Charge Identity Terms and Conditions

Charge Identity Terms and Conditions These terms and conditions (the “Agreement”) govern access to and use of the Charge Identity Platform (the “Platform”) made available by Charge Technology Group, Inc. (“Charge”). By registering for or accessing the Platform, or using the services provided through the Platform, the business identified when registering to use the Platform (the “Customer”) indicate you understand this Agreement and agree to be bound by this Agreement. This Agreement incorporates by reference all amendments and addenda made to the Agreement.

1. Access

1.1 Access. Subject to Customer’s compliance with the terms and conditions of this Agreement, Charge hereby grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right to use and access the Platform during the Term and solely for Customer’s internal business purposes and in accordance with the intended use of the Platform as communicated by Charge from time to time.

2. Responsibilities and Restrictions

2.1 Charge Identity Terms and Conditions These terms and conditions (the “Agreement”) govern access to and use of the Charge Identity Platform (the “Platform”) made available by Charge Technology Group, Inc. (“Charge”). By registering for or accessing the Platform, or using the services provided through the Platform, the business identified when registering to use the Platform (the “Customer”) indicate you understand this Agreement and agree to be bound by this Agreement. This Agreement incorporates by reference all amendments and addenda made to the Agreement. 1.Access1.1Access. Subject to Customer’s compliance with the terms and conditions of this Agreement, Charge hereby grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right to use and access the Platform during the Term and solely for Customer’s internal business purposes and in accordance with the intended use of the Platform as communicated by Charge from time to time. 2.Responsibilities and Restrictions2.1Restrictions. Except as expressly permitted by this Agreement, Customer will not, and will not permit any third party (including Authorized Users) to, use the Platform in any manner beyond the scope of the rights expressly granted in this Agreement. Customer will not at any time, directly or indirectly, and will not permit any third party to: (a) modify or create derivative works of the Platform, in whole or in part; (b) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Platform, in whole or in part; (c) sell, resell, rent or lease use of the Platform to any other third party, or otherwise allow the Platform to be used for any purpose other than for the benefit of Customer in accordance with this Agreement; (d) use the Platform to store, transmit, upload or post any infringing, libelous or otherwise unlawful or tortious material or any data for which it does not have the necessary consents or rights to store, transmit, upload or post (as applicable) in connection with the Platform; (e) interfere with, or disrupt the integrity or performance of, the Platform, or any data or content contained therein or transmitted thereby; (f) access or search the Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Platform features provided by Charge for use expressly for such purposes; (g) use the Platform, any documentation provided by Charge or any other Charge’s Confidential Information to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Platform; (h) use the Platform in any way that exceeds any usage limitations as specified in any communication by Charge from time to time; or (i) delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on or included in the Platform or the Platform Output as delivered.

2.3 Third Party Software. The Platform may include, or may provide Customer with access to, software or other technology licensed to Charge from third parties, and which may be owned by such third parties (collectively, “Third Party Software”). Customer acknowledges and agrees that Third Party Software is provided solely on an “AS IS” basis, and that Charge does not make any warranties or guarantees regarding Third Party Software and is not responsible for the operation or failure of, or any errors or bugs in, any Third Party Software.

2.4 Third Party Services. Certain features and functionalities within the Platform as Charge determines in its sole discretion may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third Party Services”) through the Platform. Customer hereby acknowledges and agrees that: (a) Charge is not the provider of the Third Party Services and is not responsible for any compatibility issues, errors or bugs in the Platform or Third Party Services caused in whole or in part by the Third Party Services or any update or upgrade thereto; and (b) Customer is solely responsible for maintaining the Third Party Services and obtaining any associated licenses and consents necessary to use the Third Party Services in connection with the Platform.

2.5 Acceptable Use. Customer may not use the Platform: (a) in violation of this Agreement; (b) in a way that infringes, violates, dilutes or misappropriates the intellectual property rights of any third party or any rights of publicity or privacy; (c) in violation of any law, statute, ordinance or regulation, including related to unfair competition, anti-discrimination, unfair or deceptive acts or practices, and/or false advertising; or (d) to engage in any illegal, fraudulent, offensive, indecent, inappropriate or objectionable conduct or content. Customer may access the Platform only through the interfaces and protocols provided or authorized by Charge. Customer may not access the Platform through unauthorized means, such as unlicensed software clients.

