Terms of Service
These Terms of Service (“Terms”) are entered into as of the effective date as set forth on the electronic order form entitled “Products and Services” accepted by you by electronic signature or other electronic means of execution under the heading “Purchase Terms (the “Order Form”). These Terms along with the Order Form are an agreement between Xomi, Inc., a Delaware corporation with the primary website domain located at chargeback.com (“Chargeback.com”) and you or the organization you represent as listed in the Order Form (“Licensee”).
Chargeback.com and Licensee hereby agree as follows:
- CERTAIN DEFINITIONS. For purposes of these Terms, the term “Licensed Services” shall mean any and all of the following:
- The term “Software” refers to (i) the proprietary software made available to Licensee pursuant to these Terms as more fully described in the Order Form made available to Licensee by Chargeback.com, (ii) any Add-ons as described in the Order Form (the “Add-ons”), and (iii) any delivered updates, upgrades, enhancements, or modifications to the Software made available by Chargeback.com.
- CUSTOMER DATA. The term “Customer Data” means all transactional information made available to Chargeback.com by Licensee through or in connection with the use of the Licensed Services (including but not limited to, customer information, payment information, order information, dates, payment amounts, purchased products and related transactional data), whether made available directly from Licensee or from a 3rd party payment, ecommerce or other similar transactional platform.
- DERIVATIVE WORK. The term “Derivative Work” means a revision, enhancement, modification, translation, abridgment, condensation or expansion of any Licensed Services or any form in which any Licensed Services may be recast, transferred, or adapted.
- information. The term “Information” means information resulting from the use of any or all of the Licensed Services.
- The term “Documents” refers to any and all materials including documentation and support material, including any on-line training materials, in hard copy and electronic format (if available) designed to assist Licensee in the understanding, application, capability, maintenance, or use of the Licensed Services which are delivered to Licensee by Chargeback.com pursuant to and/or during the Term, and any updates or modifications thereof.
- LICENSE GRANT. Chargeback.com hereby grants, and Licensee hereby accepts, subject to the terms and conditions of these Terms, a limited, non-exclusive, non-sublicensable, non-transferable, license during the Term to use the Licensed Services as set forth herein (the “License”) and as more fully set forth on or limited by the Order Form. Licensee shall not have any rights to the Licensed Services except as expressly granted in these Terms and the Order Form. com reserves to itself all rights to the Licensed Services not expressly granted pursuant to these Terms. Subject to the terms and conditions of these Terms, Licensee hereby grants to Chargeback.com, during the Term, the right and license to use, modify, organize, display and access all Customer Data and other Licensee information and content necessary for Chargeback.com’s performance of its obligations hereunder (the “Content”) and such other rights and authorizations as are necessary or required for Chargeback.com to perform the services contemplated hereby and for the Software to perform its intended purpose, in each case in accordance with any usage guidelines for the Content which may be provided by Licensee to Chargeback.com in writing from time to time.
- USE OF LICENSED SERVICES. The Licensed Services are for Licensee’s use for its own internal business purposes, except with respect to any exceptions expressly set forth in the Order Form. Use of the Licensed Services is subject to the provisions set forth in Sections 5, 11 and 12 below, and the restrictions set forth in this Section will survive the termination of these Terms. If there is unauthorized use by anyone who obtained access to the Licensed Services directly or indirectly through Licensee, Licensee shall take all steps necessary to terminate the unauthorized use. Licensee will cooperate and assist with any actions taken by Chargeback.com to prevent or terminate such unauthorized use.
