Modisoft General Terms and Conditions

General Terms & Conditions

Last Updated __________ 2026 

These General Terms and Conditions (these “Terms”), together with the Privacy Policy and any Additional Terms (collectively, this “Agreement”), constitute a binding legal agreement between Modisoft Inc., a Texas corporation (“Modisoft”), or an Affiliate of Modisoft, as applicable for the products and/or services hereunder (“we”, “our”, or “us,” and when a Modisoft Affiliate, any reference in this Agreement to a Modisoft Affiliate will include the Affiliates of such Modisoft Affiliate, including Modisoft), and the person accepting these Terms, or the entity on whose behalf these Terms are accepted by an individual who is an agent of or appears to represent that entity, whether directly, by reference, or otherwise (“you” or “your”).  This Agreement governs the products and/or services provided by us to you in connection with which you have accepted these Terms (the “Services”), including any software provided or made available or accessible by us to you in conjunction with the Services, including programs, components, internet-based services, technology, tools, updates, help content, and new releases thereof (the “Software”), and Our Content (as defined below). This Agreement incorporates by reference all applicable program, subscription, activation, ordering, billing, cancellation, and Fees terms that are provided to you by us or a Modisoft Affiliate, whether provided online or offline, regarding the Services you are obtaining from us or a Modisoft Affiliate and including terms accompanying the selection by you of the Services you are obtaining from us or a Modisoft Affiliate, or that are otherwise provided by us or Modisoft Affiliates as promotional offers and that are accepted by you, which may have potentially different features, program, subscription, activation, ordering, billing, cancellation, and Fees terms as compared to other customers with regard to the Services (the “Services Terms”). Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in Section 16. 

Please read these Terms carefully as they affect your legal rights. These Terms contain an arbitration agreement that requires the use of arbitration on an individual basis to resolve disputes rather than jury or any other court proceedings, or class actions of any kind. The arbitration agreement is set forth in Section 15.g below. 

1. Legal Agreement 

a) By accepting these Terms (for example, by clicking “I AGREE,” “I ACCEPT,” “CONTINUE,” “VERIFY,” or “REGISTER” on our website or otherwise) and/or by accessing or using the Services, including the Software and Our Content, you represent that you have read, understand, and agree to be bound by this Agreement. If you do not agree to anything in these Terms or otherwise in this Agreement, you shall not access or use, and will not be granted any right to access or use, the Services, including the Software and Our Content. You and we and the Modisoft Affiliates expressly agree that this Agreement may be entered into via electronic signature, including in the form of a click. 

b) If the individual expressing the acceptance of these Terms is an employee or agent of you, such individual hereby represents to us that they have the authority to accept these Terms and enter into this Agreement as your authorized agent on your behalf and has all necessary authority to act on your behalf, including the authority to bind you to this Agreement. By accepting these Terms, such individual is doing so in a representative capacity, and such acceptance constitutes the valid and binding acceptance of this Agreement by you. 

c) Our Changes to the Agreement.   

1. During the Term, we will provide advance written notice of updates to this Agreement by: (i) sending an email to the e-mail address you set forth in your Registration Information; and (ii) displaying an in-Service notice or banner. We will use commercially reasonable efforts to provide a high-level general summary of Material Changes in such notices and we will provide you with an effective date for such changes, but you are responsible for reviewing the revised Agreement including the specific details of all changes.  Any summaries of changes are provided solely for informational and convenience purposes and do not form part of this Agreement. These summaries are not intended to be comprehensive, complete, or legally binding, and they shall not be relied upon as a substitute for reviewing the actual revised terms. In the event of any conflict or inconsistency between a summary and the actual terms of this Agreement including any changes, the actual terms of this Agreement including any changes shall control and govern in all respects. 
2. For non-material updates, during the Term we will provide notice at or before the effective date of such changes. For Material Changes, we will provide at least 30 days’ advance notice.  “Material Changes” are updates that: (i) modify Fees (other than usage-based charges already disclosed in the applicable Services Terms or Additional Terms), payment terms, or renewal mechanics; (ii) alter disclaimers, indemnities, limits of liability, governing law, venue, dispute resolution, or data use/ownership rights; or (iii) otherwise, in our reasonable opinion, materially reduce your rights or increase your obligations. 
3. All changes, whether non-material or Material Changes will become effective on their effective date, and if you continue using the Services on or after the effective date you accept the changes.  If you do not agree to the non-material changes, you may terminate this Agreement under the Agreement’s standard termination provisions, but if you continue using the Services after the effective date for non-material updates, the non-material updates will govern from their effective date until the Agreement is terminated.  If you reasonably object to a Material Change, you may object to it by providing written notice before the effective date. All such notices by you to us must be sent to  billing@modisoft.com and contain “Notice of Objection to Material Change” in the subject line.  If we do not agree to accommodate your objection, any such accommodations being only if and as agreed to by us in writing, you may terminate the Agreement as of the effective date of the Material Change and receive a pro-rata refund of any prepaid, unused Fees for the terminated portion of the term, if any, but if you continue using the Services after the effective date for Material Changes, regardless of any of your prior objections to Material Changes, the Material Changes will govern from their effective date until the Agreement is terminated, subject to any accommodations for your objections agreed to by us in writing.  In all cases we retain the right to terminate this Agreement with you pursuant to the Agreement’s standard termination provision. 

 

2. Services

a) We will make commercially reasonable efforts to provide the Services, including the Software and Our Content, under, and subject to, the terms and conditions of this Agreement, including the payment of the Fees (as defined in Section 6.a) pursuant to this Agreement.  

b) We have the right, in our sole discretion, to revise, update, or otherwise modify the Services, including the Software and Our Content, and establish or change limits concerning use of such Services, temporarily or permanently, including to change, delete, limit, discontinue, or impose conditions on any feature or aspect of the Services, including the Software and Our Content, including internet-based services, technical support options, and other product-related policies, the amount of storage space you have at any time, and the number of times (and the maximum duration for which) you may access the Software in a given period of time (“Modifications”). We may, in our sole discretion, provide notice of material Modifications on our website and/or by email to your email address provided to us. We may make any Modification effective immediately to maintain the security of the Services, including the Software and Our Content, the system, your Access Information, Registration Information, or Your Account, or to comply with applicable Law, and may, at our option, provide you with notice of such material Modification. You may reject material Modifications by providing written notice of termination of this Agreement within fifteen (15) calendar days from the earlier of (i) the date on which such notice of Modification is given, or (ii) the date on which such Modification becomes effective, and such termination shall be effective as of the date of the written notice of termination. Your continued use of the Software, Our Content, or other Services will constitute your acceptance of and agreement to such Modifications, and Your continued use of the Software, Our Content, or other Services will be conditioned upon the terms and conditions in force at the time of your use, without retroactive effect. Notwithstanding anything to the contrary herein, if we make changes to the Services, including the Software and Our Content, that render the Services, including the Software and Our Content, substantially unusable for their intended purpose, you may terminate this Agreement by providing written notice of termination within fifteen (15) calendar days from the date on which you first become aware of such change, and such termination shall be effective as of the date of the written notice of termination. 

c) Your right to access and use the Services, including the Software and Our Content, is granted on a per-location basis and is limited to each physical location (each, a “Licensed Location”) for which you have purchased a license and paid the applicable Fees. Subject to the terms and conditions of this Agreement, you are granted a limited, non-exclusive, non-transferable license to permit access to and use of the Services, including the Software and Our Content, for each Licensed Location by your employees and independent contractors who work solely on your behalf and exclusively for your benefit (each, an “Authorized User”). There is no limit on the number of Authorized Users who may access and use the Services, including the Software and Our Content, for a given Licensed Location; provided, however, that all access to and use of the Services, including the Software and Our Content, must be solely for or in connection with the applicable Licensed Location. For purposes of this Agreement, “Licensed Location” means the specific physical address or premises designated in your Registration Information or applicable order documentation for which a license has been purchased. In addition to the Licensed Locations, you may designate a single administrative or corporate headquarters location (the “Office Location”) from which Authorized Users may access and use the Services, including the Software and Our Content, solely for purposes of administrative oversight, reporting, and management of Licensed Locations, provided you pay the applicable Fees for all such Licensed Locations and the Office Location. Use of the Services, including the Software and Our Content, for any location other than a Licensed Location or the designated Office Location is strictly prohibited. Each Authorized User may only access and use the Services, including the Software and any of Our Content, solely for you and on your behalf as permitted in this Agreement. You shall ensure that all Authorized Users access and use the Services, including the Software and any of Our Content, solely for you and on your behalf, solely for or in connection with the applicable Licensed Location or the Office Location for administrative purposes, and as permitted in this Agreement, and that no person other than an Authorized User accesses or uses the Services, including the Software or any of Our Content. You will be liable for all acts, activities, and omissions of all Authorized Users, and all of your employees and contractors, related to the Services, including the Software or any of Our Content. Any such act, activity, omission, or violation shall be deemed to be your act, activity, omission, or violation. Any violation of this Agreement by any Authorized User or any of your employees or contractors shall be conclusively deemed to be a breach of this Agreement by you. 

d) Access to and use of the Services, including the Software and Our Content, will require setting up an account and registering with us. All data and information that you provide to us or any Modisoft Affiliate in connection therewith (“Registration Information”) must be complete, accurate, and current. You will promptly update any Registration Information in the event of any changes thereto. Following our receipt and processing of the Registration Information, we will set up an account for you (“Your Account”). We require you to set up and use specific IDs and passwords to access and use the Services, including the Software and Our Content (the “Access Information”). We reserve the right to require you and/or any Authorized User to confirm your or an Authorized User’s identity and right to access or use the Services, including the Software and Our Content, from time to time. You agree to keep secure and confidential, and not to share, an Authorized User’s Access Information beyond that Authorized User and you as an administrator of Your Account, and not to permit any other person to access, know and/or use any of the Access Information. Once a person ceases to be an Authorized User, you shall ensure that such person has no further access to or use of the Services, including the Software and Our Content, and, if necessary, do so by changing the Access Information. You will notify us immediately in writing of any loss, misappropriation, or misuse of any Access Information, in which case we may require an immediate change of the Access Information. You shall be fully responsible and liable for any and all activities accessing or using the Services, including any Software or Our Content, through your Access Information. 

e) After your acceptance of this Agreement, your access to and use of the Services, including the Software and Our Content, and our provision and performance of the Services (other than Data Entry Services, as defined below) will commence as follows: 

1. if the Services, including the Software and Our Content, are provided to you on an unpaid trial basis, upon our confirmation of Your Account to you; or
   
2. if the Services, including the Software and Our Content, are provided to you other than on an unpaid trial basis, upon the occurrence of both of the following: (i) our confirmation of Your Account to you, and (ii) your payment of all applicable Fees due at the time of registration. 

