Effective Date: The first day that any Equipment is shipped
Last Updated Date: January 29, 2013
I. Introduction and Eligibility
Binding Agreement. These Terms constitute a binding agreement between you, as a Merchant, (“you”) and GoPago Inc. and its affiliates and subsidiaries (“GoPago,” “we,” “us”). “Merchants” means all merchants, including individuals and companies that register to use the GoPago Service and receive a GoPago Account. You must accept these terms in order to register to use the GoPago Service. In addition, you accept these Terms each time you access the GoPago Service. If you are accepting these terms on behalf of another person or a company or other legal entity, you represent and warrant that you have full authority to bind that person, company or legal entity to these terms. If you do not accept these Terms, you must not use the GoPago Service.
Revisions to Terms. We may revise these Terms at any time by posting an updated version to our web page and the tablet that we lend you. However, you will be notified by email of a change in price or other material terms within thirty (30) days prior to any changes taking effect. You should visit this page (http://gopago.com/terms-conditions/) periodically to review the most current Terms, because you are bound by them. Your continued use of the GoPago Service after a change to these Terms constitutes your binding acceptance of these Terms.
The terms “post” or “posting” as used in these Terms shall mean the act of submitting, uploading, publishing, displaying, or similar action on the GoPago Service.
II. The GoPago Service
GoPago provides Equipment and software as an integrated system to perform together as a cloud based commerce platform allowing merchants to accept cash, credit cards and includes, where applicable according to Money Transmitter License state laws, a mobile storefront that displays merchants goods and services enabling ordering and pre-payment from smartphone devices (the “GoPago Service”).
You agree to receive email from us at the email address you provided to us for customer service related purposes.
Electronic Notices. By using the GoPago Service or providing Personal Information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the GoPago Service. If we learn of a security system’s breach, we may attempt to notify you electronically by posting a notice on the GoPago Service or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to us at firstname.lastname@example.org.
IV. Account Registration
Registration Process. The first step to becoming a Merchant and using the GoPago Service is to submit a registration application via https://secure.gopago.com/merchant_signup. This application will ask you for certain information including your name, banking and credit card information for billing, ACH information, information about your existing point of sale systems, information about your product/service offerings, etc. You must provide accurate and complete information in your registration application. If we accept your registration application and execute this agreement, you become a Merchant, are given an account (“GoPago Account”) and are authorized to use the GoPago Service.
Verification and Inspection. GoPago may approve or reject your registration application in its sole discretion. If you become a Merchant, GoPago may request additional information from you at any time. GoPago may ask you to present invoices from your suppliers, a government issued identification such as a passport or driver’s license, or a business license. GoPago may also ask for permission to inspect your business location. If you refuse any of these requests, we can terminate your GoPago Registration. We also reserve the right to suspend or terminate your GoPago Account if you provide inaccurate, untrue, or incomplete information, or fail to comply with the account registration requirements, or fail to pay for your subscription services on a monthly basis. You must provide accurate and complete information in response to our questions, and also must keep the information that you provide up-to-date in the event of any changes.
GoPago LIVE POS and Mobile Storefront Services. As a Merchant, GoPago may give you the opportunity to participate in Services through which GoPago will provide you with a point of sale system to serve as your cash register, credit card reader and credit processing system” (the “LIVE POS Service”). Your participation in the LIVE POS Service is governed by these Terms along with additional terms specific to the LIVE POS Service included in Section IX below. If you do not participate in the LIVE POS Service the terms in Section IX below do not apply to you.
GOPAGO’S MOBILE STOREFRONT WILL ONLY BE AVAILABLE IN THOSE STATES WHERE GOPAGO EITHER HAS A MONEY TRANSMITTER LICENSE OR STATE LAW DOES NOT REQUIRE A MONEY TRANSMITTER LICENSE.
Your participation in the Mobile Storefront Service is governed by these Terms along with additional terms specific to the Mobile Storefront Service included in Section X below. If you do not participate in the Mobile Storefront Service the terms in Section X below do not apply to you.
