This EULA is a legal agreement between You, an individual or legal entity (“You” and “Your”), and Cinsay, Inc., a Nevada corporation (“Cinsay”), for the Cinsay Smart StoreTM software product offered by Cinsay as non-clonable or non-reproducible separate store applications that can be loaded with audio-visual data and content, having such functions and functionality as made available by Cinsay to You under this EULA, and any documentation provided or made available for Your access and use with such software product (collectively, the “Licensed Application”) permitting You to create a virtual store with audio-visual data and content for Your use under this EULA (the “Licensed Store(s)”). By accepting this EULA and accessing and using the Licensed Application, You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, do not access or use the Licensed Application. If You are an individual, You acknowledge that You are of least 18 years of age. If You agree to this EULA on behalf of a legal entity, You represent that You have authority to bind that legal entity to this EULA. The Licensed Application is licensed, not sold, to You for use only under the terms of this EULA.
Please take specific notice of the provisions on the Fees owed and due by You and the terms for automatic charges of Your credit or debit card in Section 4.4 of this EULA.
1.1 Your Subscription Plan. You are presented this EULA for acceptance in connection with Your purchase of a subscription to access and use the Licensed Application (“Your Subscription”). The terms and conditions of Your Subscription other than this EULA (“Your Subscription Plan”) are those set forth in the information presented to You by Cinsay – or if You purchased Your Subscription from an authorized reseller appointed directly or indirectly by Cinsay to resell Your Subscription (the “Reseller”), such information, terms, and conditions set forth in the agreement between You and the Reseller (the “Reseller Agreement”) – in connection with your purchase of Your Subscription. Cinsay agrees to grant the license and rights under this EULA to You only for use with, and within the limitations and parameters of, Your Subscription Plan, including, without limitation, payment of all monies owed and due under Your Subscription Plan. You may agree with Cinsay to upgrade, update, or modify Your Subscription Plan, in which case Your Subscription Plan means such terms and conditions reflecting such upgrade, update, or modification, including, without limitation, any increase or addition to any monies owed and due. Your Subscription Plan, as changed to reflect any such upgrade, update, or modification, is incorporated into, and a part of, this EULA as if directly set forth herein. If and to the extent of any conflict, discrepancy, difference, or disparity between this EULA or any of its provisions and Your Subscription Plan, this EULA and its provisions shall prevail over, control, and preempt Your Subscription Plan.
1.2 Resellers. Only if You purchased the subscription to the licensed application for which You accept this EULA from an authorized Reseller of Cinsay (the “Reseller”), the following provisions apply:
2.1 SaaS. Cinsay makes the Licensed Application available for access and use only on a “software as a service” (“SaaS”) basis through the following internet domain: Cinsay.com, or any other or additional domain as Cinsay may notify to you from time to time (the “Domain”). Cinsay does not make available or license the Licensed Application or any part thereof for downloading, transfer, or installation, and You do not have any right or license to download, transfer, or install the Licensed Application or any part thereof. You agree not to download or install, and You agree not to attempt to download or install, through any means, directly or indirectly.
2.2 License. Subject to and on condition of Your compliance with all Your obligations, duties, and performance under this EULA, including, without limitation, payment of all monies due and owed, Cinsay grants You a limited, terminable, and non-exclusive license: (i) solely under Cinsay’s rights in and to the Licensed Application, for You to access and use the Licensed Application solely remotely on a SaaS basis solely at the Domain and create and modify (within the limits permitted under the EULA and by the functions and functionality of the Licensed Application as made available to You) a Licensed Store or Licensed Stores from the Licensed Application solely in the Territory (as defined below), and (ii) if Cinsay delivers or makes available to You any Licensed Content pursuant to Section 5 of this EULA, solely under Cinsay’s rights in and to such Licensed Content, for You to upload and use such Licensed Content solely in the Licensed Store or Licensed Stores solely in the Territory and subject to any terms and conditions under which Cinsay delivers or makes available such Licensed Content to You, all of the foregoing subject to and in accordance with the terms and conditions of this EULA; provided that the licenses and rights granted to You are non-transferable, non-assignable, and non-sublicenseable, in whole and in part, and are subject to the limitations and restrictions in this EULA, including, without limitation, those in Section 2.3, and may not be used, utilized, or exercised other than as permitted under any applicable law, this EULA, or any description or specifications of the Licensed Application provided by Cinsay to You. The Licensed Application may contain third party components, services, or elements, in which case the license in this Section 2 extends to any third party components, services, or elements only if and to the extent, and for as long as, Cinsay has the right to grant the sublicense necessary for such license.
2.3 Limitations. You may not, and You agree not, to do or engage in any of the following, whether directly or indirectly:
2.4 Territory. This license is limited to, and the Licensed Application may not be accessed or used, and any Licensed Store may not be created or modified, outside such country, part of a country, or region as set forth in Your Subscription Plan, if any, and in any event not in any country or jurisdiction if any access to or use of the Licensed Application or any Licensed Store in or from such country or jurisdiction, or any transaction offered, made, or performed through or using the Licensed Application or any Licensed Store in or to such country or jurisdiction, or any transmission, making available or accessible, or providing of any content in any Licensed Store in or to such country or jurisdiction is prohibited under any U.S. law or the law of such country or jurisdiction, or in breach of any provision of this EULA.
2.5 No Third Party Use. You may not permit any individual, entity, or other person to access and use the Licensed Application or engage in any of the licensed activities hereunder, except for any employee or contractor engaged by You (“Your Personnel”) if all such access and use is solely on Your behalf and for Your sole benefit. You agree to cause Your Personnel to comply with the terms and conditions of this EULA to the same extent as You and to comply with all applicable laws. You agree to be, and You will be, fully liable and responsible for any and all activities of Your Personnel related to the Licensed Application, any Licensed Store, or this EULA, or that affects in any way Cinsay or any of its affiliates or officers, directors, employees, agents, or contractors, including, without limitation, any activity that, if it had been performed by You directly, would constitute a breach of this EULA or any applicable law (and such activity shall then conclusively deemed to be Your breach of this EULA or, for the purposes of this EULA, Your violation of applicable law), whether such activities are or could be known, or are or have been authorized, by You, and if any such activity incurs any fees or other monies owed or due under this EULA, You will be obligated to pay and be fully liable for all such fees or other monies. Please note specifically Section 15 of this EULA.
2.6 Third Party Software. If Cinsay makes available or accessible third party software, products, or services available through the Licensed Application or any Services, such third party software, products, or services will or may be subject to additional terms and conditions that You must accept as a condition to receiving or using such third party software, products, or services.
2.7 Lawful Use. You agree to use the Licensed Application and the Licensed Store(s) and any content therein in accordance with any and all law, statutes, regulations, rules, ordinances, directives, and court and governmental orders applicable to You(, including, without limitation, all law, statutes, regulations, rules, ordinances, directives, and court and governmental orders related to the products and/or services advertised, offered, and/or provided through use of the Licensed Application, the Licensed Store(s), and/or any content therein) and/or any data privacy, data security, and confidentiality of data and information regarding any data collected, received, shared, or accessed by You in connection with the use of the Licensed Application, the Licensed Store(s), any content therein, and/or the products and/or services advertised, offered, and/or provided through use of the Licensed Application (“Legal Requirements”). You shall ensure at all times that You has all rights and/or licenses to any technology, software, hardware, work, material, data, and/or information that You uses in connection with the Licensed Application. You are solely responsible for lawfully procuring any and all such rights and/or licenses at Your sole cost.
