, provided that such modified services or software provides substantially equivalent functionality. If, in Our reasonable opinion, the remedies above are infeasible or commercially impracticable, We may terminate these Terms upon written notice to You. This Section 4.2 sets forth Your sole and exclusive remedy and Our sole, exclusive and entire obligation and liability with respect to Our Intellectual Property Rights.
5Sub-Processors, Other Services and Third-party Content
5.1Sub-Processors. We may engage certain third parties to assist in the provision of Services (each a “Sub-Processor”), whose products or services form an integral part of the Services that We provide. The products and services provided by the Sub-Processors do not include any of the Other Services (as defined below). Where You use an iPaaS platform that We have made available to You, You shall be additionally bound by the iPaaS Platform Supplemental terms available at here.
5.2Other Services and Third Party Content. You may at Your discretion, (a) integrate with the Services, certain third-party products and services (“Other Services”); or (b) use links in the Services to third-party websites, resources or content (“Third-Party Content”), whereby each of such service or content is governed by the respective third party’s terms and privacy policies. You understand that We do not warrant, endorse or assume any liability or responsibility with respect to Other Services or Third-Party Content, including Your enablement or use thereof, any sums due or transactions thereunder, or provision of any support. You agree to address any comments, queries, complaints or feedback about such Other Services and Third Party content with the respective third party provider of the Other Services or Third Party Content. By enabling the Other Services, You understand that data may flow between the Services and the Other Services.
6Billing and Payments
6.1Subscription Fees, Payment, Taxes, and Refunds. You shall be charged the Subscription Fee based on the Plan You choose for the Services. Unless otherwise specified in these Terms or in a Pricing Agreement, the Subscription Fees are (i) payable and due in full immediately upon each due date with respect to a Subscription until Your Subscription is terminated in accordance with these Terms; (ii) non-refundable; and (iii) exclusive of any taxes, levies, duties, fees or other amounts assessed or imposed by any government authority (“Taxes”), for which You are solely responsible. You authorize Us and/or Our authorized agents, as applicable, to bill and automatically charge You the Subscription Fee, including for any Renewal Subscription Term (as defined below). You must notify Us of any change in Your payment account information, either by updating Your Account or via e-mail to firstname.lastname@example.org.
6.2Delayed Payments/Non-payment of Subscription Fees. Where We do not receive payment towards the Subscription Fees within the due date for a Subscription, You shall be notified of such non-payment. We must receive payments within a maximum of thirty (30) days from the date of Our notice to You, failing which, in addition to Our right to other remedies available under law, We may (i) charge an interest for late payment at 1.5% per month on the outstanding balance; (ii) suspend Your access to and use of the Services until We receive Your payment towards the outstanding Subscription Fees; and/or (iii) terminate the Subscription in accordance with these Terms. In the event You in good faith dispute any charges invoiced by Us, You shall promptly pay all undisputed charges within the due date, and shall notify Us in writing of any such disputed amounts within thirty (30) days of the due date, identifying in reasonable detail Your reasons for the dispute and the nature and amount of the dispute. All amounts not timely and appropriately disputed by the due date shall be deemed final and not subject to further dispute.
6.3Upgrades. You may upgrade between the Plans during the Term, but not downgrade. When You upgrade, the new Subscription Fees become immediately applicable. Upon upgrade, the new Subscription Fees for the subsisting month would be charged on a prorated basis and shall be payable in accordance with Section 6.1. Subsequent months will be charged in full according to the new Subscription Fees and any credits will be adjusted appropriately..
7Term, Termination and Suspension
7.1Term and Termination.
- 7.1.1. Unless otherwise contained in a Pricing Agreement or Plan, a Subscription is valid for a period of twelve (12) months from the ‘Subscription Start Date’ set forth in a Pricing Agreement (“Initial Subscription Term”) and shall renew automatically for the same period (“Renewal Subscription Term”) unless terminated earlier by either Party in accordance with these Terms. For the purposes of these Terms, “Term” shall mean the Initial Subscription Term and any Renewal Subscription Term(s).
- 7.1.2. Unless otherwise contained in a Pricing Agreement or Plan, to discontinue renewal of or otherwise modify a Subscription, either Party must notify the other Party in writing ninety (90) days prior to the expiration of the subsisting Term. You may terminate a Subscription at any time after the Initial Subscription Term by raising a request for cancellation of Your Subscription within Your Account and ceasing all use of the Services. For avoidance of doubt, such discontinuation or modification will not have any effect on the subsisting Term and the associated payment obligations.