2.6 Participant Information. “Participant Information” means information supplied by or on behalf of a subject of an identity verification in connection with such verification, including any non-public information, images and metadata Customer will: (a) provide Charge with Participant Information in the form and format requested by Charge, or as otherwise required to access and use the Platform; (b) be responsible for all Participant Information; (c) accurately supply all data requested to access and use the Platform, (d) ensure compliance with all laws, rules, and regulations applicable to its use of the Platform; (e) implement and maintain appropriate safeguards to identify data and processing errors, (f) implement and maintain appropriate information security controls with regard to the sensitivity of Participant Information, and (g) obtain all waivers, consents and other rights necessary for Charge to use Participant Information to provide the Platform and the services provided thereby to Customer and in accordance with this Agreement.

2.7 Suspension, Limitation or Termination. Charge is entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to any or all part of the Platform at any time in the event: (a) that Charge reasonably suspects that the Platform is being used in violation of any applicable law or regulation or in a manner inconsistent with this Agreement or the Platform’s intended use as communicated by Charge from time to time; (b) that Charge determines that the Platform is being used in an unauthorized or fraudulent manner; (c) that Charge determines that the use of the Platform adversely affects Charge’s equipment or service to other subscribers and customers; (d) Charge is prohibited by an order of a court or other governmental agency from providing the Platform; or (e) any other event which Charge determines, in its sole discretion, may create a risk to the Platform or to any other users of the Platform. Without limitation, Charge will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s right to use the Platform in accordance with this Agreement.

3. Term, Fees and Payment

3.1 Term. The term of this Agreement begins on the date of Customer’s registration for the Platform (the “Effective Date”) and, unless terminated earlier pursuant to this Agreement, will continue in effect for three (3) years thereafter, and will then renew for unlimited, successive, one-year terms unless a party gives ninety (90) days prior written notice of its intent not to renew. (the “Term”).

3.2 Platform and Use Fees. In consideration for the Charge’s provision of the Platform, for each month during the Term, Customer will pay the subscription platform fee as selected by the Customer in the Order Form, per-use fee, and all applicable taxes (collectively, “Fees”). Charge may ask Customer to supply additional information relevant to payment of Fees, including Customer’s credit card number, the expiration date of that credit card and contact information for bill processing and notification (such information, “Payment Information”). By purchasing a subscription, Charge (or its third-party payment processor) will automatically collect the Fees using the Payment Information provided.By agreeing to this Agreement and electing to subscribe for access to the Platform, Customer acknowledges that its subscription has recurring payment features and accepts responsibility for all recurring payment obligations prior to cancellation of the Agreement by Customer or Charge.

3.3 Invoices and Payment. Charge will invoice Customer depending on the type of subscription program purchased as reflected in the Order Form. Customer can either purchase: (i) a standard subscription where Charge will invoice Customer for all applicable Fees on a monthly basis following the Effective Date (“Standard Subscription”); or (ii) an advance payment subscription where Customer will be charged for all expected Fees in advance of the service month (“Advance Fee Subscription”). Customer will be responsible for any costs or Fees in excess of the Advance Fee Subscription amount. Charge may suspend Customer’s ability to access all or part of the Platform if Customer’s use of the Platform exceeds the value of the Advance Fee Subscription. All payments made under this Agreement to Charge will be made in U.S. dollars of immediately available funds to an account designated by Charge using the Payment Information and will be non-refundable. Any amounts due to Charge hereunder and not paid when due will accrue late charges at the lesser of a rate of 1.5% per month or the highest rate permitted by applicable law. Customer will reimburse Charge for all costs and expenses incurred (including attorneys’ fees) in collecting overdue amounts hereunder.

3.4 No Set-Off. Customer will not have any right to set off, discount, or otherwise reduce or refuse to pay any amounts due under this Agreement for any reason.