- CUSTOMER DATA. As part of the onboarding process, Licensee will give access to Licensees Customer Data by either providing Customer Data directly to Chargeback.com or will provide Chargeback.com with credentials to access such data from a 3rd party service provider. Licensee represents and warrants that the Customer Data is accurate, and the provision of or access to Customer Data directly or through a 3rd party will not violate any applicable agreements between Licensee and such 3rd party and will otherwise be collected, stored, processed, and/or provided in accordance with laws applicable to the collection, processing, sharing, delivery and storage of such Customer Data, including without limitation the European General Data Protection Regulation (“GDPR”) applicable to personal data “processed” (as such term is defined in the GDPR) regarding data subjects in Europe. Chargeback.com agrees to use and retain such Customer Data collected in accordance with applicable laws, including compliance with PCI DSS. com will use commercially reasonable efforts to safeguard Customer Data including adhering with all applicable and then-current legal obligations and security measures required by law. Chargeback.com warrants that it has taken such precautions required by law or PCI DSS or as are commercially reasonable to ensure that Customer Data is protected from unauthorized disclosure, processing, or use, and that its electronic systems are secure from breach, intrusion or compromise by any unauthorized third parties. Chargeback.com acknowledges and agrees that all Customer Data will be considered “Confidential Information” and subject to the protections described in Section 12 below. Chargeback.com agrees to return or destroy all physical forms, copies, or derivations of the Customer Data to Licensee within thirty (30) days of written request or within ninety (90) days of the termination of this Agreement, including any backup copies on tapes, disks, optical disks, or any other media. In the event that Chargeback.com believes there has been a breach of the terms of this Section 4, Chargeback.com will immediately advise Licensee and take reasonable steps to remedy such breach and will cooperate with Licensee in connection with any notifications to affected parties required by law or regulation. Chargeback.com disclaims any liability to Licensee or any 3rd party, and Licensee shall indemnify and hold Chargeback.com harmless for the inaccuracy of any Customer Data or any breach of Licensees representations and warranties regarding such Customer Data set forth in this Section 4.
- COPYRIGHT and TITLE. The Licensed Services and any copy thereof, in whole or in part, and all copyrights, trade secrets and other proprietary rights therein, including any Derivative Work, are and will remain the sole property of Chargeback.com, regardless of the use made by Licensee of the same and in any format; and are protected by certain United States and international copyright laws and trademark laws. The License confers no title of ownership in the Licensed Services and is not a sale of any rights in the Licensed Services. Licensee shall treat the Licensed Services with at least the same standard of care as it treats any other material copyrighted and/or trademarked by a third party, in no case less than a reasonable standard of care. Licensee agrees not to, and to use best efforts to cause its customers and any permitted sublicensees, if any, not to, challenge Chargeback.com’s ownership in or enforceability of Chargeback.com’s rights in and to any Licensed Services or any related information technology. Licensee may from time to time provide suggestions, comments or other feedback to Chargeback.com with respect to the Licensed Services (“Feedback”). Feedback, even if designated as confidential by Licensee, shall not create any confidentiality obligation for Chargeback.com notwithstanding anything else in this Agreement. Licensee shall, and hereby does, grant to Chargeback.com a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
- WARRANTY and INDEMNITY. com shall defend, indemnify and hold harmless Licensee and its respective affiliates, directors, officers, employees, agents and representatives from and against any losses, damages, liabilities, expenses (including reasonable attorneys’ fees), and judgments, in each case based on third party claims that Licensee’s authorized use of the Software violates or infringes any U.S. patent that has issued as of the Effective Date, copyright, trademark, or trade secret; provided that (a) Licensee gives Chargeback.com prompt written notice of the claim; (b) Chargeback.com has full and complete control over the defense and settlement of the claim; (c) Licensee provides assistance in connection with the defense and settlement of the claim as Chargeback.com may reasonably request; and (d) Licensee complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials). Chargeback.com shall have the right to settle the claims of any claimant(s) in its sole and absolute discretion. Chargeback.com will have no obligation under this Section 6 for any infringement to the extent that it arises out of or is based upon: (i) any unauthorized combination, operation, or use of the Software if such infringement would have been avoided but for such combination, operation, or use; (ii) designs, requirements, or specifications for the Software required by or provided by Licensee, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (iii) use of the Software outside of the scope of the License; (iv) Licensee’s failure to use the latest release of the Software or to comply with instructions provided by Chargeback.com, if the alleged infringement would not have occurred but for such failure; or (v) any modification of the Software not made by Chargeback.com where such infringement would not have occurred absent such modification. Licensee will reimburse Chargeback.com for any costs or damages that result from these actions. This Section 6 states Chargeback.com’s sole and exclusive liability, and Licensee’s sole and exclusive remedy, for the actual or alleged infringement by Chargeback.com of any third party intellectual property right by the Software.