- 7.1.3. Either Party may terminate the relevant Subscription(s) or these Terms for the other Party’s material breach of these Terms where such material breach has not been cured within thirty (30) days of notice by the aggrieved Party to the defaulting Party. Where the aggrieved Party reasonably believes a material breach cannot be cured, these Terms may be terminated with immediate effect.
- 7.1.4. Notwithstanding anything contained herein, either Party may terminate these Terms without notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies which are dismissed within sixty (60) days), or has a receiver or trustee appointed for substantially all of its property.
- 7.1.5. In the event of Your actual or threatened breach of these Terms, including any suspected unauthorized activity on Your Account or non-payment of Subscription Fees, We have the right to suspend all or part of Your Subscription(s). You agree to cooperate with Us in any investigation into any unauthorized activity and where Your breach remains uncured for fifteen (15) days following written notice, We reserve the right to terminate the Subscription and/or these Terms with immediate effect.
- 7.1.6. Starter Plan. This clause and its subclauses apply only if You sign up for a Starter Plan as part of Your Subscription and shall not apply to any other Plan or Services.
- 18.104.22.168. Unless otherwise contained in a Pricing Agreement, the Term for a Starter Plan is month-to-month and Starter Plans will be billed on a monthly basis in arrears. The fee You are charged for Your Starter Plan is based on Your use of the Services during the previous billing term. All invoices are due upon receipt.
- 22.214.171.124. Either Party may terminate Your Subscription of the Starter Plan at any time. You may terminate Your Subscription by raising a request for cancellation of Your Subscription within Your Account. The termination shall be effective upon the expiration of the subsequent billing term. For example, if notice of termination is provided in the third billing term (Month 3), the termination shall be effective at the end of the fourth billing term (Month 4). Upon the effective date of termination, Your access to the Chargebee Services under the Starter Plan shall be revoked. This termination right shall not be applicable for and will not affect Your Subscription(s) to any other Service(s). You will not be entitled to a refund for subscription, platform, usage, or any other fees paid by You to Us under the Starter Plan.
7.2Effects of Termination of a Subscription.
- 7.2.1. Upon any termination of a Subscription, all rights granted to You hereunder will immediately cease. We shall not be liable to You or any other third party for suspension or termination of Your Subscription if done in accordance with these Terms.
- 7.2.2. Unless otherwise agreed between the Parties, termination of these Terms shall mean automatic termination of all Subscriptions associated with these Terms. These Terms shall automatically terminate when all associated Subscriptions expire or are terminated and Your payment obligations thereunder are fulfilled.
- 7.2.3. Data Export Following termination or expiration of a Subscription, We will retain that Account’s Service Data for one hundred twenty (120) days from such date of termination or expiration (“Data Retention Period”). Upon the expiration of the Data Retention Period, We will no longer have an obligation to maintain or provide You, Users and End-Customers access to Service Data. Thereafter, unless required for compliance with applicable laws and regulations, or as necessary to protect, defend or establish Our rights, or defend against potential claims, We reserve the right to destroy all Service Data in Our possession; provided, however, that We may retain Service Data to the extent required for compliance with applicable laws and regulations, or as necessary to protect, defend or establish Our rights, or defend against potential claim. You agree that You are solely responsible for exporting Service Data prior to termination of a Subscription, and if You require Our assistance for exporting Service Data during the Data Retention Period, You may be required to pay a reasonable fee to Us.
- 7.2.4. Subscription Fees.
- 126.96.36.199. Unless waived by Us in writing or where the total Subscription Fees has already been prepaid, if a Subscription is terminated by Us in accordance with Section 7.1.3 or Section 7.1.5 of these Terms, in addition to other amounts You may owe Us, You must immediately pay the Remaining Subscription Fees.
- 188.8.131.52. Where You terminate a Subscription in accordance with Section 7.1.3 of these Terms, You are not required to pay the Remaining Subscription Fees or where You have prepaid the total Subscription Fees, You may be eligible for a refund of the unused Subscription Fees for Services not rendered from the date of such termination.
8.1Each of the Parties will protect the other’s Confidential Information from unauthorized access, use or disclosure in the same manner as each of the Parties protects its own confidential information, and in any event, no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms and shall disclose such Confidential Information solely to those of its respective Affiliates, employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. For purposes of these Terms, Your Confidential Information includes Service Data, and Our Confidential Information includes the Services, Documentation, and the contents of these Terms and Pricing Agreement(s).