3.5 Taxes. The Fees described in Section 3.2 are exclusive of all taxes, including national, state, provincial, territorial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding U.S. taxes based on Charge’s net income) unless Customer has provided Charge with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Charge on account thereof.

3.6 Termination. Without limiting any right or remedy available to either party, either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach remains uncured for thirty (30) days or longer after the non-breaching party provides the breaching party with written notice of such breach.

3.7 Effect of Termination. Upon termination or expiration of this Agreement: (a) the license granted under Section 1.1 will terminate; (b) Customer will, and will cause its Authorized Users to, immediately cease using the Platform, and will destroy all copies of all content provided by Charge hereunder; (c) Charge will have no further obligation to provide access to the Platform or Platform Output (as defined below); (d) Customer will pay any unpaid Fees; and (e) each party will return or destroy all copies of Confidential Information of the other party (in accordance with the other party’s direction).

3.8 Survival. Sections 2.1 (Restrictions), 2.2 (Authorized Users), 2.3 (Third Party Software), 2.4 (Third Party Services), 3.2 (Fees and Payment), 3.3 (No Set-Off), 3.4 (Taxes), 3.6 (Effect of Termination), 3.7 (Survival), 5 (Intellectual Property Rights), 6 (Confidentiality), 7 (Representations and Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Dispute Resolution; Arbitration Agreement; No Class Action) and 11 (General Provisions) are expressly intended to survive any expiration or termination of this Agreement.

4. Privacy

4.1 Charge Data Processing Terms. Where Charge processes Participant Information that is “personal data” or “personal information” under applicable data protection laws on behalf of Customer (“Personal Information”), Charge shall:

  • (a) only process Personal Information in accordance with this Agreement;
  • (b) ensure that Charge’s personnel authorized to process Personal Information have committed themselves to confidentiality;
  • (c) implement commercially reasonable technical and organizational measures designed to protect Personal Information. If Charge becomes aware of any unauthorized access, use, or disclosure of Personal Information, it will notify Customer without undue delay. Where possible, such notice will include all available details required under applicable data protection laws for Customer to comply with its own notification obligations to regulatory authorities and affected individuals;
  • (d) only engage subprocessors to process Personal Information where Charge has entered into a written agreement with such subprocessors imposing data protection obligations that are consistent with this Section 4.4. Where the subprocessor fails to fulfil such obligations, Charge shall remain fully liable to Customer for the performance of that subprocessor’s obligations in accordance with applicable data protection laws. Charge shall notify Customer of any new subprocessors in advance and allow Customer ten (10) days to object. If Customer has legitimate objections to the appointment of any new subprocessor, the parties will work together in good faith to resolve the grounds for the objection;
  • (e) provide reasonable assistance and comply with reasonable instructions from Customer related to any requests from individuals exercising their rights in Personal Information under applicable data protection laws;
  • (f) assist Customer in ensuring compliance with Customer’s obligations pursuant to Articles 35 and 36 of Regulation (EU) 2016/679
  • (g) delete or return all Personal Information following the expiry or termination of the Agreement upon request (excluding any back-up or archival copies which shall be deleted in accordance with Charge’s data retention schedule), except where Charge is required to retain copies under applicable laws, in which case Charge will isolate and protect that Personal Information from any further processing except to the extent required by applicable laws;
  • (h) make available to Customer all information necessary to demonstrate compliance with the obligations set forth in this Section 4.1 and allow for and contribute to audits, conducted by Customer or another auditor mandated by Customer by completing a data protection questionnaire of reasonable length; and
  • (i) use the European Commission Decision C(2010)593 Standard Contractual Clauses for Controllers to Processors (“Model Clauses”) to support the transfer of Personal Information originating in the European Economic Area, Switzerland, and/or United Kingdom, the terms of which are herein incorporated by reference. Customer and Charge agree that: (i) the audits described in Clause 5(f) and Clause 12(2) of the Model Clauses shall be carried out in accordance with Section 4.4(h) of this Agreement; (ii) pursuant to Clause 5(h) of the Model Clauses, Charge may engage new subprocessors in accordance with Section 4.1(d) of this Agreement; (iii) the subprocessor agreements referenced in Clause 5(j) and certification of deletion referenced in Clause 12(1) of the Model Clauses shall be provided by Charge only upon written request; and (iv) the optional clauses are expressly not included. Each party’s acceptance of this Agreement shall be considered a signature to the Model Clauses to the extent the Model Clauses apply hereunder. If required by the laws or regulatory procedures of any jurisdiction, the parties shall execute or re-execute the Model Clauses as separate documents.