Definition of Relationship and Authorization. As a merchant payment processor, GoPago processes payments you receive from your customers. This means that we collect, analyze and relay information generated in connection with these payments. By accepting these Terms, you authorize us to hold, receive, and disburse funds on your behalf. Your authorization permits us to generate a paper draft or an electronic funds transfer to process each payment transaction that you authorize. Your authorizations will remain in full force and effect until your GoPago Account is closed or terminated..
Term and Termination. These Terms are effective the first day that any Equipment is shipped. The Effective Date and shall remain in effect for the later of either two years (“Main Term”) or two years following the last Order (“Initial Term”) unless terminated earlier in accordance with this Agreement. Thereafter this agreement will automatically renew for successive one-year terms (each a “Renewal Term”). Collectively the Main Term, Initial Term and any Renewal Terms are the “Term.” If the order term for any Order other than the initial Order extends beyond the Main Term, then this Agreement and such Order will continue in effect until the expiration or termination of such Order Term, but only as to such Order and subject to the termination rights of this Agreement. Upon GoPago’s acceptance of a Merchants order(s), such order(s) shall be deemed an “Order” hereunder and shall be deemed incorporated into this Agreement.
Termination for Service Changes GoPago reserves the right to change, suspend, or discontinue any aspect of the GoPago Service at any time. GoPago shall provide with at least (30) thirty days prior notice of any material change to the GoPago Service. In the event Merchant reasonably believes such a material change would negatively impact Merchant’s ability to enjoy the benefits of this Agreement, Merchant may terminate this Agreement, effective immediately, by providing GoPago written notice of its intent to terminate and would not be subject to any early termination fee. For the avoidance of doubt, if the Merchant terminates under this section, then the Merchant does not need to pay any early termination fee.
Termination for CauseThis Agreement may be terminated at any time by either party, effective immediately upon notice, if the other party: (i) becomes insolvent, (ii) files a petition in bankruptcy that is not dismissed within ninety (90) days of commencement, (iii) makes an assignment for the benefit of its creditors, or (iv) breaches any of its material obligations under this Agreement and the breach is not remedied within thirty (30) days from receipt of written notice of such breach.
Effect of TerminationUpon expiration of termination of this Agreement, Merchant’s GoPago Account will be terminated, and Merchant must immediately cease using the GoPago Service and return any Equipment to GoPago at Merchant’s sole cost.
V. GoPago’s Content Ownership and Use
The contents of the GoPago Service include: designs, text, graphics, images, video, information, logos, button icons, software (including mobile applications and hosted software services), audio files, computer code, and other GoPago content (collectively, “GoPago Content”). All GoPago Content and the compilation (meaning the collection, arrangement, and assembly) of all GoPago Content are the property of GoPago or its licensors and are protected under copyright, trademark, and other laws.
License to You. We authorize you, subject to these Terms, to access and use the GoPago Content solely for the use of the GoPago Services, at our discretion. Any other use is expressly prohibited. This license is revocable at any time without notice and with or without cause. Unauthorized use of the GoPago Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original GoPago Content on any copy you make of the GoPago Content.
GoPago Marks. GoPago, the GoPago logo, and other GoPago logos and product and service names are or may be trademarks of GoPago (the “GoPago Marks”). You may not display or use the GoPago Marks in any manner without our prior written permission and may only display or use the GoPago Marks as solely enabled by any link as provided by us.
All GoPago Rights Reserved. You acknowledge that the GoPago Content license granted above confers no title or ownership and is not a sale of any rights in the GoPago Content. You also understand and agree that these Terms are not intended to confer, and do not confer, any rights or remedies on any person other than a non-exclusive, non-transferable, non-sublicensable, limited license. GoPago retains all intellectual property rights in the GoPago Service and GoPago Content, including, without limitation, all patent, copyright and trademark rights. All rights not expressly granted to you are reserved solely to GoPago. There are no implied licenses granted hereunder.
Merchant Marks. You hereby grant GoPago and our partners and affiliates a non-exclusive, nontransferable (except pursuant to Section XV below), worldwide license to use your trade names, trademarks, logos, service marks, trade styles, trade dress, or your other proprietary and identifying marks solely in conjunction with the operation of the GoPago Service and any marketing or advertising of the GoPago Service.
