Chargebee Payments

The following Terms of Use (“Terms”) are a legal agreement between you (“you” or “your”) and CHARGEBEE INC. and its affiliates and agents ("Chargebee", "we", “us” or “our”) and govern your access to and use of Chargebee Payments. By clicking on the “I AGREE” button or a similar affirmation, or by acknowledging acceptance of the Terms by any other method allowed by Chargebee, or by using or accessing Chargebee Payments through any means permissible including, without limitation via a computer or a mobile application, you acknowledge and agree that: (i) you have reviewed and understood the Terms; (ii) you agree to be legally bound by the Terms; and (iii) your use of Chargebee Payments will be governed by these Terms. If you do not agree or are not willing to be bound by the terms and conditions of these Terms, you should not click on the “I AGREE” button and should not seek to access or use Chargebee Payments.

By accessing and/or using Chargebee Payments, you agree to these Terms and any other policies or terms referenced within or posted throughout the Chargebee Payments platform, as well as any rules or terms applicable to particular features, which are hereby expressly incorporated into these Terms by reference. You also acknowledge that you have read and understood our Privacy Policy.

1. Your Chargebee Payments Account

• 1.1 Registration and Permitted Activities

  • 1.1.1. In order to use Chargebee Payments, you must apply by submitting an application as set forth in Section 1.1.2. below.

  • 1.1.2. To register for a Chargebee Payments Account, you or the person submitting the application on your behalf (your “Representative”) must, as part of the application, provide Chargebee with all the information required in such application, including your entity details, identification numbers and business activities, or such other information as reasonably requested by Chargebee. You shall ensure that all such information provided is accurate, complete and up-to-date. Until you have submitted, and we have reviewed and approved the applicable and required information, you will not have access to Chargebee Payments. You understand that Chargebee reserves the right to approve or reject any such application, at its sole discretion without any liability to you or a third party. Only businesses (including sole proprietors), bona fide charitable organizations, and other entities or persons located in the United States are eligible to apply for a Chargebee Payments Account.

• 1.2 Business Representative

  You and your Representative individually affirm to Chargebee that (i) your Representative is authorized to provide the information described in this Section 1.1 on your behalf and to bind you to these Terms and (ii) your Representative is an executive officer, senior manager or otherwise has significant responsibility for the control, management or direction of your business. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority. Without the express written consent of Chargebee, neither you nor your Representative may register or attempt to register for a Chargebee Payments Account on behalf of a user Chargebee previously terminated from use of Chargebee Payments. If you are a sole proprietor, you and your Representative also affirm that your Representative is personally responsible and liable for your use of Chargebee Payments and your obligations to End-Customers, including payment of any amounts owed under these Terms.

• 1.3 Validation

  At any time during your use of Chargebee Payments, we may require additional information from you to verify beneficial ownership or control of the business, validate information you provided, verify you or your Representative’s identity, and assess your financial condition and the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licenses, or other information related to your business, its beneficial owners or principals. We may also request that you provide copies of financial statements, reporting and validating documentation that allows us to calculate outstanding credit exposure/risk of loss (for example, your refund and shipping policies, data on captured but unfulfilled charges, the time between charge capture and fulfillment of your customer orders), or other records pertaining to your compliance with these Terms. Your failure to provide this information or material may result in suspension or termination of your Chargebee Payments Account.

• 1.4 Changes to Your Business, Keeping your Account Current

  • 1.4.1. You agree to keep the information in your Chargebee Payments Account current and we may suspend your Chargebee Payments Account or terminate these Terms if you fail to do so. On an on-going basis, you must promptly update your Chargebee Payments Account with any changes affecting you, the nature of your business activities, your Representatives, beneficial owners, principals, or any other pertinent information, including current addresses of each location and all “doing business as” (DBA) names used by you.

  • 1.4.2. You agree to provide Chargebee with fifteen (15) days’ prior written notice of your intent to change your business form or entity in any manner (e.g., a change from a limited liability company to a corporation), and/or of your intent to sell all of your stock or assets to another entity. Furthermore, you also agree to promptly notify us in writing no more than three (3) days after any of the following occur: you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action (any of the foregoing, a “Bankruptcy Proceeding”); there is an adverse change in your financial condition; there is a planned or anticipated liquidation or substantial change in the basic nature of your business; you transfer or sell 25% or more of your total assets, or there is any change in the control or ownership of your business or parent entity; or you receive a judgment, writ or warrant of attachment or execution, lien or levy against 25% or more of your total assets.

• 1.5 Operating Account

  • 1.5.1. You shall establish an Operating Account at a financial institution of your choice prior to using Chargebee Payments. You shall provide Chargebee with the name and address of the financial institution, routing number and account number of the Operating Account. You authorize Chargebee to debit fees, charges, and any amounts owed to Chargebee from the Operating Account either daily, monthly or at other times deemed appropriate by Chargebee.

  • 1.5.2. You shall maintain the Operating Account throughout the Term, including any extensions or renewals thereof. You shall, at all times, maintain sufficient funds in the Operating Account to ensure that all fees, charges, and costs provided for under these Terms are paid. You agree to deposit funds into the Operating Account as required in order to ensure that sufficient funds are maintained in the Operating Account at all times.

  • 1.5.3. You shall designate Representatives authorized to make changes to the Operating Account. If you request an Operating Account change, you must provide Chargebee at least fifteen (15) days prior written notice. You are responsible for providing Chargebee with accurate contact, payment, and account information for each Operating Account. Chargebee is not liable for any amounts directed to an account that has been designated as the Operating Account by any purported Representative of you. If required by Chargebee or any financial institution where the Operating Account is maintained, you agree to sign any documents required to authorize the deposits and withdrawals, including without limitation, Transactions.

2. Your Chargebee Payments Account

• 2.1 Chargebee Payments Platform

  Chargebee shall provide the Chargebee Payments platform at the rates set forth in the Fee Schedule and in all material respects in accordance with these Terms.

• 2.2 Customer Support

  During your use of Chargebee Payments, if you are current in payment of all fees owing to Chargebee and are otherwise not in default under these Terms, Chargebee shall provide you with customer support services.

3. Your Undertakings

• 3.1 End-Customer Relationship

  • 3.1.1. You may only use Chargebee Payments for legitimate Transactions with End-Customers. You know your customers better than we do, and you are responsible for your relationship with them. Chargebee is not responsible for the products or services you publicize or sell, or that End-Customers purchase in whole or in part through Chargebee Payments; or if you accept donations, for your communication to End-Customers of the intended use of such donations. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to End-Customers.