5. Intellectual Property Rights

5.1 Charge Intellectual Property and Updates. Subject to the right and license granted to Customer in Section 1.1, Charge (and its licensors, where applicable) has and retains ownership of, and all intellectual property rights relating to, the Platform and the Platform Output, and any modifications, improvements or derivatives of the foregoing. Customer acknowledges and agrees that the Platform may be upgraded or updated at any time, with or without notice, during the Term. “Platform Output” means all data, information and materials generated by the Platform based on Participant Information or information or data supplied to Charge by Customer, but excluding any Participant Information incorporated therein.

5.2 Participant Information. Customer hereby grants Charge a non-exclusive, worldwide, royalty-free right and license to use, reproduce, modify, create derivative works from, transmit, anonymize and display Participant Information (a) during the Term only, in connection with the operation and provision of the Platform and (b) on a perpetual basis whether incorporated into the Platform Output or not, provided that in all cases such Participant Information is in aggregated, anonymized and/or deidentified form, in connection with any business purpose (including for the purpose of improving and developing Charge’s current and future products, services, methods and processes).

5.3 Feedback. Customer grants to Charge a perpetual, non-exclusive, sublicensable, and royalty-free license to use, modify, distribute, and otherwise freely exploit any suggestions, ideas, enhancement requests, feedback, recommendations, or other information or ideas provided by Customer or any third party on behalf of Customer relating to the Platform or any of Charge’s current and future products and services.

5.4 Trademarks and References. Customer hereby grants Charge a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) in connection with: (i) the operation and maintenance of the Platform during the Term; and (ii) Charge’s marketing and promotional efforts for the its products and services, including by publicly naming Customer as a client of Charge during or after the Term. Customer agrees to participate in press announcements, case studies, trade shows, or other forms of publicity reasonably requested by Charge. All goodwill and improved reputation generated by Charge’s use of the Customer Marks inures to the exclusive benefit of Customer. Charge will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.

6. Confidentiality

6.1 Trademarks and References. Customer hereby grants Charge a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) in connection with: (i) the operation and maintenance of the Platform during the Term; and (ii) Charge’s marketing and promotional efforts for the its products and services, including by publicly naming Customer as a client of Charge during or after the Term. Customer agrees to participate in press announcements, case studies, trade shows, or other forms of publicity reasonably requested by Charge. All goodwill and improved reputation generated by Charge’s use of the Customer Marks inures to the exclusive benefit of Customer. Charge will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.

6.2 Exclusions/Remedies. The obligations in this Section do not restrict any disclosure by either party pursuant to any applicable law, or by order of any court or government agency (provided that the disclosing party will give prompt notice to the non-disclosing party of such order so that the non-disclosing party may seek a protective order or other appropriate remedy). In the event of a breach of this Section or other compromise of Confidential Information of which a party is or should be aware (whether or not resulting from a breach), such party will immediately notify the other party in writing detailing all information known to such party about the compromise, the Confidential Information affected, and the steps taken by such party to prevent the recurrence of such breach and to mitigate the risk to the other party. The parties agree that in the event of a breach or anticipated breach of this Section 6, the affected party will be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief will be in addition to and not in lieu of any appropriate relief in the way of monetary damages.