VI. Intellectual Property Rights and Your License to Use
It is very important that you have permission to use other people’s content or they may be able to sue you for violating their legal rights.
GoPago Claims No Ownership. The GoPago Service may provide you with the ability to create or post content, including merchandise listings and menu pages (“Your User Content”). GoPago claims no ownership over Your User Content. You or a third-party licensor, as appropriate, retain all copyright, patent, and trademark rights to any of the content you post on or through the GoPago Service. You are responsible for protecting those rights. You also acknowledge and agree that Your User Content is non-confidential and non-proprietary.
You Acquire No Ownership of Others’ Content. You understand and agree that you will not obtain, as a result of your use of the GoPago Service, any right, title, or interest in or to such content delivered via the GoPago Service or in any intellectual property rights (including, without limitation, any copyrights, patents, trademarks, trade secrets, or other rights) in the content.
You Must Have Rights to the Content You Post.ou represent and warrant that: (i) you own the content posted by you on or through the GoPago Service or otherwise have the right to grant the license set forth in these Terms, (ii) the posting and use of Your User Content on or through the GoPago Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and (iii) the posting of Your User Content on the GoPago Service does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of content you post on or through the GoPago Service.
The GoPago Service contains content from users and other GoPago licensors. Except as provided within these Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any content appearing on or through the GoPago Service.
Use of Equipment. You agree to use the Equipment in a careful and lawful manner and shall not make any alterations, additions, or improvements to the Equipment without prior written consent of GoPago. You shall be responsible and GoPago shall have the right to immediately recover the cost for any extra 4G data costs due to tampering with the Equipment or use of Equipment for personal reasons that causes the Equipment exceed the allotted amount.
Lost, Stolen or Damaged Tablets. You shall take reasonable and prudent care to maintain the Equipment in a safe and secure manner. You are responsible for the entire replacement cost of any Equipment that is lost, stolen, or damaged. You must immediately notify GoPago if any Equipment is lost, stolen or damaged.
Return of Equipment. Merchant shall return all Equipment to GoPago within seven (7) business days of expiration or termination of this agreement. In the event that Merchant fails to return the Equipment within such five business day period, GoPago, at its discretion, reserves the right to charge Merchant with a fee up to $2500.00 or less per system should Merchant return partial amounts of the system.
Malfunctioning Equipment> To the extent any Equipment delivered by GoPago suffers any malfunctions or errors, and provided that such malfunctions cannot be remotely repaired online within 30 minutes by GoPago Customer Service, GoPago will, at its sole cost and expense, replace such defective Equipment within one business day of notice from Merchant, including all overnight shipping costs.
Return of Replacement Equipment> Merchant will be provided with a pre-paid return shipping box for any Equipment being replaced and shall return such Equipment to GoPago within two (2) business days. If Merchant does not return the Equipment within two (2) business days, then GoPago at its sole discretion can charge Merchant for the replacement cost of the Equipment.
Equipment Ownership. The Equipment is loaned, not sold, to you, solely for the duration of these Terms. Nothing in these Terms transfers ownership of any Equipment to you. You have no title of property interest in the Equipment. You will keep the Equipment free of all security interests, liens and other encumbrances. Any firmware or other software that is preinstalled in the Equipment is “GoPago Content” under these Terms and is licensed to you in accordance with Section V.
VIII. User Content Disclaimers, Limitations, and Prohibitions
We do not represent or guarantee the truthfulness, accuracy, or reliability of content, posted by other users and third parties, including Merchants. You accept that any reliance on material posted by third parties or third-party service providers will be at your own risk.
