These terms of service (the "Agreement") govern the submission of personally identifiable information and other information (the "Information") by you ("User") to Assurance Compliance Network (hereinafter, “Company”; "we" or "our") for its Assurance Compliance Network service to a third party to whom User wishes to verify User's identity and/or age (the "Service") to our customer (the "Merchant"). The parties understand and agree that User wishes for Company to provide the Service to the Merchant to facilitate a transaction with the Merchant that User wishes to conduct and that Company is only willing to do so subject and in consideration of User's covenants in this Agreement. Please carefully read them before submitting Information.
These Terms, together with our User Privacy Policy (“Privacy Policy”) as set forth from time to time at our Website and which is hereby incorporate into this Agreement by reference, establish the legal terms and conditions of the agreement between us governing the submission of the Information and our use of it in performing the Service. By submitting the Information, User agrees to be bound by this Agreement.
User may submit the Information to us to perform the Service for the Merchant only in compliance with this Agreement and only if User has the power to form a contract with Assurance Compliance Network and is not barred from doing so under any applicable constitutions, laws, ordinances, principles of common law, codes, regulations, statutes or treaties and all applicable orders, rulings, instructions, requirements, directives or requests of any courts, regulators or other governmental authorities (“Law”). User may not access the Service if User is under 18 years of age. By agreeing to this Agreement, User is representing to us that User is over 18.
Capitalized terms in this Agreement have the meanings assigned to them in Section 10 and elsewhere in these this Agreement, unless the context otherwise requires, which meaning will be equally applicable to both the singular and plural forms of such terms. In this Agreement, unless a clear contrary intention appears (a) ”Section” refers to sections of this Agreement; (b) ”including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term, and (c) any provision for Company’s consent or approval allows Company to grant or withhold its consent or approval in its sole and absolute discretion.
By proceeding with the submission of Information for use in providing the Service to the Merchant, User agrees to Company making an identity and age verification request and disclosing, comparing, and verifying User's personal information, including User's name, date of birth, telephone number, and social security number, in accordance with the Privacy Policy against commercially available databases that are regularly used for the purposes of age and identify verification.
User may submit the Information to us to perform the Service for the Merchant only conditioned on User:
(a) providing Company with all information reasonably necessary for Company to provide the Service;
(b) ensuring that User and User information sent to the Platform is accurate, complete, not corrupted by User’s systems, and in the form agreed to by Company;
(c) otherwise performing User’s obligations under this Agreement; and
(d) complying with all applicable Law.
4.1 Platform.Company owns and will retain all right, title and interest in all Intellectual Property Rights embodied or fixed in, or otherwise pertaining to Company's website, plugins and other software and other methods provided to submit Information or to perform the Service (the "Platform"). Company does not grant, and User does not receive or possess, any right or interest in any of Company’s Intellectual Property Rights, or any other type of right or interest, whether an economic, property or moral rights interest in the Platform. User is prohibited from copying or otherwise reproducing or attempting to reproduce the Platform. User agrees not to modify, disassemble, decompile, reverse engineer, create derivative works of the Platform.
4.2 Data. As between Company and User, all Information belongs to User, provided that Company has the right to use User Data for the purpose of performing the Service for the Merchant, including disclosing the Information and any resulting identify or age verification information to the Merchant, and exercising its rights under this Agreement, and for improving the Services. Company also may aggregate User Data with that of other customers for the sole purpose of analyzing and improving Company’s services to all customers, so long as Company does not in the process disclose to any third parties User Data in a manner that is personally identifiable to a User, or to User.
4.3 Reservation of Rights.Each party does not grant, and hereby expressly reserves onto itself, all rights not granted in this Agreement.
4.4 Injunctive Relief.User agrees that any breach by User of this Section 6 is likely to cause irreparable injury for which Company would have no adequate remedy at law. Therefore, in the event of such a breach or threatened breach, Company will be entitled to seek injunctive relief, without limiting any other rights or remedies that may be available to it and User agrees to waive any requirement for the securing or posting of any bond in connection with any Company efforts to seek injunctive relief in accordance with this Section 4.4.
5.1 Authority.User represents, warrants and covenants to Company that it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights and licenses granted by it to Company pursuant to this Agreement.
5.2 Approval.User warrants to Company that it has and will have at all times during the Term all licenses, approvals, qualifications, permits or certificates required in respect of the delivery of all Information provided pursuant to this Agreement.