  • 3.1.2. Chargebee provides Chargebee Payments to you but we have no way of knowing if any particular purchase, sale, donation, order, or other Transaction is accurate or complete, or typical for your business. You are responsible for knowing whether a Transaction initiated by an End-Customer is erroneous (such as an End-Customer purchasing one item when they meant to order another) or suspicious (such as unusual or large purchases, or a request for delivery to a foreign country where this typically does not occur). If you are unsure if a Transaction is erroneous or suspicious, you agree to research the Transaction and, if necessary, contact the End-Customer before fulfilling or completing the Transaction. You are solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of Chargebee Payments.

  • 3.1.3. You shall respond promptly to inquiries from End-Customers and shall resolve any disputes amicably. Chargebee reserves the right to charge you reasonable fees and reimbursement, in addition to any applicable Payment Network fees or charges, on account of excessive End-Customer inquiries, refunds, or disputes. Chargebee shall not be liable for any disputes between you and any End-Customer. You agree to maintain the following information in writing with respect to each dispute and claim or defense asserted by an End-Customer for which you have received notice: (a) the End-Customer’s name; (b) a unique confirmation number, transaction sequence number, or other identifier that you can use to reference the transaction in subsequent communications with Chargebee; (c) the date and time the End-Customer asserted the claim or defense; (d) the nature of the claim or defense; and (e) the action that you took in an attempt to resolve the dispute. Upon request, you shall furnish Chargebee with this information in writing within ten (10) days.

• 3.2 Account Access

  Your Chargebee ID and password will enable you to access your Chargebee Payments Account. You will restrict access to such ID, password, and Account to your employees and agents as may be reasonably necessary and consistent with the purposes of these Terms. You will ensure that each such employee and agent accessing and using the Account is aware of and otherwise complies with all applicable provisions of these Terms regarding such access and use. You are solely responsible for maintaining adequate security and control of any and all IDs, passwords, or any other codes for purposes of accessing Chargebee Payments. Chargebee shall be entitled to rely on the information it receives from you and may assume that all such information was transmitted by you or on your behalf. You shall comply with all Chargebee recommendations and notices regarding the security of your ID, password and Account(s).

• 3.3. Compliance

  • 3.3.1. In connection with the exercise of your rights and obligations under these Terms (including, without limitation, any related to individual privacy), you will comply, at your own expense, with these Terms, all laws, policies, guidelines, regulations, ordinances, rules applicable to you and the End-Customer data or the orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof, including, without limitation, the Payment Network Rules and Payments Documentation. Chargebee reserves the right to amend, modify or change the Payments Documentation at any time. You shall not use Chargebee Payments in any manner, or in furtherance of any activity that may cause Chargebee to be subject to investigation, prosecution, or legal action.

  • 3.3.2. You agree to comply, and to cause third parties acting as your agent (“Agents”) to comply, with the Payment Network’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard (“PCI DSS”), the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Payment Networks or other payment networks (collectively "Operating Regulations"). You may review the VISA, MasterCard, and Discover websites for a copy of the Visa, MasterCard and Discover regulations. The websites are: http://usa.visa.com/merchants/ and http://www.mastercard.com/us/merchant/ and http://www.discovernetwork.com/merchants/ respectively. Without limiting the foregoing, you agree that you will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the laws, rules and regulations of US Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission and the Bank Secrecy Act. For purposes of this section, Agents include, but are not limited to, your software providers and/or equipment providers.

  • 3.3.3. You acknowledge that the third parties providing Payment Processing Services must maintain close controls over high-volume merchants and, therefore, you must immediately notify us if you have, or in your reasonable opinion will have greater than $1,000,000 in annual card sales volume processed through Chargebee Payments (based upon the date your Account is approved).

• 3.4. Use Restrictions

  You shall not (a) use the Chargebee Payments to create any service, software, documentation, or other material that performs substantially the same functionality as Chargebee Payments; (b) disassemble, decompile, reverse-engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying Chargebee Payments or any of its components; (c) impose (or permit any third party to impose) any lien, security, or other encumbrance upon Chargebee Payments; (d) adapt, combine, create derivative works of or otherwise modify Chargebee Payments; (e) disable, circumvent, or otherwise avoid or undermine any security device, mechanism, protocol, or procedure implemented in Chargebee Payments; (f) use or access Chargebee Payments for any unlawful, fraudulent, deceptive, malicious, or otherwise harmful or injurious purpose; (g) remove, obscure, deface, or alter any proprietary rights notices on any element of Chargebee Payments or the Payments Documentation; or (h) use Chargebee Payments in any manner which could damage, disable, overburden, or impair Chargebee Payments or interfere with any third party’s authorized use of Chargebee Payments. You will not utilize any software, hardware, or other tool to scan or monitor Chargebee Payments or Chargebee’s servers or network infrastructure for the purpose of measuring or analyzing uptime, operating systems, virtual environments, or other installed applications, including without limitation for stress testing, load testing, or performance benchmarking, provided that upon your written request Chargebee will provide a reasonable summary of the results of Chargebee’s own internal scale and stress testing of Chargebee Payments. Chargebee reserves the right to suspend performance of and/or your access to Chargebee Payments at any time: (a) immediately upon Chargebee’s determination of your actual or suspected breach of there Terms or violation of any applicable laws or Payment Network Rules; or (b) upon written notice to you if we reasonably determine that its continued provision of such access would be in violation of any applicable laws or Payment Network Rules or would otherwise expose either party to the risk of liability from a third-party claim brought in connection with such access. Such suspension, limitation, or termination shall be in addition and without prejudice to any remedy available to Chargebee at law or in equity in the event of your breach of these Terms.

• 3.5. Finix Services

  You are solely responsible for (a) complying with laws that apply to you or the data you submit to Chargebee Payments; (b) evaluating and ensuring that Finix Services fulfills any and all legal requirement, including any data protection laws, that apply to you or the data that you may submit to Finix Services; and (c) executing any documents or agreements with Finix as are necessary to fulfill any legal requirements.

4. Data Protection, Security and Privacy

• 4.1 Your Obligations & Responsibilities

  • 4.1.1. You shall comply with all Applicable Data Protection Laws and applicable laws, policies and regulations governing the security, privacy, collection, retention and use by you of End-Customer data, including, without limitation, financial information, card account numbers and all other personally identifiable End-Customer information. You agree to provide notice to End-Customers on your website that discloses how and why personal and financial information is collected and used, including uses governed by these Terms.

