Last Modified: February 2nd, 2021
(c) Copyright 2021, CardWare. All rights reserved.
Thank you for your interest in Card+ products and CardWare services
THESE TERMS CONTAIN BINDING ARBITRATION, JURY TRIAL WAIVER, AND CLASS ACTION WAIVER PROVISIONS GOVERNING DISPUTES ARISING FROM YOUR USE OF THE PRODUCTS AND SERVICES (DEFINED IN SECTION 2). THESE PROVISIONS AFFECT YOUR LEGAL RIGHTS.
1 Acceptance of Terms.
1.1 CardWare Holdings LLC, and CardWare Inc (“CardWare,” “us,” “we” or “our”) provides Products and Services (as defined in Section 2) to users who have CardWare accounts (“Customers”) and to users who do not yet have CardWare accounts (“Viewers”) through its web sites located at http://Card-Plus.com and https://CardWare.com (collectively, the “Sites”), subject to these Terms. Customers and Viewers may be referred to in these Terms as “you,” “your,” or “user,” as applicable. By accessing or using the Service, you accept these Terms, acknowledge that you have read and understand these Terms, and agree to be bound by these Terms. If you are entering into these Terms on behalf of a business, company, or other legal entity, you represent that you have the authority to bind such business or entity to these Terms, in which case the terms “you,” “your,” or “user” refer to such business or entity. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use the Service.
1.2 CardWare may change these Terms from time to time. You can review the most current version of these Terms at any time at https://www.Card-Plus.com/terms-of-service/
The revised provisions will become effective once posted or on any effective date indicated in the posting, and you accept the revised provisions by accessing or using the Service after that date.
1.3 In using the Service, Customers may first register with us through our on-line registration process. As part of the registration process you will identify an user name and password or otherwise authenticate yourself by following the authentication protocols provided by your account (“Account”).
2 Description of Service. The “Service” includes: (a) the Sites; (b) the Sites’ communication, blogging, frequently asked questions (FAQ), information sharing services and related technologies, including the Sites’ interactive features and features for communication with others; (c) surveys, feedback or online forms for inputing information, and statistics and analytic information derived therefrom, (d) other services we make available to you; (e) all software (including the Software, as defined in Section 2), documentation, software API’s, software tools, sample source code, information, data, reports, files, logos, folders, text, images, sounds, videos, feedback, suggestions, improvements and other content and materials communicated or made available through any of the foregoing (collectively referred to as the “Content”); and (f) products (including those purchased from any of the Sites, or directly), developer kits, smart cards, electronic devices, card readers, interfaces and samples. Any new features added-to, or augmenting, the Service, are also subject to these Terms.
3 General Conditions; Access; and Use of the Service.
3.1 You may access and use the Service only for lawful purposes. You will not (a) sublicense, resell, rent, lease, transfer, assign, time share, or otherwise commercially exploit or make the Service available to any third-party; (b) use the Service in any unlawful manner (including in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components; or (c) modify, adapt or hack the Service to, or otherwise attempt to, gain unauthorized access to the Service or its related systems or networks. You will comply with any codes of conduct, policies, or other notices CardWare provides you or publishes in connection with the Service, and you will promptly notify CardWare if you learn of a security breach related to the Service. You will not violate any United States Trade & Export laws in relation to any use, or communication, via or provided by, the Service.
3.2 Any software that may be made available by CardWare in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. CardWare grants you a non-transferable, non-sublicensable, non-exclusive and revocable right and license to use the object code of any Software solely in connection with the Service, and CardWare products, provided that you will not (and will not allow any third-party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Service by any means other than through the interface that is provided by CardWare via the Sites for accessing the Service, unless otherwise specifically authorized by us in a separate written agreement signed by a CardWare authorized signatory. No rights to communicate, advertise or promote with CardWare’s trademarks are granted by this license, nor to have made nor manufacture any products bearing the Trademarks. Any rights not expressly granted in these Terms are reserved, and no license or right to use any trademark of CardWare or any third-party is granted to you in connection with the Service.
3.3 You are solely responsible for all data, information, documents, records, feedback, suggestions, text, content and other materials that you upload, share, post, deliver, provide or otherwise transmit or store (referred to as “upload(ing)” in these Terms) in connection with or relating to the Service (collectively referred to as “Your Content”). There are many things that CardWare or other 3rd party users may do with Your Content (for example, copy, modify, or re-upload it in whole or in part). Please consider carefully what you choose to upload. CardWare has no responsibility for what you upload. You agree that we cannot be liable for any dispute that arises between you and any other user or 3rd party.