A. Prohibited GoPago Service Uses
You agree to use the GoPago Service only for its intended purpose. You must use the GoPago Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the GoPago Service are prohibited. You may not:
- Aggregate, copy, or duplicate any GoPago Content;
- Use data mining, robots, or other data gathering devices on the GoPago Service;
- Remove, disable, damage, circumvent, or otherwise interfere with the security of the GoPago Service;
- Interfere or attempt to interfere with the proper working of the GoPago Service;
- Gain unauthorized access to the GoPago Service or computers linked to the GoPago Service;
- Attempt to reverse engineer, or reverse engineer, the GoPago Service;
- Frame or link to the GoPago Service without permission;
- Attempt to or submit a virus to the GoPago Service;
- Take any action imposing an unreasonable or disproportionately large load on GoPago’s infrastructure;
- Attempt to or obtain unauthorized access to other users’ accounts;
- Sell, transfer, or assign any of your rights to use the GoPago Service to a third party without our express written consent;
- Use the GoPago Service in a manner that results in or may result in complaints, disputes, claims, fines, penalties, and other liability to GoPago or others;
- Use the GoPago Service in an illegal way or to commit an illegal act; or
- Access the GoPago Service from a jurisdiction where it is illegal, unauthorized, or penalized.
B. Payment Acceptance Terms
Payment Brand Rules. You agree to comply with any and all rules and regulations of Visa, MasterCard, Discover, American Express, or other payment brands (“Payment Brand Rules”), as may be applicable to you and in effect from time. You understand that GoPago may be required to modify these instructions and guidelines in order to comply with requirements imposed by the Payment Brands.
Prohibited Transactions. You may not accept payments in connection with the following businesses or business activities: (1) any illegal activity, (2) buyers or membership clubs, (3) credit counseling or repair agencies, (4) credit protection or identity theft protection services, (5) direct marketing or subscription offers or services, (6) infomercial sales, (7) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit with a physician including re-importation of pharmaceuticals from foreign countries), (8) multi-level marketing businesses, (9) inbound or outbound telemarketers, (10) prepaid phone cards or phone services, (11) rebate based businesses, (12) up-sell merchants, (13) bill payment services, (14) betting, including lottery tickets, casino gaming chips, off-track betting, and wagers at races, (15) financial institutions offering manual or automated cash disbursements, (16) financial institutions offering merchandise and services, (17) sales of money-orders or foreign currency by non-financial institutions, (18) wire transfer money orders, (19) high-risk merchants, including telemarketing merchants, (20) service station merchants, (21) automated fuel dispensers, (22) adult entertainment oriented products or services (in any medium, e.g., internet, telephone or printed material), (23) internet/mail order/telephone order firearm or weapon sales, (24) internet/mail order/telephone order cigarette or tobacco sales, (25) drug paraphernalia, (26) occult materials, (27) hate products, (28) escort services, and (29) bankruptcy attorneys.
IX. Fees and Payments
Fees. You agree to pay the applicable fees listed in the paragraph labeled “Fee Schedule” (“Fees”) whenever you use the GoPago Service. We reserve the right to change our Fees. We will give you thirty (30) days prior notice of any change to our Fees. You may not continue to use the GoPago Service after a Fee change unless you consent to the change in Fees. All balances and all Fees, charges, and payments collected or paid through the Service are denominated in US dollars.
X. GoPago LIVE POS Service and Fees
Equipment. You will obtain the following Equipment for GoPago’s Live POS Service: a tablet, a credit card reader, a cash box, a cable box, a stand, a printer and the required cables and connectors. GoPago LIVE POS service may offer in the future optional additional upgrades, add-ons, or equipment that will have additional and separate fees.
GoPago Live Transaction Fee Schedule. or the GoPago LIVE Service, you authorize GoPago to retain a “POS Fee” of 2.85% of the gross amount, including gratuity and sales tax, of all credit card and debit card transactions that are greater than or equal to twelve dollars ($12.00) that you process using the Equipment. Furthermore, you authorize GoPago to retain a “POS Fee” of 2.85% plus ten cents ($0.10) of the gross amount, including gratuity and sales tax, of all credit card and debit card transactions that are less than twelve dollars ($12.00) that you process using the Equipment.
GoPago Subscription Fees.For the GoPago LIVE Service, you authorize GoPago to charge you a monthly subscription fee of ninety-nine dollars ($99.00) per GoPago LIVE POS system. Merchant’s monthly billing cycle begins seven days after the system is shipped. Subscription payments will be due on the same billing cycle day each month. The fee may be adjusted if you elected to receive additional equipment or services.