To the extent that any Services comprise solely the entry of data into the Services on your behalf (“Data Entry Services”), after your acceptance of the Agreement, the provision and performance of the Data Entry Services will commence on either: (i) the first (1st) calendar day of the calendar month following our confirmation of Your Account to you, or (ii) immediately upon our confirmation of Your Account to you, as determined by us in our sole discretion; provided that, in case of the latter, you will be charged for the full month and no Fees will be prorated for any unused portion of a calendar month. 

f) Access to and use of the Services, including the Software and Our Content, requires that you have and maintain throughout the Term sufficient software and hardware meeting our technical requirements, which are available upon request. You will keep such software and hardware free from any virus, worm, Trojan horse, trap door, or other code of any kind designed for or having the effect of, in any manner, disrupting, disabling, harming, impeding, or interrupting, or executing malicious, harmful, or hidden procedures, routines, or data collection on, software or hardware, including the Software and Our Content, or other Services.

g) We do not covenant, agree, represent, warrant, or give any assurances that the Services, including the Software or Our Content, are up-to-date. We or Modisoft Affiliates may, from time to time and in our sole discretion, perform maintenance upon the Software, Our Content, or other Services and/or provide upgrades, bug fixes, patches, error corrections, tools, utilities, improvements, third party applications, or general updates thereto (collectively, “Updates”). You agree that we have no obligation to develop, create, or make available any Updates at all or for particular issues. All Updates will be deemed to be Software. We may provide Updates via download from a website designated by us, and your receipt thereof will require an internet connection, which connection is your sole responsibility. Updates do not include any new version or release of the Software that we may issue as a separate or new product, and we have the sole discretion to determine whether any issuance qualifies as a new version, new release, or alternatively, an Update. 

h) You acknowledge that Updates may result in interrupted service, delays, or errors in the Software, Our Content, or other Services. We will attempt to provide prior notice of scheduled maintenance or other Updates, but cannot guarantee that such notice will be provided. We do not offer, and do not agree to or provide, any service level agreement, service levels, credit, compensation, uptime, minimum uptime, lack of downtime, or other similar features regarding any downtime or otherwise in connection with the Services, including Our Content or the Software. 

i) From time to time, we may, in our sole discretion, include new or updated beta features in the Services, including the Software and Our Content (“Beta Features”). You understand that your use of any Beta Feature is strictly voluntary, and that once you use a Beta Feature, you may be unable to revert back to the prior (i.e., non-beta) version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to restore data created within the Beta Feature back to the prior version. All Beta Features are provided on an “as is” basis and may contain errors or inaccuracies that could cause failures, corruption, or loss of data and information from any connected device. You acknowledge and agree that all use of any Beta Feature is at your sole risk. For the avoidance of doubt, all Beta Features shall be subject to the disclaimers and limitations of liability set forth in Section 12 of this Agreement, provided that TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE AND THE MODISOFT AFFILIATES WILL HAVE NO LIABILITY ARISING OUT OF OR RELATING TO THE BETA FEATURES UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ANY LIMITATION OF LIABILITY OR EXCLUSION OF DAMAGES IN THE AGREEMENT APPLIES IN ADDITION TO, AND NOT IN LIEU OF, THIS SECTION. IF A DISCLAIMER OF LIABILITY IS NOT ENFORCEABLE IN A GIVEN JURISDICTION, OUR AND THE MODISOFT AFFILIATES’ TOTAL AGGREGATE LIABILITY FOR THE BETA FEATURES WILL NOT EXCEED FIFTY DOLLARS ($50). 

j) In connection with the Services, including the Software and Our Content, you may be offered or made aware of services, products, offers, and promotions provided by persons other than us (collectively, “Third Party Products”), and you authorize us to use and disclose your contact information, including your name and address, for the purpose of making Third Party Products you choose available to you. Your use of the Services, including the Software and Our Content, may also make available to you reference links to websites operated by persons other than us (collectively, “Third Party Websites”). The provision of any Third Party Website link is not, and does not imply, an affiliation, sponsorship, endorsement, approval, investigation, verification, or monitoring by us of any data contained therein, or products or services made available thereby. ANY USE OF THIRD PARTY PRODUCTS OR THIRD PARTY WEBSITES IS DONE SOLELY AT YOUR OWN RISK, AND YOU ARE RESPONSIBLE FOR REVIEWING ANY TERMS, CONDITIONS, AND POLICIES GOVERNING SUCH USE AND, WHERE APPLICABLE, COMPLYING THEREWITH, WHICH MAY CONTAIN TERMS, CONDITIONS, AND/OR POLICIES THAT ARE IN ADDITION TO AND/OR DIFFERENT FROM THIS AGREEMENT. You hereby acknowledge and agree that we and the Modisoft Affiliates are not responsible or liable for (i) the performance of the Third Party Products, (ii) the content of, or any link contained on, Third Party Websites, or (iii) any liabilities or damages of any kind or nature arising from, or in connection with, your use of Third Party Products or Third Party Websites. 

k) You may be made aware of or offered various optional additional services (including Merchant Services), features, products (including hardware), applications, online communities, rewards, or promotions provided by us or Modisoft Affiliates (the “Additional Offerings”). If you decide to purchase and/or use the Additional Offerings, such purchase and/or use may be subject to Additional Terms governing the same and separate Fees may apply. Unless otherwise stated in the Additional Terms, Additional Offerings will be considered Services, subject to the Agreement including these Terms and the applicable Additional Terms.  You acknowledge that in accessing certain Additional Offerings through the Services, including the Software and Our Content, you may upload or enter certain data from your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the internet. Without limiting any rights or licenses granted to us or the Modisoft Affiliates elsewhere in this Agreement:  (1) you hereby grant us and the Modisoft Affiliates permission to share and use information about your business and usage experience to enable us and the Modisoft Affiliates to provide the Additional Offerings to you, including updating and maintaining your data, addressing errors or service interruptions, and to enhance the types of data and services we or any Modisoft Affiliate may provide to you in the future; (2) you also grant us and the Modisoft Affiliates permission to combine your business data, if any, with that of others to improve services and to compare business practices with other company standards; and (3) we and the Modisoft Affiliates may use your data to create, market, or promote new offerings to you and others. 

l) Mobile access to the Services, including the Software and Our Content, requires an active subscription and internet access, and may not be available for all mobile devices or telecommunication providers. You are responsible for ensuring your mobile device(s) and telecommunications provider are compatible with the Services, including the Software and Our Content. We are not, and will not be, obligated to provide a compatible version of the Services, including the Software and Our Content, for all mobile devices or telecommunication providers, compatibility being subject to change by us in our sole discretion and at any time with or without notice to you. You agree that you are solely responsible for these requirements, including any applicable changes, updates, and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. 

m) Depending on the Services Terms and Additional Terms, the Services, including the Software and Our Content, may include our making available certain “Cartzie” marketplace services and features (the “Cartzie Services”), through which you may make available to customers of your retail business specific benefits, such as rewards or loyalty programs, remote ordering and pick-up, information, etc. (“Customer Benefits”). If you purchase the Cartzie Services, the Cartzie Services will be part of the Services under this Agreement, subject to your payment of any Fees applicable thereto. You are solely responsible and liable for selecting, identifying, offering, providing, and implementing the Customer Benefits. You shall provide and implement all Customer Benefits in accordance with the terms under which you agree to make the Customer Benefits available to a customer and with all applicable Law. A customer will access and use such Customer Benefits provided under the Cartzie Services through a “Cartzie” mobile software application (the “Cartzie App”). The customer’s downloading, installation, access, and use of the Cartzie App is governed solely by separate terms and conditions, which must be accepted by the customer prior to downloading, installing, accessing, and using the Cartzie App, which terms and conditions are an agreement separate from this Agreement. You will not have any rights related to the Cartzie App by virtue of a customer using the Cartzie App to access and use your Customer Benefits. 

n) We and the Modisoft Affiliates do not have any obligation to assist in or otherwise intervene or mediate in the event of any dispute between your representatives or between you and any third party with respect to ownership or control of any of your Access Information, Registration Information, Your Account, Generated Data, or your ability to access and use the Services or any other data or information about or related to you. We and the Modisoft Affiliates reserve the right, in our and the Modisoft Affiliates’ sole discretions, to treat the information within the Registration Information for Your Account as definitive and controlling for purposes of administering Your Account. In the event of any such dispute, we and the Modisoft Affiliates may take any course of action that we or the Modisoft Affiliates deem appropriate in our and the Modisoft Affiliates’ sole discretions, based on the Registration Information and any other information available to us and the Modisoft Affiliates, which include declining to take any course of action requested by you,  your representatives, or a third party. 

 

3. License

a) Subject to and conditioned upon your payment of all Fees and your strict compliance with the terms and conditions set forth in this Agreement, we hereby grant you a personal, non-exclusive, non-transferable, non-assignable, non-sublicensable, limited license during the Term (as defined in Section 13.a) to access and use the Services including the Software and Our Content, as provided or made available to you by us, solely to the extent we provide or make available any Software or Our Content to you as part of the Services, in all cases and without limiting other restrictions or limitations solely for use in accordance with the Documentation and for the purpose(s) described in the description for the Services and solely for the purpose of your internal operation of your business, and, solely by Licensed Locations and, if applicable, Office Location, for which you have paid the applicable Fees, all under and in accordance with the terms and conditions of this Agreement (the “License”). 

b) Any technology, Documentation, works, material, data, and information provided or made available or accessible by us or a Modisoft Affiliate, or obtained or accessed from us or a Modisoft Affiliate, or included in or resulting or derived from any of the Services including the Software or any use thereof (collectively, “Our Content”) may be accessed or used by you under the License only to the extent that we provide or make Our Content available to you as part of the Services. In no event do we grant, or do you receive, any license or rights to or related to any source code or source materials, whether expressly or implicitly. 

c) If we provide, or make available or accessible, the Services including the Software or Our Content only for a specific geographic territory, including by written agreement, notice, or technology (for example, geo blocking) (the “Territory”), the License is granted only for such Territory. We may at any time, by notice, technology implementation, or otherwise, remove parts of the Territory, such as we deem necessary to comply with applicable Law or avoid risk or liability, such removed parts of the Territory shall at that time be excluded from the Territory, and the term “Territory” in this Agreement no longer includes such removed parts. 

d) If you are the U.S. federal government or an agency or entity of the U.S. federal government:

1. The Software is “commercial computer software”, as such term is defined at 48 C.F.R. § 2.101. Accordingly, you will receive only those rights with respect to the Software, as are granted to all other end users under license, in accordance with: (a) 48 C.F.R. § 227.7201 to § 227.7204, with respect to the Department of Defense and their contractors; or (b) 48 C.F.R. § 12.212, with respect to all other U.S. government licensees and their contractors.
2. To the extent anything under this agreement constitutes “technical data,” as defined in FAR § 2.101 or DFARS § 252.227-7015(a), you will receive only those rights with respect to such technical data and rights in that data customarily provided to the public with a commercial product or process, in accordance with: (a) DFARS § 252.227-7015, with respect to the Department of Defense and their contractors; or (b) 48 C.F.R. 12.211, with respect to all other U.S. government licensees and their contractors.

4. Additional Limitations and Restrictions

a) The License is the only license and right granted to you with regard to any Services, including any Software and any of Our Content. 

b) Except as expressly permitted by this Agreement, the License expressly excludes any right to, and you and your Authorized Users shall not, and shall not agree or promise to, and shall not allow, induce, or assist any third party to, directly or indirectly: 

1. access or use the Services including Software or Our Content outside or beyond the scope of the License, including outside the Territory; 
2. grant or purport to grant any sublicense under the License or any license to or for Our IP (as defined in Section 10) including the Services, including Software or Our Content or any part thereof; 
3. transfer, assign, or resell, or purport to transfer, this Agreement, the License, or any part thereof or any right therein or thereunder; 
4. copy, reproduce, publish, display, upload, post, transfer, or distribute the Services including the Software or any of Our Content, or access, use, or exploit the Services including the Software or any of Our Content as a service bureau or otherwise commercially for or on behalf of any third party; 
5. make, develop, or create any modification, edits, translation, transliteration, customization, adaptation, derivative work, improvement, or derivative of or to or from or based on any of Our IP, including Services including the Software or any of Our Content, in whole or in part (“Derivation”); 
6. access, use, or attempt to access or use any services, software, systems, content, programs, features, or data that are not provided or made available or accessible by us or a Modisoft Affiliate to you under this Agreement; 
7. except as required to be permitted by applicable law notwithstanding a contractual prohibition, reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code or source materials or non-public APIs of or associated with, or utilized by, the Services including the Software or any of Our Content, or any part thereof; 
8. interfere with the proper working of, or prevent access to or the use of, any of the Services including the Software or any of Our Content by us, any Modisoft Affiliate, or any other licensees or customers, or impose an unreasonable or disproportionately large load on our infrastructure or the infrastructure of Modisoft Affiliates; 
9. remove, delete, alter, or obscure any proprietary notices (including any copyright, trademark, patent, or other Intellectual Property Right or proprietary rights notices) by us or a Modisoft Affiliate on or in connection with Our IP including the Services including the Software or any of Our Content; 
10. use or utilize any of the Services including the Software or any of Our Content in violation of any Law; or 
11. use Our IP (including the Services including the Software or any of Our Content) for purposes of competitive analysis of Our IP (including the Services including the Software or any of Our Content), or designing, developing, creating, training, improving, offering or contributing to any Intellectual Property Rights, product, or service including any that is competitive with, substantially similar to, or a substitute for the Services including the Software or Our Content, or any product or service of a Modisoft Affiliate, in each case using or derived from Our IP (including the Services, including the Software or any of Our Content), including by monitoring, scraping, data mining, or harvesting outputs or usage information. For clarity, this restriction does not prohibit independent development without use of (or reference to) Our IP (including the Services including the Software or any of Our Content), nor does it restrict reverse engineering to the limited extent such restriction is prohibited by applicable law notwithstanding contractual limitation.

c) As a condition for your access to, use, and purchase of the Services including any Software and Our Content under this Agreement, and to protect the Services, you will open a merchant account only with the payment processing company identified by us, and not any other payment processing company without our express prior discretionary written consent. 

d) We and the Modisoft Affiliates may, at any time, audit and verify your and your Authorized Users’ compliance with this Agreement, including the scope of the License, locations (including any Licensed Location(s) and, if applicable, Office Location), usage, and payment of Fees. Upon our or a Modisoft Affiliate’s request, you shall promptly provide us and the Modisoft Affiliates with access to and copies of any records, information, systems, or data reasonably necessary to confirm compliance. Our and the Modisoft Affiliates’ audit rights are in addition to any other rights or remedies available to us or the Modisoft Affiliates under this Agreement or applicable Law. 