7. Representations and Warranties

7.1 Customer Representations and Warranties. Customer represents and warrants to Charge that: (a) Customer has the necessary authority to enter into this Agreement and carry out its obligations hereunder; (b) it has provided appropriate notice to individuals prior to or at the point of collecting Participant Information; (c) it will comply with all applicable laws in its use of the Platform and Platform Output, including all applicable data protection and privacy laws such as the EU General Data Protection Regulation (GDPR) and California Consumer Privacy Act (CCPA); (d) it has obtained and will obtain all necessary authorizations, lawful bases, consents, permissions and licenses with respect to any and all Participant Information to the extent necessary: (i) for Customer to grant the rights and licenses hereunder to Charge; (ii) for Customer and Charge to comply with all applicable laws, rules and regulations; and (iii) for Customer to grant the licenses contemplated by Section 5.2 without violating any third party intellectual property, privacy rights or any other proprietary rights; and (e) Charge’s use of Participant Information as contemplated by this Agreement will not violate any applicable laws.

7.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CHARGE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND CHARGE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PLATFORM (INCLUDING THE PLATFORM OUTPUT) IS PROVIDED “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. CHARGE DOES NOT WARRANT THAT THE PLATFORM WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE OR SECURE, OR THAT ALL DEFECTS IN THE PLATFORM WILL BE CORRECTED. CHARGE WILL NOT BE LIABLE IN ANY WAY RELATED TO NON-CHARGE APPLICATIONS. CHARGE DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY PROVIDERS. CHARGE’S ONLY OBLIGATIONS WITH RESPECT TO THE PLATFORM ARE EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER ASSUMES SOLE RESPONSIBILITY AND LIABILITY FOR THE RESULTS OBTAINED FROM ITS THE USE OF THE PLATFORM AND FOR CONCLUSIONS DRAWN FROM SUCH USE. CUSTOMER ACKNOWLEDGES THAT IT IS RESPONSIBLE FOR MAINTAINING ADEQUATE SECURITY AND CONTROL OF ANY AND ALL IDS, PASSWORDS, HINTS, PERSONAL IDENTIFICATION NUMBERS (PINS), OR ANY OTHER CODES THAT CUSTOMER USES TO ACCESS OR IN RELATION TO THE PLATFORM.

7.3 No Liability for Participant Information. WITHOUT LIMITING THE GENERALITY OF SECTION 7.3, CUSTOMER ACKNOWLEDGES THAT CHARGE IS NOT REQUIRED TO PRE-SCREEN OR MONITOR THE PARTICIPANT INFORMATION. UNDER NO CIRCUMSTANCES WILL CHARGE BE LIABLE IN ANY WAY FOR ANY PARTICIPANT INFORMATION OR PLATFORM OUTPUT, INCLUDING LIABILITY FOR ANY ERRORS, INACCURACIES, OR OMISSIONS THEREIN, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR BREACH OF THIS AGREEMENT OR APPLICABLE LAWS

7.4 Reports. PORTIONS OF THE DATA PROVIDED HEREUNDER ARE DERIVED FROM PUBLIC SOURCES. CERTAIN CONTENT MAY BE SUMMARIZED AND ALL INFORMATION SHOULD BE CONSIDERED WITHIN THE FULL CONTEXT AVAILABLE IN THE THIRD-PARTY SOURCES TO WHICH SOURCE LINKS ARE PROVIDED. CHARGE IS NOT RESPONSIBLE FOR THE CONTENT OF THIRD-PARTY SOURCES. CUSTOMER SHALL BE RESPONSIBLE FOR ITS OWN CONCLUSIONS BASED ON RELATIONSHIPS AND CATEGORIES IN THE INFORMATION PROVIDED BY THIRD PARTY SOURCES. DUE TO THE NATURE OF PUBLIC RECORD INFORMATION, THE PUBLIC RECORDS AND COMMERCIALLY AVAILABLE DATA SOURCES USED BY CHARGE MAY BE INCOMPLETE AND CONTAIN INACCURATE INFORMATION OR ERRORS. CUSTOMER SHALL INDEPENDENTLY VERIFY ALL DATA PURSUANT TO ITS OWN POLICIES AND PROCEDURES. CHARGE IS NOT A CONSUMER REPORTING AGENCY AND NONE OF ITS PRODUCTS, SERVICES OR THE DATA CONTAINED THEREIN CONSTITUTE A ‘CONSUMER REPORT’ AS SUCH TERM IS DEFINED IN THE FEDERAL FAIR CREDIT REPORTING ACT (“FCRA”), 15 U.S.C. SEC. 1681 ET SEQ. THE DATA PROVIDED TO CUSTOMER MAY NOT BE USED AS A FACTOR IN CONSUMER DEBT COLLECTION DECISIONING, ESTABLISHING A CONSUMER’S ELIGIBILITY FOR CREDIT, INSURANCE, EMPLOYMENT, GOVERNMENT BENEFITS, OR HOUSING, OR FOR ANY OTHER PURPOSE AUTHORIZED UNDER THE FCRA. BY ACCESSING THE CHARGE SERVICES, CUSTOMER AGREES NOT TO USE THE CHARGE SERVICES FOR ANY PURPOSE AUTHORIZED UNDER THE FCRA OR IN RELATION TO TAKING AN ADVERSE ACTION RELATING TO A CONSUMER APPLICATION