5.3 Compliance with Law.User represents, warrants and covenants to Company that in connection with all actions under this Agreement, it will comply with all applicable Law, including all Law related to privacy.
5.4 Conflicting Obligations.User represents, and warrants to Company that it has no outstanding agreement or obligation which is in conflict with any of the provisions of this Agreement, or which would preclude it from complying with the provisions hereof, and further agrees that during the Term it will not enter into any such conflicting agreement.
5.5 Cooperation.User will provide Company with access to, and use of, all information, data, documentation and other materials reasonably necessary for Company to fulfill its obligations under this Agreement.
5.6 Content Warranties.User represents and warrants that all Information provided to Company is true, accurate and complete in all respects and that User has the Intellectual Property Rights, permission or proper authority necessary to allow the Information to be used through the Platform in provision of the Service to the Merchant without infringing the Intellectual Property Rights or other rights of any third party; and, if applicable, User has paid or will pay any royalty, license fees and all other properly imposed fees associated with the Information to a third party having the relevant Intellectual Property Rights.
User will defend, indemnify, save, and hold Company and its Affiliates, officers, employees, agents, suppliers or licensors harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, costs of investigation, and the amount of any settlements, asserted against Company and them that may arise or result from (a) User's access to the Services or the Platform, (b) User's breach of any representation, warranty or covenant in this Agreement, (c) User's negligence, willful misconduct or violation of applicable Law, (d) any User Content or User Data, or (e) any disclose of personally identifiable information or other confidential information in violation of third-party rights or applicable Law except if solely attributable to a willful violation of applicable Law by Company.
7.1 Limitation of Liability.EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF SUCH PARTY WILL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS. EXCEPT FOR USER'S OBLIGATIONS UNDER SECTIONS 6, 7.3 AND 9.10, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED $1,000.
7.2 Disclaimer of Warranties.TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM AND SERVICES AND USER’S ACCESS THERETO. USER WAIVES ANY AND ALL WARRANTIES THAT MAY BE IMPLIED BY LAW, INCLUDING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS MADE REGARDING THE RESULTS OF THE SERVICES OR PLATFORM, OR THAT USE OF THE SERVICES OR PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS IN THE SERVICES OR PLATFORM WILL BE CORRECTED, OR THAT THE SERVICES OR PLATFORM'S FUNCTIONALITY WILL MEET ANY REQUIREMENTS. USER IS RESPONSIBLE FOR AND MUST PROVIDE ALL HARDWARE, SOFTWARE, SERVICES AND OTHER COMPONENTS NECESSARY TO ACCESS THE SERVICES, OTHER THAN THE PLATFORM. COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR ASSURANCES THAT USER'S HARDWARE, SOFTWARE AND OTHER SERVICES AND SYSTEMS WILL BE COMPATIBLE WITH THE PLATFORM OR SERVICE. COMPANY WILL HAVE NO RESPONSIBILITY FOR ANY HARM TO USER'S COMPUTER SYSTEM, LOSS OR CORRUPTION OF DATA, OR OTHER HARM THAT RESULTS FROM USER'S ACCESS TO THE SERVICES OR PLATFORM. Some states do not allow the types of disclaimers in this Section 7.2, so they may not apply to you.
7.3 Third-Party Services.Links from the Platform to external websites (including external sites that are framed by the Company's website) or inclusion of advertisements do not constitute an endorsement by Company of those sites or the content, products, advertising and other materials presented on those sites or of the products and services that are the subject of those advertisements, but are for User's reference and convenience. User accesses such sites or the products and services that are the subject of those advertisements at User's risk. It is User's responsibility to evaluate the content and usefulness of the information obtained from other sites. Company does not control those sites, and is not responsible for their content. Company provision of links to third-party sites does not mean that Company endorses any of the material on those sites, or has any association with their operators. User further acknowledges that use of any site controlled, owned or operated by third parties is governed by the terms and conditions of use for those sites, and not by this Agreement. Company expressly disclaims any liability derived from the use and/or viewing of links that may appear on the Platform. User agrees to hold Company harmless from any liability that may result from the use of links that may appear on the Platform.
The Company reserves the right to terminate this Agreement in the Company's discretion at any time for any reason or no reason and to suspend or terminate any User access to the Platform or Service, all without notice to User. The provisions of this Agreement will survive and continue in full force and effect after any termination or expiration of this Agreement.