5. Data 

a) You acknowledge and agree that we and the Modisoft Affiliates may collect, generate, and derive data and information relating to your and Authorized Users’ access to and use of the Services (collectively, “Usage Data”). Usage Data may include, by way of example, information regarding features used and frequency of use; session counts, durations, and timestamps; page, screen, and workflow navigation paths; query, clickstream, and event logs; performance, diagnostics, and crash reports; error rates and latency; device and environment information such as operating system, browser or application version, device type, language, locale, and screen resolution; configuration and integration settings; network and connection metadata (e.g., IP address, domain, and routing information); and general geographic region inferred from technical identifiers.  

b) You acknowledge and agree that we and the Modisoft Affiliates may generate versions of Your Content (defined below) and Generated Data (defined below) that do not identify you (“Anonymized Data”).  Notwithstanding anything to the contrary in this Agreement, as between the Parties, we exclusively own all right, title, and interest in and to the Usage Data and Anonymized Data including any data, analyses, insights, works, or other materials derived from or based on the Usage Data or Anonymized Data (“Derived Data”), including all Intellectual Property Rights in and to such Usage Data, Anonymized Data, and Derived Data. To the extent you or any Authorized User acquires any right, title, or interest in the Usage Data, Anonymized Data, or Derived Data, you hereby irrevocably, unconditionally, and forever assign, convey, and transfer, and shall cause your Authorized Users to irrevocably, unconditionally, and forever assign, convey, and transfer, all such right, title, and interest to us including any Intellectual Property Rights in and to such Usage Data, Anonymized Data, and Derived Data, and waive, and shall cause your Authorized Users to waive, any non-assignable rights to the maximum extent permitted by law, including Moral Rights regarding Usage Data, Anonymized Data, and Derived Data. 

c) Without limiting our rights in Usage Data, Anonymized Data, and Derived Data, you agree that we and the Modisoft Affiliates may collect, store, analyze, use, and otherwise process and share the Usage Data, Anonymized Data, and Derived Data for any lawful business purpose, including to provide, maintain, secure, support, and improve the Services; develop new products, services, and features; to develop, improve, train, fine tune, or otherwise modify the weights, algorithms, or other parameters of, or for grounding or validating, evaluating, validate, operating, and improving models, algorithms, analytics, software, machine learning, services, and platforms or other artificial intelligence technology; monitor, analyze, and report on the performance and use of the Services; and create and publish benchmarks, reports, and other materials.  

d) You acknowledge and agree that we and the Modisoft Affiliates may collect or otherwise receive, generate, and derive data and information generated by, or as a result of, your purchase and your and Authorized User’s use of, the Services including the Software and Our Content, including all data collected or received with regard to any inventory, offers, sales, and transactions of your business, pricing information, sales timing and location, point-of-sale data, website transaction data, UPC, EAN, PLU, SKU, and other product identification data, private label data, cash register data, product categorizations, loyalty card data, location data, and the correlation of any such collected data (the “Generated Data,” which excludes all Usage Data).  You also acknowledge and agree that we and the Modisoft Affiliates may collect or receive text, software, music, sound, photographs, graphics, designs, Trademarks, video, messages, materials, data, and other information owned or provided by you or your Authorized Users that is used, displayed, distributed, uploaded, posted, or stored by or for you or your Authorized Users using the Services (“Your Content” which also excludes all Usage Data).  You are entirely responsible and liable for all of Your Content.  We and the Modisoft Affiliates are not responsible for any of Your Content, or any loss, misappropriation, or infringement by or of Your Content. You are encouraged to archive Your Content and the Generated Data made available to you through the Services regularly and frequently and you bear full responsibility for archiving such data and sole liability for any lost or irrecoverable data.   

e) You represent and warrant that you own or otherwise have all necessary rights, licenses, consents, and permissions, and have otherwise provided to all third parties all required notices, to use, display, distribute, upload, post, or store or otherwise make use of Your Content and the Generated Data, to grant the rights and licenses in and to Your Content and Generated Data as are set forth in this Agreement, and that the display, processing and all other use of Your Content and the Generated Data by the Services, including the Software and Our Content, and pursuant to the rights and licenses you grant in this Agreement does not violate any applicable Law or the rights of any third party.    

f) You hereby grant to us and the Modisoft Affiliates a worldwide, perpetual, irrevocable, nonexclusive, transferable, assignable, sublicensable (through multiple tiers), royalty free, fully paid up unlimited right and license to make, use, reproduce, host, store, cache, process, adapt, modify, translate, reformat, analyze, index, categorize, aggregate, enrich, de-identify, pseudonymize, anonymize (including creating Anonymized Data), combine with other data, create derivative works from, publicly and privately display and perform, publish, distribute, disclose, import, export, make available, commercialize, sell, offer to sell, monetize, and otherwise exploit Your Content and the Generated Data and the Intellectual Property Rights in and to Your Content and the Generated Data, in any manner and for any purpose, in all media and by all means, methods, technologies, and forms of exploitation now known or later developed.  No additional consideration is or will be due in connection with these rights and licenses. These rights and licenses and will remain effective notwithstanding any termination or expiration of any agreement between you and us or any Modisoft Affiliate, and will survive indefinitely. You will provide such further assurances, and execute such documents, as we and the Modisoft Affiliates may reasonably request to effectuate, confirm, or record these rights and license. 

g) The foregoing rights and licenses include the unrestricted right to use Your Content and the Generated Data and any derivatives thereof to develop, improve, train, fine tune, or otherwise modify the weights, algorithms, or other parameters of, or for grounding or validating, evaluating, validate, operating, and improving models, algorithms, analytics, software, machine learning, services, and platforms or other artificial intelligence technology; to generate insights and outputs; to support security, quality, and integrity functions; to monitor, analyze, and report on the performance and use of the Services; to create and publish benchmarks, reports, and other materials; to market and advertise; and to make, have made, use, import, export, make available, commercialize, offer for sale, sell, supply, reproduce, publicly and privately display and perform, publish, distribute, disclose, provide, monetize, and otherwise exploit products and services that embody or are informed by Your Content or the Generated Data or derivatives thereof. 

h) To the fullest extent permitted by applicable law, you irrevocably waive, and agree, and shall cause your Authorized Users to waive and agree, not to assert against us and the Modisoft Affiliates or their respective sublicensees, successors, or assigns any and all claims and rights arising from or relating to Moral Rights, rights of privacy or rights of publicity as applied to Your Content, Generated Data, Usage Data, Anonymized Data, and Derived Data and any database rights (including sui generis database rights) or similar rights, and you consent to any act or omission with respect to Your Content, the Generated Data, Usage Data, Anonymized Data, and Derived Data that would otherwise infringe or violate such rights. You acknowledge and agree that Your Content and the Generated Data are not confidential or proprietary to you, and we and the Modisoft Affiliates have no obligation of confidentiality to you with respect to Your Content or the Generated Data or derivatives thereof, except to the extent expressly required by applicable law. We and the Modisoft Affiliates  may exercise the rights granted herein directly and through third-parties acting on their behalf, including contractors, service providers, and sublicensees. 

6. Fees

a) You shall pay to us the fees for the Services including Additional Offerings, and including also Third Party Products to the extent billed by us, including the Software and Our Content, as set forth in Services Terms and any Additional Terms (the “Fees”). Unless expressly stated otherwise in the Services Terms or the Additional Terms, all Fees, and other amounts payable under this Agreement, shall be paid in U.S. dollar currency via (i) a credit or debit card, acceptable to us, or (ii) via electronic debit from a valid checking or savings account (collectively, the “Payment Method”). The Payment Method you provide must be accurate, current, and complete, and you agree to notify us promptly of any change thereto. All payments to us shall be made in immediately available unconditional irrevocable funds without any withholding, set-off, or deduction of any kind. 

b) You shall pay us for, and you hereby authorize us to collect from you, all charges and costs we incur in collecting the Fees you owe in the event any payment is declined, rejected, or otherwise fails for any reason.  

c) Unless expressly stated otherwise in the applicable Additional Terms, we may modify and change the Fees pursuant to Section 1.c.   

d) We and the Modisoft Affiliates may, in our and the Modisoft Affiliates’ sole discretion and without any obligation or continuing obligation, make promotional offers with potentially different features, program, subscription, activation, ordering, billing, cancellation, and Fees terms as compared to other customers. These promotional offers, unless made to you, will not apply to your offer or this Agreement. 

e) Unless expressly stated otherwise in the applicable Service Terms or Additional Terms, all Fees for a Subscription Period are owed and due on the first calendar day of such Subscription Period (as defined below), without regard to your actual usage, until this Agreement is terminated in accordance with its terms, and your Payment Method will be charged in advance of your Subscription Period, and we may apply such charges on any calendar day between the first (1st) and fifteenth (15th) calendar day of your Subscription Period. You authorize us to charge all Fees and other amounts owed by you to us under this Agreement, including all applicable taxes, to the Payment Method. If you pay any Fees with a credit or debit card, we may seek pre-authorization of such account prior to your purchase to verify that the credit or debit card is valid and has the necessary funds or credit available to cover your Fees. 

f) Any sales, services, value added, use, and other tax imposed under applicable Law applicable to any Fees (excluding any income tax assessed against us for receipt of any Fees) is in addition to the amount of such Fees and shall be owed and due by you to us together with such Fees. In the event that any tax, duty, levy, fee, cost, expense, charge, or other amount is deducted or withheld from the amount of any Fees when received by us (“Deduction”), you shall gross up or supplement the payment of such Fees such that the amount received by us is the full amount of such Fees without any such Deduction. If such Deduction is required to be paid by you to any government entity, you shall pay the amount of such Deduction as required under applicable Law. 

g) Except as expressly stated in this Agreement, all payments of any Fees made to us are strictly non-refundable. With regard to any Fee owed by you to us, you hereby covenant that you will not, directly or indirectly, challenge such payment by blocking any payment to be made, or challenge challenging any payment made, through the Payment Method of such Fee or part thereof, or claiming the repayment, reimbursement, or compensation for, or initiatinge any process for blocking or challenging such payment claim for repayment, reimbursement, compensation, blocked payment, or challenge (for example, by submitting a claim requesting a charge-back for any Fee paid through the Payment Method).  Notwithstanding the foregoing and for clarity, you may contest Fees owed pursuant to the dispute resolution mechanism in Section 15(g) below.   

h) We and the Modisoft Affiliates make no guarantee regarding the effectiveness or the results of activities and outcomes pertaining to third party payment processors (“TPPPs”). You represent and warrant that (a) you have thoroughly conducted your own due diligence and have independently confirmed the appropriateness and acceptability of the features, benefits, limitations, costs, requirements, and all other terms of use and policies applicable to TPPPs, and (b) that you, and not us or any Modisoft Affiliate, accepts all responsibility therefor. You agree to be solely and fully responsible for any chargebacks, penalties, or fees imposed by a bank or a TPPP due to your processing activity, and you hereby authorize us to collect from you any such amounts charged to us. You understand that your interactions with TPPPs, and all information you provide them, are subject to the TPPPs’ separate terms and conditions. 