8. Indemnification

8.1 Indemnification by Charge. Charge will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of the Platform in accordance with this Agreement violates, infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorneys’ fees and costs finally awarded against Customer as a result of, or for amounts paid or payable by Customer under a Charge and court-approved settlement of, a Claim Against Customer, provided Customer: (a) promptly gives Charge written notice of the Claim Against Customer, (b) gives Charge sole control of the defense and settlement of the Claim Against Customer (except that Charge may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability for past infringements), and (c) gives Charge all reasonable assistance. If Charge receives information about an infringement or misappropriation claim related to the Platform, Charge may in its discretion and at no cost to Customer: (i) modify the Platform so that it no longer infringes or misappropriates, (ii) obtain a license for Customer’s continued use of the Platform in accordance with this Agreement, or (iii) terminate Customer’s subscription for the Platform upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated Platform, depreciated over three years on a straight-line basis. Charge will not have any obligations under this Section or any liability to the extent (A) a Claim Against Customer arises from information or data supplied to Charge by Customer, including Participant Information, a non-Charge application or Customer’s breach of this Agreement, or (B) the Claim Against Customer would not have arisen but for (I) Customer’s combination or use of the Platform with non-Charge software, services or data, (II) modification of the Platform by anyone other than Charge, (III) Customer`s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (IV) Charge’s customization of the Platform to meet Customer’s particular specifications or instructions, or (V) Customer’s use of the Platform in a manner not strictly in accordance with this Agreement.

8.2 Indemnification by Customer. Customer will defend Charge against any claim, demand, suit or proceeding made or brought against Charge by a third party alleging (a) that the Participant Information (or Charge’s use thereof), or Customer’s use of any Platform in breach of this Agreement, violates, infringes or misappropriates a third party’s intellectual property, privacy or other rights, or violates applicable law, (b) facts that, if true, constitute a breach of this Agreement by Customer or acts or omissions by Customer described in Section 8.1(I)-(V), or (c) any demand for compensation or benefits, or any other claim, related to Customer’s use of or decision based on the Platform, except to the extent constituting grounds for a Claim Against Customer (collectively, a “Claim Against Charge”), and will indemnify Charge from any damages, attorney fees and costs finally awarded against Charge as a result of, or for any amounts paid or payable by Charge under a court-approved settlement of, a Claim Against Charge, provided Charge (i) promptly gives Customer written notice of the Claim Against Charge, (ii) gives Customer sole control of the defense and settlement of the Claim Against Charge (except that Customer may not settle any Claim Against Charge unless it unconditionally releases Charge of all liability), and (iii) gives Customer all reasonable assistance.

8.3 Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third-party claim described in Section 8.1.

9. Limitation of Liability

9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CHARGE BE LIABLE FOR ANY LOST DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF CHARGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF CHARGE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, AMOUNTS PAID BY CUSTOMER TO CHARGE IN THE 12-MONTH PERIOD PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY HEREUNDER.