9.1 Assignment.User will not assign, transfer or delegate its rights or obligations under this Agreement to any third party without Company’s prior written consent. For the purposes of this Agreement, any sale or transfer by User of all or substantially all of its stock or assets or by merger or otherwise by operation of law is considered an assignment, requiring Company’s express written consent. Company may freely assign this Agreement or transfer any of its interest herein, including to any Company Affiliate, to a purchaser of all or substantially all of Company’s assets, and to a successor in interest of Company as part of a corporate reorganization, consolidation or merger. This Agreement and each of the provisions hereof will inure to the benefit of and be binding on each party’s successors, administrators and permitted assigns.
9.2 Severability.If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision will be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement will, nevertheless, continue in full force and effect without being impaired or invalidated in any way.
9.3 Entire Agreement; No Reliance.This Agreement constitutes the entire agreement and understanding between the parties with respect to its subject matter, and this Agreement merges and supersedes all prior agreements, discussions and writings with respect to its subject matter. Each party represents that it has not relied on any representations made by the other party or its representatives or on any descriptions, illustrations or specifications contained in any physical or digital text including websites, proposals, catalogues or other publicity material. Each party has relied only on the express terms of this Agreement, and not on any representations of the other party not set forth herein, nor on any other documents or materials of the other party not expressly made a part hereof.
9.4 Force Majeure.Neither party will be held responsible for any delay or failure in performance of any part of this Agreement (with the exception of any obligation to make payments to the other party hereunder) to the extent such delay or failure is caused by fire, flood, explosion, war, terrorism, strike, embargo, governmental action or failure to act, the act of any civil or military authority, act of God, inability to secure material or transportation facilities, acts or omissions of carriers, power outages, computer failures, or by any other causes beyond its control whether or not similar to the foregoing.
9.5 No Waiver.The waiver, modification, or failure to insist by a party on any of the provisions of this Agreement will not void, waive, nor modify any of the other provisions nor be construed as a waiver or relinquishment of such party’s right to performance in the future of any such provision.
9.6 Relationship of the Parties.The relationship of the parties under this Agreement is one of independent contractors, and no agency, partnership, employment, joint venture or similar relationship is created hereby. Except as specifically authorized, neither party will have any authority to assume or create obligations on the other party's behalf, and neither party will take any action that has the effect of creating the appearance of its having such authority.
9.7 Notices.Any notice required or permitted under this Agreement will be given in writing by personal delivery, by USPS Priority Express Mail, by nationally recognized overnight delivery service (e.g. UPS), or e mail. Any notice will be deemed received on the earlier of the date of actual delivery or the date on which delivery is refused, regardless of whether the party has vacated the physical address or discontinued the e-mail address. The notice address and e-mail address for User will be the last address and e-mail address on record with Company as modified by User through the Platform from time to time. The notice address for Company will be 24 Hollywood Blvd SW, Suite 5 Fort Walton Beach, FL 32548 and the e-mail address for Company will be contact@accuage.net Compliance Network, as reflected in this Agreement as modified form time to time, pursuant to its terms.
9.8 Third Party Beneficiaries.This Agreement does not and is not intended to confer any rights or remedies on any person or entity other than the parties hereto.
9.9 Amendment.Company may revise this Agreement from time to time and the most current version will always be posted on the Website. If a revision, in our sole discretion, is material Company may, but have no obligation to, notify User, including by postings to relevant Company blogs, so please check those pages regularly. By continuing to access or use the Platform and Services after revisions become effective, User agrees to be bound by the revised terms. If User does not agree to the new terms, User must cease using the Platform and Services and send Company a request to help@accuage.net Compliance Network to delete User's Information.
9.10 Governing Law; Arbitration.Any disputes between the parties arising out of or relating to the Agreement (“Disputes”) will be governed by Florida law regardless of Customer's location and notwithstanding of any conflicts of law principles. Except for Disputes relating to Intellectual Property Rights, any Disputes will be resolved exclusively by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in Fort Walton Beach, Florida, in English, with a written decision stating legal reasoning issued by the arbitrator(s) at either party’s request, and with arbitration costs and reasonable documented attorneys’ costs of both parties to be borne by the party that ultimately loses. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction. If there is more than one Dispute between the parties, all such Disputes may be heard in a single arbitration under this Section 11.10. Except to the extent required by applicable Law that cannot be waived or modified by this Agreement, Disputes under this Agreement may not be consolidated into a single arbitration proceeding with disputes between the Company and other persons, even if those disputes are governed by an arbitration proceeding similar or identical to this Section 11.10 and even those other persons are similarly situated and their disputes are similar or identical in the nature to a Dispute under this Agreement.