8.2The receiving Party may disclose Confidential Information of the disclosing Party to the extent compelled by law or a court or other judicial or administrative body. The receiving Party shall make reasonable efforts to notify the disclosing Party of such compelled disclosure in writing (to the extent legally permitted). The receiving Party will take reasonable measures to protect the Confidential Information from undue disclosure as if it were the Party’s own confidential information being requested.
8.3Subject to the terms of these Terms, the receiving Party will return to the disclosing Party all Confidential Information of the disclosing Party in the receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon termination of the relevant Subscription(s) and/or these Terms. At the disclosing Party’s request, the receiving Party will certify in writing that it has fully complied with its obligations under this Section 8 (Confidentiality).
8.4 All confidentiality obligations shall remain in force and effect for the Term plus one (1) year. The provisions of this Section 8 (Confidentiality) shall supersede any non-disclosure agreement between the Parties entered prior to these Terms that would purport to address the confidentiality of Confidential Information and such agreement shall have no further force or effect with respect to Confidential Information.
9Data Security and Privacy
9.1Security of Service Data. We use appropriate technical and organizational measures to protect the Service Data. The measures used are designed to provide a level of security appropriate to the risk of processing of the Service Data.
9.2PCI DSS. We maintain Payment Card Industry Data Security Standard (“PCI DSS”) compliance as evidenced by Our current Certificate of Compliance at https://www.chargebee.com/security/pci/. You agree to comply and continue to comply with PCI DSS to the extent applicable and all applicable laws regarding such activities, and to certify such compliance upon Our request. You agree that You will use only PCI compliant service providers in connection with the storage, processing and/or transmission of cardholder data. We are not a payment gateway, payment processor, or merchant account provider and We do not assume any direct or indirect liability or responsibility for Your agreements with payment gateways, processors, or merchant account providers.
- 9.3.1. You understand that the Group Companies and Sub-Processors shall process Service Data (a) in accordance with these terms, Applicable Data Protection Laws, the Privacy Notice (to the extent applicable), the Data Processing Addendum and any other agreement or addendum executed by the Parties relating thereto; (b) as otherwise authorized by You; and (c) as required for compliance with applicable law. You acknowledge and agree that the Group Companies and Sub-Processors may also process information about You, Your Subscription and Account, Users and End-Customers, including Service Data, to (i) provide the Services and perform its obligations under these Terms, including, without limitation, to respond to Your support requests; (ii) demonstrate new features, products, and services (iii) comply with the law or respond to lawful requests or legal process; (iv) professionals and advisors in order to protect the Group Companies’ or Your customers’ or partners’ rights or property; and (v) act on a good faith belief that such disclosure is necessary to protect the personal safety or avoid violation of applicable law or regulation.
- 9.3.2. You represent and warrant that You have the necessary consents, permissions, authorizations and right to allow Us to process and transfer Service Data in accordance with these Terms, the Privacy Notice (to the extent applicable), the Data Processing Addendum and any other agreement or addendum executed by the Parties, including processing and transfer of Service Data in and to United States and other countries which may have different privacy laws from Your country of residence or establishment. You understand that it shall be Your responsibility to inform the Users and End-Customers (including on Our behalf, as applicable) about the processing of their Personal Data in accordance with these Terms, the Privacy Notice (to the extent applicable), the Data Processing Addendum and any other agreement or addendum executed by the Parties, and, where required, obtain necessary consent or authorization for Your or Our use of any Personal Data that You provide Us or is collected as part of Your use of the Services. Unless We explicitly agree otherwise in writing, You shall not provide Sensitive Data at any time to the Services and We will have no liability whatsoever for and in connection with the Sensitive Data. For purposes of these Terms, “Sensitive Data” means (i) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (ii) employment, financial, genetic, biometric or health information, (iii) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation, (iv) account passwords, (v) date of birth, (vi) criminal history, (vii) mother’s maiden name or (viii) any other information or combinations of information that is deemed sensitive under the legal framework of any applicable jurisdiction.
10Other Data Services
10.1Data Migration. You may, at any time during the Term, request that We import data into Your Account (“Data Migration”). You hereby understand and acknowledge that the Group Companies may access and process Your data in connection with providing support during such Data Migration.