7. Use of Service

a) The Services, including the Software and Our Content, may include a feature that allows you to communicate, including exchange information, with other users of the Services, including the Software and Our Content, and the public. Internet access is required to use these communication facilities. Please respect and interact with other users as you would in any public arena when using such features. You are responsible for exercising your judgment in evaluating and acting on (or ignoring) other users’ communication sessions and liable for all consequences thereof. We and the Modisoft Affiliates do not monitor or review any such communications, do not endorse them, and are not responsible or liable for any such communication or any content thereof, including any damages incurred as a result of the submission, viewing, or use of any such content. You and other users may post hypertext links to content hosted and maintained by third parties. We and the Modisoft Affiliates do not monitor these linked sites and are not responsible or liable related thereto. Your access to any linked sites is at your own risk. Do not reveal information that you do not want to make public. If the Services, including the Software and Our Content, include access to or use of discussion boards, you shall comply with applicable discussion board policies made available to you. 

b) The Services, including the Software and Our Content, shall be used solely for the commercial purposes for which they are provided by us. Your right to use the Services, including the Software and Our Content, is personal to you.  

c) You shall in connection with your purchase and use of the Services, including the Software and Our Content, and including Your Content and Generated Data and the rights and licenses granted to us and Modisoft Affiliates in this Agreement:  (i) provide all required and appropriate warnings, notices, information, and disclosures as well as obtain all necessary permissions and consents, (ii) comply with all applicable Law and not use the Services, including the Software and Our Content, for any illegal purpose (including without limitation using the Services, including the Software and Our Content, to share, store, or in any way distribute financial data that is not in complete accordance with applicable Law), and (iii) take all other required and reasonably appropriate actions including obtaining all necessary rights and licenses, (collectively (i) – (iii) above being “Information and Actions”). If the Services, including the Software and Our Content, do not provide adequate features for you to provide such Information and Actions, it is your obligation to not purchase or use the Services, including the Software and Our Content.   

d) Any users suspected of activity involving fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity proscribed by Law may have their accounts terminated, their financial data erased, and they also may be reported to law enforcement officials in the appropriate jurisdictions.  

e) You agree that you and the Authorized Users shall not, and shall not allow any third party to, use the Services, including the Software and Our Content, to upload, post, link to, publish, distribute, reproduce, or transmit any: 

1. unlawful, fraudulent, libelous, slanderous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, inappropriate, or otherwise objectionable information of any kind, including any transmissions constituting or encouraging conduct that would constitute an attack or “flaming” other participants, or would constitute a criminal offense, give rise to civil liability, or otherwise violate any Law; 
2. content or data to impersonate other individuals, falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their (or their legal guardian’s, if applicable) consent; 
3. content or data that would, or would be reasonably likely, to infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, Moral Rights, right of publicity, or any other Intellectual Property Right or proprietary right; 
4. advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes, or other unsolicited commercial communication (except as otherwise expressly permitted by us in advance), or content that would reasonably be viewed as the product of spamming or flooding; 
5. information or software which contains a virus, Trojan horse, worm, or other disruptive or harmful component; or 
6. information, software, or other material obtained through the Services, including the Software and Our Content, which is protected by copyright or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or right holder. 

f) If you provide, submit, or make available to us or a Modisoft Affiliate any comment, suggestion, or recommendation regarding or related to the Services, including Software, and/or any of Our Content, excluding your reviews, ratings, or testimonials of the Services (“Submission”), we shall own and have the sole rights to, and you hereby assign, convey, and transfer, and shall cause your Authorized Users to assign, convey, and transfer,  unconditionally, irrevocably, and forever all rights, title, and interest in and to, the Submission, including without limitation any Intellectual Property Rights in and to the Submissions, and waive, and shall cause your Authorized Users to waive, any non‑assignable rights to the maximum extent permitted by law, including Moral Rights.  We and Modisoft Affiliates shall not be liable to you, and you shall have no claim against us or a Modisoft Affiliate, for any royalty, fee, or payment of any kind in connection with any use of any Submission or for the compensation or reimbursement of any cost, expense or liability incurred by you. We and the Modisoft Affiliates have no obligation or responsibility regarding any Submission. Any Submission is submitted at your own risk. You shall not use, utilize, commercialize, disclose, distribute, divulge, or make available any Submission without our express prior written consent. 

g) You acknowledge that this website, the Services including the Software and Our Content are subject to export control laws and regulations administered by the U.S. Department of Commerce (15 C.F.R. Chapter VII) and agree to comply with the same at all times. You will not export or re-export the Services, including the Software and Our Content, directly or indirectly, in violation of the U.S. export control laws and regulations to any country or end user; or to any end user who you know or have reason to know will utilize them in the design, development, or production of nuclear, chemical, or biological weapons. You further acknowledge that the Services, including the Software and Our Content, may include technical data subject to such U.S. export laws and regulations.  Without limiting the preceding, you represent, warrant and covenant that (i) you, your affiliates and any Authorized User shall at all times comply with U.S. sanctions laws and regulations administered by the Office of Foreign Assets Control, U.S. Department of Treasury (“OFAC”); (ii)  neither you, nor any of your affiliates nor any Authorized User has been or is listed on any of the U.S. Government’s restricted or prohibited parties lists, including but not limited to (A) the U.S. Department of Commerce’s Denied Persons List, Unverified List and Entity List, (B) the U.S. Department of States’ AECA Debarred List, and (C) OFAC’s List of Specially Designated Nationals and Blocked Persons; and (iii) neither you, nor any of your affiliates nor any Authorized User is located in nor will access the Services, Software or Our Content in a sanctioned jurisdiction or region in violation of U.S. sanctions laws and regulations administered by OFAC. 

h) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR ALL, AND WE AND THE MODISOFT AFFILIATES HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY, OF YOUR BUSINESS, OPERATIONS, AND LOCATIONS, INCLUDING YOUR CONFIGURATION, USE, OR MISUSE OF THE SERVICES, INCLUDING THE SOFTWARE AND OUR CONTENT, RELATED THERETO, AND ALL TRANSACTIONS, PROMOTIONS, OFFERS, DISCOUNTS, REWARDS, LOTTERIES, OR LOYALTY PROGRAMS, OR OTHER ASPECTS OF YOUR BUSINESS, OPERATIONS, OR LOCATIONS, INCLUDING ANY PRICING, PROMOTIONAL, OR OTHER DATA ENTERED, UPLOADED, OR OTHERWISE PROVIDED BY YOU OR ON YOUR BEHALF, AND ANY ERRORS, MISTAKES, OR MALFUNCTIONS RELATED TO ANY OF THE FOREGOING, INCLUDING ANY ERRORS OR MISCALCULATIONS IN SETTING UP OR IMPLEMENTING ANY PROMOTIONS, MULTIPACK, OR LOYALTY DISCOUNTS, ANY PRICING OR LABELING OF ANY PRICE OF ANY PRODUCT, OR ANY DETERMINATION, CALCULATION, OR PAYMENT OF ANY SALES TAXES, USE TAXES, PAYROLL TAXES, OR OTHER FEES OR TAXES RELATED TO YOUR BUSINESS, OPERATIONS, OR LOCATIONS. WITHOUT LIMITING THE FOREGOING, IF SUPPLIERS OF PRODUCTS, INCLUDING BRANDED PRODUCTS, OFFER PARTICIPATION PROGRAMS GRANTING CONSUMERS DISCOUNTS OR PROMOTIONAL BENEFITS WITH A REIMBURSEMENT OF YOU FOR SUCH DISCOUNTS OR PROMOTIONAL BENEFITS, SUCH PROGRAMS AND YOUR PARTICIPATION THEREIN IS SOLELY BASED ON A LEGAL RELATIONSHIP BETWEEN YOU AND SUCH SUPPLIER OR OTHER ORIGINATOR OF SUCH PROGRAM. WE AND MODISOFT AFFILIATES ARE NOT RESPONSIBLE OR LIABLE FOR ANY SUCH PROGRAM OR ANY PERFORMANCE, NON-PERFORMANCE, OR OTHER MATTERS ARISING FROM SUCH PROGRAM (FOR EXAMPLE, FAILURE OF REIMBURSING YOU FOR SUCH DISCOUNTS OR PROMOTIONAL BENEFITS). YOU WILL HAVE RIGHTS AND REMEDIES RELATED TO ANY SUCH PROGRAM, INCLUDING ANY DAMAGES, ONLY AGAINST THE SUPPLIER OR OTHER ORIGINATOR OF SUCH PROGRAM BUT IN NO EVENT AGAINST US OR MODISOFT AFFILIATES. 

i) We and Modisoft Affiliates may make available features, functionalities, and services that leverage or interoperate with artificial intelligence and machine learning technologies, including models, APIs, and orchestration layers (collectively, the “AI Features”). The AI Features may generate or transform text, images, data, or other content, produce recommendations or insights, or automate tasks (collectively, “AI Content”). We and Modisoft Affiliates may use third party or open-source models, datasets, or services in providing the AI Features. We and Modisoft Affiliates may, without notice, update, modify, suspend, or discontinue any AI Features at any time, including for safety, performance, or legal reasons. THE AI FEATURES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS, AND ARE EXPERIMENTAL IN NATURE. 

1. You are solely responsible for: (a) the accuracy, quality, legality, and noninfringing nature of all inputs, prompts, instructions, data, and materials you or Authorized Users provide to or through the AI Features (“Your Inputs”); and (b) any use of or reliance on AI Content. You must implement appropriate human review and verification, and must not use the AI Features or AI Content as a substitute for professional judgment or for decisions that create legal, financial, safety, or operational risk without adequate human oversight. You will not, and will not permit any third party to: (i) use the AI Features or AI Content to develop, train, or improve models, products, or services that are competitive with or a substitute for our or a Modisoft Affiliate’s offerings; (ii) except as required to be permitted by applicable law notwithstanding a contractual prohibition, reverse engineer, decompile, extract weights from, or attempt to derive the underlying models or systems; (iii) use the AI Features in any high-risk, life-critical, or safety-of-life scenario, or where errors or delays could lead to injury, death, or significant property or environmental damage; (iv) submit, process, or disclose any sensitive or regulated data (including government identifiers, financial account numbers, payment card data, health or biometric information, data about children, or special categories of personal data) unless expressly permitted in a separate written agreement and then only in accordance with that agreement; (v) remove or obscure notices or attribution, or misrepresent the source of AI Content; (vi) use the AI Features or AI Content to infringe, misappropriate, or violate any third party rights, or to generate unlawful, harmful, or deceptive content; or (vii) circumvent safeguards, rate limits, or usage policies, or probe, scan, or test the security or vulnerability of the AI Features. We and Modisoft Affiliates may monitor use and may suspend or throttle access to the AI Features for actual or suspected violation of this Agreement or for safety, security, or legal compliance.
   