The following terms will be defined as set forth below for purposes of this Agreement:
“Access Credentials” means the secure method by which Company provides User, generally through User’s own computer systems, access to control the Platform.
“Affiliate” means, in respect of a party, any company or other business entity controlled by, controlling, or sharing common control. For the purposes of this definition, “control” will mean the direct or indirect power to direct or cause the direction of the management and policies of a company or other business entity, whether through ownership of 50% or more of the voting interest, by contract, or otherwise.
“User Content” means any material or information provided to Company by or on behalf of User as part of the Services.
“Intellectual Property Rights” means all copyrights fixed in any medium now known or hereafter discovered, including copyrights in computer programs, pictorial works, audiovisual works, literary works, musical works, sound recordings, motion pictures and the like; patents, trademarks, trade names, trade secrets, design rights, design models, database rights and topography rights, all rights to bring an action for passing off, rights of privacy or publicity, and any other similar form of intellectual rights in intangible property or proprietary rights, statutory or otherwise, whether registered or not, and whether applied for or not, all rights to apply for protection in respect of any of the above rights and all other forms of protection of a similar nature or that relate to intangible property, ideas or expression, as they may exist anywhere in the world.
“User Data” means any personally identifiable information of User submitted by User through the Platform for use in providing the Services.
These terms of use (the “Agreement”) govern access to and use of the website (the “Website”) of Assurance Compliance Network (hereinafter, “Company”; "we" or "our"), the identity and age verification services and any other services offered from time to time ("Services") provided through the Website and through our plugins, APIs and other applications and software provided to you to access our services (the "Software" and, collectively with the Website, the "Platform") by you ("Customer" or "you"), so please carefully read them before using the Platform and Services.
These Terms, together with our Customer Privacy Policy (“Privacy Policy”) as set forth from time to time at our Website and which is hereby incorporated into this Agreement by reference, establish the legal terms and conditions of the agreement between us governing your use and our provision of the Platform and Services.
By using the Platform and Services you agree to be bound by this Agreement. If you are using the Platform and Services on behalf of an organization, you are agreeing to this Agreement for that organization and representing that you have the capacity and authority to bind that organization to this Agreement. In that case, "you" and "your" will refer to that organization.
You may use the Platform and Services only in compliance with this Agreement. You may use the Platform and Services only if you have the power to form a contract with Assurance Compliance Network and are not barred from doing so under any applicable constitutions, laws, ordinances, principles of common law, codes, regulations, statutes or treaties and all applicable orders, rulings, instructions, requirements, directives or requests of any courts, regulators or other governmental authorities (“Law”). You may not use the Services if you are under 18 years of age. By agreeing to this Agreement, you are representing to us that you are over 18.
Capitalized terms in this Agreement have the meanings assigned to them in this Section 12 or elsewhere in these this Agreement, unless the context otherwise requires, which meaning will be equally applicable to both the singular and plural forms of such terms. In this Agreement, unless a clear contrary intention appears (a) ”Section” refers to sections of this Agreement; (b) ”including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term, and (c) any provision for Company’s consent or approval allows Company to grant or withhold its consent or approval in its sole and absolute discretion.
2.1 Services.Subject to the terms of this Agreement, Company will provide age verification services to Customer through the Platform.
2.2 Updates.Company reserves the right to change or upgrade any equipment or software that Company uses to provide the Services without notice to Customer. Company may install security patches, updates, upgrades and service packs with respect to the Platform (“Updates”) as Company determine in its sole discretion, and Company reserves the right, but not the obligation, to roll back any Updates. Updates may change system behavior and functionality and as such may negatively affect the Services used by Customer. Company will not be responsible or liable for service disruption or changes in functionality or performance due to Updates. Company will not be responsible or liable for issues that may arise from incompatibilities between Customer's systems or software and any Update or hardware or software change or configuration, regardless of whether discretionary or requested.