- TERM, FEE AND PAYMENT. The License granted by these Terms shall be for an initial term as set forth in the Order Form which shall begin as of the Effective Date (“Initial Term”). If no initial term is stated in an Order Form, then the Initial Term shall be one month. At the end of each Renewal Term and the Initial Term, these Terms and the License shall automatically renew for subsequent periods of time equal to the Initial Term (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides the other with notice of cancellation at least thirty (30) days prior to the end of the then-current Term. In consideration of the License rights granted above, Licensee shall pay the Fees set forth in the Order Form. The fees described on the Order Form shall be due each period set forth in the Order Form (the “Recurring Fees”) and may be automatically charged to the account or payment method provided by Licensee. The Recurring Fees are due and payable in advance on the Effective Date and each applicable period thereafter on the same day of month as the Effective Date. The fees for a Renewal Term shall be at the then current price on a periodic basis unless Chargeback.com notifies Licensee of a price change before the end of the then-current Term and shall be due in the same manner as set forth in the Order Form. Additional fees are subject to change upon renewal of the License. All amounts payable hereunder by Licensee shall be payable in United States funds. The Licensee agrees to pay any and all fees, assessments, and taxes associated with the amounts due under these Terms. A finance charge shall be imposed on all account balances outstanding over 30 days. The finance charge is 1.5% per month or the highest rate allowed under applicable law, whichever is lower.
- Licensee shall not assign or otherwise transfer the License granted hereby or the rights granted hereunder without the prior written consent of Chargeback.com. A request by Licensee to assign or otherwise transfer the License granted hereby must be in writing and Chargeback.com shall have absolute, complete and unqualified discretion in granting or denying such request. Any attempt to assign or otherwise transfer any of the rights, duties or obligations hereunder without compliance with this Section is and shall be void ab initio. Chargeback.com shall be permitted to assign these Terms to any successor to all or substantially all of the assets of Chargeback.com or the business unit of Chargeback.com that is in the business of licensing the Licensed Services, whether by merger, acquisition, asset sale, exclusive license, stock sale or otherwise.
- UPDATES AND SUPPORT SERVICES. com will provide updates to the Software without additional charge. Chargeback.com will provide Licensee with support as long as Licensee is not in default of any material terms of these Terms. The support in using the Licensed Services may occur at the discretion of Chargeback.com by phone, email, or mail request(s) to Chargeback.com for help on incidental needs related to use of Software. Licensee shall also have web access to online Chargeback.com Documents and other training materials, if any, for its internal use only, at no additional charge. Any training, consulting or other professional services on the use of the Licensed Services beyond the services specified above will be arranged for under separate service agreement(s) between Chargeback.com and Licensee. While Chargeback.com will provide a quote for requested services, neither party is obligated to enter into any separate professional service agreement.
- TRADE SECRETS. The Licensed Services are trade secrets of Chargeback.com and contain valuable proprietary products and trade secrets of Chargeback.com, embodying substantial creative efforts and confidential information, ideas, and expressions. Licensee shall take appropriate action to protect the confidentiality of the Licensed Services. Licensee shall not modify, translate, disassemble, create Derivative Works based on, reverse-assemble, reverse-compile or otherwise reverse-engineer the Licensed Services in whole or in part, or otherwise use, copy, reproduce or distribute any Licensed Services except as expressly permitted hereunder. The provisions of this section shall survive the termination of these Terms.
- CONFIDENTIALITY. All information that either party receives from the other that is marked “confidential” by the disclosing party (hereinafter the “Disclosing Party”) or that would reasonably be considered confidential by a party experienced in the industry (hereinafter “Confidential Information”) shall be kept confidential, and each party agrees to treat (and take precautions to ensure that its employees treat) the Confidential Information as confidential in accordance with the confidentiality requirements and conditions set forth below; provided, however, that Chargeback.com may disclose these Terms to a party performing financial or legal due diligence with respect to Chargeback.com.
Each party agrees, during the Term hereof and for a period of five years thereafter, to keep confidential all Confidential Information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof with at least the same standard of care with which it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable standard of care in the protection of Confidential Information); provided, however, that neither party shall have any such obligation with respect to the use or disclosure to third parties of such Confidential Information as can be established to: (a) have been known publicly; (b) have been known generally in the industry on a non-confidential basis before communication by the Disclosing Party to the recipient (hereinafter the “Recipient”); (c) have become known publicly; (d) have been known otherwise by the Recipient before communication by the Disclosing Party; (e) have been received by the Recipient without any obligation of confidentiality from a source (other than the Disclosing Party) lawfully having possession of such information.