2. As between the parties, we and Modisoft Affiliates retain all right, title, and interest in and to the AI Features, models, algorithms, tools, datasets, system prompts, fine-tunes, guardrails, and all related software, know-how, and Intellectual Property Rights, including any improvements or derivative works created by or for us or Modisoft Affiliates. AI Content may be similar or identical to content generated for others due to common inputs or model behavior; no exclusivity is provided, and you acknowledge that neither we nor Modisoft Affiliates have any duty to prevent or police similar outputs for others. 
3. AI Content is generated automatically and may be inaccurate, incomplete, untimely, biased, or otherwise misleading. AI Content does not constitute legal, tax, accounting, financial, medical, or other
   professional advice, and should not be relied upon as such. You are solely responsible for independently verifying AI Content prior to use, publication, or reliance, particularly in connection with legal, financial, pricing, tax, compliance, operational, safety, or other significant decisions.
4. Without limiting Section 11, NEITHER WE NOR MODISOFT AFFILIATES warrant that the AI Features or AI Content will be free of errors, omissions, bias, or harmful content, or that they will meet your requirements or achieve any particular results.
5. You are solely responsible for ensuring that its use of the AI Features and AI Content complies with all applicable laws, regulations, and industry standards, including those relating to privacy, data protection, consumer protection, export controls, and AI-specific or sector-specific regulations. We and Modisoft Affiliates make no representation that the AI Features or AI Content are appropriate or available for use in any particular jurisdiction and may restrict or disable features to comply with law. 

8. SMS/Text Messaging Terms 

a) Program Description and Consent. If you consent to receive informational or transactional text messages from us and/or Modisoft Affiliates and depending on your selections and applicable Law, you may receive SMS related to appointment/scheduling reminders; account or security notices; support and troubleshooting; order, delivery, or service updates; billing or payment inquiries; and promotions or offers, if you have opted to receive marketing. Examples are illustrative and not exhaustive. For marketing messages, consent is not a condition of purchase. 

b) If you provide prior express written consent to receive marketing or advertising text messages from us and/or Modisoft Affiliates and depending on your selections and applicable Law, you may receive SMS related to promotions or offers. For marketing and advertising messages, consent is not a condition of purchase. 

c) Fees and Availability. Standard message and data rates may apply. Carrier rates vary by plan and may differ for domestic vs. international destinations. Message delivery is subject to your carrier and network. Carriers are not liable for delayed or undelivered messages. 

d) Message Frequency:  When you consent to receive text messages, we may disclose the approximate number of messages you can expect to receive during a specific period of time (day, week, or month).  If we do not disclose a specific frequency, text message frequency varies depending on the types of messages you elect to receive and your account activity.  

e) Opt‑In Methods. You may opt in to receive text messages by one or more of the following methods (i) upon account signup; (ii) by providing your mobile phone number and, in the case of marketing or advertising messages, checking a consent box; (iii) by submitting an online form or checking a consent box; or (iv) by texting a specified keyword such as START or JOIN to a designated number or mobile short code. Your consent will be confirmed at the point of collection.  By opting in, you certify that you are the subscriber for that mobile phone number or are authorized by the subscriber to provide consent to receive text messages on their behalf, and you are at least 18 years of age or have reached the age of majority in your jurisdiction. 

f) Opt‑Out Methods. You may opt out at any time by replying STOP, QUIT, CANCEL, END OR UNSUBSCRIBE to any message. After you text an opt-out reply to any message, we or a Modisoft Affiliate will send a confirmation SMS to verify your request, and you will no longer receive SMS from us unless you re‑opt in.  Opting-out and revoking your consent to receive text messages does not affect your obligations under this Agreement or any other agreement between you and us or Modisoft Affiliates. 

g) Help and Support. If you experience issues with our text message program, reply HELP for assistance. You can also reach us at https://modisoft.com/contact-us/.  

h) Use of Phone Numbers and Privacy. Phone numbers collected for SMS consent are used to deliver the messages you request, administer the text messaging program, and prevent fraud/abuse. We do not sell or share these numbers with third parties for their own marketing purposes. For more information, see our Privacy Policy at https://legal.modisoft.com/modisoft_privacy/. 

i) Records Retention.  We maintain records of your consent to receive text messages, including the date, time, and method of consent, and any subsequent opt-out requests, for at least four (4) years or as otherwise required by applicable Law. 

9. Privacy and Data use

a) Details about our privacy policies and practices can be found in our Privacy Policy at https://legal.modisoft.com/modisoft_privacy/. There may also be specific privacy statements governing the Services, including the Software you have selected. By continuing to use the Services, including Software and Our Content, you are agreeing to the terms of these privacy statements. 

b) You acknowledge and agree that, as detailed in these Terms and our Privacy Policy, we may collect, use, store, and disclose any Generated Data, Registration Information, and other information regarding your purchase and use of the Services including the Software and Our Content, which may include your personally identifiable information or the personally identifiable information of others, which shall be handled in accordance with our Privacy Policy. We and the Modisoft Affiliates have the unqualified right, but not the obligation, to monitor the Services, Software, and Our Content from time to time and to disclose any information as necessary or appropriate to (i) satisfy any Law, legal process, or other governmental request, (ii) operate the Services, including the Software and Our Content, properly, and (iii) protect ourselves or Modisoft Affiliates or our respective users. We and the Modisoft Affiliates reserve the right to edit, refuse to post, remove, or refuse to remove any information or materials, in whole or in part, that, in our or a Modisoft Affiliate’s sole discretion, is alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement. 

10. Intellectual Property 

a) We or a Modisoft Affiliate or licensor to us or a Modisoft Affiliate solely own, and shall retain sole ownership of, all rights, title, and interest in and to the Services including  the Software (including all Updates and all Documentation, source code, and source materials thereof or related thereto), all of Our Content and any part thereof, all Submissions, all Derivations (by whomever or whenever made, developed, discovered, or created), and all source identifiers and names of us and Modisoft Affiliates (including “CARTZIE” and “MODISOFT”), Usage Data, Anonymized Data, Derived Data, other Confidential Information, and all Intellectual Property rights in and to all of the foregoing (collectively and individually, “Our IP”). 

b) Nothing in this Agreement or any performance under this Agreement, or any act or omission related to the Agreement constitutes, or shall be interpreted or construed to constitute, and neither we nor any Modisoft Affiliate make or grant, any assignment, transfer, or conveyance of any right, title or interest, or any lien, security interest, or encumbrance, or (except as expressly set forth in this Agreement) any license or right to use, practice, or exploit, or any claim whatsoever in or to or under any of Our IP, whether expressly, implicitly, or otherwise. 

c) As between the parties, we or the applicable Modisoft Affiliate exclusively own all right, title, and interest in and to Our IP. You acknowledge the foregoing ownership and agree that neither you nor any Authorized User will assert any ownership, co-ownership, lien, encumbrance, or other interest in or to Our IP. During the Term, you will not contest our or any Modisoft Affiliate’s ownership of, or the validity or enforceability of, any of Our IP that are Trademarks, or our ownership of, or the validity or enforceability of, any of Our IP that are copyrights. The Trademark and copyright non‑contest covenant applies only during the Term.  With respect to Our IP that are patents, if you (or any Authorized User acting at your direction or for your benefit) initiate or maintain any action, claim, or proceeding challenging our or any Modisoft Affiliate’s ownership of, or the validity or enforceability of, such patents, we or the applicable Modisoft Affiliate may, to the extent permitted by applicable Law, terminate any actual or implied license to such patents granted under this Agreement upon written notice, without limiting our and the Modisoft Affiliates’ other rights or remedies.  The patent termination‑upon‑challenge provision applies to any challenge first made during the Term.  With respect to Our IP that are copyrights, if you (or any Authorized User acting at your direction or for your benefit) initiate or maintain any action, claim, or proceeding challenging our or any Modisoft Affiliate’s ownership of, or the validity or enforceability of, any such copyrights, to the extent permitted by applicable Law, we may or the applicable Modisoft Affiliate may terminate any actual or implied license to such copyrights granted under this Agreement upon written notice, without limiting our and the Modisoft Affiliates’ other rights or remedies.  The copyright termination‑upon‑challenge provision applies to any challenge first made during the Term, in addition to (and without limiting) the in‑Term copyright non‑contest covenant. Nothing in this Section limits or restricts your ability to assert any defense (including fair use, invalidity, or unenforceability) in response to any claim or action brought by us or Modisoft Affiliates, or to make disclosures required by Law or a governmental authority. The acknowledgments and non‑assert obligations in this Section with respect to ownership and no implied rights are ongoing and will survive any expiration or termination of this Agreement. If you or any Authorized User creates any Derivations in breach of this Agreement, you agree to assign, and hereby do assign, all right, title, and interest in and to such Derivations including any Intellectual Property Rights in and to such Derivations to us, and waive, and shall cause your Authorized Users to waive, any non assignable rights to the maximum extent permitted by law, including Moral Rights, without payment or other obligation by us. You shall, upon our or a Modisoft Affiliate’s request, execute any documents and take any reasonable actions necessary to effect such assignment.

11. Warranties and Representations

a) You warrant and represent that (i) you have the right and authority to enter into this Agreement and to perform all your obligations under this Agreement and that this Agreement is a legally binding agreement for you, (ii) you will access and use the Services, including the Software and Our Content, solely in accordance and compliance with the terms, conditions, and provisions of this Agreement, and all applicable Law, and (iii) you will ensure that anyone accessing and using the Services, including the Software and Our Content, on your behalf will comply with all terms, conditions, and provisions of this Agreement and applicable Law. 

b) YOUR USE OF THE SERVICES INCLUDING THE SOFTWARE AND ANY OF OUR CONTENT IS ENTIRELY AT YOUR OWN RISK. THE SERVICES INCLUDING THE SOFTWARE AND ALL OF OUR CONTENT ARE PROVIDED AND MADE AVAILABLE “AS IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, MODISOFT AFFILIATES, AND OUR THIRD PARTY LICENSORS, VENDORS, AND CONTENT AND SERVICE PROVIDERS (“SUPPLIERS”) HEREBY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO ALL AND ANY PART OF THE SERVICES INCLUDING THE SOFTWARE AND ANY OF OUR CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, ACCURACY, QUIET ENJOYMENT, AND SIMILAR REPRESENTATIONS AND WARRANTIES OF ANY JURISDICTION, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, WE AND MODISOFT AFFILIATES AND SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, OR QUALITY OF THE SERVICES INCLUDING THE SOFTWARE, OR ANY OF OUR CONTENT, INCLUDING ANY CONTENT POSTED ON OR LINKED FROM THE SERVICES INCLUDING THE SOFTWARE OR ANY OF OUR CONTENT, OR THAT THE SERVICES INCLUDING THE SOFTWARE OR ANY OF OUR CONTENT ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT, OR DESTRUCTION, OR THAT THE SERVICES INCLUDING THE SOFTWARE OR OUR CONTENT WILL MEET YOUR REQUIREMENTS. YOU ASSUME ALL RISKS ASSOCIATED WITH USING OR RELYING ON THE SERVICES INCLUDING THE SOFTWARE OR ANY OF OUR CONTENT. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES OR CONDITIONS ARE LIMITED IN DURATION TO SIXTY (60) CALENDAR DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER. 

c) WE AND MODISOFT AFFILIATES ARE NOT ENGAGED IN RENDERING LEGAL, FINANCIAL, ACCOUNTING, MEDICAL, OR ANY OTHER PROFESSIONAL SERVICE. IF SUCH ASSISTANCE IS REQUIRED, YOU SHOULD SEEK THE SERVICE OF A COMPETENT PROFESSIONAL. WE AND MODISOFT AFFILIATES EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR PURCHASE AND USE OF THE SERVICES INCLUDING THE SOFTWARE AND OUR CONTENT WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE, OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE FEDERAL OR STATE STATUTES, LAWS, OR REGULATIONS, INCLUDING THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, THE GRAMM-LEACH-BLILEY ACT OF 1999, AND THE SARBANES-OXLEY ACT OF 2002. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR PURCHASE AND USE OF THE SERVICES INCLUDING THE SOFTWARE AND OUR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW. 

d) THE FOREGOING DISCLAIMERS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU, AND WE AND MODISOFT AFFILIATES WOULD NOT HAVE PROVIDED YOU WITH ANY SERVICES INCLUDING SOFTWARE OR OUR CONTENT WITHOUT SUCH DISCLAIMERS. 