2.8 Infringement. Any access, execution, or use of any Licensed Application and the Licensed Store(s), or any part thereof, other than as expressly permitted under this Section 2 or in violation of this EULA shall be deemed to be an infringement of Cinsay’s intellectual property rights therein and subject to all rights and remedies of Cinsay arising from or in connection with such an infringement.
3.1 Services. If and to the extent that Cinsay agrees in Your Subscription Plan or otherwise expressly in advance in a written agreement with You to provide services to You in connection with the Licensed Application or any Licensed Store (including, without limitation, any services related to content of the Licensed Store, such as set forth in Section 5 of this EULA, or the management, administration, or fulfillment of any transactions through the Licensed Store) (such services, the “Services”), all terms of this EULA related to Services apply to such Services and shall prevail and supersede, and not be superseded, replaced, abridged, terminated, or limited, or restricted by any term, condition, or provision in, any other agreement, except solely if and to the extent Cinsay agrees otherwise for any specifically identified provision in a written agreement signed by Cinsay and You.
3.2 Cooperation. You agree to cooperate with Cinsay and provide reasonable assistance in connection with Cinsay’s performance of any Services or other performance under this EULA. You acknowledge and agree that Cinsay may, in performing any Services or otherwise its obligations pursuant to this EULA, be dependent upon or use data, material, and other information furnished by You without any independent investigation or verification thereof, and that Cinsay shall be entitled to rely upon the accuracy and completeness of such information in performing the Services or other obligations.
3.3 Third Party Provider Services. The Services may involve Cinsay’s making available to, or using for or on Your behalf, products, services, software, or property of any third party (such third party, a “Third Party Provider”), which may include, without limitation, any website builder services or other services for use with the Licensed Application (collectively, such products, services, software, or property the “Third Party Provider Services”), which are subject to the agreement, terms, and conditions of the Third Party Provider (the “Third Party Provider Terms”). Cinsay has identified, or will identify, to You the Third Party Provider Terms, including, without limitation, through a link or web-address where the Third Party Provider Terms are posted or can be obtained. You agree that:
3.4 Domain Name(s) and Domain Name Registration(s). As part of the Services, Cinsay may agree to register one or more specific domain names, as agreed between You and Cinsay (the “Domain Name(s)”), for Your use with the Licensed Application. You agree that Cinsay will register the Domain Name(s) and hold the registration of the Domain Name(s) (the “Domain Name Registration(s)”) solely in Cinsay’s name and with Cinsay being the administrative contact and registered owner. YOU AGREE THAT CINSAY WILL OWN, AND RETAIN OWNERSHIP AND REGISTRATION AS LONG AS CINSAY DECIDES IN ITS SOLE DISCRETION, ALL RIGHTS, TITLE, AND INTEREST IN AND TO THE DOMAIN NAME(S) (EXCEPT FOR, AND NOTWITHSTANDING, TRADEMARK, SERVICE MARK, TRADENAME, OR BUSINESS NAME RIGHTS OWNED BY YOU OR A THIRD PARTY AND EXISTING IN THE DOMAIN NAME(S) OR ANY PART THEREOF PRIOR TO THE REGISTRATION THEREOF UNDER THIS AGREEMENT) AND THE DOMAIN NAME REGISTRATION(S). Except as and to the extent expressly agreed otherwise in this Section 3.4, Cinsay may maintain, cease maintaining, abandon, offer, sell, transfer, and use the Domain Name(s) and the Domain Name Registration(s) as decided by Cinsay in its sole discretion. Cinsay will register any such Domain Name(s) for a one (1) year period, or for the minimum registration period for the Domain Name(s) if more than one (1) year, or for the greater period agreed between You and Cinsay. Cinsay agrees to maintain and renew, while Your Subscription is in effect, the Domain Name Registration(s) for such Domain Name(s) for the same period if available, conditioned on Your payment of all fees, costs, expenses, taxes, and other amounts for such Domain Name Registration(s) for such registration or renewal when due. Failure to make such payment when due may result in Cinsay’s not continuing the maintenance of such Domain Name Registration(s).
3.5 Third Party Provider Services and Related Fees. Cinsay may pass through, or include in any Service Fees, as decided by Cinsay in its sole discretion, any fees, costs, expenses, taxes, and other amounts owed for any Third Party Provider Services or any registration of the Domain Name(s) and maintenance of the Domain Name Registration(s). If and to the extent not included in any Service Fees, Cinsay will invoice You for such fees, costs, expenses, taxes, and other amounts, which shall be owed, due, and paid in accordance with Section 4.5 of this EULA.
4.1 Fees. In consideration for the license for access and use of the Licensed Application, You shall pay Cinsay the fees, prices, royalties, charges, costs, and/or expenses as provided for (i) in Your Subscription Plan, or (ii) in an order or other agreement between You and Cinsay related to the Licensed Application (collectively, the "License Fees"). In consideration for provision of the Services, You shall pay Cinsay the fees, charges, prices, costs, and/or expenses as provided for such Services as provided for (i) in Your Subscription Plan, or (ii) in a service order or other agreement between You and Cinsay related to the Licensed Application (collectively, the "Service Fees"). The term “Fee” means, individually, the License Fees or the Service Fees, and the term “Fees” means, collectively, the License Fees and the Service Fees.
4.2 Recurring Fees. If so set forth in Your Subscription Plan, any Fee may be due in recurring intervals, in which case such Fee shall become due at the beginning of such recurring intervals as set in Your Subscription Plan or the order or service order or other agreement for such Fee. Without limiting its rights or remedies under this EULA, Cinsay may immediately suspend or terminate the license and Your access to and use of the Licensed Application and the Licensed Store(s) if You fail to make timely payment under this Section 4. You agree that You may incur additional charges to the extent Your use of the Licensed Application exceeds certain bandwidth, streaming or hosting limitations or other limitations set forth in Your Subscription Plan or the applicable service order or other agreement with Cinsay, or as determined by Cinsay in its sole discretion.
4.3 Time of Payment. Each Fee is due in advance of the license period for which such Fee is owed. All payments of Fees are final and non-refundable. Cinsay does not grant any refund, reimbursement, or compensation of any Fee paid and does not waive any Fee due and unpaid.
4.4 Automatic Charge of Credit or Debit Cards. Cinsay may offer payment of the Fees through credit card or debit card either through Cinsay’s website and verbally via telephone to a representative of Cinsay. Your provision of the credit card information to Cinsay shall be deemed to be express authorization to Cinsay to do, and Your agreement that Cinsay may do, all of the following:
4.5 Payment Upon Invoice. If Cinsay agrees that You may or states that You shall pay any Fees upon invoice, all such Fees shall be due from You to Cinsay at such time or times stated in the service order or applicable invoice, and if no time or times are set forth in the service order or applicable invoice, the Fees shall be due, and You shall pay such Fees to Cinsay, within thirty (30) days of Cinsay's invoice of such Fees.