  • 4.1.2. You will comply with all then-current legal obligations and security measures, as applicable, including without limitation those issued by Payment Networks, associated with the collection, security, dissemination and destruction of End-Customer and Transaction data, and expressly including PCI DSS including timely completion of a PCI DSS Self-Assessment Questionnaire as required. You acknowledge that you are responsible for the security of End-Customer’s cardholder data while in your possession. You warrant that you have taken such precautions as are necessary to ensure that your server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that your system is breached and an unauthorized third party has access to or has accessed End-Customer data or Transaction data, you shall notify Chargebee promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future.

  • 4.1.3. You are solely responsible for the security of data residing on servers that you own or operate, or a third party designated by you (e.g., a Web hosting company, processor or other service provider). You agree that you will comply with all Chargebee security protocols and security advisories in effect while accessing Chargebee Payments. You are solely responsible for verifying the accuracy and completeness of all Transactions submitted, processed, and/or associated with your Chargebee Payments Account and verifying that all corresponding funds are accurately processed. You acknowledge that Chargebee shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to your Account, End-Customer or Transaction data. Chargebee’s liability for improperly processed or unauthorized Transactions solely attributable to the gross negligence of Chargebee is limited pursuant to Section 12.

  • 4.1.4. Separate from and in addition to any other representation or warranty herein contained, you represent and warrant that: (i) you possess all necessary rights, authorizations, licenses, and consents to provide Data to Chargebee (and for Chargebee to subsequently access and use such Data) as set forth herein, including without limitation such authorizations and consents required under applicable laws and regulations governing data privacy, information security, and consumer protection; and (ii) the Data does not infringe, misappropriate, or otherwise violate the personal or proprietary rights of any third party.

• 4.2 Chargebee’s Obligations and Responsibilities

  • 4.2.1. You acknowledge that Chargebee will collect, retain, and disclose information and Data collected from you and End-Customers whether received directly from you or through the Chargebee Payment platform in accordance with these Terms, the Payments Documentation and the Privacy Policy. You further acknowledge, agree, and consent to Chargebee’s right to receive, access, process, transmit, store, and create derivative works of any Data: (a) as reasonably required for Chargebee to perform its respective obligations hereunder, including the provision and management of Chargebee Payments which may include the creation of merchant accounts and processing payment transfers; (b) to monitor, mitigate and report fraud, financial loss, or other unlawful or suspicious activities; (c) to third parties assisting Chargebee in evaluating your eligibility for, provision of, administration and management of Chargebee Payments; (d) to third parties that assist Chargebee in providing products and services that you have requested; (e) as required to comply with court order, government investigation, industry self-regulatory guidelines, or other legal requirements and operations of applicable law; and (f) in furtherance of its other business operations and commercial purposes. Furthermore, you permit Chargebee to share Data with the third parties providing Payment Processing Services and/or their agents/contractors, and each of the foregoing may use the same without restriction for marketing, analysis, transactions or relationship communication, and any other lawful business purpose. They may also process Data as agreed in the agreement between you and the provider of such Payment Processing Services. Chargebee provides your Data to third-party service providers and their respective affiliates, as well as to Chargebee’s affiliates, to allow us to provide Chargebee Payments to you. We do not provide Personal Data to unaffiliated parties for marketing their products to you and we do not sell your Data. You understand that except for certain limited information, such as account or billing information, Chargebee acts as a pass-through of the information to its payment services partner who assists Chargebee in provision of Chargebee Payments to you. To the extent that Chargebee collects any Personal Data from you, such as account or billing information and determines the means and purposes of processing such Personal Data, Chargebee’s processing of such Personal Data shall be governed by Chargebee’s privacy policy set forth in https://www.chargebee.com/privacy/

  • 4.2.2. Solely to the extent Chargebee processes any Data within its possession in theprovision of Chargebee Payments and subject to these Terms, Chargebee shallcomply with the data processing addendum set forth in https://www.chargebee.com/privacy/dpa/, as modified below:

    • 4.2.2.1. The phrase, “Customer can subscribe to the new feature notifications at https://www.chargebee.com/help/updates/.” in Section 7.4 (Determination of Security Requirements) shall stand deleted.

    • 4.2.2.2. Section 8(Deletion of Personal Data) shall stand deleted andSection 4.3 (Data Retention) of these Terms below shall apply.

    • 4.2.2.3. Under Sub-section B (Description of Processing) of Schedule A,

      • a. Sensitive data may be shared only to the extent necessary to use Chargebee Payments (excluding Finix Services). Chargebee shall ensure security measures as set forth in Schedule B of the data processing addendum.

      • b. The period for which the personal data will be retained shall be as set forth in Section 4.3 (Data Retention) ofthese Terms.

    • 4.2.2.4. Schedule B (Technical and Organizational Measures) shall stand replaced as follows: Chargebee shall implement and maintain a security program in accordance with industry standards and appropriate technical and organizational measures to protect Personal Data.

    For avoidance of doubt, the data processing addendum shall not apply to theFinix Services.

  • 4.2.3. With respect to Chargebee Payments, Chargebee will maintain compliance with the PCI DSS. Chargebee acknowledges that it is responsible for the security of End-Customer cardholder data while in Chargebee’s possession.

  • 4.2.4. Chargebee is solely responsible for protecting the security of Data in our possession. We will maintain commercially reasonable administrative, technical, and physical procedures to protect End-Customer data and Personal Data stored in our servers from unauthorized access, accidental loss, modification, or breach, and we will comply with applicable laws when we handle End-Customer data and Personal Data. However, no security system is impenetrable and we cannot guarantee that unauthorized parties will never be able to defeat our security measures or misuse any data in our possession. While Chargebee uses commercially reasonable efforts to safeguard Data, Chargebee does not warrant that End-Customer data and Transaction data will be transported without unauthorized interception or modification or that Data will not be accessed or compromised by unauthorized third parties. You provide End-Customer data and Personal Data to Chargebee with the understanding that any security measures we provide may not be appropriate or adequate for your business, and you agree to implement Security Controls (as defined below) and any additional controls that meet your specific requirements. In our sole discretion, we may take any action, including suspension of your Chargebee Payments Account, to maintain the integrity and security of Chargebee Payments or any Data, or to prevent harm to you, us, End-Customers, or others. You waive any right to make a claim against us for losses you incur that may result from such actions.