3.4 For every access of information you acknowledge and agree that CardWare will have the right to automatically add identifying information in accordance with our standard policies then in effect. You consent to sharing such information and any promotional or advertising materials that may be included.
3.5 All right, title, and interest in and to the Service, and its components, will remain with and belong exclusively to CardWare. Other than Your Content, all of the content on the Service, the trademarks, service marks, and logos contained on the Service (collectively, “Materials”), are owned by or licensed to us and
are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. We, or our licensees, reserve all rights not expressly granted in these Terms to the Site, Service, and the Materials. You agree that you will not circumvent, disable or otherwise interfere with security related features of the Service or features that: (a) prevent or restrict use or copying of any Materials; or (b) enforce limitations on use of Materials. These Terms do not grant you any right, title, or interest in the Service or the Materials. The Software and other technology we use to provide the Service are protected by the laws of both the United States and foreign countries. These Terms do not grant you any rights to use the CardWare trademarks, logos, domain names, or other brand features.
3.6 Please be aware that we may use any feedback you send to us in any form or any manner without any obligation to you, including any comments or suggestions about our product, offerings, Service or Site that you upload in our forums. By submitting a comment or feedback to us, you assign to us all of your right, title and interest in and to all such comments and feedback. In the event that such assignment is not valid, you agree and grant to CardWare a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other information provided by you relating to the Service.
3.7 By communicating, providing or uploading Your Content on or through the Service, you grant CardWare a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licensable and transferable license to use, modify, reproduce, distribute, display, publish, or perform Your Content to provide the Service, enhance the Service, and develop and enhance new products, services and features. You remain the owner and responsible for Your Content. We do not claim any ownership to any of it other than the aforementioned rights to use. We may use Your Content and other information you provide that has been aggregated with other content (including from our other customers) for any of the following purposes: our internal research and development; development of tools, methodologies, algorithms and processes; machine learning; risk management; fraud prevention; enhancing our products, services and features; developing new products, services and features; and conducting and furthering our business.
3.8 Customers are responsible for maintaining the confidentiality of the authentication methods they use to access the Service, including their user name, password, and other authenticating information (collectively “Authentication Credentials”). You may not share your Authentication Credentials or, without our permission, give others access to your Account or transfer your Account to anyone else. You are responsible for any activity using your Account, whether or not you authorized that activity. You should immediately notify CardWare in writing of any unauthorized use of your Account by sending an email to support@CardWare.com. CardWare reserves the right to access your Account as necessary in order to provide the Service. Further, you agree that we may, but are not required to: (a) monitor the Service, the Content, or Your Content for violations of these Terms and for compliance with our policies; (b) refuse, restrict access to or the availability of, or remove or disable any Content, without prior notice to you, at any time for any reason (including upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all; (c) report to law enforcement authorities and/or take legal action against anyone who violates these Terms; or (d) manage the Service in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Service.
3.9 You, and not CardWare, are responsible for maintaining and protecting Your Content. CardWare will not be liable for any loss or corruption of Your Content, or for any costs or expenses associated with backing up or restoring any of Your Content. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection, and backup of Your Content, and that it is your sole responsibility to use a secure encrypted connection to communicate with the Service if you wish to protect your transmission of data or files to CardWare. CardWare will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
3.10 You are responsible for retaining and storing Your Content in compliance with applicable law. If you are legally required to retain or store copies of Your Content, you must do so using your own facilities. CardWare may store, suspend access to, and erase Your Content as provided in Section 9.2, and we are not responsible for storing or retrieving Your Content on an ongoing basis or for ensuring that third parties receive Your Content.
3.11 CardWare shall bear no responsibility for the performance of your equipment used in any Service. You will be responsible for ensuring that the Equipment is compatible with the Service (and, to the extent applicable, the Software) and complies with CardWare’s policies. You will also be responsible for securing the Equipment, your Account, passwords and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.
3.12 CardWare’s failure to exercise or enforce any right or provision of these Terms is not a waiver of that right or provision. You acknowledge that these Terms are a contract between you and CardWare, even though this contract is electronic and is not physically signed by you and CardWare, and it governs your use of the Service.
3.13 Where Content that you provide comes from a company, CardWare reserves the right to use your company name and logo for marketing or promotional purposes on CardWare’s website and in other communication with existing or potential CardWare customers.
3.14 CardWare may (but has no obligation to) provide technical support services, through email, the Service itself, or phone in accordance with our standard practice.