10. Dispute Resolution; Arbitration Agreement; No Class Action

10.1 Dispute Resolution. The parties must submit all claims and issues arising from, relating to, or connected with this Agreement to binding arbitration (e.g., a contract breach claim, indemnification duty issue, and questions regarding an arbitrator’s authority) in accordance with this Section. A single arbitrator will conduct the arbitration in Los Angeles County, CA, and in accordance with the current Rules of Practice and Procedure of the Judicial Arbitration and Mediation Service (JAMS). The arbitrator is bound by strict rules of law and this Agreement’s terms (i.e., the arbitrator may not waive, change or equitably excuse any Agreement term, including ancillary documents (e.g., an amendment)). The arbitrator does not have the power to commit errors of law or legal reasoning, and a court may vacate or correct an arbitration award because of such errors. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs all issues arising from the arbitrability or the enforcement of the agreement to arbitrate, except for the requirements to apply California state law (but disregarding any principle of law that would cause the application of the law of any other jurisdiction or permit a court, as opposed to the arbitrator, to determine the applicability or validity of this agreement to arbitrate). The parties will equally share the arbitrators’ fees and other arbitration costs, regardless of outcome. The parties must submit or file any claim that would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same arbitration proceedings as the claim to which it relates; any such claim which is not submitted or filed will be barred. The arbitrator may only award damages and may only grant relief that is permitted by this Agreement. The arbitrator’s decision, award and relief will be conclusive and binding on the parties. Either party may enter the arbitrator’s decision, award and relief in any court having appropriate jurisdiction.

10.2 No Class Action. Arbitration may only be conducted on an individual, not a class wide, basis. No arbitration proceeding between the parties may be consolidated with any other arbitration proceeding involving Charge and any other person or entity. Each party shall file and prosecute arbitration proceedings separately and individually in the name of Customer and Charge, and not in any representative capacity. Each party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section.

10.3 Governing Law. This Agreement, and any dispute arising out of or related to this Agreement, will be governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, excluding its conflicts of law rules, regardless of Customer’s country of origin or where Customer accesses the Platform. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. All claims and issues arising from, relating to, or connected with this Agreement that an arbitrator determines are excluded from this Agreement’s arbitration requirements may only be filed and resolved by state or Federal courts located in Los Angeles County, California, and each party consents to the exclusive jurisdiction of those courts. Further, Charge may obtain injunctive or other equitable relief in any court of competent jurisdiction in the event of any infringement or threatened infringement of its intellectual property rights. Neither party will claim that an aforementioned court lacks personal jurisdiction, is an inconvenient forum or is an improper venue.

11. General Provisions

11.1 Force Majeure. Neither party will be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), pandemic, acts of terrorism, wars or insurrections.

11.2 Notices. Except as may be otherwise set forth herein, all notices, requests, demands and other communications hereunder will be in writing (including by email provided that delivery to the recipient is confirmed). Any hard copies of such communications will be deemed to have been duly given on the next day if delivered personally or sent by express courier to such party. All notices will be sent to the following address: If to Customer, to the name and address or to the email address provided upon registration for the Platform. If to Charge, to support@charge.io.

11.4 Miscellaneous. Neither party may assign, delegate, or otherwise transfer its rights or obligations under this Agreement in whole or in part, except that either party may assign this Agreement in connection with a merger, acquisition, sale of a majority of its equity, sale of substantially all of its assets to which this Agreement relates, or a similar transaction. This Agreement will be binding upon and will inure to the benefit of the parties and their permitted successors and assigns. This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify this Agreement, except as expressly provided in this Agreement or as the parties may agree in writing. Charge may amend the Agreement from time to time and such amendments will be effective upon Charge’s communication of such amendments to Customer in writing. Customer’s continued use of the Platform confirms Customer’s consent to be bound by the Agreement, as amended. Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other party. Except as otherwise set forth in this Agreement, neither party is restricted from doing business with any other person, entity or organization by virtue of this Agreement. Neither party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other party, or to bind such other party in any manner. Nothing contained in this Agreement will be deemed to create any third-party beneficiary right upon any third party whatsoever. Each of the parties acknowledges that it has had the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation. Neither party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. For purposes of this Agreement, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”. This Agreement may be executed in counterparts, each of which will constitute the same instrument. The parties agree to contract electronically. Electronic signatures will be given the same effect and weight as originals.

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