Early Termination Fee:An Early Termination Fee (ETF) applies if you end your Service before the contract end date. This fee is not charged if you cancel service within 30 days of the effective date. The Early Termination fee is $2376, less $99.00 for each full month of Service completed for each GoPago LIVE POS System. Additional fees may apply for optional equipment, such as a scale or scanner.
Mobile Storefront Service and Fees
Equipment.You will obtain the following Equipment for GoPago’s Mobile Storefront Service: a tablet, a printer, an optional stand or dock, and the required cables and connectors.
Fee Schedule.After the total monthly sales exceed $100.00 “hundred dollar threshold,” you authorize GoPago to incrementally charge the “Mobile Storefront Subscription fee” until GoPago recoups $29.00. After the total monthly sales exceeds $129.00, you authorize GoPago to retain a “Transaction Fee” of 5% of the amount above $129, including gratuity and sales tax, of each transaction that you process through GoPago Service, minus Merchant funded credit amounts. The Transaction Fee is inclusive of credit card processing fees. In addition, if you participate in the LIVE POS Service in conjunction with Mobile Store Front, you authorize GoPago to retain the additional fees described in Section IX. There will be a shipping fee of fifty-five dollars ($55.00) of all equipment shipped. GoPago will waive the Mobile Storefront “Subscription Fee,” if you participate in the LIVE POS Service, then you acknowledge that the “hundred dollar threshold” is not applicable and the appropriate “Transaction Fee” immediately applies.
Early Termination Fee:An Early Termination Fee (ETF) applies if you end your Service before the contract end date. This fee is not charged if you cancel service within 30 days of the effective date. The Early Termination fee is $348, less $29.00 for each full month of Service completed for each Mobile Storefront.
XII. Consequences of Violating These Terms
We reserve the right to suspend or terminate your GoPago Account and prevent access to the GoPago Service for any reason, at our discretion. We reserve the right to refuse to provide the GoPago Service to you in the future. Perpetual licenses granted by you to GoPago remain in full force and effect.
You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by or arising out of your breach of these Terms and your use of the GoPago Service.
XIII. GoPago’s Liability
Changes to the GoPago Service. We may change, suspend, or discontinue any aspect of the GoPago Service at any time, including hours of operation or availability of the GoPago Service or any feature, without notice or liability.
User Disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with using the GoPago Service. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release GoPago of all claims, demands, and damages in disputes among users of the GoPago Service. You also agree not to involve us in such disputes. Use caution and common sense when using the GoPago Service.
Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the GoPago Service, including inventory availability at local businesses. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from third-party service provider or the quality or nature of third-party products or services obtained through the GoPago Service. Use the GoPago Service at your own risk.
Third-Party Websites. The GoPago Service may include links to third party websites and applications. You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and we disclaim all liability arising from your use of them.
We make no promises and disclaim all liability of specific results from the use of the GoPago Service.
Released Parties Defined. “Released Parties” include GoPago and its affiliates, officers, employees, agents, partners, and licensors.
A. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE GOPAGO SERVICE IS AT YOUR SOLE RISK, AND THE GOPAGO SERVICE, GOPAGO CONTENT AND EQUIPMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY MERCHANTS OR RESULTS THAT MAY BE OBTAINED BY MERCHANTS THAT USE THE GOPAGO SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE GOPAGO SERVICE, GO PAGO CONTENT OR EQUIPMENT WILL MEET YOUR REQUIREMENTS, (ii) THE GOPAGO SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE GOPAGO SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY A CUSTOMER THROUGH THE GOPAGO SERVICE WILL MEET A CUSTOMER’S EXPECTATIONS, AND (v) ANY ERRORS IN THE GOPAGO SERVICE OR GOPAGO CONTENT WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE GOPAGO SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RELEASED PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE GOPAGO SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE GOPAGO SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE GOPAGO SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF GOPAGO CONTENT, EQUIPMENT, ALL SITE-RELATED SERVICES, AND THIRD PARTY WEB SITES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GOPAGO OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OF ANY KIND. ANY REFERENCES TO SPECIFIC PRODUCTS OR SERVICES ON GOPAGO WEBSITES DO NOT CONSTITUTE OR IMPLY A RECOMMENDATION OR ENDORSEMENT BY GOPAGO UNLESS SPECIFICALLY STATED OTHERWISE.