  • 4.2.5. You are responsible for assessing the security requirements of your business, and selecting and implementing security procedures and controls (“Security Controls”) appropriate to mitigate your exposure to security incidents. We may provide Security Controls as part of Chargebee Payments, or suggest that you implement specific Security Controls. However, your responsibility for securing your business is not diminished by any Security Controls that we provide or suggest, and if you believe that the Security Controls we provide are insufficient, then you must separately implement additional controls that meet your requirements.

• 4.3 Data Retention

  You are solely responsible for compiling and retaining permanent records of all Transactions and End-Customer data for your reference. Following termination of your Chargebee Payments Account, Chargebee will retain that Account’s Data for one hundred twenty (120) days from such date of termination (“Data Retention Period”). Upon the expiration of the Data Retention Period, Chargebee will no longer have an obligation to maintain or provide you and/or End-Customers access to that Account’s Data. Thereafter, unless prohibited by law, Chargebee reserves the right to destroy all Account Data in Chargebee’s possession in the normal course of its operations in accordance with the Privacy Policy. Notwithstanding the Data Retention Period, upon Customer’s written request following the termination of an Account, Chargebee will destroy all Data in Chargebee’s possession. You agree that you are solely responsible for exporting all Data prior to termination of your Account, and if you require Chargebee’s assistance for exporting Data during the Data Retention Period, you may be required to pay a reasonable fee to Chargebee.

5. Fees; Taxes; Disputes

• 5.1 Fees

  You shall pay to Chargebee the fees set forth in the Fee Schedule located in the Chargebee Payment platform, which is hereby incorporated into these Terms by reference. Unless otherwise noted in the Fee Schedule, all fees are in USD.

• 5.2 Late Payment Fee

  If you do not pay owing amounts on or before the fifteenth (15th) day from the receipt of an invoice, you will be subject to a late payment fee, in the amount set forth in the Fee Schedule. If you have not paid all amounts due before the last day on which they were due, your ability to use Chargebee Payments shall automatically be suspended. Should Chargebee take any action against you to collect sums due hereunder, you agree to pay all costs associated with such collection efforts, including but not limited to reasonable attorney’s fees.

• 5.3 Taxes

  All fees under these Terms that are payable by you to Chargebee shall be exclusive of all applicable taxes and levies which shall be applied at the applicable rate in force from time to time, as required by law.

• 5.4 Opening/Closing Accounts

  Should you fail to pay fees due under a Chargebee Payments Account (“Original Account”) and subsequently open another Chargebee Payments Account (“Subsequent Account”) Chargebee reserves the right to charge and take payment from the Subsequent Account for amounts due under the Original Account whether or not the Original Account was closed.

• 5.5 Third Party Assessments

  Notwithstanding any other provision of these Terms, you shall be responsible for all amounts imposed or assessed to you, Chargebee, or any Payment Processing Services provider in connection with these Terms by third parties such as, but not limited to, the Payment Networks and third-party service providers (including telecommunication companies) to the extent that such amounts are not the direct result of the gross negligence or willful misconduct of Chargebee or any Payment Processing Services provider, as applicable. Such amounts include, but are not limited to, fees, fines, assessments, penalties, and loss allocations. Any changes or increases in such amounts shall automatically become effective upon notice to you.

• 5.6 Right to Dispute

  You expressly agree that your failure to (a) notify us that you have not received any settlement funds within three (3) business days from the date that settlement was due to occur, or (b) reject any report, notice, or invoice within thirty (30) business days from the date the report or invoice is made available to you, shall constitute your acceptance of the same. In the event you believe that Chargebee has failed in any way to provide Chargebee Payments, you agree to provide Chargebee with written notice, specifically detailing any alleged failure, within sixty (60) days of the date on which the alleged failure first occurred.

6. Billing and Payment Terms

• 6.1 Billing Terms

  Per the Fee Schedule, all fees are due and payable to Chargebee on a daily basis. Payments to Chargebee shall be settled in USD. You hereby authorize Chargebee to charge your Operating Account and/or the debit or credit card provided in your Account for all amounts due to Chargebee by you. This authority is to remain in full force and effect until Chargebee has received written notification from you of your request for termination in such time as to afford Chargebee a commercially reasonable opportunity to acknowledge and respond to the request. If your debit or credit card number changes (e.g. card expires), you shall promptly update your Chargebee Payments Account information.

• 6.2 Disputes

  The parties shall promptly investigate any disputed fees. A dispute will not relieve you of your payment obligations herein. If an event of dispute is resolved in your favor, Chargebee will credit back to you any applicable overpayments made by you. All disputes must be made in good faith and in writing within thirty (30) days of the billing statement date. Fees billed shall be deemed accepted where written objections are not lodged within such thirty (30) day period.

7. Term

These Terms shall become effective on the Effective Date and, unless sooner terminated in accordance with these Terms, continue on a month-to-month basis until terminated pursuant to Section 8.

8. Termination and SuspensionTermination and Suspension

• 8.1 Termination by You

  You may terminate these Terms and your use of Chargebee Payments at any time and for any reason, with or without cause, upon written notice to Chargebee.

• 8.2 Termination by Chargebee

  Chargebee and/or the Payment Networks may terminate these Terms and/or your access to Chargebee Payments, at any time and for any reason.

• 8.3 Threatening Condition

  In the event that Chargebee reasonably believes that you are in violation of your obligations hereunder, including, without limitation, using Chargebee Payments in a manner that violates applicable law or regulation, or that your conduct poses a threat to Chargebee’s systems, equipment, processes, or Intellectual Property Rights (the “Threatening Condition”) or upon the instruction of a Payment Processing Services provider, Chargebee may immediately suspend your Account(s). In any event, Chargebee may terminate these Terms if the Threatening Condition remains uncured more than fifteen (15) days after you are notified of the Threatening Condition.

• 8.4 Effect of Termination

  Upon termination of these Terms for any reason, all rights and obligations of the parties shall be extinguished, except that (a) all payment obligations hereunder shall survive such termination; and (b) the rights and obligations of the parties under Sections 3, 4, 5, 6, 8, 9, 10, 11.5, 12, 13 and 14 shall survive such termination.

9. Intellectual Property

The parties agree that Chargebee and/or Finix, owns and retains all right, title and interest in and to the Chargebee Trademarks, Chargebee Payments, copyrights and any related technology utilized under or in connection with these Terms, including but not limited to all Intellectual Property Rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to you or any other entity or person under these Terms. You will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets of Chargebee Payments or related technology.

10. Confidential Information

• 10.1.