4.6 Reports. You shall deliver such written reports as, and at such times as, set forth in Your Subscription Plan or order or other agreement between Cinsay and You or as implied from the nature or calculation of the Fees related to information determining the nature or calculation of the Fees.
4.7 Late or Non-Payment. You shall pay all Fees in immediately available indefeasible unconditional funds in U.S. dollar currency without any set-off or deduction. Any amount of any Fee that is unpaid when it is due shall accrue interest from the date it is due until Cinsay’s receipt of the payment of such amount at the rate of the lower of (i) one and one-half percent (1.5%) per full or partial calendar month or (ii) the highest enforceable rate of interest under applicable law. All such interest shall be paid simultaneously with the payment of the unpaid amount on which such interest accrued.
4.8 Taxes. All Fees payable to Cinsay hereunder do not include any sales, use, excise, value added or other applicable taxes, tariffs or duties, payment of which shall be Your sole responsibility (excluding any applicable taxes based on Cinsay's net income or taxes arising from the employment or independent contractor relationship between Cinsay and its personnel). In the event that such taxes, tariffs or duties are assessed against Cinsay, You shall reimburse Cinsay for any such amounts paid by Cinsay or, prior to the payment of such amounts by Cinsay, provide Cinsay with valid tax exemption certificates with respect thereto.
4.9 No Precedent. The Parties agree that the rate, value, or amount of any Fee is based on the particular circumstances of this transaction, shall not be deemed to be a precedent for any maximum payment under any other transaction, whether between the Parties or of any third party, or in connection with any rights or remedies asserted by Cinsay, and shall not be deemed to be an indication of what constitutes or may constitute, or be used in the determination of, a maximum reasonable royalty regarding any Cinsay Property.
4.10 Store Taxes. You and all Your Personnel are solely responsible for determining whether or what sales tax, use tax, value added tax, or other tax, charges, duties, or imposts will be due or owed in connection with any use of You or any of Your Personnel of the Licensed Application, the Licensed Store(s), or any transaction through or related to the Licensed Application or the Licensed Store(s) (“Store Taxes”), and if so, at what rate or amount any Store Tax is owed. You and all Your Personnel are solely responsible and liable for any Store Taxes and the withholding and payment thereof, whether or not the Payment Gateway is used.
5.1 Audio-Visual Content. You understand that the Licensed Application is intended for use with audio-visual content, such as a video or a series of photographs or other images (“Audio-Visual Content”). In the event that You have not delivered, or do not promptly deliver upon Cinsay’s request, any Audio-Visual Content to Cinsay for use in a Licensed Store or Licensed Stores of You, You agree that Cinsay may set up at least one Licensed Store with Audio-Visual Content provided and selected by Cinsay in its sole discretion (the “Provided Audio-Visual Content”), through which Your products and services are offered and/or sold, and to establish lead generation for customers and visitors thereto and use such information under this EULA, including, without limitation, in connection with the calculation of any fees hereunder, if applicable.
5.2 Licensed Content. In the event that the Licensed Store(s) use any Provided Audio-Visual Content, or that Cinsay delivers or makes available to You for Your use in the Licensed Store(s) otherwise any Provided Audio-Visual Content or any other text, documentation, images, works, information of any kind (all Provided Audio-Visual Content and any other text, documentation, images, works, or information delivered or made available to You by Cinsay in connection with any Licensed Store, “Licensed Content”), Your right to use the Licensed Content is set forth in the license grant in Section 2.1 of this EULA and subject to the terms and conditions of this EULA. All rights, title, and interest in and to the Licensed Content are, and shall continue to be, solely owned by Cinsay or a third party licensor of Cinsay, if any, and no rights, title, interest, or license is granted to You in or to any Licensed Content other than as set forth in the license grant in Section 2.1 of this EULA. You give Cinsay the right to associate any Licensed Content with You and to display Your name(s) and mark(s) in or in connection with the Licensed Content.
6.1 Your Content. As part of the licensed use of the Licensed Application under the license set forth in Section 2.1, You may upload and use in or for the Licensed Store(s) any audio-visual and other content owned by You or obtained by You from any third party (the “Your Content”). You are solely responsible and liable for any of Your Content, including, without limitation, obtaining all necessary rights and licenses to upload and use any of Your Content. You agree that Cinsay will have no right or ability to control any of Your Content and will not, and Cinsay has no obligation to, review, preview, monitor, select, or otherwise control any of Your Content, provided that Cinsay has the right to remove or disable access to any of Your Content, temporarily or permanently, in any of the following events, and Cinsay shall have no liability to You for or in connection with such removal or disabling of access, including, without limitation, for any lost profits, lost revenue, or other damages:
6.2 Your Data. You expressly assume all risks of error, corruption, loss or damage to any data, text, images, videos, documentation, material, or information entered by You in connection with the access or use of the Licensed Application, the Licensed Store(s), or any of Your Content (collectively, “Your Data”). You are solely responsible for management of Your Data, including but not limited to back-up and restoration of Your Data. YOU AGREE THAT CINSAY IS NOT RESPONSIBLE FOR THE LOSS OF ANY OF YOUR DATA OR FOR THE BACK-UP OR RESTORATION OF ANY OF YOUR DATA, REGARDLESS OF WHETHER YOUR DATA ARE MAINTAINED ON CINSAY’S SERVERS OR YOUR EQUIPMENT. You may delete or modify any of Your Data. Cinsay has no obligation to archive any of Your Data. You recognize and acknowledge that any of Your Data prior to any modification or upon the termination or expiration of this EULA or the need to use Your Data will or may be erased from the database and will not be available or recoverable thereafter. Any erasure may be delayed until the next generally scheduled database update, which may be conducted within days, weeks, or longer or shorter times from each other.
6.3 Reservation of Rights; License to Cinsay. You shall retain all rights, title and interest in and to Your Content and Your Data. If and to the extent that Cinsay requires any license related to in connection with any of Your Property (including, without limitation, any hosting, storage, or other Services or other performance by Cinsay of any kind or any exercise of any right of Cinsay), You hereby grant Cinsay a non-exclusive, transferable, assignable, sublicenseable, worldwide right and license, free of any royalty, fee, charge, or other payment or payment obligation by Cinsay whatsoever, to use, reproduce, distribute, modify and create derivations from, publish, and display any of Your Property used or included in any Licensed Store or in connection with the Licensed Application or provided, delivered, or made available by You to Cinsay in connection with this EULA or Your use of the Licensed Application or any Licensed Store, Your Content as necessary or useful in connection with the performance or provision of any Services, and Cinsay may transfer or sublicense such right and license to any contractor or vendor used in connection with any Services. Otherwise, You does not grant any right, title, interest, license, lien, or expectation, or any right to grant any license or use right whatsoever, in or to any of Your Property, whether expressly, implicitly, or otherwise.