2.3 Access Credentials.Customer is responsible for safeguarding the username, password and other access credentials that Customer uses to access the Platform and Services (“Access Credentials”) and Customer agrees not to disclose Customer's Access Credentials to any third party. Customer is responsible for any activity using Customer's Access Credentials, whether or not Customer authorized that activity. Customer will immediately notify Company of any unauthorized use of Customer's account and of any actual or potential disclosure of Customer's Access Credentials. Customer acknowledges that if Customer wishes to protect Customer's transmission of data or files to Company, it is Customer's responsibility to use a secure encrypted connection to communicate with the Platform and Services. Company makes no representations or warranties as to the security of any such encrypted connection, however, and Customer agrees that Company will have no liability if it fails to protect Customer's transmission.
3.1 Conditions for Receipt of Services.Customer will use the Services for business purposes only. Customer’s receipt of Services hereunder is at all times conditioned on Customer:
(a) providing Company with all information reasonably necessary for Company to provide the Services;
(b) complying with the Specifications at all times and using only the Access Credentials provided by Company;
(c) ensuring that Customer and User information sent to the Platform is accurate, complete, not corrupted by Customer’s systems, and in the form agreed to by Company;
(d) otherwise performing Customer’s obligations under this Agreement;
(e) reviewing all transactions periodically and notifying Company promptly of suspected fraudulent or unauthorized activity by Users with respect to which Customer uses the Platform and Services;
(f) promptly informing Company whenever it knows or reasonably believes a security breach has occurred that involves or potentially involves User Data, and cooperating with Company to investigate, remediate and prosecute any such security breach and reimbursing Company for remediation costs incurred in connection with any such security breach (including provision of notice to affected individuals and relevant public authorities and daily credit monitoring and identity theft insurance for any breach that poses a risk of identity theft);
(g) complying with all applicable Law in the use of the Platform and Services; and
(h) cooperating with Company on technical matters as necessary to cause the parties’ respective servers to interoperate successfully such that transaction data are accurately recorded and processed and securely transmitted and stored.
3.2 Users.
(a) Customer understands that the Platform will be configured to require each User to agree to Company's terms and conditions and privacy policy applicable to Users (the “User Terms”) before a User's information may be submitted and processed by the Platform. Customer will provide Company with copies of all forms of agreements between Customer and its Users (including all website "terms of use," "terms of service," "privacy policies" and the like) for review and will assure that Customer's agreements with Users do not conflict with the User Terms.
(b) Customer will be solely responsible for providing support to Users and all communications with Users, aside from those conducted directly by the Platform.
3.3 Regulatory Limitations and Permissible Purposes.
(a) The Services may use and/or display nonpublic personal information that is governed by the privacy provisions of the Gramm-Leach-Bliley Act, (15 U.S.C. § 6801, et seq.) and related state laws (collectively, the "GLBA"). Customer certifies it has the following permissible purpose under the GLBA to use and/or obtain such information: "as necessary to effect, administer, or enforce a transaction requested or authorized by the consumer by verifying the identification information contained in applications" (the "GLBA Purpose"). Customer further certifies it will use information obtained from the Services only for the GLBA Purpose.
(b) The Services may use and/or display personal information, the use of which is governed by the Drivers Privacy Protection Act, (18 U.S.C. § 2721 et seq.) and related state laws (collectively, the "DPPA''). Customer certifies it has the following permissible use under the DPPA to use and/or obtain such information: "For use in the normal course of business by a legitimate business or its agents, employees, or contractors, but only (A) to verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and (B) if such information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against, or recovering on a debt or security interest against the individual" (the "DPPA Use"). Customer further certifies it will use information obtained from the Services only for the DPPA Use. With regard to the information that is subject to the DPPA, some state laws' permissible uses may not include the DPPA Use. In such cases, some state information may not be available through the Services.
(c) The Services are not provided by "consumer reporting agencies," as that term is defined in the Fair Credit Reporting Act (15 U.S.C. § 1681, et seq.) ("FCRA'') and do not constitute "consumer reports," as that term is defined in the FCRA. Accordingly, the Services may not be used in whole or in part as a factor in determining eligibility for credit, insurance, employment or another purpose in connection with which a consumer report may be used under the FCRA. Further, (a) Customer certifies that it will not use any of the information it receives through the Services to determine, in whole or in part an individual's eligibility for any of the following products, services or transactions: (i) credit or insurance to be used primarily for personal, family or household purposes, (ii) employment purposes, (iii) a license or other benefit granted by a government agency, or (iv) any other product, service or transaction in connection with which a consumer report may be used under the FCRA or any similar state statute, including apartment rental, check-cashing, or the opening of a deposit or transaction account, and (b) Customer will not use any of the information it receives through the Services to take any "adverse action," as that term is defined in the FCRA.