10.2Aggregated Analytical Data. The Group Companies and the service providers they use may aggregate and analyze technical and other data regarding Your use of the Services that is non-personally identifiable with respect to You, Users and End-Customers (“Aggregated Analytical Data”). We will not identify You, Users or End-Customers as the source of any Aggregated Analytical Data. The Group Companies and the service providers they use shall process and enrich the Aggregated Analytical Data in its systems to (i) provide, support, improve, enhance and operate the Services and its availability; (ii) develop new features, products and services; (iii) compile statistical reports and record insights into usage patterns; and (iv) perform its obligations under these Terms.
11Disclaimer of Warranties
WE WARRANT THAT THE SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION PROVIDED TO YOU. SAVE THE FOREGOING WARRANTY, THE SERVICES AND ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE, ON BEHALF OF OURSELVES, THE OTHER GROUP COMPANIES AND THE SUB-PROCESSORS, DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
YOU ACKNOWLEDGE THAT WE, ON OF BEHALF OURSELVES, THE OTHER GROUP COMPANIES AND THE SUB-PROCESSORS, DO NOT WARRANT THAT ACCESS TO THE SERVICES WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE ERROR-FREE, UNINTERRUPTED, TIMELY, SECURE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, WILL MEET YOUR QUALITY AND PERFORMANCE REQUIREMENTS, OR WILL BE CORRECTED FOR ANY DEFECTS WITHIN A STIPULATED PERIOD PURSUANT TO ANY SERVICE LEVEL AGREEMENT. WE DO NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ‘OTHER SERVICES’ (INCLUDING ANY PAYMENT GATEWAY SERVICE PROVIDER) OR ‘THIRD-PARTY CONTENT’. NOTWITHSTANDING ANY SECURITY OR OTHER MEASURE THAT MAY BE PROVIDED BY US, YOU ASSUME THE ENTIRE RISK OF AND SHALL NOT HOLD US RESPONSIBLE FOR ANY ALTERATION, COMPROMISE, CORRUPTION OR LOSS OF SERVICE DATA, EXCEPT TO THE EXTENT CAUSED BY OUR WILLFUL BREACH OF THESE TERMS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE (I) ARE NOT A BANK OR OTHER CHARTERED DEPOSITORY INSTITUTION; (II) WILL NOT HOLD ANY SUM OF AMOUNT FOR YOU AND/OR END-CUSTOMERS; AND (III) DO NOT PROVIDE, AND ARE NOT RESPONSIBLE FOR, ANY LEGAL OR ACCOUNTING ADVICE AS WE ARE NOT A LAW FIRM OR AN ACCOUNTING FIRM. ACCORDINGLY, YOU AGREE THAT WE WILL NOT BE RESPONSIBLE FOR YOUR COMPLIANCE WITH ANY APPLICABLE LAWS OR ANY AMOUNTS RELATED TO ANY CREDIT CARD OR PAYMENT TRANSACTIONS.
12Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, ITS RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS OR SERVICE PROVIDERS (AND, WITH RESPECT TO CHARGEBEE, THE SUB-PROCESSORS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, COVER, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH PARTY, ITS RESPECTIVE AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS (AND, WITH RESPECT TO CHARGEBEE, THE SUB-PROCESSORS) RELATING TO THE SERVICES, USE THEREOF AND THESE TERMS SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE SUBSCRIPTION FEES PAID OR PAYABLE BY YOU IN THE SIX (6) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, IN CONNECTION WITH THE SUBSCRIPTION TO WHICH THE CLAIM RELATES. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS TO US FOR THE SERVICES. NO CLAIM MAY BE PURSUED BY YOU MORE THAN ONE (1) YEAR AFTER THE FACTS GIVING RISE TO SUCH CLAIM HAVE ARISEN.
IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THIS LIABILITY LIMITATION FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS DO NOT FULLY COMPENSATE YOU FOR ANY LOSS OR ARE FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
13.1Sections 3 (Your Responsibilities), 4 (Intellectual Property Rights), 6 (Billing and Payments), 7 (Term, Termination and Suspension), 8 (Confidentiality), 9 (Data Security and Privacy), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Survival), and 14 (Miscellaneous) of these Terms and such other provisions that by their nature are intended to survive termination, shall survive any expiration or termination of these Terms. Expiration and/or termination of these Terms shall not limit either Party’s liability for obligations accrued as of or prior to such expiration or termination, as applicable or for any breach of these Terms.
14.1Parties. The Parties are independent contractors. Nothing in these Terms shall be deemed to constitute a partnership, joint venture, employment or franchise between the Parties, nor constitute any Party as the agent of the other Party for any purpose or entitle any Party to commit or bind the other Party in any manner.