  Each party (the “Receiving Party”) hereby agrees (a) to hold the other party’s (the “Disclosing Party”) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (b) not to divulge any such Confidential Information or any information derived therefrom to any third person; (c) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (d) not to remove, export or re-export any such Confidential Information or any direct product thereof, except in compliance with, and with all licenses and approvals required under applicable export laws and regulations, (e) not to copy or reverse engineer any such Confidential Information, and (f) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate “need to know” and shall be bound in writing to comply with the Receiving Party’s confidentiality obligations, whether generally or specific to these Terms. Nothing in these Terms shall be construed to prohibit or restrict Chargebee’s use or disclosure of Transaction data, to third parties, including processors, financial institutions, participants in a payment system and Chargebee’s affiliates, in connection with Chargebee’s provision of Chargebee Payments or to generally review and optimize Chargebee Payments, or for purposes related to fraud and risk management, or customer support.

• 10.2.

  You shall, within thirty (30) calendar days of termination of these Terms, destroy all materials that constitute Confidential Information and/or Intellectual Property Rights of Chargebee and upon request provide Chargebee written confirmation signed by your authorized representative that all such information was so destroyed. Chargebee shall destroy all materials that constitute your Confidential Information and/or Intellectual Property Rights in accordance with Section 4.3. Notwithstanding the foregoing, each party may retain Confidential Information that is (i) stored on archival or back-up files or (ii) required for compliance with applicable law, Payment Network Rules or its obligations pursuant to these Terms, provided that such party continues to maintain confidentiality of such Confidential Information pursuant to these Terms.

• 10.3.

  Notwithstanding any provision in these Terms to the contrary, each party may disclose Confidential Information of the other party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction.

11. Representations and Warranties; Disclaimers

• 11.1. Mutual Warranties

  Each party represents and warrants to the other that (a) it has all necessary right, power and ability to execute these Terms and to perform its obligations therein; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery or performance of these Terms, (c) these Terms constitute a legal, valid and binding obligation, enforceable against it in accordance with its terms, (d) the party's obligations under these Terms do not violate any law, policy or regulation or breach any other agreement to which such party is bound; and (e) it has all right, title or interest, or valid license to use its respective Trademarks, and that any grant of rights associated therewith do not violate any Intellectual Property or other proprietary rights of any third party.

• 11.2. Chargebee’s Warranty

  • 11.2.1. With respect to Chargebee Payments, Chargebee represents and warrants that Chargebee Payments as made accessible to you hereunder will conform substantially to specifications set forth in the applicable Payments Documentation, as may be amended from time to time at Chargebee’s sole discretion. The preceding warranty will not apply if (a) Chargebee Payments is used in material breach with there Terms or the Payments Documentation; (b) Chargebee Payments has been modified without the prior written consent of Chargebee; or (c) a defect in Chargebee Payments has been caused by any of your malfunctioning equipment or software. You expressly acknowledge that Chargebee Payments is a computer network-based platform, which may be subject to outages, interruptions, attacks by third parties and delay occurrences.

  • 11.2.2. In the event you discover that Chargebee Payments is not in conformance with the representations and warranties made in Section 11.2.1 and report such non-conformity to Chargebee or if Chargebee Payments is subject to outages, interruptions, attacks by third parties and delay occurrences, Chargebee shall use commercially reasonable efforts to remedy material interruptions and will provide adjustments, repairs and replacements, within its capacity, that are necessary to enable Chargebee Payments to perform as intended in a reasonable manner. You acknowledge that Chargebee does not warrant that such efforts will be successful. If Chargebee’s efforts are not successful, you may immediately terminate these Terms. The foregoing shall constitute your sole remedy, and Chargebee’s sole liability, in the event of interruption, outage or other delay occurrences in Chargebee Payments. Chargebee does not warrant the services of any third party, including without limitation, any third-party facilitator, bank or processor.

• 11.3. Your Warranties

  You represent and warrant that at all times during the term of these Terms and any renewal thereof: (i) all representations and statements made by you in these Terms, or in any other document relating hereto, or on your behalf, are true, accurate and complete in all material respects; (ii) all information provided by you or your Representative relating to the application for or use of Chargebee Payments Account is accurate, complete and up-to-date; (iii) you are engaged in a lawful business and have all necessary rights and authorizations to sell and distribute your products and/or services; and (iv) you will comply, at your own expense, with these Terms and all laws, policies, guidelines, regulations, ordinances or rules applicable to you, the End-Customer data or the Transactions, including, without limitation: (a) the Payment Network Rules; (b) PCI DSS; (c) the orders of any regulatory body or agency having jurisdiction over the subject matter hereof; (d) Applicable Data Protection Laws and (e) the Payments Documentation.

• 11.4. Third Party Programs.

  • 11.4.1. You acknowledge that Chargebee Payments is designed for use with certain third party programs, including, without limitation, certain Internet browser and software programs developed and owned by third parties (“Third-Party Services”), and we may reference or provide access to such Third-Party Services and/or their products and promotions that utilize, integrate, or provide ancillary services to the Services. These Third-Party Services are provided for your convenience only and do not constitute our approval, endorsement, or recommendation of any such Third-Party Services for you. Your use of the Third-Party Services shall be governed by and subject to separate third party product, service, software and/or license agreements and you will look solely to the developers and manufacturers of such Third-Party Services with regard to warranty, maintenance or other support regarding the same. Chargebee will not be a party to such third party agreements and Chargebee does not warrant and shall not be responsible for Third-Party Services.

  • 11.4.2. You authorize Chargebee to disclose to any third party vendor information concerning you to the extent required to deliver the requested Third-Party Services. We expressly disclaim all responsibility and liability for your use of any Third-Party Service. Please also remember that when you use a Third-Party Service, our Privacy Policy is no longer in effect.

  • 11.4.3. You acknowledge that Finix Payments, Inc. and its affiliates (“Finix”) provide the critical features and functionalities relating to payment facilitation and processing services within Chargebee Payments (“Finix Services”) and you are solely responsible to evaluate and ensure whether the Finix Services comply with legal requirements that apply to you and the data you may submit to Finix Services. In addition to these Terms, such Finix Services are governed by the Finix Terms of Service (the “Finix Terms”). By agreeing to these Terms, you agree to be bound by the Finix Terms, as may be modified by Finix from time to time. You acknowledge and agree that the Finix Terms constitute a valid, binding, and enforceable contract between you and Finix. You also acknowledge and agree that: (a) you will use Finix Services solely for the processing of End-Customer Transactions; (b) Finix is not a party to these Terms and shall not be liable or responsible to you under these Terms for any damages of any kind, whether direct, indirect, incidental, or consequential, regardless of the legal theory or cause of action; (c) Finix disclaims any and all liability, responsibility, representation, warranty or other guarantee regarding any portion, component, or feature of the Chargebee Payments other than Finix Services, including without limitation any warranty of title, merchantability, or fitness for a particular purpose; and (d) you will use Finix Services in full compliance with all applicable laws, regulations, industry self-regulatory guidelines, and Payment Network Rules and instructions.