(d) The Services involve access to data from the federal Death Master File with respect to any deceased individual at any time during the three-calendar-year period beginning on the date of the individual's death ("DMF Data"), requiring a certification of purpose pursuant to 15 CFR Part 1110 and 18 U.S.C. § 1001. Accordingly, Customer hereby certifies that Customer has a legitimate fraud prevention interest to detect and prevent fraud and/or to confirm identities across its commercial business and/or government activities (the "DMF Purpose"). Customer represents and warrants to Company that it has systems, facilities, and procedures in place to safeguard DMF Data, and experience in maintaining the confidentiality, security, and appropriate use of such information, pursuant to requirements similar to the requirements of 26 U.S.C. § 6103(p)(4) and Customer agrees to satisfy the requirements of such 26 U.S.C. § 6103(p)(4) as if it applied to Customer. Customer will use the DMF Data only for the DMF Purpose.
3.4 Customer Acknowledgement.Customer acknowledges that Company uses third-party providers to provide the Services, that such third party may unilaterally impose terms and conditions, suspend, block, investigate or otherwise restrict the provision of the Services and that despite Company’s efforts to continue to provide the Services, Company may be unable to do so. Customer further acknowledges that a governmental entity or other third party may have the right to fully investigate any complaint made in relation to the Services, Customer Content, or User Data, including the way in which Customer markets the Services to Users or uses Customer Content, and that Company may be required to comply with instructions ordered by the investigative body. That compliance may include providing information about Customer, its Users or the Customer Content to that investigative entity.
Company may in its sole discretion immediately suspend any Services and any right to use the Platform at any time in its discretion, including if:
(a) Company believes that Customer has committed a material breach of this Agreement;
(b) Company is obligated or believes itself obligated to suspend any Services to comply with an order, instruction, requirement, directive or request of any governmental body;
(c) Company believes, in its reasonable opinion, that continuing to supply the Services to Customer may cause damage or harm to Company’s relationship with any governmental body, business partner or other third party related to the Services;
(d) applicable Law or a regulatory action or lawsuit prohibits, impairs or makes impractical the provision of the Services;
(e) a third-party supplier on whose services the provision of Services is dependent suspends its provision of those services to Company;
(f) the Services are being used in a manner that Company determines or has been notified may otherwise create liability or may be fraudulent or illegal;
(g) Customer or any third party has accessed the Services in violation of Section 3, or there has otherwise been unauthorized use of Customer’s Access Credentials.
(h) Customer ceases to do business as an ongoing business concern, fails to meet its obligations as they come due or becomes subject to proceedings of bankruptcy, receivership, insolvency, liquidation or assignment for the benefit of creditors.
5.1 Fees.The Fees for use of the Platform and Services are set forth at https://accuage.net/. Company expressly reserves the right to change or modify its prices and fees at any time, and any changes or modifications will be effective immediately on posting without need for further notice to Customer.
5.2 Payment.You agree to pay any and all Fees at the time you order the Services. Except for Fees payable on a per-transaction basis, all Fees are due in advance of the time period during which Services are provided. All invoices must be paid within 30 days of the invoice date. Any invoice that is outstanding for more than 30 days may result in the suspension or termination of Services. This may result in loss of data. Access to the account will not be restored until payment has been received. Any Fees not paid as and when due will incur late fees equal to 1.5% per month or the highest rate permitted by applicable Law. Customer will pay all costs and expenses incurred by Company in collecting any unpaid Fees, including court costs and fees, attorneys' fees and the commissions of collection agents.
5.3 Payment Methods.Company accepts various forms of payment, as set forth on the Platform from time to time (each, a “Payment Method”). Customer must provide and verify at least one Payment Method to use the Services. Customer authorizes Company to store, and contract with a third-party to store, Payment Method information for future use as provided in this Agreement. To the extent permitted by applicable Law, Company may use certain third-party vendors and service providers to process payments and manage Customer's Payment Method information. By providing Payment Method information, Customer represents and warrants that (a) Customer is legally authorized to provide that information to Company, (b) Customer is legally authorized to perform payments using the Payment Method(s); and (c) that action does not violate the terms and conditions applicable to Customer's use of those Payment Method(s) or applicable Law. When Customer authorizes a payment using a Payment Method, Customer represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method.