14.2Entire Agreement and Revisions. These Terms, including any exhibits and Pricing Agreement(s), constitute the entire agreement, and supersede all prior or contemporaneous, written or oral understandings, communications or agreements between the Parties regarding such subject matter, including any click-wrap terms. Any use of Your pre-printed forms, such as purchase orders, are for convenience only, and any pre-printed terms and conditions set forth in Your printed forms that are in addition to, inconsistent or in conflict with, or different than these Terms shall be null and void. Neither commencement of performance, nor failure to object to any additional or different terms and conditions from You, nor provision of Services, by, in each case, Us or the other Group Companies shall constitute an acceptance of any terms and conditions proposed by You that are in addition to, inconsistent or in conflict with, or different than these Terms. In the event of a conflict between any Pricing Agreement and these Terms, the Pricing Agreement shall prevail to the extent it is intended to. We may amend these Terms from time to time by posting the most current version on Our Website, in which case the new Terms will supersede prior versions. Please check these Terms periodically to take notice of changes as they will be binding on You. If an amendment materially affects Your rights, We will notify You (by, for example, sending a message to the e-mail address associated with Your Account, or posting on Our blog or on the Website or as a notification inside the Services). Your continued use of the Services following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment. If You do not agree to an amendment, You may terminate Your use of the Services or request Us to terminate the provision of Our Services to You.
14.3Severability and Waiver. In the event any provision of these Terms is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of these Terms will remain in full force and effect. Any waiver (express or implied) by any Party of any right under these Terms shall not constitute a waiver of any other or subsequent default or breach.
14.4Assignment. We may assign or transfer all or any part of these Terms or Our rights under these Terms or delegate the performance of Our duties under these Terms in whole or in part to any of the other Group Companies, or in connection with any acquisition, consolidation, merger, reorganization, transfer all or substantially all of Our assets or other business combination, or by operation of law without Your consent and without providing notice. We may subcontract Our obligations hereunder, provided that We shall at all times remain responsible for the performance of the subcontractor. You may not assign or transfer these Terms without Our prior written consent. Notwithstanding the foregoing, You may assign or transfer these Terms, in whole, in connection with any acquisition, consolidation, merger, reorganization, transfer all or substantially all of Your assets or other business combination, or by operation of law without Our written consent, provided that such assignment or transfer is not in favor of a competitor of Ours. You agree to provide Us notice of such assignment or transfer no later than its effectiveness and to not default in any of Your payment obligations under these Terms. Subject to the foregoing, these Terms will bind and benefit the Parties and their respective successors and permitted assigns.
14.5Third Party Beneficiaries. Except as expressly provided in these Terms, nothing in these Terms, express or implied, is intended to confer upon any party (other than the Parties hereto, their respective successors and permitted assigns and the Sub-Processors) any rights or obligations, to enforce these Terms.
14.6Governing Law. These Terms shall be governed by the laws of the State of Delaware, United States. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of Sussex County, Delaware, for the purpose of resolving any dispute relating to these Terms or Your access to or use of the Services. These Terms shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which are expressly excluded.
14.7Arbitration. In the event of a dispute, claim or controversy arising out of or relating to these Terms (a “Dispute”), each Party will provide the other Party with written notice of the Dispute as soon as practicable, and the Parties agree to exercise commercially reasonable efforts to resolve the Dispute amicably through their designated officers. A Dispute that cannot be resolved within thirty (30) days following the initiation of discussions contemplated by the prior sentence will, upon written demand of either Party, be resolved exclusively by final and binding arbitration. The Dispute shall be settled by arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the Arbitrator(s) shall be binding, conclusive and non-appealable and may be entered in any court having jurisdiction thereof. If any action is pursued to enforce or obtain compliance with these Terms, the prevailing Party shall be entitled to reasonable attorneys’ fees and costs, in addition to any other relief to which such Party may be entitled. THE PARTIES HEREBY WAIVE ANY RIGHTS THAT THEY MAY HAVE TO TRIAL BY JURY. YOU AGREE THAT ANY PROCEEDINGS, INCLUDING ANY ARBITRATION, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
14.8 Export Controls and Sanctions Compliance.
- 14.8.1 You acknowledge and understand that the provision, use of, and access to the Services (including the software and other components) is subject to U.S. export control and economic sanctions laws and regulations, including without limitation, the Export Administration Regulations (“EAR”) administered by the Bureau of Industry and Security (“BIS”) of the U.S. Department of Commerce and economic sanctions administered by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of Treasury or such sanctions imposed and implemented where the Services are being used and/or accessed or where You and/or User is located, a resident or a national (collectively, “Sanctions and Export Control Laws”). Sanctions and Export Control Laws prohibit the use of the Services by any party, directly or indirectly, located in a country subject to comprehensive U.S. sanctions, including without limitation, Iran, Syria, North Korea, Cuba and Crimea and the Donbass regions of Ukraine (collectively, “Sanctioned Jurisdictions”).