You may request that Cinsay make the Audio-Visual Content used with the Licensed Store(s) accessible to the general public through Cinsay’s website. If Cinsay agrees to do so, Cinsay will host such Audio-Visual Content provided by You to Cinsay on Cinsay’s server and provide access to such Audio-Visual Content to the general public via the internet on a subpage of Cinsay’s website, all as decided by Cinsay in its sole discretion. Cinsay does not make, and expressly disclaims, any warranty, representation, covenant, agreement, or undertaking regarding any uptime, update, maintenance, or accessibility of such subpage, Cinsay’s website, or such Audio-Visual Content, including, without limitation, any service levels or service level agreement, or the domain name or domain registration or maintenance thereof. In the event that Cinsay agrees to so host and make accessible such Audio-Visual Content, You may also request that Cinsay register a domain name that, when visited through the internet, links automatically to such subpage containing such Audio-Visual Content. While You may suggest such domain name, such domain name shall be subject to Cinsay’s discretionary prior written approval and its availability for registration. Cinsay shall solely own the registration and any renewal of the registration of such domain name. Upon the expiration or termination of this EULA, Cinsay may immediately discontinue hosting and providing any access to such Audio-Visual Content and may cancel, discontinue, or abandon the registration of such domain name, provided, however, that, upon Your request received at any time during the duration of this EULA and before its expiration or termination, Cinsay agrees to sell and transfer the registration of such domain name (unless such domain name, in Cinsay’s assessment, includes any name, mark, or proprietary information or material of Cinsay or any third party) to You in consideration for payment of a transfer fee as then published or determined by Cinsay.
8.1 Third Party Services. The Licensed Application may enable access to Cinsay’s and third party services and web sites (collectively and individually, “Third Party Services”). Use of the Third Party Services may require Internet access and that You accept additional terms of service. You understand and agree that, by using any of the Third Party Services, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the Third Party Services at Your sole risk and that Cinsay shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.
8.2 Third Party Materials. Certain Third Party Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Third Party Services, You acknowledge and agree that Cinsay is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Cinsay does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any third party Third Party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to You.
8.3 Third Party Proprietary Materials. You acknowledge and understand that Third Party Services may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and agree that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Third Party Services. No portion of the Third Party Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Third Party Services, in any manner, and You shall not exploit the Third Party Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Third Party Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Cinsay is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Third Party Services.
8.4 Modification and Termination. Cinsay, and its licensors, reserve the right to change, suspend, terminate, remove, or disable access to any Third Party Services or any Third Party Materials at any time without notice. In no event will Cinsay be liable for changing, suspending, terminating, removing, or disabling access to any Third Party Services or Third Party Materials. Cinsay may also impose limits on the use of or access to any Third Party Services or Third Party Materials, in any case and without notice or liability.
9.1 Payment Gateway. Cinsay entered into an agreement with 34 Solutions LLC (“34 Solutions”), which makes available for license and use by merchants a digital payment processing tool for processing payments received by such merchants, as may be modified by 34 Solutions from time to time (the “Payment Gateway”) under terms established by 34 Solutions from time to time (the “Payment Gateway Terms”), and pursuant to such agreement, Cinsay may make available to licensees of the Licensed Application in connection with such licensee’s use of the Licensed Application a link or bridge enabling such licensee to access the Payment Gateway via the Licensed Application (the “Payment Gateway Bridge”) and is willing to make the Payment Gateway Bridge available to You as set forth in Section 4.
9.2 License to Use Payment Gateway Bridge. Cinsay grants You a non-transferable, non-sublicenseable, non-assignable, terminable, limited, and nonexclusive license to access and use the Payment Gateway Bridge solely for the purpose of accessing and using the Payment Gateway for processing any payments made to or by You in connection with the use of the Licensed Store(s), all subject to and in accordance with the terms and conditions of this Section 6.
9.3 Modification and Termination. Cinsay may modify the Payment Gateway Bridge at any time if and as decided by Cinsay in its sole discretion. Cinsay may terminate and cease providing or making available the Payment Gateway Bridge at any time if and as decided by Cinsay in its sole discretion and will make commercially reasonable efforts to notify You prior to doing so.
9.4 No License or Rights to Payment Gateway. Cinsay does not grant any license or sublicense and does not, directly or indirectly, own, host, or operate, or otherwise control, the Payment Gateway and is not involved with the Payment Gateway or any services provided through or by or with the Payment Gateway. You agree that any and all use of the Payment Gateway by or for You or any customer or client of You is at Your sole and complete risk. Cinsay does not receive or store, and has no liability, obligation, or responsibility for or in connection with any information related to any payment processed through the Payment Gateway, including, without limitation, names, addresses, credit card numbers, account numbers, amounts, and other data (collectively, “Payment Transaction Information”).
9.5 Payment Gateway Terms. You acknowledges and agrees that You may only access and use the Payment Gateway in accordance with the Payment Gateway Terms. The Payment Gateway Terms are not part of this EULA and do not constitute any agreement or contract, or any part of any agreement or contract, between Cinsay and You. If Cinsay makes the Payment Gateway Terms available to You, it is for informational purposes only. The Payment Gateway Terms may be amended from time to time by 34 Solutions. You are solely responsible for confirming the specific Payment Gateway Terms in effect from time to time, for meeting and complying with all Payment Gateway Terms, and for meeting and complying with any conditions that may be imposed on You for accessing and using the Payment Gateway, including, without limitation, express acceptance of the Payment Gateway Terms and any and all registration requirements with the Payment Gateway operator. Any contract or agreement regarding the access and use of the Payment Gateway by You are a contract and agreement between You and 34 Solutions, to which Cinsay is not a party.
9.6 No Liability, Responsibility, or Obligations regarding Payment Gateway. Cinsay does not promise, covenant, undertake, warrant, or represent that Cinsay assumes or accepts no responsibility or liability for the Payment Gateway, the Payment Gateway Bridge, any Payment Transaction Information, any access or use of, or transaction through, the Payment Gateway, any functionality, feature, uptime, downtime, errors, bugs, defects, malfunctions, loss, corruption, access to, or disclosure of payment or other data, or other problems, issues, or concerns related to the Payment Gateway or the Payment Gateway Bridge. CINSAY MAKES NO WARRANTY OR REPRESENTATION OR CONDITION, AND DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS AND CONDITIONS, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANSHIP, TITLE, AND NON-INFRINGEMENT, RELATED TO THE PAYMENT GATEWAY AND/OR THE PAYMENT GATEWAY BRIDGE OR ANY ACCESS OR USE THEREOF. IN NO EVENT SHALL CINSAY BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, PUNITIVE, SPECIAL, LIQUIDATED, OR OTHER DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS AND LOST PAYMENTS. THE PROVISIONS OF THIS SECTION 6.4 ARE IN ADDITION TO, AND NOT IN LIEU OF, ANY DISCLAIMER, LIMITATION, OR EXCLUSION OF CINSAY IN THIS EULA AND SHALL NOT BE DEEMED OR INTERPRETED TO REPLACE, RESTRICT, LIMIT, EXCLUDE, OR CURTAIL ANY SUCH DISCLAIMER, LIMITATION, OR EXCLUSION.
10.1 Language. The Licensed Application and the Licensed Content is provided in English. Any modification, development, adaptation, translation, or transliteration of the Licensed Application or any Licensed Content (each of which shall be Cinsay Property) in or for use in an additional language requires a separate written agreement between Cinsay and You, which is subject to the payment Service Fees by You unless expressly agreed otherwise in such written agreement.