4 Representations and Warranties.
4.1 You represent and warrant to CardWare that: (a) you have full power and authority to enter into these Terms, including, if you are using the Service on behalf of a business or entity, the authority to bind that business or entity to these Terms; (b) you are 18 years of age or older, have the power to form a contract with CardWare and are not barred under any applicable laws from doing so; (c) the information you submit is truthful, accurate and complete; (d) you will update your contact information if it changes, including, if you are using the Service on behalf of a business or entity, the contact information of that business or entity; (e) if you are using the Service on behalf of a business or entity, you agree to ensure that your business’ or entity’s users comply with these Terms and that your business or entity will be responsible for violations of these Terms by your users; (f) your use of the Service does not violate any applicable law or regulation; (g) you will comply with our rules for submitting Your Content to us or uploading Your Content to the Service, including Section
8.2 below; (h) you and your business or entity are solely responsible for your conduct; (i) you agree that we cannot be liable for any dispute that arises between you and any other user and that you and your business or entity will indemnify us from any action which may arise from your conduct; (j) the Service and related Software are proprietary to CardWare and/or its suppliers or licensors and are protected by copyrights, trademarks, service marks, patents and/or other proprietary rights and laws; and (k) unless otherwise expressly permitted in a prior writing signed by us, you will not assign, transfer, distribute, resell, lease or otherwise provide access to any third-party to the Services.
4.2 When you submit Your Content to us, you represent and warrant that you: (a) own or have sufficient rights to upload Your Content on or through the Service; (b) will not copy, upload, download, or share Your Content unless you have the legal right to do so; (c) will not upload Content that violates our rights or any third-party’s rights, including privacy, publicity, intellectual property (including copyrights) or contract rights; (d) have fully complied with any third- party licenses relating to Your Content, including paying all royalties, fees and any other monies relating to Content that you uploaded to the Service; (e) will not upload or submit Content that (i) is defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, violent, harassing, or otherwise objectionable; (ii) incites, encourages or threatens physical harm against another, including Content that promotes racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (iii) contains material that solicits personal information from anyone under 13 or exploits anyone in a sexual, violent or unlawful manner; (f) will not use the Service for any unlawful or unauthorized purpose including, collecting user names and/or email addresses of other users by electronic or any other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Service without our prior express written consent signed by a CardWare authorized signatory; (g) will not upload or submit Content that constitutes, contains, installs or attempts to install or promotes spyware, malware or other computer code, whether on our or others’ computers or equipment, designated to enable you or others to gather information about or monitor the on-line or other activities of another party; (h) will not transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on the Service or the networks or systems connected to this Service, including hacking into the Service, or using our system to send unsolicited or commercial emails, bulletins, comments or other communications; and (i) will not impersonate any other person or entity, sell or let others use your profile or password, provide false or misleading identification, payment or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity.
Please note that there are risks, including the risk of physical or reputational harm, of dealing with strangers, including persons who may be acting under
5.1 Termination – Viewers. A Viewer may terminate its use of the Service at any time by ceasing further use of the Service. CardWare may, in its sole discretion, terminate your use of the Service and deny you access to the Service for any reason, including for violating these Terms, or for no reason at all.
5.2.1 General. You may terminate your Account at any time by sending a cancellation request to support@CardWare.com or by following the cancellation procedures for Subscription Services provided in Section 6, as applicable (“Termination”). Termination of your Account will take effect after CardWare processes the cancellation. CardWare may, in its sole discretion, immediately terminate your Account and use of the Service if: (i) you fail to make timely payments of fees; (ii) you file for bankruptcy, are involved in any bankruptcy proceeding or are otherwise insolvent; (iii) you are not in compliance with applicable laws, including applicable export laws and regulations or
applicable privacy or data protection laws; (iv) you breach any provision of these Terms; or (v) you are found to have falsified any information you provided us, including payment method information, (each an “Event of Termination”). For any Event of Termination or suspension of Service, no refund will be due of prepaid fees and you remain responsible for fees for the then-current term in effect to the date of termination.
5.2.2 Notwithstanding an Event of Termination, CardWare may terminate your Account and these Terms at any time by providing 10 days’ prior notice to the email address we have on file for your Account. CardWare reserves the right to modify, discontinue or suspend, temporarily or permanently, the Service (or any part thereof) without prior notice to you.