5.4 Auto-Renewal.Unless otherwise provided, Customer agrees that until and unless Customer terminates the Services, the approved Payment Method will be billed on an automatically recurring basis to prevent any disruption to Services, using the Payment Method information provided to Company.
5.5 Taxes.Listed Fees for the Services do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority. Any applicable taxes will be added to Company's invoice as a separate charge to be paid by Customer.
5.6 No Refunds; Invoices Final.All Fees are non-refundable, even if the Services are suspended, terminated, or transferred before the end of any term for which Customer has paid. All invoices for Fees will be deemed as accepted and final unless Customer provides Company with a specific written description of any disagreement within 60 days after notice of the applicable invoice.
5.7 Credit Reports and Evaluation of Credit.Customer authorizes Company to obtain business and personal credit bureau reports in the name of the Customer at any time. Customer agrees to submit to Company current financial information in the name of the Customer at any time on request. Such information will be used for the purposes of evaluating or re-evaluating Customer's creditworthiness. Customer also authorizes Company to use such information and to share it with any Affiliate of Company in order to determine whether Customer is qualified for other products or services offered by any Affiliate of Company. Company may report its credit experience with Customer and Customer’s payment history to third parties. Customer agrees that Company may release information about Customer or Customer's account to any Affiliate of Company.
6.1 Platform.Company owns and will retain all right, title and interest in all Intellectual Property Rights embodied or fixed in, or otherwise pertaining to, the Platform. Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a limited, non-exclusive, non-transferable license to use the Platform and the Specifications only during the Term of this Agreement and only to enable Company to provide Customer and its Users with the Services. Other than the foregoing grant of rights, Company does not grant, and Customer does not receive or possess, any right or interest in any of Company’s Intellectual Property Rights, or any other type of right or interest, whether an economic, property or moral rights interest in the Platform. Customer acknowledges that Company may from time to time upgrade or otherwise change the Platform or the Specifications in its sole discretion. Company will use commercially reasonable efforts to notify Customer of any such changes that may affect the Services or the way in which Customer connects to the Platform. Customer is responsible for satisfying itself that it can successfully interface with the Platform under the Specifications, and Customer understands that Company may change those Specifications from time to time and that Customer may not be aware when changes have been made or are about to be made. Customer is prohibited from copying or otherwise reproducing or attempting to reproduce the Platform. Customer agrees not to modify, disassemble, decompile, reverse engineer, create derivative works of the Platform.
6.2 Data.All User Data and other data relating to Users constitute Customer’s confidential information, and may also comprise private information belonging to Users. Customer will use information provided by Users through the Platform only in conformance with the Privacy Policy and will obey all applicable Law relating to informing Users of Customer’s privacy policy, and safeguarding their private information. Company has the right to use User Data for the purpose of performing its obligations or exercising its rights under this Agreement, and for improving the Services. Company also may aggregate User Data with that of other customers for the sole purpose of analyzing and improving Company’s services to all customers, so long as Company does not in the process disclose to any third parties User Data in a manner that is personally identifiable to a User, or to Customer.
6.3 Trademarks.During the Term, Customer may use Company’s names, marks, logos, and other identifiers (“Trademarks”) as and only to the extent incorporated into any Software provided to Customer as part of the Platform (such as plugins), provided that Customer will (a) not alter the Trademarks in any way and will use the applicable Software only in accordance with the Specifications (including any Specifications governing the placement of Company plugins and the content surrounding it) and only in connection with the Software in which they are incorporated; and (b) on termination of this Agreement for any reason, immediately cease all use of the Trademarks.
6.4 License of Customer Content.To the extent the Services include Company’s transformation of any Customer Content, Customer hereby grants to Company a non-exclusive, non-transferable, worldwide and royalty-free right and license to use the Customer Content as well as, to modify or edit, combine with other materials, and create derivative works of, the Customer Content with other contents and materials for the purposes of providing the Services.
6.5 Reservation of Rights.Each party does not grant, and hereby expressly reserves onto itself, all rights not granted in this Agreement.
6.6 Injunctive Relief.Customer agrees that any breach by Customer of this Section 6 is likely to cause irreparable injury for which Company would have no adequate remedy at law. Therefore, in the event of such a breach or threatened breach, Company will be entitled to seek injunctive relief, without limiting any other rights or remedies that may be available to it and Customer agrees to waive any requirement for the securing or posting of any bond in connection with any Company efforts to seek injunctive relief in accordance with this Section 6.6.