 

12. Liability

a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, MODISOFT AFFILIATES, AND SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES RELATING TO TELECOMMUNICATION FAILURES, INTERNET AND ELECTRONIC COMMUNICATIONS FAILURES, DELAYS, OR LIMITATIONS, LOSS, CORRUPTION, SECURITY, OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS, OR INVESTMENT, ARISING OUT OF OR CONNECTED IN ANY WAY WITH THE SERVICES INCLUDING THE SOFTWARE OR ANY OF OUR CONTENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF WE, MODISOFT AFFILIATES, OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

b) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE TOTAL, CUMULATIVE LIABILITY OF US, MODISOFT AFFILIATES, AND SUPPLIERS FOR ALL CLAIMS, LOSSES, AND DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES INCLUDING THE SOFTWARE AND OUR CONTENT AND THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY, WILL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO US FOR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. THIS LIMIT IS AN AGGREGATE CAP FOR ALL CLAIMS AND AGAINST US, MODISOFT AFFILIATES, AND SUPPLIERS AND APPLIES EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. FOR CLARITY, ‘FEES’ FOR PURPOSES OF THIS SECTION 12.B EXCLUDES TAXES, SHIPPING, REIMBURSED EXPENSES, CREDITS, AND AMOUNTS PAID FOR THIRD‑PARTY PRODUCTS OR SERVICES. 

c) THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU, AND WE AND THE MODISOFT AFFILIATES WOULD NOT HAVE PROVIDED YOU WITH ANY SERVICES INCLUDING THE SOFTWARE OR OUR CONTENT WITHOUT SUCH LIMITATIONS.  YOU AGREE THAT THE LIMITATIONS OF DAMAGES REFLECT THE PRINCIPAL OF JUST COMPENSATION AND ARE NOT PUNITIVE IN NATURE. 

d) TO THE FULLEST EXTENT PERMITTED BY LAW, YOU ARE RESPONSIBLE FOR YOUR PURCHASE AND USE OF THE SERVICES INCLUDING THE SOFTWARE AND ANY OF OUR CONTENT AND SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS US, ALL SUPPLIERS, AND EACH’S RESPECTIVE AFFILIATES (INCLUDING MODISOFT AFFILIATES) AND EACH OF THEIR RESPECTIVE OWNERS, MEMBERS, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AND AGENTS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) FROM AND AGAINST EVERY CLAIM, AND ALL LOSSES ARISING OUT OF, RESULTING FROM, OR CONNECTED WITH (I) YOUR BUSINESS OR OPERATIONS, ANY PRODUCTS AND SERVICES RELATED TO YOUR BUSINESS OR OPERATIONS, ANY TRANSACTIONS BY YOU RELATED TO YOUR BUSINESS OR OPERATIONS, YOUR CONTENT, YOUR INPUTS, OR ANY OF THE FORGOING TO WHICH THE SERVICES INCLUDING THE SOFTWARE OR OUR CONTENT RELATE (INCLUDING ANY CLAIMS RELATED TO ANY CUSTOMER BENEFITS OR ALLEGATION OF YOUR FAILING TO PROVIDE ANY CUSTOMER BENEFITS), AND INCLUDING YOUR USE OF THE AI FEATURES OR AI CONTENT, INCLUDING ANY DECISIONS OR ACTIONS TAKEN IN RELIANCE THEREON; (II) YOUR UNAUTHORIZED USE, OR MISUSE, OF THE SERVICES INCLUDING THE SOFTWARE OR ANY OF OUR CONTENT; (III) YOUR BREACH OR VIOLATION OF THIS AGREEMENT OR ANY TERM, CONDITION, PROVISION, REPRESENTATION, WARRANTY, OR AGREEMENT HEREOF; (IV) ANY INFRINGEMENT, OR ALLEGED INFRINGEMENT, OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY, PRIVACY, PUBLICITY OR OTHER RIGHT OF A THIRD PARTY, OR MISAPPROPRIATION OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPERTY AS A RESULT OF YOUR ACCESS TO, PURCHASE, OR USE OF THE SERVICES INCLUDING THE SOFTWARE, YOUR INPUTS, AI CONTENT, OR ANY OF OUR CONTENT (EXCEPT SOLELY IF SUCH INFRINGEMENT OR ALLEGED INFRINGEMENT IS CAUSED SOLELY BY THE SERVICES INCLUDING THE SOFTWARE OR ANY OF OUR CONTENT AS AND WHEN MADE AVAILABLE BY US TO YOU WITHOUT CONSIDERATION OF ANY PORTION THAT IS GENERATED DATA OR DERIVED THEREFROM, YOUR CONTENT OR DERIVED THEREFROM, ANONYMIZED DATA, DERIVED DATA OR ANY OTHER DATA OR INFORMATION PROVIDED BY YOU OR THAT IS DERIVED FROM DATA OR INFORMATION PROVIDED BY YOU OR ANY MODIFICATIONS, ADAPTATIONS, COMBINATIONS, OR SPECIFIC USES OR PURPOSES OF YOU); OR (V) YOUR, ANY AUTHORIZED USER’S, OR ANY OTHER OF YOUR PERSONNEL’S (A) NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, CONTRIBUTORY, PROPORTIONATE, OR COMPARATIVE), (B) WILLFUL MISCONDUCT, OR (C) VIOLATION OF LAW, IN EACH CASE TO THE FULLEST EXTENT PERMITTED BY LAW AND REGARDLESS OF THE CONCURRENT, CONTRIBUTORY, PROPORTIONATE, OR COMPARATIVE NEGLIGENCE OF ANY INDEMNIFIED PARTY; PROVIDED, HOWEVER, THAT INDEMNIFICATION WILL NOT BE REQUIRED TO THE EXTENT PROHIBITED BY APPLICABLE LAW, INCLUDING, WHERE APPLICABLE, TO THE EXTENT OF AN INDEMNIFIED PARTY’S SOLE NEGLIGENCE OR WILLFUL MISCONDUCT. WE AND MODISOFT AFFILIATES RESERVE THE RIGHT TO ASSUME, AT YOUR EXPENSE, ON BEHALF OF ANY OF THE INDEMNIFIED PARTIES THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU (WITHOUT LIMITING YOUR INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THAT MATTER), IN WHICH CASE YOU AGREE TO COOPERATE WITH OUR AND THE ANY MODISOFT AFFILIATE’S DEFENSE OF THOSE CLAIMS.  YOU SHALL, UPON NOTICE OF A CLAIM, PROVIDE EACH OF THE INDEMNIFIED PARTIES ADVANCEMENT OF ANY FEES, COSTS, OR EXPENSES, INCLUDING BUT NOT LIMITED TO LEGAL FEES, INCURRED BY INDEMNIFIED PARTIES THAT WOULD BE SUBJECT TO INDEMNIFICATION UNDER THIS SECTION. THIS INCLUDES PAYMENT OF ANY LEGAL FEE RETAINER AMOUNTS AS NECESSARY TO ENSURE THAT SUCH INDEMNIFIED PARTY IS NOT OBLIGATED TO MAKE OUT-OF-POCKET PAYMENTS FOR ANY INDEMNIFIED LEGAL FEES, COSTS, OR EXPENSES PRIOR TO RECEIVING SUCH ADVANCEMENT PAYMENT FROM YOU. 

13. Trial Period; Term and Termination

a) This Agreement commences upon the acceptance of these Terms and continues, unless and until terminated earlier in accordance with the terms of this Agreement (the “Term”) including as follows: 

1. if you registered for a trial use of the Services, for the specified duration of such trial (the “Trial Period”), at the end of which this Agreement will terminate and expire if you have not purchased the Services under this Agreement prior to the expiration of the Trial Period; 
2. if you timely purchased the Services under this Agreement before the end of the Trial Period, or if you purchased the Services, this Agreement continues for consecutive Subscription Periods, with the term automatically renewing at the end of each Subscription Period for another Subscription Period unless and until terminated by either party providing written notice to the other party, such notice in accordance with this Section 13, no later than fifteen (15) Business Days prior to the end of the then-applicable Subscription Period; or  
3. by as otherwise set forth in this Agreement, including Sections 1.c.3. and 2.b. 

b) The “Subscription Period” means either, as selected by you when you select your plan as a part of the Services Terms or Additional Terms:  

1. one (1) calendar month (whereby the initial Subscription Period, if the acceptance of these Terms does not occur on the first day of a calendar month, shall run from such acceptance until the end of the calendar month next following the calendar month during which such acceptance occurred);  
2. a period of one (1) year (whereby the initial Subscription Period, if the acceptance of these Terms does not occur on the first day of a calendar month, shall run from such acceptance until the first anniversary of the last day of such calendar month); or  
3. a period of two (2) years (whereby the initial Subscription Period, if the acceptance of these Terms does not occur on the first day of a calendar month, shall run from such acceptance until the second anniversary of the last day of such calendar month).  

c) If you have purchased a Subscription Period of one (1) or two (2) years, you may terminate this Agreement for convenience at any time upon fifteen (15) business days’ prior written notice to Modisoft. As a condition of such early termination, you must pay to Modisoft an early termination fee (the “Early Termination Fee”) on or before the effective date of termination.  The Early Termination Fee shall be calculated as fifty percent (50%) of the pro rata share of any Fees that would have been payable by you under these General Terms & Conditions including any Services Terms for the entirety of the remaining Subscription Period following the effective date of termination plus any additional Early Termination Fees related to Additional Offerings as set forth in Additional Terms (e.g., any Merchant Services Early Termination Fee). For purposes of the calculation of the Early Termination Fee under these General Terms & Conditions, the pro rata share shall be determined based on the number of days remaining in the Subscription Period as of the effective date of termination relative to the total number of days in the applicable Subscription Period.  For example, if you purchased a one (1) year Subscription Period and terminated effective at the end of 185 calendar days into the Subscription Period, you would owe as an Early Termination Fee the equivalent of fifty percent (50%) of 180 calendar days of Fees that would have been payable by you under these General Terms & Conditions including any Services Terms, plus any Early Termination Fees related to Additional Offerings as set forth in Additional Terms.  If the Fees under these General Terms & Conditions including Services Terms equated to one dollar ($1) a day, you would owe fifty percent (50%) of $1 x 180 days, or $90, plus any Early Termination Fees related to Additional Offerings as set forth in Additional Terms as an Early Termination Fee.  Failure to pay the Early Termination Fee on or before the effective date of termination shall render your notice of termination void, and this Agreement shall continue in full force and effect in accordance with its terms.  Upon termination of this Agreement for convenience, you shall also promptly return to us all hardware provided to you at no charge during the term of this Agreement. You must return all such hardware within thirty (30) calendar days following the effective date of such termination, at your sole cost and expense, to the address designated by us in writing.  All such hardware must be returned in good working order and condition, reasonable wear and tear excepted. You shall ensure that the hardware is properly packaged for shipment to prevent damage during transit. In the event that you fail to return such hardware within the timeframe specified herein, or if such hardware is returned in a condition that does not meet the requirements set forth above, we reserve the right to invoice you for the replacement cost of such hardware, which amount shall be immediately due and payable upon receipt of such invoice. 

d) For you to terminate this Agreement, you must (i) send an e-mail (from the e-mail account you have registered with us) to billing@modisoft.com and contain “Service Cancellation Request” in the subject line (we do not accept telephonic or other verbal requests, or other means of termination, under any circumstances), and (ii) include in such e-mail (aa) your Modisoft ID and/or store account number, (bb) the store name and address, (cc) the name and phone number for your contact person, and (dd) the basis of your termination (e.g., which right of termination under this Agreement are you terminating under) and the effective date of such termination in accordance with your named termination right under Agreement. Failure to comply with any such requirements for any and all termination notices from you may cause the termination to be invalid and ineffective. 

e) We may terminate this Agreement at any time at our convenience and for no reason upon at least five (5) calendar days’ prior written notice to you. Termination shall be effective on the fifth (5th) calendar day after such notice is provided, unless a later effective date is stated in the notice. 