10.2 Downtime; No Service Levels. Cinsay does not offer, provide, or agree to any service levels, uptime, access, or other minimum or quantity or quality-based promise or undertaking or any credits or compensation for any lack or failure of access to or use of the Licensed Application. Cinsay may, from time to time, take down or shut down access to the Licensed Application, or parts thereof, for maintenance, repair, or service as Cinsay may deem necessary in its sole discretion (“Downtime”). You acknowledges that, during any Downtime, You may not be able to access and use some or all parts of the Licensed Application. Cinsay agrees to make commercially reasonable efforts to notify You, or have You notified, in advance of such Downtime, for example by displaying a notice during access of the Licensed Application or by posting a notice on the website of the Domain. Cinsay will make commercially reasonable efforts to keep the Downtime to a minimum, but in no event shall Cinsay or any affiliate of Cinsay or any distributor or reseller of Cinsay or any of Cinsay’s affiliates be liable to You or any third party in connection with any Downtime. Cinsay does not offer, and does not agree to, any service level agreement, service levels, credit, uptime, minimum uptime, or other similar features.
10.3 Domain. Although the Licensed Application and the Domain may be accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Domain or under this EULA are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Cinsay reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Domain or under this EULA is void where prohibited. If You choose to access the Domain or the Licensed Application from outside the United States, if and to the extent permitted in view of the Territory, You do so on its own initiative and are solely responsible for complying with applicable local laws.
10.4 Log-In Information. You will receive a unique login identity(ies) or username(s) and password(s) for accessing the Licensed Application through the internet at the Domain (collectively, “Log-In Information”). Logging in at the Domain using the Log-In Information is a condition precedent for Your and Your Personnel’s access to and use of the Licensed Application or any part thereof. If You are permitted or required by Cinsay, or prompted by the Licensed Application, to change the Log-In Information, You shall do so until new identity or username and/or password is accepted by Cinsay at the Domain, and the prior identity or username and/or password shall cease being, and the new identity or username and/or password shall constitute, the Log-In Information. You may access and use the Licensed Application solely with the Log-In Information. You agree not to share any of the Log-In Information with any other person or permit any other person to access, know and/or use any of the Log-In Information, except solely for any of Your Personnel who is authorized by You to access and use the Licensed Application in accordance with this EULA, provided, however, that You shall require such of Your Personnel to comply fully with the confidentiality and secrecy obligation and use restrictions that You has with regard to the Log-In Information. Once a person ceases to be Your Personnel or authorized to access and use the Licensed Application, You shall ensure that such person has no further access to the Licensed Application, if necessary, by changing the Log-In Information. All Log-In Information shall be deemed to be property of Cinsay. You are responsible and liable for loss, misappropriation, or misuse of any Log-In Information in the possession or control of You or Your Personnel. You shall notify Cinsay immediately in writing of any loss, misappropriation, or misuse of any Log-In Information. Cinsay may then require a change in the Log-In Information.
10.5 Access Conditions. You are solely responsible, throughout the duration of this EULA and Your access and use of the Licensed Application at the Domain, for obtaining, providing, establishing and maintaining, at Your sole cost, all software (including, without limitation, any and all licenses or other rights necessary for using such software), hardware, communication, internet access and connection (whether through telephone, cable, DSL, T1, ISDN, wireless, mobile, or any other form or type of access, connection or connectivity), electricity, and any other prerequisites that are or may be necessary for the access to and use of the Licensed Application (collectively, “Access Conditions”), and neither Cinsay nor any affiliate or any distributor, agent or reseller of Cinsay or an affiliate of Cinsay shall be liable for any Access Conditions, or the provision thereof, or any costs, charges, fees, taxes, rates, or other payments incurred or made in connection therewith.
10.6 Linked Sites. The Domain may contain links to independent third-party web sites (“Linked Sites”). The Linked Sites are not reviewed, controlled, or examined by Cinsay. You acknowledges and agrees that Cinsay is not responsible for any losses incurred or claims against the owner of Linked Sites or other third party web sites. The inclusion of any link to any Linked Site does not imply endorsement, implied or expressed, by Cinsay. You will need to make its own independent judgment regarding any interaction with Linked Sites.
10.7 Support. Cinsay may provide You with support of the Licensed Application, provided that Cinsay shall have no obligation or requirement to provide any support. If Cinsay provides support, Cinsay will do so solely as set forth in a written support policy or agreement delivered to You and may be conditioned on payment of Service Fees, provided that Cinsay may terminate or end any support without replacement at any time.
10.8 NO LEGAL OR OTHER ADVICE. In the event that Cinsay provides You with, or directs You to any source, for any information used or usable in connection with the Licensed Store or any business conducted thereto or therethrough, You agree that any such information is provided solely for Your consideration and shall in no event constitute or be deemed to constitute any legal, financial, accounting, tax, business, or other advice, recommendation, consultation, or assistance of any kind. You are solely and exclusively responsible for obtaining any legal, financial, accounting, tax, business, and other advice, consultation, and assistance from professionals engaged by You at Your sole cost, including, without limitation, the preparation, review, implementation, and/or enforcement of any legal terms or policy for Your Licensed Store or any business or transaction conducted thereto or therethrough.
11.1 Cinsay Property. Cinsay and/or its licensor(s), if any, own and shall retain all rights, title and interest in and to the Licensed Application, any Licensed Store (other than any of Your Content therein), any and all Licensed Content, any Modification (as defined in Section 11.2 of this EULA), the Domain, all Confidential Information, the Payment Gateway Bridge, any Services, any other software, documentation, code, material, information, and data provided or made available by Cinsay or any affiliate of Cinsay to You, or obtained by You from Cinsay or any affiliate of Cinsay, under or in connection with this EULA, any Services, any other agreement, and any and all parts thereof, and any and all technology and works therein or thereof or created, developed, designed, authored, invented, or discovered by or for Cinsay, and all modifications, alterations, improvements, derivative works, and derivations of any of the foregoing created, conceived, developed, or discovered by whomever, and all patent, patent application, trade secret right, copyright, trademark, service mark, trade dress, tradename, business name, domain name, know-how right, and any other intellectual, industrial, and/or proprietary right of any kind, anywhere and under any law or legal system, in and to and related to and covering any of the foregoing (collectively, “Cinsay Property”).
11.2 Reservation of Rights. Except for the license specifically set forth in Section 2.1 of this EULA, nothing in this EULA, or any performance of or under this EULA, constitutes, or shall be interpreted or construed to constitute, any assignment, transfer, conveyance, or grant of any right, title, interest, license, lien, or expectation, or any right to grant any license or use right whatsoever, in or to any Cinsay Property, whether expressly, implicitly, or otherwise. You agrees that You will not acquire, by use or otherwise, and will not claim, any ownership, license, or other rights (other than the limited express license granted hereunder during the term of this EULA) in, or take any action that in any way may jeopardize or jeopardize Cinsay’s ownership or rights in or to, any Cinsay Property. If You or any of Your Personnel or any affiliate, employee, or contractor of You owns or acquires any rights, title, or interest in or to any Cinsay Property in connection with this EULA, You agree to assign and hereby assign, and You agree to cause Your Personnel and any affiliate, employee, and contractor of You to assign, all such rights, title, and interest to Cinsay, without any payment or obligation to make any payment or value by or for Cinsay. You shall, and shall cause Your Personnel and any affiliate, employee, and contractor of You to, execute any document or take any reasonable action as requested by Cinsay to effect any such assignment.