• 11.5. DISCLAIMER OF WARRANTIES

  YOU ACKNOWLEDGE AND AGREE THAT CHARGEBEE PAYMENTS IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY OTHER TYPE OF WARRANTY OR GUARANTEE. NO DATA, PAYMENTS DOCUMENTATION OR ANY OTHER INFORMATION PROVIDED BY CHARGEBEE OR OBTAINED BY YOU FROM OR THROUGH CHARGEBEE PAYMENTS – WHETHER FROM CHARGEBEE OR ITS AFFILIATES, AND WHETHER ORAL OR WRITTEN – CREATES OR IMPLIES ANY WARRANTY FROM CHARGEBEE TO YOU.

  YOU AFFIRM THAT CHARGEBEE DOES NOT CONTROL THE PRODUCTS OR SERVICES THAT YOU OFFER OR SELL OR THAT END-CUSTOMERS PURCHASE USING CHARGEBEE PAYMENTS. YOU UNDERSTAND THAT CHARGEBEE CANNOT GUARANTEE AND CHARGEBEE DISCLAIMS ANY KNOWLEDGE THAT END-CUSTOMERS POSSESS THE AUTHORITY TO MAKE, OR WILL COMPLETE, ANY TRANSACTION. CHARGEBEE SHALL BEAR NO RISK WITH RESPECT TO YOUR SALE OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CARD FRAUD OR CHARGEBACKS.

  CHARGEBEE DISCLAIMS ANY KNOWLEDGE OF, AND DOES NOT GUARANTEE: (a) THE ACCURACY, RELIABILITY, OR CORRECTNESS OF ANY DATA PROVIDED THROUGH CHARGEBEE PAYMENTS; (b) THAT CHARGEBEE PAYMENTS WILL MEET YOUR SPECIFIC BUSINESS NEEDS OR REQUIREMENTS; (c) THAT CHARGEBEE PAYMENTS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; (d) THAT CHARGEBEE WILL CORRECT ANY DEFECTS OR ERRORS IN THE CHARGEBEE PAYMENTS PLATFORM, API, PAYMENTS DOCUMENTATION, OR DATA; OR (e) THAT CHARGEBEE PAYMENTS ARE FREE OF VIRUSES OR OTHER HARMFUL CODE. USE OF DATA YOU ACCESS OR DOWNLOAD THROUGH CHARGEBEE PAYMENTS IS DONE AT YOUR OWN RISK – YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM SUCH ACCESS OR DOWNLOAD.

  NOTHING IN THESE TERMS OPERATES TO EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY IMPLIED CONDITION, WARRANTY OR GUARANTEE, OR THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER LAW WHERE TO DO SO WOULD: (A) CONTRAVENE THAT LAW; OR (B) CAUSE ANY PROVISION OF THESE TERMS TO BE VOID.

12. LIMITATION OF LIABILITY AND DISCLAIMERS

• 12.1 LIMITATIONS

  UNDER NO CIRCUMSTANCES (I) WILL CHARGEBEE OR ANY OF ITS AFFILIATES OR VENDORS (OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF CHARGEBEE, ITS AFFILIATES OR VENDORS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGE OR LOSS SUFFERED OR INCURRED BY YOU, REGARDLESS OF THE FORM OF ACTION, OR ANY LOSS OF REVENUE, PROFITS OR BUSINESS, ANTICIPATED SAVINGS, LOSS OF GOODWILL OR REPUTATION, COSTS OF DELAY, LOST OR DAMAGED DATA, OR THE INCURRING OF LIABILITY FOR LOSS OR DAMAGE OF ANY NATURE WHATSOEVER SUFFERED BY THIRD PARTIES, ALL WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) WILL CHARGEBEE’S TOTAL AGGREGATE LIABILITY TO YOU UNDER THESE TERMS EXCEED THE AGGREGATE COMPENSATION CHARGEBEE RECEIVED FOR YOUR USE OF CHARGEBEE PAYMENTS DURING THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. NOTHING IN THESE TERMS SHALL BE DEEMED TO EXCLUDE OR LIMIT LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW.

• 12.2 DISCLAIMER

  EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, YOU EXPRESSLY AGREE THAT CHARGEBEE SHALL NOT BE LIABLE FOR ANY LOSS OR LIABILITY (HOWEVER OCCURRING, INCLUDING NEGLIGENCE), ARISING FROM OR RELATED TO: (A) YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE YOUR CHARGEBEE PAYMENTS ACCOUNT; (B) FRAUDULENT TRANSACTIONS PROCESSED THROUGH YOUR CHARGEBEE PAYMENTS ACCOUNT; (C) DISRUPTION OF CHARGEBEE PAYMENTS, ITS SYSTEMS, SERVER OR WEBSITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (D) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, ANY FACILITATOR, PAYMENT PROCESSOR OR BANK; OR (E) THE LIMITATION OF THE FUNCTIONING OF CHARGEBEE PAYMENTS, SOFTWARE, HARDWARE, OR EQUIPMENTS ASSOCIATED THEREWITH.

• 12.3 FINIX SERVICES, PRE-RELEASE OFFERINGS AND THIRD PARTY PRODUCTS AND SERVICES

  CHARGEBEE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO FINIX SERVICES, PRE-RELEASE OFFERINGS AND THIRD PARTY PRODUCTS OR SERVICES. YOUR USE OF FINIX SERVICES, PRE-RELEASE OFFERINGS AND THIRD PARTY PRODUCTS AND SERVICES IS AT YOUR OWN RISK. CHARGEBEE ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM FINIX SERVICES, PRE-RELEASE OFFERINGS AND ANY THIRD PARTY PRODUCT OR SERVICE, REGARDLESS OF WHETHER OR NOT CHARGEBEE PROVIDES SUCH SERVICES AS PART OF ITS PRODUCT OR OFFERING OR IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE.