If the Recipient is required (by deposition, interrogatories, requests for information or documents in legal proceedings, subpoenas, regulatory processes (including those of self-regulatory organizations), or similar process) in connection with any proceeding to disclose or otherwise becomes legally compelled to disclose any Confidential Information, the Recipient shall provide the Disclosing Party with prompt written notice and, if requested by the Disclosing Party after receipt of such notice, the Recipient shall provide Disclosing Party with reasonable assistance (subject to reimbursement by the Disclosing Party of all reasonable and out-of-pocket expenses incurred by the Recipient in providing such assistance) so as to enable the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with these Terms. If such a protective order or other remedy is not obtained or if the Disclosing Party waives compliance with this Section 11, the Recipient may disclose Confidential Information, but only such Confidential Information as it is legally required to disclose in the reasonable opinion of counsel to the Recipient, and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information disclosed. Licensee’s obligations under this paragraph will survive the termination of these Terms or of any License granted under these Terms for whatever reason.
- OTHER RESTRICTIONS. Licensee may not rent, loan, license, market, or sell the Licensed Services or copies thereof, in whole or in part, to any party. Licensee hereby agrees (i) to notify its employees and agents who may have access to the Licensed Services or Information of the restrictions contained in these Terms and (ii) to ensure their compliance with such restrictions.
- TERMINATION. If a party hereto provides a written notice to terminate to the other party, and with respect to the Licensee, ceases use of the Licensed Services on or prior to the end of the then current term, the License granted herein shall terminate at the end of the then current Term. com may immediately terminate these Terms, or any License granted under it, by giving Licensee written notice of termination if Licensee commits a material breach hereof. Upon any termination of these Terms, Licensee shall cease all use of the Licensed Services, destroy or return to Chargeback.com all data, files, Documents and other materials provided by Chargeback.com in connection with the Licensed Services then in Licensee's possession and take such other actions as Chargeback.com may reasonably request in writing to ensure that no copy of the Licensed Services or related Documents or information remains in Licensee's possession. If Licensee terminates these Terms with or without cause, there shall be no refund of the fees paid or due to be paid hereunder.
- COMPLIANCE WITH LAWS. Licensee will comply with all applicable laws and regulations in its use of the Licensed Services and, in particular, Licensee will not export or re-export the Licensed Services without Chargeback.com’s prior written consent, and, if such consent is granted, without Licensee first obtaining all required United States and foreign government licenses. To the extent permitted by applicable law, Licensee will defend, indemnify, and hold harmless Chargeback.com from and against any violation of such laws or regulations by Licensee or any of its agents, directors, or employees.
- DISCLAIMER OF WARRANTY. Except as expressly set forth in these Terms, THE LICENSED SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STatutory, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE BEARS ALL RISK RELATING TO QUALITY AND ACCURACY OF THE DOCUMENTS AND TO THE ACCURACY AND USE OF THE INFORMATION. WITHOUT LIMITING THE FOREGOING, Chargeback.com DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE Licensed Services SHALL BE UNINTERRUPTED OR ERROR-FREE. Because some states may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to Licensee. Any warranties made in these Terms are for the benefit of Licensee only. In no event does Chargeback.com make any warranty, and Chargeback.com shall have no liability, with respect to the results or accuracy of any scan or analysis performed by Chargeback.com and/or the Licensed Services with respect to the security or compliance features or status of any application.
- LIMITATION ON LIABILITY. In no event will Chargeback.com, its suppliers, shareholders, officers, employees or agents be liable for any lost profits, indirect, incidental, special, punitive or consequential damages, including damages due to loss of data or goodwill, arising out of these Terms or the use of or reliance upon the Licensed Services or Information, even if Chargeback.com has been advised of the possibility of such damages. In no event shall Chargeback.com be liable for procurement costs of substitute products or services or any unauthorized use or misuse of any Licensed Services or Information, except in the case of Chargeback.com’S WILFULL MISCONDUCT with respect to such use or misuse. Licensee assumes responsibility for the use and results obtained from the Licensed Services. UNDER NO CIRCUMSTANCES WILL Chargeback.com’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO Chargeback.com DURING THE IMMEDIATELY PRECEDING THREE MONTH PERIOD (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). The parties agree that this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. Because some states may not allow the exclusion or limitation of consequential or incidental damages, such limitations may not apply to Licensee.
- GOVERNING LAW. These Terms shall be governed by the laws of the State of Utah, U.S.A.