11.3 Modification. Cinsay may, at any time, if and when and to the extent it decides in its sole discretion, make or make available any modification, error correction, update, upgrade, alteration, enhancement, translation, transliteration or change of or to, or any derivative work, derivation, and improvement to, the Licensed Application, any Licensed Content, or any part thereof (“Modification”), which shall be deemed to be Cinsay Property. Cinsay may (if, as, and when it decides to do so in its sole discretion) install or make available to You, without any obligation by Cinsay, any Modification to the Licensed Application or any Licensed Content or any part thereof. Cinsay has no obligation to provide any notice or obtain any consent or agreement from You or any third party, and without any right by You or any third party to receive any notice or provide any consent or agreement thereto, provided that Cinsay will give You prior notice of any Modification to the Licensed Application that causes a material change in the functionality of the Licensed Application and materially affects the general use of the Licensed Application.
11.4 Confidentiality. You shall keep in confidence and not disclose or disseminate to any third party and not use (except if and to the extent expressly permitted under the license in Section 2.1) the terms and conditions in Your Subscription Plan, any other written order or agreement between You and Cinsay, and any document, material, property, and/or information delivered, provided, or made available by Cinsay to You or obtained or received by You from Cinsay (except if it is fully Non-Confidential Information) (collectively “Confidential Information”). “Non-Confidential Information” means any document, material, property, and/or information that, and to the extent You proof through written evidence, (i) was already a part of the public domain at the time it was disclosed to or obtained by You; (ii) was already known by You other than under an obligation of confidentiality at the time at the time it was disclosed to or obtained by You; and (iii) becomes known, but only after it becomes known, to the public through no fault of You or Your Personnel or any person acting for or on behalf of You or Your Personnel. The Licensed Application and any part thereof shall be deemed to be Confidential Information. If You or Your Personnel are required to disclose any Confidential Information in an administrative or judicial proceeding, You may so disclose such Confidential Information only (i) if You promptly notifies Cinsay of such requirement (unless applicable law prohibits such notice), (ii) reasonably assist Cinsay with exercising or asserting legal rights or remedies to prevent such disclosure and/or to obtain a protective order against such disclosure, and (iii) limit the disclosure required notwithstanding any such assertion to such of the Confidential Information that You or Your Personnel are required to disclose in accordance with applicable law. Nothing shall prevent Cinsay from disclosing this Agreement, its terms, and/or the relationship between Cinsay and You, or any other Confidential Information, if and as and when it decides in its sole discretion.
12.2 Monitoring. Cinsay automatically measures and monitors network performance and the performance of the Licensed Application and access and use of the Licensed Application and/or the Licensed Store(s), and connection to Your network. Cinsay also will access and record information about Your profile and settings. You consent to Cinsay’s monitoring of Your connection to the Licensed Application, Licensed Store(s), and network performance as they relate to the Licensed Application or any Services of Cinsay. Cinsay shares information collected for the purpose of network or computer performance monitoring and for providing customized technical support outside of Cinsay or its authorized vendors, contractors and agents.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION AND THE LICENSED STORE(S) AND LICENSED CONTENT AND THE SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION, THE LICENSED STORE(S), ANY LICENSED CONTENT, AND ANY SERVICES PERFORMED OR PROVIDED OR MADE AVAILABLE OR ACCESSIBLE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CINSAY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION, THE LICENSED STORE(S), ALL LICENSED CONTENT, AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, REPRESENTATIONS, AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF WORKMANSHIP, OF ACCURACY, OF QUIET ENJOYMENT, OF TITLE, AND OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITATION, CINSAY DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THE LICENSED STORE(S), ANY LICENSED CONTENT, OR ANY SERVICES OR THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION, THE LICENSED STORE(S), ANY LICENSED CONTENT, OR ANY SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, THAT THE OPERATION OF THE LICENSED APPLICATION OR THE LICENSED STORE(S) WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION, LICENSED STORE(S), ANY LICENSED CONTENT, OR ANY SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OR FOR CINSAY OR ANYTHING IN ITS DESCRIPTIONS OR SPECIFICATIONS OF OR FOR THE LICENSED APPLICATION, THE LICENSED STORE(S), ANY LICENSED CONTENT, OR ANY SERVICES SHALL CREATE A WARRANTY.
IN NO EVENT WILL CINSAY OR ANY AFFILIATE OR PERSONNEL OF CINSAY BE LIABLE TO YOU OR ANY OF YOUR PERSONNEL FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, LIQUIDATED, EXEMPLARY, OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, DISCLOSURE OR LOSS OF INFORMATION, DATA, INCOME, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, BUSINESS INTERRUPTION, INABILITY TO USE THE LICENSED APPLICATION, LICENSED STORE(S), ANY LICENSED CONTENT, OR ANY SERVICES), HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) EVEN IF CINSAY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE (INCLUDING, WITHOUT LIMITATION, FOR OR RELATED TO OR REGARDING THE LICENSED APPLICATION, THE LICENSED STORE(S), ANY LICENSED CONTENT, ANY SERVICES, AND ANY CINSAY PROPERTY, OR ANY PART THEREOF, ANY MODIFICATION, THE DOMAIN, AND OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA). FURTHER, IN NO EVENT WILL CINSAY’S TOTAL CUMULATIVE LIABILITY NOT EXCLUDED HEREUNDER (WHETHER SUCH LIABILITY IS NOT EXCLUDED UNDER THE IMMEDIATELY PRECEDING PROVISIONS OF THIS SECTION 14 OR BECAUSE SUCH LIABILITY IS NOT EXCLUDABLE UNDER APPLICABLE LAW OR FOR ANY OTHER REASON), FROM ALL CAUSES OF ACTION OF ANY KIND, EXCEED THE TOTAL AMOUNT OF FIFTY U.S. DOLLARS (US$50.00) (OR IF SUCH LIMIT IS NOT VALID OR ENFORCEABLE UNDER APPLICABLE LAW, THE LOWEST LEGALLY VALID OR ENFORCEABLE AMOUNT).