13. Indemnification

• 13.1. Indemnification by Chargebee

  • 13.1.1. General

    Chargebee shall defend, indemnify and hold you and any of your officers, directors, agents and employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by you, to the extent that such cause of action is based upon a claim that Chargebee Payments infringes a copyright, patent, trade secret, or other Intellectual Property Rights of a third party under the laws of the United States.

  • 13.1.2. Limitation; Prevention of Infringement

    Chargebee's obligations in Section 13.1.1 do not apply if: (i) Chargebee Payments has been modified by parties other than Chargebee; (ii) Chargebee Payments is used in conjunction with Data where use with such Data gave rise to the infringement claim; (iii) your failure to install upgrades or patches provided by Chargebee where such upgrade or patch would have removed the infringing condition; (iv) your use of Chargebee Payments in a manner inconsistent with the Payments Documentation; or (v) your use of Chargebee Payments with software or hardware not authorized by Chargebee, where use with such other software or hardware gave rise to the infringement claim. If Chargebee Payments or any component thereof becomes, or in Chargebee’s opinion is likely to become, the subject of a claim of infringement, then you shall permit Chargebee, at Chargebee’s sole option and expense, either to (i) procure for you the right to continue using Chargebee Payments as permitted in these Terms, or (ii) replace or modify Chargebee Payments or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, Chargebee is unable to cure the infringement, either party may immediately terminate these Terms. THIS SECTION 13.1.2 STATES THE ENTIRE LIABILITY OF CHARGEBEE TO YOU WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY CHARGEBEE PAYMENTS.

• 13.2. Indemnification by Chargebee

  You shall defend, indemnify, and hold harmless Chargebee and its affiliates, parents, and/or subsidiaries, and any of their officers, directors, agents and employees (“Chargebee Indemnified Parties”), from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Chargebee Indemnified Parties, arising out of or relating to (a) any breach or alleged breach by you of any representation, warranty, or obligation set forth in these Terms; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by you or any of your employees, agents or customers; (c) the reliability, accuracy, or legitimacy of Data or purchase orders submitted by you to Chargebee; (d) Transactions submitted by you to Chargebee; (e) any alleged infringement of a patent, copyright, Trademark or other Intellectual Property Right resulting from your actions; (f) claims by End-Customers, including, without limitation, claims relating to the disclosure of End-Customer or consumer data; (g) any alleged or actual violation by you of any applicable laws, regulations, the Payment Network Rules or orders of any regulatory body or agency having jurisdiction over the subject matter hereof; or (h) any use of Chargebee Payments that is prohibited by these Terms or any applicable laws or regulations. In the event you cause fines and/or penalties to be charged to Chargebee by the Payment Networks or any other entity, you agree to immediately reimburse Chargebee for said fines or penalties.

• 13.3. Indemnification Procedure

  The obligations of each party (“Indemnitor”) under this Section 13 to defend, indemnify and hold harmless the other party (“Indemnitee”) shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to sub-clause (b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense. The Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, resulting in any ongoing material liability to or materially prejudicing Indemnitee in any way.

14. General Provisions

• 14.1. Marketing

  Except for any announcement intended solely for internal distribution or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of either party, all media releases, public announcements or public disclosures (including, but not limited to, promotional or marketing material) by either party or its employees or agents relating to these Terms or its subject matter, or including Trademarks of the other party, are prohibited without the prior written consent of both parties. Notwithstanding the foregoing, either party shall be entitled to disclose the existence of the relationship formed hereunder between you and Chargebee without the prior written consent of the other party and Chargebee shall be entitled to include your name and/or logo in Chargebee marketing materials without prior written consent.

• 14.2. Pre-release offerings

  Chargebee may from time to time make pre-released features and functionalities available to Customer as part of Chargebee Payments (“Pre-Release Offerings”). Customer may choose to sign up for such Pre-Release Offerings at Customer's sole discretion. All restrictions and Customer commitments under these Terms shall apply to Customer’s use of Pre-Release Offerings. Chargebee may disable, modify or discontinue Pre-Release Offerings at any time at Chargebee’s sole discretion. By using the Pre-Release Offerings, the Customer acknowledges and agrees that: (i) the Pre-Release Offerings shall be used only for evaluation and testing purposes; (ii) Chargebee provides the Pre-Release Offererings on an “AS IS” and “AS AVAILABLE” basis, without any warranties; (iii) Chargebee shall not be liable for any liability arising from or relating to the Pre-Release Offerings, including Customer’s use or inability to use such Pre-Release Offerings; and (iv) any feedback provided on the Pre-Release Offerings is the property of Chargebee to use without obligation to the Customer or any other third party.

• 14.3. Non-exclusivity

  Each party acknowledges and agrees that the rights granted to the other party in these Terms are non-exclusive, and that, without limiting the generality of the foregoing, nothing in these Terms shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein.

• 14.4. Relationship of the Parties

  The parties are independent contractors and nothing in these Terms shall make them joint venturers, partners, employees, agents or other representatives of the other party. Neither party shall make any representation that suggests otherwise.

• 14.5. Notices

  All notices to you shall be given electronically, sent to the electronic mail address provided by or for you during registration for your Chargebee Payments Account(s). Service termination notices to Chargebee shall be given electronically from within your Chargebee Payments Account and sent to support@chargebee.com. All other notices to Chargebee must be in writing and sent to: CHARGEBEE INC., Attn: Legal Dept., 340 S. Lemon Avenue, Suite #1537, Walnut, California 91789, United States, with a copy to legal@chargebee.com. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid. Electronic mail notices shall be deemed given the next business day following the date delivered.

• 14.6. Severability; Headings

  If any provision of these Terms is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect these Terms.

• 14.7. Governing Law; Consent to Jurisdiction

  This Agreement and all matters arising from it shall be governed by, and construed in accordance with, the laws of the State of Delaware and shall be subject to the exclusive jurisdiction of Sussex County, Delaware, to which both parties hereby submit.

• 14.8. Arbitration

  Any controversy or claim arising out of or relating to these Terms, or the breach hereof, 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.

• 14.9. Waiver

  The failure of any party to insist on or enforce strict performance of any provision of these Terms or to exercise any right or remedy under these Terms or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.

• 14.10. Assignment

  You may not assign these Terms, any rights or licenses granted in these Terms, or operation of your Chargebee Payments Account to others without our prior written consent. If you wish to make such an assignment, please contact us at support@chargebee.com. If we consent to the assignment, the assignee must agree to assume all of your rights and obligations owed by you related to the assignment, and must agree to comply with the provisions of these Terms. Chargebee may assign these Terms without your consent or any other restriction. If we make an assignment, we will provide reasonable notice to you.