THE GOPAGO SERVICE IS CONTROLLED AND OPERATED FROM FACILITIES IN THE UNITED STATES. GOPAGO MAKES NO REPRESENTATIONS THAT THE GOPAGO SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE GOPAGO SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE ENTIRELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED TO EXPORT AND IMPORT REGULATIONS. YOU MAY NOT USE THE GOPAGO SERVICE IF YOU ARE A RESIDENT OF A COUNTRY EMBARGOED BY THE UNITED STATES, OR ARE A FOREIGN PERSON OR ENTITY BLOCKED OR DENIED BY THE UNITED STATES GOVERNMENT. UNLESS OTHERWISE EXPLICITLY STATED, ALL MATERIALS FOUND ON THE SERVICE ARE SOLELY DIRECTED TO INDIVIDUALS, COMPANIES, OR OTHER ENTITIES LOCATED IN THE UNITED STATES.
B. LIMITATION OF LIABILITY AND INDEMNIFICATION
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GOPAGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE GOPAGO SERVICE, GOPAGO CONTENT OR EQUIPMENT; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE GOPAGO SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE GOPAGO SERVICE; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE GOPAGO SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT POSSIBLE BY LAW, OUR MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE GOPAGO SERVICE OR YOUR USE OF GOPAGO CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY GOPAGO AS A RESULT OF YOUR USE OF THE GOPAGO SERVICE DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from (i) your use of the GoPago Service for unlawful purposes, (ii) your use of or reliance on any GoPago Content, (iii) your breach of these Terms, or (iv) your violation of any rights of a third party. We shall provide notice to you promptly of any such claim, suit, or proceeding.
You acknowledge that any breach of these Terms by you would cause irreparable injury to GoPago for which monetary damages would not be an adequate remedy and, therefore, GoPago will be entitled to seek injunctive relief (including specific performance) in any court of competent jurisdiction
XIV. Copyright Policy
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the GoPago Service infringe your copyright, you (or your agent) may send GoPago a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
- Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the GoPago Service are covered by a single notification, a representative list of such works);
- Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow GoPago to locate the material on the GoPago Service;
- Your name, address, telephone number, and email address (if available);
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send GoPago a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the GoPago Service should be sent to 44 Montgomery Street, Suite 250, San Francisco, CA 94104 or to email@example.com. Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA.
XV. Suggestions and Submissions
We appreciate hearing from our users and welcome your comments regarding the GoPago Service. Please be advised, however, that we do not accept or consider creative ideas, suggestions, inventions, or materials (“creative ideas”) other than those which we have specifically requested. While we value your feedback on its services, please be specific in your comments and do not submit creative ideas. If, despite this request, you send us creative ideas, we:
- Shall own, exclusively, all now known or later discovered rights to the creative ideas;
- Shall not be subject to any obligation of confidentiality and shall not be liable for any use or disclosure of any creative ideas; and
- Shall be entitled to unrestricted use of the creative ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
XVI. General Terms
These Terms constitute the entire agreement between you and GoPago concerning your use of the GoPago Service. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by GoPago without restriction. The section titles and annotations in these Terms are for convenience only and have no legal or contractual effect.
XVII. Arbitration, Class Waiver, and Waiver of Jury Trial
These Terms and the relationship between you and GoPago shall be governed by the laws of the state of California without regard to its conflict of law provisions. You and GoPago agree to submit to the personal and exclusive arbitration of any disputes relating to your use of the GoPago Service under the rules of the American Arbitration Association. Any such arbitration, to the extent necessary, shall be conducted in San Francisco, California. You covenant not to sue GoPago in any other forum.
You also acknowledge and understand that, with respect to any dispute with the Released Parties arising out of or relating to your use of the Service or these Terms:
- YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY;
- YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE; AND
- YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED.
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San Francisco, CA 94104