- 14.8.2 You agree and acknowledge that any use or transfer contrary to the Sanctions and Export Control Laws is prohibited. You shall not conduct business with any company, individual, organization or country that is subject to trade sanctions, embargoes, or other restrictions under Sanctions and Export Control Laws, nor any entity that is involved in an end use prohibited under U.S. law, including but not limited to, chemical or biological weapons proliferation or nuclear or missile technology proliferation. You understand and acknowledge that We may share Service Data with certain service providers in order to comply with Sanctions and Export Control Laws, including for the purposes of sanctions screening and geo-blocking. The Parties shall cooperate with each other to provide all necessary information needed to facilitate full compliance with all applicable laws and regulations.
- 14.8.3 Further, You acknowledge that it is responsible for ensuring that the Services are used, accessed, and disclosed in compliance with all Sanctions and Export Control Laws. You certify that You and Your beneficial owners, principals, employees, and agents are not, and will not be, acting on behalf of (i) any person or entity who is located in a Sanctioned Jurisdiction, or uses the Services in a Sanctioned Jurisdiction, or is a national of a Sanctioned Jurisdiction; or (ii) an individual or entity on the Consolidated List of Persons, Groups, and Entities Subject to the U.S. Department of the Treasury’s List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List, the U.S. Department of Commerce’s Denied Persons List or Entity List, or any other sanctions or restricted persons lists maintained by applicable Sanctions and Export Control Laws; or (iii) the target or subject of any Sanctions and Export Control Laws. You further certify that You will not, directly or indirectly, export, re-export, transfer, or otherwise make available (a) the Services, or (b) any data, information, software programs, and/or materials resulting from the Services (or direct product thereof) to any person described in (i) through (iii) or to a Sanctioned Jurisdiction or otherwise in violation of, or for any purpose prohibited by, Sanctions and Export Control Laws.
- 14.8.4 Notwithstanding anything contained in these Terms to the contrary, We, at Our sole discretion, may immediately terminate Your access and use of the Services without prior written notice or an opportunity to cure in the event of an actual or threatened breach of this Section 14.8.
- 14.8.5 U.S. Government Users. If You are the U.S. government (including any department or agency) or contracting on the U.S. government’s behalf, then the Services (including the software and other components) are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to these Terms. All unpublished rights are reserved under the copyright laws of the United States. The contractor/manufacturer is CHARGEBEE INC., 909 Rose Avenue, Suite 610, North Bethesda, MD 20852.
14.9Force Majeure and Other Events. We shall not be liable for inadequacy of or irregularity in the Services caused by (i) any circumstance beyond Our reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, technical failures (including failures in telecommunications, internet, internet service provider or hosting facilities, power shortages) or acts undertaken by third parties, including without limitation, denial of service attacks; (ii) sub optimal functionality, availability or downtime of Your payment gateway and/or ‘Other Services’; or (iii) Your, Users’ or End-Customers’ use of the Services in an unauthorized, improper or unlawful manner; or for any misuse or modification or damage of the Services caused by You, Users or End-Customers; or any breach of these Terms by You or Users (collectively, the “Force Majeure and Other Events”).
14.10Anti-Corruption. You agree that You have neither been offered nor received any illegal or improper bribe, payment, kickback, gift, or thing of value from any of Our employees or agents in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business in accordance with applicable policies and laws do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us.
14.11Notices. All notices under these Terms may be delivered in writing by an internationally recognized overnight courier or U.S. mail to the mailing address provided by such Party, or by electronic mail to the e-mail address provided by such Party. The contact information for a notice to Us by courier or US mail is CHARGEBEE INC., 909 Rose Avenue, Suite 610, North Bethesda, MD 20852 with a CC to email@example.com or firstname.lastname@example.org. Such written notice will be deemed given upon personal delivery or email, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid. Electronic mail or fax notices shall be deemed given the next business day following the date delivered.