• 14.11. Force Majeure

  Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under these Terms due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network service providers, acts or omissions of a third party, infiltration or disruption of Chargebee Payments by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay Chargebee Payments, or other catastrophes or any other occurrences which are beyond such parties' reasonable control (each a “Force Majeure Event”), provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under these Terms be excused for any Force Majeure Event.

• 14.12. Intended Third Party Beneficiaries

  The third parties providing Payment Processing Services under these Terms are intended to be third-party beneficiaries to these Terms and the rights and obligations of the parties hereto. It is understood and agreed by the parties hereto that these Terms shall be enforceable by those third parties in accordance with its terms as though they were a party to every provision hereof. Except as expressly provided herein, no other third parties are intended by the parties hereto to be beneficiaries hereof.

• 14.13. Entire Agreement

  These Terms together with all of Chargebee’s policies referenced herein sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of these Terms. You acknowledge that these Terms reflect an informed, voluntary allocation between you and Chargebee of all risks (both known and unknown) associated with Chargebee Payments.

• 14.14. Survival

  The provisions of these Terms relating to any fees or other amounts owed, payment of interest on unpaid fees, confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings and this paragraph shall survive termination or expiration of these Terms.

• 14.15. Affiliates

  The rights, duties and/or obligations of Chargebee under these Terms may be exercised and/or performed by Chargebee and/or any of Chargebee’s affiliates, or any of their subcontractors and/or agents. All liabilities arising under or as a consequence of these Terms, whether arising from the acts or omissions of Chargebee or any of Chargebee’s affiliates, or any of their subcontractors and/or agents, shall be solely Chargebee’s and not those of any of Chargebee’s affiliates, or any of their subcontractors and/or agents. You agree to bring any claim and or action relating to the foregoing against Chargebee only and not against any of Chargebee’s affiliates, or any of their subcontractors and/or agents.

• 14.16. Right to Audit

  If we believe that a security breach, leak, loss, or compromise of Data has occurred on your systems, website, or app affecting your compliance with these Terms, we may require you to permit a third-party auditor approved by us to conduct a security audit of your systems and facilities, and you must fully cooperate with any requests for information or assistance that the auditor makes to you as part of the security audit. The auditor will issue a report to us which we may share with our service providers. You shall assist Chargebee in any and all investigations of Transactions in a timely manner and will provide written reports of investigated Transactions to Chargebee upon Chargebee’s request.

• 14.17. Amendment

  From time to time Chargebee may update or modify these Terms at our discretion, and will post the updated terms to here. If our changes reduce your rights or increase your responsibilities, we will use commercially reasonable efforts to provide you with notice by email in accordance with any notification preferences you have provided. The updated Terms will become effective as of the Effective Date indicated in these Terms. Any use of Chargebee Payments after the indicated Effective Date means you have accepted the updated Terms. Your sole and exclusive remedy in the event you do not accept the updated Terms is to cease your access to and use of Chargebee Payments.

• 14.18. Export Controls and Sanctions Compliance

  You acknowledge that Chargebee Payments (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 agree that you are not, and are 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 End-Customers agree not to access or use Chargebee Payments, including any technology or data, in violation of such laws and regulations. Notwithstanding anything contained in these Terms to the contrary, Chargebee, at its sole discretion, may immediately terminate your access and use of Chargebee Payments without prior written notice or an opportunity to cure in the event of an actual or threatened breach of this Section 14.17.

• 14.19. U.S. Government End-Customers

  If you are the U.S. government (including any department or agency) or contracting on the U.S. government's behalf, then Chargebee Payments (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., 340 S. Lemon Avenue, Suite #1537, Walnut, California 91789, United States.

15. Definitions

• “Applicable Data Protection Laws” means any law, rule or regulation pertaining to data protection and the protection of an individual’s Personal Data to the extent applicable in respect of a party’s obligations under these Terms.

• “Chargebee Payments” means a platform that integrates with certain third parties to provide Payment Processing Services in connection with your sale of goods or services.

• “Chargebee Payments Account” or “Account” means the accounts or instances created by or on behalf of you for access and use of Chargebee Payments, and includes trial, sandbox and live accounts.

• “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.

• “Data” means the data and information provided to Chargebee hereunder, whether directly from you or through the Chargebee Payments platform and its features, which Chargebee uses in connection with its performance of its obligations hereunder.

• “Effective Date” means the earlier of the date you acknowledge and agree to these Terms by (a) clicking the “I AGREE” button associated with these Terms; (b) acknowledging your acceptance of these Terms by any other method allowed by Chargebee; or (c) by using Chargebee Payments.

• “End-Customer” means any person that purchases any of your goods or services.

• “Fee Schedule” means a list of fees and charges to be paid by you to Chargebee. The Fee Schedule is located in the Chargebee Payments platform.

• “Intellectual Property Rights” means all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.

• “Operating Account” means a demand deposit account at a financial institution through which fees, charges and credits due in accordance with these Terms may be transferred. Operating Account shall be used to describe all accounts established by you for the purposes described herein.

• “Payment Processing Services” means the services provided by third parties through Chargebee Payments that you may use to accept payments from the End-Customers and perform other Transactions.

• “Payment Networks” means Visa, MasterCard, American Express, Discover Financial Services, and any affiliates thereof or any other payment network applicable to these Terms.

• “Payment Network Rules” means the operating rules, bylaws, schedules, supplements and addenda, manuals, instructions, releases, specifications and other requirements, as may be amended from time to time, of any of the Payment Networks.

• “Payments Documentation” means collectively, the operating instructions, user manuals, and help files, in written or electronic form, made available to you and that are intended for use in connection with Chargebee Payments.

• “Personal Data” means information that identifies a specific living person (not a company, legal entity, or machine) and is transmitted to or accessible through Chargebee Payments.

• “Privacy Policy” means our privacy policy available at https://www.chargebee.com/privacy/ as updated periodically and which is incorporated into these Terms by reference.

• “Trademark(s)” means all common law or registered trademarks, service marks, trade names, symbols, logos, and trade dress rights and similar or related rights arising under any of the laws of the United States or any other country or jurisdiction, whether now existing or hereafter adopted or acquired.

• “Transaction(s)” means any card authorization, credit, ticket only, capture or settlement request, decline transaction, or other related transaction, completed or submitted under your Chargebee Payments Account(s).