You hereby agree to defend, indemnify, and hold harmless Cinsay, all of its affiliates, and all officers, directors, employees, agents, contractors, resellers, distributors, and referral agents of Cinsay or any of its affiliates (collectively, the “Indemnitees,” each, an “Indemnitee”) from and against any claim, action, suit, litigation, demand, allegation, arbitration, proceeding, judgment, order, damages, loss, liability, injury, costs, expenses (including, without limitation, reasonable attorneys’ fees and witness and other defense costs), settlement, and other payment obligation of any Indemnitee arising from or in connection with or related to: (i) any breach of this EULA by You or any activity of any of Your Personnel for which You are responsible or liable under this EULA, (ii) any use or application of the Licensed Application, the Licensed Store(s), any Licensed Content, any of Your Content, any of Your Data, or any Services, or any information or results derived from any such use or application or any reliance on any such information or results or the Licensed Application, the Licensed Store(s), any Licensed Content, or any Services (including, without limitation, any personal injury, death, or property damage resulting therefrom), (iii) any creation, reproduction, or distribution of any Licensed Store(s), or any equipment, product, software, or services used, offered, sold, or transacted by or for You, or any advertisement, promotion, statement, or communication, or any data collected by or for You, through or in connection with or related to the Licensed Application, Licensed Store(s), or Licensed Content, or any part thereof, (iv) any direct or indirect infringement or violation of any patent, patent application, trade secret right, copyright, trademark, service mark, trade dress, tradename, business name, domain name, know-how right, and any other intellectual, industrial, and/or proprietary right of any kind, or any misappropriation of any property, anywhere or under any law or legal system of any third party by or for You or any of Your Personnel or resulting from, in connection with, or related to any of Your Content, Your Data, or any use or application by or for You of the Licensed Application, the Licensed Store(s), any Licensed Content, or any part thereof, or any allegation of any such infringement, violation, or misappropriation, (v) any violation by or for You or any of Your Personnel of any obligation regarding data privacy or protection of personally identifiable or other data (including, without limitation, those of You or Your Personnel), (vi) any negligence or willful misconduct of You or any of Your Personnel (regardless of any contributory or comparative negligence of any Indemnitee), (vii) any loss or misappropriation of any Log-In Information in the possession or under the control of You or Your Personnel, and/or (viii) any violation of any Legal Requirements or right or property of any third party by You or Your Personnel.
Some states, countries, or jurisdictions do not allow for the disclaimers of warranties and/or limitation or exclusion of liability, or to those as set forth in Sections 13, 14, and 15 of this EULA. Thus, the disclaimers and limitations and exclusions of liability may not apply to You, and You may also have other legal rights, which may vary from jurisdiction to jurisdiction. In such case the disclaimers, limitations, or exclusions in Sections 13, 14, and 15 shall not be invalidated or nullified but be revised and remain valid and enforceable such that they are effective to the greatest extent as permitted under applicable law. In the event and to the extent that all or any part or provision of Sections 13, 14, or 15 of this EULA, or this Section 16, is invalid or unenforceable in any particular state, country, or jurisdiction, such section or part or provision shall be interpreted both to be valid and enforceable and to conform to the greatest extent possible to the intent and purpose of such part or provision as set forth in this EULA.
17.1 Term. This EULA commences upon Your acceptance of this EULA. The licenses and rights granted hereunder are effective from such moment until this EULA is terminated as set forth in this Section 16. Any termination of this EULA is subject to the obligations, rights, and other terms in this EULA that are stated to continue after such termination.
17.2 Termination by You. You may terminate this EULA at any time, provided that no termination by You shall be effective in any event before the end of thirty (30) days after this EULA has been accepted. To terminate this EULA, You must notify Cinsay by calling the telephone number 1-855-725-2462 between the times of 9:00 am and 5:00 pm Central Time (U.S.) Monday through Friday, except on U.S. federal holidays, and following the instructions for cancellation then given; no other termination by You shall be valid or effective.
17.3 Termination by Cinsay. Cinsay may terminate this EULA immediately in the event of any breach or violation of any term, condition, or provision of this Agreement by You (including, without limitation, any non-payment of any amount of any Fee when due, including, but not limited to, non-payment as a result of a rejection or charge-back of a credit or debit card charge for any reason) or if Your access to or use of the Licensed Application or the Licensed Store(s) exceeds certain bandwidth, streaming, hosting, or other limitations set forth in Your Subscription Plan or other agreement with Cinsay. In addition, Cinsay may terminate this EULA at any time for any or no reason at any time, provided, however, that, if Cinsay terminates this EULA without cause, no License Fee shall be owed for any access or use of the Licensed Application after such termination. Furthermore, Your rights under this EULA will terminate automatically without notice from Cinsay if You fail to comply with any term(s) of this EULA.
17.4 Manner of Termination by Cinsay. Cinsay may terminate this EULA by disconnecting Your access to and use of the Licensed Application and/or by notifying You of such termination, all as decided by Cinsay in its sole discretion. Furthermore, Cinsay may terminate the license granted hereunder to the extent Your use of the Licensed Application.
17.5 Discontinuance. Cinsay may permanently or indefinitely discontinue access to or use of any or all of the Licensed Application at any time and for any or no reason. In the event that such discontinuation applies to all or substantially all of the Licensed Application, such discontinuation shall be deemed to be a termination of this EULA, except if and to the extent stated or posted otherwise by Cinsay to You.
17.6 Fees after Termination. A termination of this EULA shall not terminate Your obligation to pay any Fees that apply to any period prior to the effective date of such termination, all of which Fees shall remain due to the extent unpaid by You to Cinsay under this EULA. Upon termination of this EULA, You agree to cease all use of the Licensed Application, the Licensed Store(s), and any Licensed Content and destroy any and all copies, full or partial, thereof directly or indirectly in Your possession or under Your control. Cinsay may, immediately upon the termination of this EULA, delete any and all of Your Content and Your Data without obligation to provide any notice to You or to provide or make available to You or retain any copy thereof.
17.7 Survival. All provisions in Sections 11, 13, 14, 15, 16, 17.5, and 18 of this EULA, and this Section 17.6, shall survive the termination, cancellation or expiration of this EULA.
18.1 Remedies; Injunctive Relief. You recognizes that any actual or potential violation, breach, or non-performance of, or default under, any provision in Sections 2, 6, and/or 11 of this EULA may cause irreparable injury to Cinsay for which Cinsay may have no adequate remedy at law. Therefore, You agree that Cinsay shall be entitled to seek injunctive relief or specific performance, without need or obligation to post any bond, to enforce any obligation, agreement, covenant, term and condition under such Sections 2, 6, and/or 11 of this EULA, in addition to any other rights and remedies available to Cinsay, all as Cinsay elects in its sole discretion.
18.2 Relationship of the Parties. Cinsay and You agree to be independent contractors, each without the power or authority to bind, contract or commit the other, and to always represent themselves to any third parties only as an independent contractor without such power or authority. Cinsay and You are not, and nothing in this EULA shall be interpreted that Cinsay and You are, partners, joint venturers, co-owners or otherwise participants in a joint or common undertaking. Neither of Cinsay or You shall have any right to obligate or bind the other in any manner whatsoever, and nothing herein contained shall give or is intended to give any rights of any kind to any third persons. The employees or agents of Cinsay or You are not, and shall not be construed to be, employees or agents of the other. Cinsay and You shall not be liable for, have any obligations to, and may not be bound by such employees and agents of the other. You shall take steps necessary to avoid the appearance or belief by any third party that You are an agent with the authority to bind Cinsay or an employee, partner, joint venturer, co-owner or affiliate of Cinsay.