5.2.3 Effect of Termination. For a period of up to 30 days following Termination, we may decide in our sole discretion to permit you to retrieve Your Content from the Service. After that, we may delete Your Content from the Service and CardWare will have no obligation to continue to store or permit you to retrieve, modify or update Your Content. Post-termination assistance from CardWare is subject to the mutual agreement of the parties, including fees and terms CardWare.
6 DISCLAIMER OF WARRANTIES
The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by CardWare or by third-party providers, or because of other causes beyond our control.
6.1 YOU AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND CardWare EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, CardWare AND EACH OF OUR LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE OF THE SERVICE. YOU ACKNOWLEDGE THAT CardWare DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES
IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM CardWare OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
6.2 WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY CONTENT OR ANY OTHER MATERIALS OR ITEMS MADE AVAILABLE ON, OR LINKED-TO, BY THE SERVICE, NOR DO WE MAKE ANY PROMISES OR WARRANTIES THAT THE CONTENT, PRODUCTS, GOODS OR ANY OTHER MATERIALS OR ITEMS ARE ACCURATE, USEFUL, NON-HARMFUL, NOR MEET ANY PERFORMANCE CRITERIA. WE DO NOT GUARANTEE AND DO NOT PROMISE THAT THE SERVICE MAY BE LAWFULLY VIEWED OR THAT CONTENT MAY BE DOWNLOADED FROM THE SITE OUTSIDE OF THE UNITED STATES OF AMERICA. NO ADVICE OR INFORMATION, WHETHER VERBAL OR WRITTEN, OBTAINED BY YOU FROM
US OR THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
6.3 WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THE MATERIALS OR CONTENT; OR THE CONTENT OF ANY SITE OR ANY OTHER ITEMS OR MATERIALS ON THE SERVICE OR LINKED TO OR BY THE SERVICE. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT, CONTRIBUTIONS, OR MATERIALS; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE; (C) ANY ILLEGAL OR UNAUTHORIZED ACCESS TO OR USE OF THE SITE, SERVICE OR SECURE SERVERS AND ALL PERSONAL INFORMATION STORED THERE; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD-PARTY; (F) ANY ERRORS OR OMISSIONS IN ANY CONTRIBUTIONS, CONTENT AND MATERIALS; OR (G) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT, CONTRIBUTIONS, OR MATERIALS UPLOADED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.
7 LIMITATION OF LIABILITY.
7.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL CardWare BE LIABLE TO YOU OR TO ANY THIRD-PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, WHETHER OR NOT CardWare HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE 3
MONTHS PRECEDING THE EVENT GIVING RISE to YOUR CLAIM or, IF NO FEES APPLY, $20 U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
7.2 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, CARDWARE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You will indemnify and hold CardWare harmless from and against any loss, liability, damage, penalty, fine, cost, fee, expense, claim, action or demand, including reasonable legal and accounting fees, arising or resulting from: (a) your breach of these Terms, including any breach of your representations and warranties set forth above; (b) Your Content; or (c) your other access, contribution to, use or misuse of CardWare Services. You agree to cooperate with any reasonable requests to assist CardWare’s defense of such claim, suit or demand.
9 United States Government Matters
You may not remove or export from the United States or allow the export or re-export of CardWare Services or anything related to CardWare Services in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, any other United States agency or authority, or any foreign agency or authority. As defined in Federal Acquisition Regulation (“FAR”) Section 2.101, the software and documentation installed by CardWare on your Equipment (if applicable) are “commercial items” and according to Defense Federal Acquisition Regulation (“DFAR”) Section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR Section 227.7202 and FAR Section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by these Terms and will be prohibited except to the extent expressly permitted by these Terms.
You may not assign these Terms without the prior written consent of CardWare, but CardWare may assign or transfer these Terms, in whole or in part, without restriction.
11 Export Compliance
Each party must comply with all applicable local, state, national and foreign laws, rules and regulations, including the export laws and regulations of the United States and other applicable jurisdictions in providing and using CardWare Services. Without limiting the foregoing: (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) you must not permit users to access or use CardWare Services in violation of any U.S. export embargo, prohibition or restriction.
12.1 Any notice or communication required or permitted to be given under these Terms must be in writing, signed or authorized by the party giving notice, and may be: (a) delivered by hand, deposited with an overnight courier; (b) sent to you by email or facsimile; or (c) mailed by registered or certified mail, return receipt requested, postage prepaid, to the following:
(i) In your case, to the email address, mail address or facsimile contact information set forth within your Account or we have on file;
(ii) In the case of CardWare, to: CardWare Holdings LLC, 700 N St Mary’s Street, Suite 1400, San Antonio Texas 78205, United States, with an electronic copy to legal@CardWare.com.