- REMEDIES. Licensee agrees that the obligations of Licensee provided herein are necessary and reasonable in order to protect Chargeback.com and its business interests, and Licensee expressly agrees that monetary damages alone may be inadequate to compensate Chargeback.com for any breach by Licensee of its covenants and agreements set forth herein. Accordingly, Licensee acknowledges that the unauthorized use, transfer, or disclosure of the Licensed Services or Information, or copies thereof will (a) substantially diminish the value to Chargeback.com of the proprietary interest that are the subject of these Terms; (b) render Chargeback.com’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (c) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use the Licensed Services or Information, Chargeback.com shall be entitled to equitable relief to protect its interest therein, including but not limited to, preliminary and permanent injunctive relief. For such purposes, the parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts found within the State of Utah, and they do agree that venue shall be proper in the County of Salt Lake in the State of Utah. In addition to any other remedies that may be available, in law, in equity or otherwise, Chargeback.com shall be entitled to obtain injunctive relief against the threatened breach of these Terms or the continuation of any such breach by Licensee, without the necessity of proving actual damages.
- ATTORNEY FEES. In case of arbitration or action to enforce any rights or conditions of these Terms, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
- ENTIRE AGREEMENT; AMENDMENT. These Terms and the Order Form together are a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties. Notwithstanding the forgoing, Chargeback.com may modify these Terms from time to time by providing Licensee written notice of such modification at least thirty (30) days prior to the effectiveness of such modifications. Upon any such modification, Licensee may terminate this Agreement without penalty by providing notice of termination within fifteen (15) days of Chargeback.com delivering notice to Licensee of such modification.
- NON-WAIVER. No waiver of any provision of these Terms shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of these Terms shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
- NO THIRD-PARTY BENEFICIARIES. Nothing in these Terms, express or implied, is intended to confer on any person, other than the parties to these Terms, any right or remedy of any nature whatsoever.
- SEVERABILITY; BINDING EFFECT. If any provision of these Terms shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of these Terms shall not be impaired. These Terms shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and, to the extent permitted by Section 8, assigns.
- FORCE MAJEURE. com will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond Chargeback.com’s reasonable control, so long as Chargeback.com uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
- Notices. All notices, consents, and other communications permitted or required to be given hereunder (herein referred to as a “Notice”) shall be in writing and addressed to the appropriate party. If to Licensee, the Notice will be sent to the address and/or email address provided to Chargeback.com in the Order Form or otherwise, and if to Chargeback.com, to the address of Chargeback.com’s headquarters as available on www.chargeback.com. Any party may change its address or email address for notification purposes by giving the other party Notice of the new address or email address and the date upon which it will become effective in accordance with the terms of this Section. A Notice shall be deemed to have been received as of the next business day in the jurisdiction of its receipt following its transmission by electronic mail.
- Invoices. Invoices (if any) to Licensee hereunder (herein referred to as an “Invoice”) shall be in writing sent as set forth in Section 25. If sent via electronic mail or other electronic transmission, the Invoice shall be deemed to have been received as of the next business day in the jurisdiction of its receipt following its electronic transmission.
- DEFENSE. Licensee will defend Chargeback.com from any actual or threatened third party claim arising out of or based upon Licensee’s use of the Licensed Services or Licensee’s breach of any of the provisions of these Terms or any representations or warrantees made by Licensee herein. com will: (a) give Licensee prompt written notice of the claim; (b) grant Licensee full and complete control over the defense and settlement of the claim; (c) assist Licensee with the defense and settlement of the claim as Licensee may reasonably request and at Licensee’s expense; and (d) comply with any settlement or court order made in connection with the claim.
- INDEMNIFICATION. Licensee shall indemnify Chargeback.com against: (a) all damages, costs, and attorneys’ fees finally awarded against Chargeback.com in any proceeding under Section 27; (b) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by Chargeback.com in connection with the defense of such proceeding (other than when Licensee has accepted defense of such claim); and (c) if any proceeding arising under Section 27 is settled, Licensee will pay any amounts to any third party agreed to by Licensee in settlement of any such claims.
- USE OF NAME. com may identify Licensee in Chargeback.com marketing materials. Licensee hereby grants Chargeback.com a non-exclusive right to use Licensee’s trademarks, logos, and other materials provided by Licensee to Chargeback.com for this purpose.
- MUTUAL WARRANTIES. Each party represents and warrants to the other that: (a) these Terms have been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery, or performance of these Terms; and (c) the execution, delivery, and performance of these Terms does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
Last updated November 1, 2018