18.3 Export Control and Legal Compliance. You shall comply, and cause all of Your Personnel to comply, with all applicable import and export laws, rules and regulations with respect to use of any Cinsay Property under this EULA, including, without limitation, export controls under the laws and regulations of the United States, including the Export Administration Regulations, 15 C.F.R. Parts 730-774. You will comply strictly with all such United States export controls, and shall not export, re-export, transfer, divert or disclose any Cinsay Property to any destination, end-use or end-user that is prohibited or restricted under such United States export control laws and regulations, except as specifically authorized by the Department of Commerce. If requested by Cinsay, You agree to sign written assurances and other export-related documents as may be required to comply with U.S. export regulations. You shall at all times strictly comply with all applicable laws, regulations, and governmental orders, now or hereafter in effect, relating to the performance of its activities under this EULA, and not engage in any practices or activities that is prohibited or in violation of any such law, regulation or governmental order.
18.4 Anti-Corruption Laws.
18.5 Records and Audit Right. You will keep accurate financial books and records in connection with its performance under this EULA and any activities of You and Your Personnel related to this EULA or the Licensed Application, Licensed Store(s), any Licensed Content, or any Services. Cinsay may at any time inspect, audit, monitor, and review, and gather information and documentation regarding, Your and Your Personnel’s activities under this EULA.
18.6 Force Majeure. You will have no right to claim damages or another remedy against Cinsay as a result of Cinsay's inability to perform, or any delay in Cinsay’s performance of, an obligation under this EULA due to unforeseeable circumstances beyond its reasonable control, such as labor disputes, strikes, lockouts, war, riot, insurrection, epidemic, Internet virus attack, Internet failure, supplier failure, act of God, or governmental action not the fault of Cinsay.
18.7 Assignment. You may not assign this EULA, or delegate its rights or obligations hereunder, whether in whole or in part, without the prior written consent of Cinsay. Cinsay may assign this EULA or any rights, or delegate any obligations, at any time to any third party. Any attempted assignment or delegation in contravention of the foregoing shall be null and void. This EULA shall be binding upon and inure to the benefit of the permitted successors and assigns of the Parties.
18.8 Interpretation. In this EULA, (i) any reference to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time; (ii) where this EULA states that a Party “shall” or “will” perform in some manner or otherwise act or omit to act, it means that such Party is legally obligated to do so in accordance with this EULA; (iii) the principle ejusdem generis shall not apply to any provision in this EULA; (iv) the provisions of this EULA shall not be interpreted against the drafter, and for purposes of any interpretation, both Cinsay and You shall be deemed to be drafters of this EULA; (v) all article and section headings are intended solely for the convenience of the Parties, and none will be deemed to affect the meaning or construction of any provision hereof; and (vi) words of any gender used in this EULA are intended to include any other gender, and words in the singular number include the plural, and vice versa, unless the context clearly indicates otherwise. This EULA may be translated into a language other than English, which translation, whether or not signed, shall not be a separate or additional agreement but shall be only for informational purposes, and the English version shall control.
18.9 Entire Agreement. This EULA constitutes the entire understanding and agreement between Cinsay and You related to the license to the Licensed Application, the Licensed Store(s), any Licensed Content, and any Services and Cinsay’s performance thereof.
18.10 Amendment and Modifications; Waivers. No employee, distributor, reseller, or agent of Cinsay or any affiliate of Cinsay is authorized to make any warranty, representation, or covenant, or change, modify, extend, or amend any undertaking under this EULA or to waive, restrict, change, or modify the limitation or disclaimer of warranty provisions or exclusions or limitations of liability in this EULA. No modification, amendment, supplement to or waiver of any provision of this EULA will be binding upon Cinsay unless made in a writing identifying the relevant provisions and signed by Cinsay through an authorized senior officer of Cinsay. Any other agreement between Cinsay and You imposing any legal obligation on Cinsay is binding only if and to the extent in writing and signed by such a senior officer. An assignment permitted under Section 18.7 shall not constitute any modification, amendment, variation, or extension under the immediately preceding sentence if this EULA does not change as a result of such assignment (other than the identity and contact information of the assignor to the assignee). Any failure of Cinsay to exercise any right provided for herein shall not be deemed to be a waiver of any right of Cinsay hereunder.
18.11 Governing Law; Forum. THE VALIDITY, ENFORCEABILITY AND PERFORMANCE OF THIS EULA SHALL BE GOVERNED BY UNITED STATES FEDERAL LAWS, TO THE EXTENT APPLICABLE, AND THE LAWS OF THE STATE OF TEXAS, UNITED STATES OF AMERICA, WITHOUT REGARD OF ANY CONFLICT OF LAWS OR INTERNATIONAL PRIVATE LAW PROVISION THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION, AND THE TERMS OF THIS EULA SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH SUCH LAWS. THE PARTIES HEREBY EXCLUDE THE APPLICATION OF THE U.N. CONVENTION FOR THE INTERNATIONAL SALE OF GOODS TO THE EXTENT IT MAY HAVE ANY APPLICATION TO THIS EULA OR ANY TRANSACTION OR PERFORMANCE HEREUNDER.
18.12 Disputes. The resolution of disputes, and the forum and location for such resolution, is set forth: (i) in the following Sections 18.12.1 of this EULA if, but only as long as, You: (a) are subject to the personal jurisdiction in the federal courts of the United States of America and (b) have a permanent and substantial business establishment and assets in the United States of America; or (ii) in the following Section 18.12.2 of this EULA if any of the requirements of clause (i) of this Section 18.12 is not met. Sections 18.12.1 and 18.12.2 of this EULA are mutually exclusive and may apply, cease, or apply again based on their requirements for application.
18.12.1 THIS SECTION 18.12.1 APPLIES ONLY, AND IS PART OF THIS EULA ONLY, IF AND WHILE YOU ARE SUBJECT TO THE PERSONAL JURISDICTION IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA AND (B) HAVE A PERMANENT AND SUBSTANTIAL BUSINESS ESTABLISHMENT AND ASSETS IN THE UNITED STATES OF AMERICA:
18.12.2 THIS SECTION 18.12.1 APPLIES ONLY, AND IS PART OF THIS EULA ONLY, IF AND WHILE THE REQUIREMENTS FOR APPLICABILITY OF SECTION 18.12.1 ARE NOT MET:
18.13 Severability. If any provision of this EULA is held to be invalid or unenforceable, the meaning of said provision will be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation shall save such provision, it will be severed from the remainder of this EULA, as appropriate. The remainder of this EULA shall remain in full force and effect unless the severed provision is essential and material to the rights or benefits received by either Party. In such event, the Parties will use their best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement, which most nearly effects the Parties’ intent in entering into this EULA, as appropriate.
18.14 No Third Party Beneficiaries. Nothing in this EULA gives or is intended to give, and shall not be construed to give or be intended to give, any third party of any kind any rights, and there are no third party beneficiaries under this EULA, except for any Indemnitees under Section 15 of this EULA.
18.15 Notices. All notices, demands or other communications to be given or delivered by a party to this EULA to the other party to this EULA under or by reason of the provisions of this EULA shall be in writing and shall be deemed to have been given to such other party when delivered personally to such other party, or sent to such other party by reputable express courier service (charges prepaid), or mailed to such other party by certified or registered mail, return receipt requested and postage prepaid, to such other party’s business address.
LAST UPDATED: December 20, 2013
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