12.2 All notices under these Terms will be deemed to have been given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
13 Force Majeure.
CardWare will not be liable or responsible for failure to perform any obligation under these Terms caused by an event beyond CardWare’s control, including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike, crime, epidemic and cyber-attack.
15 Mandatory Arbitration, Jury Trial Waiver, and Class Action Waiver.
15.1 You agree that these Terms affect interstate commerce and that the
Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 18 is intended to be interpreted broadly and governs any and all disputes between us, including claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before these Terms; and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property as provided below.
15.2 Initial Dispute Resolution.
Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action you will contact us at legal@CardWare.com and provide a brief, written description of the dispute and your contact information (including your user name, if your dispute relates to an Account). Except for intellectual property, you and CardWare agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation with CardWare, and good faith negotiations will be a condition to either party initiating a lawsuit or arbitration.
15.3 Binding Arbitration
If the parties do not reach an agreed-upon solution within a period of 30 days from the time informal dispute resolution is initiated under Section 18.2, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided below) subject to these Terms. Specifically, all claims arising out of or relating to these Terms, the parties’ relationship with each other, and/or your use of CardWare Services will be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 U.S. Dollars and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 U.S. Dollars, excluding any rules or procedures governing or permitting class actions.
15.4 Arbitrator’s Powers
The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration or the question of waiver by litigation conduct. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be written and will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
15.5 Filing a Demand. To start an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, California 94111; and (c) send one copy of the Demand for Arbitration to us at: legal@CardWare.com.
15.6 Fees and Costs
If your claim(s) total is less than US $5,000 U.S. Dollars, then: (a) you may choose whether your participation in the arbitration will be conducted on the basis of documents provided to the arbitrator, through a telephonic hearing or by an in-person hearing; (b) CardWare will reimburse
your filing fees up to a maximum of US $1,500 U.S. Dollars unless the arbitrator determines that your claims are frivolous; and (c) CardWare will not seek attorney’s fees and costs, unless the arbitrator determines that your claims are frivolous. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
15.7 No Jury Trial
The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Arbitration will be initiated and take place in Santa Clara County, California, United States, and you and CardWare agree to submit to the personal jurisdiction of any federal or state court in Santa Clara County, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
15.9 Class Action Waiver
The parties further agree that the arbitration will be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND CardWare AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above will be deemed null and void in their entirety and the parties will be deemed to have not agreed to arbitrate disputes.
15.10 Exception: Litigation of Intellectual Property
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
16.1 If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable; and an enforceable term will be substituted reflecting our intent as closely as possible.
19.2 No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind CardWare in any respect whatsoever; instead, our relationship is that of independent contractors.
19.3 In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.
19.4 These Terms create no third-party beneficiary rights to the CardWare product or to any third-party product made available through the Service.
19.5 Section headings are for ease of reference only.
20 Governing Law
These Terms will be governed by the law of the State of California, exclusive of its choice of law and conflicts of law provisions. Unless otherwise elected by CardWare in a particular instance, you expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Santa Clara County, California, for the purpose of resolving any dispute relating to your access to or use of the Service. The Convention for the International Sale of Goods will not apply.
We reserve the right to terminate account and access rights of any copyright infringer in appropriate circumstances. If you are a copyright owner or the legal agent of a copyright owner, and you believe that any Content on the Service infringes upon your copyrights, you may submit a notification to support@CardWare.com
We reserve the right to claim trademarks on any of the materials we disclose or will disclose, whether or not it appears with a Trademark symbol (TM) or Registered Trademark symbol (R).
The information presented include patented and patent pending disclosures. All rights are reserved. By publishing information no license to use, or manufacture, are given. And all rights to derivatives of disclosed information remain with CardWare. CardWare reserves the right to track and log viewers of the Service and the information presented herein, and present any tracking statistics and viewing information, in subsequent actions relating to use or misuse of Intellectual Property, including willful infringement.
23 Entire Agreement; Survival
23.1 Both parties agree that these Terms are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided.
23.2 The following will survive any termination of this Agreement: Sections 1, 3, 4.4, 4.5, 4.7, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, and 23; all indemnity provisions and all disclaimers and limitations of warranties and damages set forth in these Terms or otherwise existing at law all definitions used in the foregoing sections, regardless of where located; and all perpetual licenses granted under this Agreement that are not expressly terminated.