f) In addition, we may terminate this Agreement by notice of termination to you effective immediately if: (i) you breach the terms and conditions of, or your obligations pursuant to, this Agreement; or (ii) you file, or have filed against you, a petition for voluntary or involuntary bankruptcy (or similar action pursuant to any other insolvency law), or make or seek to make a general assignment for the benefit of your creditors, or apply for, or consent to, the appointment of a trustee, receiver, or custodian for a substantial part of your property; or (iii) we are unable to process your Payment Method upon Fees becoming or being due; or (iv) you provide inaccurate, incomplete, or outdated Registration Information, or fail to promptly update the same, or we have reasonable grounds to suspect your Registration Information is inaccurate, incomplete, or outdated. In our sole discretion, in any of the foregoing events, we may suspend rather than terminate this Agreement, pending a decision whether to terminate or reinstate this Agreement. 

g) In the event of any termination or expiration of this Agreement, we and the Modisoft Affiliates may immediately irretrievably delete any and all of Your Content, and may thereafter not provide you with any Generated Data, without being liable for any damages, losses, or consequences thereof. YOU UNDERSTAND AND AGREE THAT THE LICENSE AND YOUR ACCESS TO AND/OR USE OF THE SERVICES INCLUDING THE SOFTWARE AND ANY OF OUR CONTENT WILL TERMINATE, AND ANY OF YOUR CONTENT AND GENERATED DATA MAY BE IRRETRIEVABLY LOST, UPON THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. We strongly recommend that you back up all Your Content and download all Generated Data made available to you through the Services before any expiration or termination of this Agreement. In accordance with our standard practice, we and the Modisoft Affiliates may irretrievably delete all of Your Content and Generated Data within your account thirty (30) calendar days after the expiration or termination of this Agreement. 

h) All payments of Fees are final. No refunds of any Fees will be provided with respect to any renewal Term charged to you due to untimely, incomplete, or otherwise defective cancellation requests. If we terminate this Agreement for convenience under Section 13(e), we will refund to you any prepaid but unused Fees on a pro rata basis for the portion of the applicable Subscription Period remaining after the effective date of termination.  

i) Upon the expiration or termination of this Agreement, the License will immediately terminate, and you will cease accessing and using, and attempting to access or use, the Services including the Software and Our Content, and irretrievably delete and destroy any copies or manifestations of the Services including the Software and Our Content and all other Confidential Information in your direct or indirect possession or control. Upon our or any Modisoft Affiliate’s request, you shall certify your full compliance with the foregoing provisions of this Section 13.i. No expiration or termination shall (i) affect your obligation to pay all Fees that may have become due before such expiration or termination, or (ii) except as expressly provided in Section 13, entitle you to any refund. Without altering the above in this Section 13.i., including without limitation the termination of the License and your access and use rights related to the Services, the provisions, terms, and conditions in the preamble before Section numbers, Sections 1, your restrictions and liabilities under 2.c and 2.d., 2.g – 2.n, 3.b, 3.d, 4.a., 4.b. and 4.d., 5, 6, 7.a, 7.c, 7.d, 7.e, 7.f, 7.g, 7.h, 7.i, 8, 9, 10, 11, 12, 13.f, 13.g, 13.h, 13.i, 14, 15, and 16, and all definitions of the terms used in such Sections, shall survive the termination or expiration of this Agreement and continue to be in effect thereafter, and any other right or obligation in this Agreement, which, by its nature, should survive termination of this Agreement, will survive any termination or expiration of this Agreement. 

14. Confidentiality

a) In connection with this Agreement and the provision of Services, we or Modisoft Affiliates may disclose or make available Confidential Information to you. “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential, including information consisting of or relating to our or Modisoft Affiliate’s technology, trade secrets, know-how, business operations, finances and other business affairs, plans, strategies, customers, software including source code, technical information, algorithms, data structures, technical specifications, pricing information, third party information that we or Modisoft Affiliates are obligated to keep confidential, and any other information of a confidential, proprietary and/or trade secret nature, whether or not marked, designated, or otherwise identified as “confidential.” Without limiting the foregoing the Services including the Software (including all Updates and all Documentation, source code, and source materials thereof or related thereto), all Submissions, all Derivations (by whomever or whenever made, developed, discovered, or created), Usage Data, Anonymized Data, Derived Data, and Our Content,  are the Confidential Information of us and/or Modisoft Affiliates.  Confidential Information does not include information that: (a) was rightfully known to you without restriction on use or disclosure prior to such information being disclosed or made available to you in connection with this Agreement; (b) was or becomes generally known by the public other than by your noncompliance with this Agreement or the wrongful acts of other Persons; (c) was or is received by you on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by you without reference to or use of any Confidential Information or any other of Our IP. As a condition to being provided with any disclosure of or access to Confidential Information, you shall: (a) not access or use our or any Confidential Information other than to exercise your rights or perform your obligations under and in accordance with this Agreement; and (b) except in response to a Demand, not disclose or permit access to our or any Confidential Information other than to your employees and independent contractors working on and for the benefit you and that: (i) need to know such Confidential Information for purposes of your exercise of your rights or performance of your obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the your obligations under this Section 14; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 14. You will safeguard Confidential Information from unauthorized use, access or disclosure using at least the degree of care you use to protect your sensitive information and in no event less than a reasonable degree of care appropriate to the status and value of the Confidential Information. You will promptly notify us and any applicable Modisoft Affiliate of any unauthorized use or disclosure of Confidential Information and cooperate with us and Modisoft Affiliates to prevent further unauthorized use or disclosure. If you are compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, you will: (a) promptly, and prior to such disclosure, notify us and any applicable Modisoft Affiliate in writing of such requirement so that we and any applicable Modisoft Affiliate can seek a protective order or other remedy or waive its rights under this Section 14; and (b) provide reasonable assistance to us and Modisoft Affiliates, at our or any applicable Modisoft Affiliate’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If we or any applicable Modisoft Affiliate waives compliance or, after providing the notice and assistance required under this Section 14, you remain required by Law to disclose any Confidential Information, you will disclose only that portion of the Confidential Information that you are legally required to disclose. The obligations under this Section 14 shall survive the expiration or termination of this Agreement for the maximum period of time allowed by applicable Law for the protection of such Confidential Information, including in the case of trade secrets, for so long as such trade secrets are protectable under applicable Law. 

15. Miscellaneous 

a) Any notice under this Agreement by us may be given, and shall be deemed to be given in writing, to you when sent to the e-mail address identified in your Registration Information or as an online notification upon your seeking to access the Services, including the Software and Our Content, and shall be effective when sent to your e-mail address, whether in the inbox or other folder, or displayed to you when in an online notification. 

c) You and we and Modisoft Affiliates are independent contractors, each without the power or authority to bind, contract or commit the other, and will always represent themselves to any third parties only as an independent contractor without such power or authority. You are not a partner, joint venturer, co-owner or otherwise a participant in a joint or common undertaking with us or a Modisoft Affiliate. You shall take steps necessary to avoid the appearance or belief by a third party that you are an agent with the authority to bind us or a Modisoft Affiliate. Your employees and personnel are not, and shall not be construed to be, employees or personnel of us or a Modisoft Affiliate, and we or a Modisoft Affiliate shall not be liable for, have any obligations to, and may not be bound by such employees or personnel. Neither you nor we or Modisoft Affiliates have any authority (express, implied or otherwise) to enter into any contracts or commitments in the name of, or on the behalf of, the other or bind the other Party in any respect whatsoever. 

d) You shall not assign, delegate, transfer, sub-license, mortgage, pledge, encumber, or otherwise dispose of this Agreement, the License, or any of your rights or obligations hereunder, whether voluntarily, involuntarily, by operation of law, or otherwise, without our, or as applicable, Modisoft Affiliates’, prior written consent in each instance. Any attempted assignment, delegation, transfer, sub-license, or other disposition in violation of this Section shall be null and void ab initio and shall constitute a material breach of this Agreement. For purposes of this Agreement, any Change of Control of you shall be deemed an assignment subject to this Section and shall require our, or as applicable, Modisoft Affiliates’, prior written consent. We or Modisoft Affiliates may withhold consent in its sole discretion. Any approved assignment or Change of Control shall not release you (or your successor) from any obligations accrued prior to the effective date thereof unless expressly agreed in writing by us or Modisoft Affiliates. 

e) Each of the Modisoft Affiliates is an intended third party beneficiary with regard to any term, condition, or provision of this Agreement related to a Modisoft Affiliate. Otherwise, you and we do not intend any third party to be a third party beneficiary under this Agreement, and nothing in this Agreement shall be construed for any third party to be a third party beneficiary or to confer any third party beneficiary rights or status on any third party. 

f) You agree that damages alone may be an insufficient remedy for violations of the terms of this Agreement (other than the obligation to pay Fees) and that we or the Modisoft Affiliates, may suffer irreparable damage as a result of such a violation. Accordingly, we and any of Modisoft Affiliates shall be entitled, in the event of such a violation or threatened or anticipatory violation, to seek injunctive relief or equivalent relief to enforce this Agreement without obligation to post a bond, which injunctive or equivalent relief shall be in addition to any and all other rights or remedies available to us or Modisoft Affiliates including damages.  Notwithstanding Section 15.g., Modisoft may seek such injunctive relief or equivalent relief, including seeking a permanent injunction, temporary restraining order, preliminary injunction, or other interim or conservatory relief, to enforce this Agreement in the federal courts of the United States of America or the courts of the State of Texas, in each case located in Houston, Harris County, and you and we and the Modisoft Affiliates hereby irrevocably submit to the exclusive jurisdiction of such courts for such suit, action, or proceeding. However, notwithstanding the foregoing, no party waives its right to remove such a case filed in Texas state court to federal court located in Houston, Harris County, Texas or file such a case in federal court located in Houston, Harris County, Texas if such federal court has jurisdiction over such case or controversy.      

g) The validity, enforceability, and performance of this Agreement, and any dispute and the resolution of any dispute under this Agreement, and the interpretation and construction of this Agreement or any term, condition, or provision thereof, and all other matters related to this Agreement, whether in a court of law, arbitration, or otherwise, shall be governed by the law of the State of Texas, without regard to any conflict of laws or international private law that would result in the application of the law of any other jurisdiction. In the event that the U.N. Convention on the International Sale of Goods has any application to the agreement, the parties disclaim the application thereof. The parties expressly exclude the application the Uniform Computer Information Transactions Act, as enacted in any jurisdiction.  Any dispute or Claim arising out of or related to this Agreement, or including the interpretation, making, performance, breach, validity, or termination thereof, shall be finally settled by binding arbitration in Houston, Texas, administered by the American Arbitration Association (“AAA”) and under the AAA’s Commercial Arbitration Rules of the American Arbitration Associationin effect at the time the arbitration is noticed (the “AAA Rules”) by one neutral arbitrator appointed in accordance therewithwith the AAA Rules. The arbitrator shall have the power to decide all questions of arbitrability. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. YOU HEREBY AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.  Prior to initiating any arbitration proceeding under this Agreement, the party seeking to initiate such proceeding (the “Initiating Party”) shall first provide written notice to the other party (the “Responding Party”) describing in reasonable detail the nature of the dispute, controversy, or claim and the relief sought. All such notices by you to us regarding a dispute, controversy or claim must be sent to  billing@modisoft.com and contain “Notice of Dispute” in the subject line.  Upon sending of such notice, the parties shall attempt in good faith to resolve the dispute through direct negotiation for a period of no less than fifteen (15) calendar days (the “Negotiation Period”). If the parties are unable to resolve the dispute within the Negotiation Period, the Initiating Party may thereafter commence arbitration in accordance with the procedures set forth in this Agreement. The Negotiation Period shall be a condition precedent to the commencement of any arbitration, and no arbitration demand or proceeding shall be initiated prior to the expiration of such period.   

