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 this Agreement, 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
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.
means Our privacy notice available
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 Chargebee 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, text, messages or other materials,
including Registration Data, Cardholder Data and Personal Data of End-Customers and
Users, submitted to the Services through an Account in connection with Your use of the
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
3.1Account Activities. You are solely
- 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
- 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.
5Sub-Processors, Other Services and
We may engage
certain third parties to assist in the provision of Services (each a
”), 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
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
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
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 a Subscription, either Party may terminate the
Subscription ninety (90) days prior to the expiry of the subsisting Term by
written notice to the other Party. 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 termination will not have any effect on the subsisting
Term and 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
- 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. Usage Based Billing (UBB). This clause and its subclauses apply
only if You sign up for a Usage Based Billing Plan as part of Your Subscription
and shall not apply to any other Plan or Services.
- 126.96.36.199. Unless otherwise contained in a Pricing Agreement, Usage Based Billing Plans are month-to-month and either Party may terminate Your Subscription of the Usage Based Billing Plan of the Services by providing written notice to the other Party. The termination shall be effective upon the expiration of the subsequent billing period. For example, if notice of termination is provided in the third billing period (Month 3), the termination shall be effective at the end of the fourth billing period (Month 4). 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 Usage Based Billing Plan.
- 188.8.131.52. Your use of Usage Based Billing Plans will be billed as a monthly flat fee and a fee based on Your use of the Services under the Usage Based Billing Plan. The monthly flat fee will be invoiced at the start of the relevant monthly subscription period while the usage fee will be billed in arrears. All invoices are due upon receipt.
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
- 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 prohibited by law, We reserve the right to destroy all
Service Data in Our possession in the normal course of Our operations. Notwithstanding the Data Retention Period,
upon Your written request following the expiration or termination of a
Subscription, We will destroy all Service Data in Our possession. 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
- 7.2.4. Subscription Fees.
- 184.108.40.206. 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.
- 220.127.116.11. Where You terminate a Subscription in accordance with
Section 7.1.3 of this Agreement, 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
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
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, provided that the receiving Party
notifies the disclosing Party of such compelled disclosure promptly and in writing (to
the extent legally permitted) and cooperates with the disclosing Party, at the
disclosing Party’s reasonable request and expense, in any lawful action to contest or
limit the scope of such required disclosure.
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 Personal Data in accordance with 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. 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 this Agreement, 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, 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 about the processing, and, where required, obtain necessary
consent or authorization for any Personal Data that is collected as part of the
Service Data through Your use of the Services. We do not own, control or direct
the use of Service Data and only accesses such information as reasonably
necessary to provide the Services (including to respond to support requests), as
otherwise authorized by You or as required by law. 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
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 this Agreement, 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.
- Export Controls and Sanctions Compliance.
You acknowledge that the Services (including the software and other components)
may be controlled by the laws of one or more countries governing technology use
and transfer, including U.S. Export Administration Regulations, and agree that
any use or transfer contrary to such laws is prohibited. You are not, and is not
acting on behalf of, (i) any person or entity who is a citizen, national or
resident of, or who is controlled by the government of, any country to which the
United States or any European government has prohibited transactions, or (ii)
any person or entity listed on any denied persons or entities list maintained by
the United States or any European governments, including the U.S. Treasury
Department list of Specially Designated Nationals and Blocked Persons and the
U.S. Commerce Department Denied Persons List or Entity List. You and Your Users
agree not to access, use or transfer the Services, including any technology or
data, in violation of such laws and regulations.
- U.S. Government End 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
this Agreement. All unpublished rights are reserved under the copyright laws of
the United States. The contractor/manufacturer is CHARGEBEE INC.,
340 S. Lemon Avenue, Suite #1537, Walnut, California 91789, United States.
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.
14.9Force 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.
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., 340 S. Lemon Avenue, Suite #1537, Walnut, California 91789, United States with a CC to
. 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