h) If we or Modisoft Affiliates institute legal proceedings pursuant to this Agreement against you, we and Modisoft Affiliates will be entitled to recover from you, and you shall pay to us or Modisoft Affiliates, all reasonable attorneys’ and expert fees and other legal costs and expenses paid or incurred by us or Modisoft Affiliates in such proceedings if we or Modisoft Affiliate prevail in such proceedings. 

i) THE PARTIES ACKNOWLEDGE THAT THIS SECTION 15.I ALLOCATES RISK BETWEEN THEM AND HAS BEEN NEGOTIATED AND AGREED UPON AS A MATERIAL PART OF THE BARGAIN REFLECTED IN THIS AGREEMENT. YOU HAVE THE OPPORTUNITY TO REVIEW THIS SECTION 15.I AND CONSULT WITH COUNSEL BEFORE AGREEING TO ITS TERMS.  Neither party shall be liable for any failure or delay in performing its obligations under this Agreement where such failure or delay results from a Force Majeure Event; provided, however, that your obligation to pay any and all fees, charges, and other amounts due under this Agreement shall not be excused, delayed, or otherwise affected by any Force Majeure Event, and you may not invoke force majeure as a defense to, or justification for, any failure or delay in payment; and provided, further, that this Section 15.i shall apply to us with respect to any of our obligations under this Agreement, including without limitation our service level commitments, performance standards, delivery timelines, and any other operational obligations.  The parties expressly agree that the enumerated events and the catch-all provision shall not be limited by the doctrine of ejusdem generis.  Upon the occurrence of a Force Majeure Event affecting our ability to perform, we shall notify you within a commercially reasonable time (and in any event within fifteen (15) calendar days) after becoming aware of the event. Such notice shall describe the nature of the Force Majeure Event and, where practicable, provide an estimate of its expected duration. We shall have no obligation to implement workarounds, procure alternative resources, or otherwise mitigate the effects of any Force Majeure Event, though we may elect to do so in our sole discretion. Nothing herein shall be construed to relieve us of our duty of good faith and fair dealing in invoking this Section 15.i.  During the continuance of any Force Majeure Event, our obligations under this Agreement (including any service levels, response times, or other performance metrics) shall be suspended to the extent affected by the Force Majeure Event, and any time periods for our performance shall be extended by a period equal to the duration of the Force Majeure Event. Notwithstanding any suspension, interruption, degradation, or non-performance of services resulting from a Force Majeure Event, your payment obligations under this Agreement shall continue in full force and effect without abatement, reduction, deferral, or setoff of any kind. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT NO CREDITS, REFUNDS, CHARGEBACKS, REBATES, FEE ADJUSTMENTS, SERVICE EXTENSIONS, OR OTHER COMPENSATION OR CONSIDERATION OF ANY KIND WHATSOEVER SHALL BE DUE TO YOU IN CONNECTION WITH ANY FORCE MAJEURE EVENT. YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, RELEASE, AND FOREVER RELINQUISH ANY AND ALL RIGHTS, CLAIMS, AND REMEDIES—WHETHER ARISING UNDER THIS AGREEMENT, AT LAW, IN EQUITY, OR OTHERWISE—TO SEEK, DEMAND, OR RECOVER ANY SUCH CREDITS, REFUNDS, OFFSETS, ABATEMENTS, OR OTHER RELIEF AS A RESULT OF ANY INTERRUPTION, DEGRADATION, DELAY, OR NON-DELIVERY OF SERVICES CAUSED BY, ARISING FROM, OR ATTRIBUTABLE TO A FORCE MAJEURE EVENT. YOU ACKNOWLEDGE THAT THIS WAIVER IS CONSPICUOUS, HAS BEEN BROUGHT TO YOUR ATTENTION, AND IS VOLUNTARILY MADE WITH FULL KNOWLEDGE OF ITS SIGNIFICANCE.  If a Force Majeure Event continues for a period exceeding ninety (90) calendar days, either party may terminate this Agreement or any affected portion thereof upon thirty (30) calendar days’ prior written notice to the other party. In the event of such termination: (a) we shall have no liability for such termination; (b) all fees and amounts accrued prior to such termination shall remain due and payable; (c) we shall have no obligation to provide credits, refunds, or other compensation of any kind; and (d) if you terminate pursuant to this paragraph, such termination shall be your sole and exclusive remedy for the Force Majeure Event. For the avoidance of doubt, your waiver of credits, refunds, offsets, and other relief set forth herein shall survive any such termination.  Nothing in this Section 15.i shall limit or exclude our right to suspend, limit, or modify services for any other reason permitted under this Agreement or to exercise any other rights or remedies available to us at law or in equity. Your acknowledgments, waivers, and releases in this Section 15.i are a material inducement to our entry into this Agreement, and you agree that such provisions are fair and reasonable under all circumstances, including extended or repeated Force Majeure Events. If any provision of this Section 15.i is held to be unenforceable, the remaining provisions shall continue in full force and effect, and the unenforceable provision shall be modified to the minimum extent necessary to make it enforceable while preserving the parties’ intent to allocate force majeure risk primarily to you. 

j) This Agreement, including the Services Terms, and all other documents that are incorporated by reference herein and any other Additional Terms presented by us, the Modisoft Affiliates, or our Suppliers including those for Additional Offerings, constitutes the sole, complete, and entire agreement between you and us and the Modisoft Affiliates with respect to the subject matter contained herein, including setting forth the entire obligations and liability of us, and your exclusive rights and remedies, with respect to the Services including the Software and Our Content, and their use, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. 

k) No waiver by us or any Modisoft Affiliate of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by us. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by us or any Modisoft Affiliate shall operate or be construed as a waiver thereof by us; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder by us or any Modisoft Affiliate preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by us. 

l) If any term or provision of this Agreement is held to be invalid, illegal, or unenforceable in any jurisdiction, such term or provision shall, to the fullest extent permitted by applicable Law, be reformed, modified, or limited by a court of competent jurisdiction or arbitrator, as applicable pursuant to this Section 15 so as to render it valid, legal, and enforceable while preserving as nearly as possible the original intent of the parties as reflected in the original wording. If such term or provision cannot be so reformed, modified, or limited, it shall be severed from this Agreement, and the remaining terms and provisions shall continue in full force and effect. Any such invalidity, illegality, or unenforceability shall not affect the validity, legality, or enforceability of such term or provision in any other jurisdiction. 

m) For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute, regulation, or other Law means such statute, regulation, or other Law as amended from time to time and includes any successor legislation, regulation, or other Law. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The ancillary documents referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings contained in this Agreement are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Agreement. 

16. Additional Definitions

a) “Additional Terms” shall mean without limitation all Additional Offerings-specific, service-specific, product-specific, transaction-specific, or feature-specific terms that are provided to you by us or a Modisoft Affiliate regarding the foregoing that you are obtaining from us or a Modisoft Affiliate, including any applicable program, subscription, activation, ordering, billing, cancellation, and Fees terms that are provided by us or a Modisoft Affiliate to you regarding the foregoing, whether provided online or offline, and including terms selected by you for such products and services that you are obtaining from us or that are provided by us or Modisoft Affiliates as promotional offers and accepted by you for such products and services with potentially different features, program, subscription, activation, ordering, billing, cancellation, and Fees terms as compared to other customers. The Additional Terms are hereby incorporated by reference into this Agreement unless they state that such Additional Terms are instead of these Terms for a given product or service, in which case those Additional Terms and not these Terms apply for such product or service. In the event of any conflict between these Terms and any Additional Terms, the Additional Terms shall prevail. 

b) “Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person. For purposes of this definition, “control” (including its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract, or otherwise, and shall be deemed to exist with respect to any Person that owns, directly or indirectly, more than fifty percent (50%) of the outstanding voting securities (or, in the case of a Person that is not a corporation, more than fifty percent (50%) of the ownership or other voting interests) of such Person.  

c) “Business Day” means any day other than a Saturday, Sunday, or a day on which commercial banks in the State of Texas are required by Law to be closed for general business. 

d) “Change of Control” means, with respect to you, any direct or indirect change in ownership or control of more than fifty percent (50%) of the voting securities or ownership interests of you, or the right to direct the management or policies of you, whether by acquisition of voting securities or interests, contract, or otherwise, including any merger, consolidation, reorganization, recapitalization, or sale of all or substantially all of your assets. 

e) “Claims” means any and all claims, demands, actions, suits, causes of action, complaints, charges, settlements, allegations, proceedings or investigations of any nature (including arbitration, mediation, audits, inquiries, subpoenas, and administrative or regulatory proceedings), whether at law or in equity and whether arising in contract, tort, statute, strict liability or otherwise. 

f) “Documentation” means any and all written, electronic, or other materials, content, or instructions provided or made available by us, whether directly or indirectly, in any form or medium, that describe, govern, relate to, or specify the features, functionality, configuration, operation, use, limitations, or requirements of the Services, including Software or Our Content, including without limitation user guides, manuals, technical documentation, specifications, policies, knowledge base articles, FAQs, release notes, onboarding materials, training materials, help content, in-product instructions, and any updates, revisions, or modifications thereto, as may be provided or updated by us or a Modisoft Affiliate from time to time. 

g) “Force Majeure Event” means any event or circumstance beyond the reasonable control of the affected party, including but not limited to: natural disasters or severe weather; epidemics, pandemics, or other public health emergencies; war, terrorism, civil unrest, or insurrection; governmental actions, laws, regulations, embargoes, or orders; labor disputes or work stoppages (whether or not involving our employees); failure or interruption of utilities, telecommunications, or internet services; cyberattacks or other malicious interference with computer systems or networks; failure of third party vendors, suppliers, or service providers that are essential to our delivery of services and upon which we reasonably rely; shortages of materials, equipment, or personnel; transportation disruptions; and any other event beyond the reasonable control of the affected party, whether or not similar to the foregoing and whether or not foreseeable at the time of entering into this Agreement. 

h) “Intellectual Property Rights” means all of the following anywhere in the world and all legal rights, title, or interest in the following arising under equity or law, whether or not filed, perfected, registered or recorded and whether now or later existing, filed, issued or acquired, including all renewals: all patents and applications for patents whether granted or pending, now or in the future, and any and all divisionals, reissues, reexaminations, results of any post grant review or inter-partes review, re-registrations, renewals, extensions, provisionals, continuations and continuations in part, now or in the future; all industrial designs, industrial models, utility models, certificates of invention and other indices of invention ownership, and any related registrations and applications; all inventions (whether patentable or not and whether or not reduced to practice), invention disclosures, invention notebooks, file histories, know how, technology, technical data, trade secrets, confidential business information, manufacturing and production processes and techniques, research and development information, and other Documentation, and other proprietary information of every kind; rights of any kind in databases or database structures; semiconductor chips or mask works; all works of authorship, copyrights, copyright registrations and copyright applications, copyrightable works, and all other corresponding rights including all rights in software including software object and source code; all trade dress and trade names, logos, trademarks and service marks and related registrations and applications, including any intent to use applications, supplemental registrations and any renewals or extensions, domain names, internet addresses, URLS, and all other indicia of commercial source or origin, and all goodwill associated with any of the foregoing (“Trademarks”); any rights analogous to those set forth in the preceding clauses and any other proprietary rights relating to intangible property; and all so-called “moral rights,” rights of integrity, rights of paternity, rights of disclosure, rights of withdrawal, rights of attribution, rights to prevent attribution in the event of a distortion, mutilation, or modification, right to prevent destruction, and other such analogous rights in any of the foregoing (“Moral Rights”). 

i) “Law” means any and all applicable international, federal, state, provincial, regional, municipal, local, or foreign laws, statutes, ordinances, codes, rules, regulations, treaties, conventions, directives, and orders, together with any binding judgments, decrees, writs, injunctions, determinations, awards, or orders of any court, tribunal, arbitrator, or governmental, regulatory, or administrative authority having jurisdiction, as well as all Network Rules (as defined in the Modisoft Merchant Services Terms) in each case as amended, reenacted, consolidated, or replaced from time to time. 

j) “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. 

k) “Person” means any individual, corporation, partnership, limited liability company, association, trust, unincorporated organization, or other entity.