7.1 Authority.Customer represents, warrants and covenants to Company that it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights and licenses granted by it to Company pursuant to this Agreement.
7.2 Approval.Customer warrants to Company that it has and will have at all times during the Term all licenses, approvals, qualifications, permits or certificates required in respect of the delivery of all Customer Content, User Data and other information provided pursuant to this Agreement.
7.3 Compliance with Law.Customer represents, warrants and covenants to Company that in connection with all actions under this Agreement, it will comply with all applicable Law, including all Law related to privacy.
7.4 Conflicting Obligations.Customer represents, and warrants to Company that it has no outstanding agreement or obligation which is in conflict with any of the provisions of this Agreement, or which would preclude it from complying with the provisions hereof, and further agrees that during the Term it will not enter into any such conflicting agreement.
7.5 Cooperation.Customer will provide Company with access to, and use of, all information, data, documentation and other materials reasonably necessary for Company to fulfill its obligations under this Agreement.
7.6 Content Warranties.In respect of any reproduction, adaptation or copy of an artistic work, audiovisual work, motion picture, sound recording, musical work, other copyrightable content, file or other data (each, a “Work”), forming part of Customer Content received or delivered in connection with the provisions of the Services, Customer warrants to Company that Customer has the Intellectual Property Rights, permission or proper authority necessary to allow the Work to be used through the Platform in provision of the Services without infringing the Intellectual Property Rights or other rights of any third party; and, if applicable, Customer has paid or will pay any royalty, license fees and all other properly imposed fees associated with the Work to a third party having the relevant Intellectual Property Rights.
Customer will defend, indemnify, save, and hold Company and its Affiliates, officers, employees, agents, suppliers or licensors harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, costs of investigation, and the amount of any settlements, asserted against Company and them that may arise or result from (a) Customer's and its Users' use of the Services or the Platform, (b) Customer's breach of any representation, warranty or covenant in this Agreement, (c) Customer's negligence, willful misconduct or violation of applicable Law, (d) any Customer Content or User Data, (e) any disclose of personally identifiable information or other confidential information in violation of third-party rights or applicable Law except if solely attributable to a willful violation of applicable Law by Company, or (f) any claim by a User.
9.1 Limitation of Liability.EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF SUCH PARTY WILL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS. EXCEPT FOR CUSTOMER'S OBLIGATIONS UNDER SECTIONS 3.1(f), 3.3(d), 5, 8, 9.3 AND 11.10, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED THE LOWER OF (a) $1,000, AND (b) THE AGGREGATE AMOUNTS PAID OR PAYABLE BY WAY OF FEES FOR THE 6-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
9.2 Disclaimer of Warranties.ASIDE FROM THE WARRANTIES THAT COMPANY EXPRESSLY SETS FORTH IN WRITING IN THIS AGREEMENT, IT PROVIDES THE PLATFORM AND SERVICES “AS-IS” AND “WITH ALL FAULTS.” EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM AND SERVICES AND CUSTOMER’S USE THEREOF. CUSTOMER WAIVES ANY AND ALL WARRANTIES THAT MAY BE IMPLIED BY LAW, INCLUDING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS MADE REGARDING THE RESULTS OF THE SERVICES OR PLATFORM, OR THAT USE OF THE SERVICES OR PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS IN THE SERVICES OR PLATFORM WILL BE CORRECTED, OR THAT THE SERVICES OR PLATFORM'S FUNCTIONALITY WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY DOES NOT PROVIDE ANY LEGAL ADVICE AND DOES NOT WARRANT THAT USE OF THE SERVICES WILL COMPLY OR ASSURE CUSTOMER'S COMPLIANCE WITH ANY CUSTOMER OBLIGATIONS UNDER APPLICABLE LAW. CUSTOMER UNDERSTANDS AND AGREES THAT IT IS CUSTOMER'S SOLE RESPONSIBILITY TO DETERMINE HOW TO COMPLY WITH APPLICABLE LAW AND THE BENEFITS, IF ANY, OF THE SERVICES IN DOING SO. CUSTOMER IS RESPONSIBLE FOR AND MUST PROVIDE ALL HARDWARE, SOFTWARE, SERVICES AND OTHER COMPONENTS NECESSARY TO ACCESS AND USE THE SERVICES, OTHER THAN THE PLATFORM. COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR ASSURANCES THAT CUSTOMER'S HARDWARE, SOFTWARE AND OTHER SERVICES AND SYSTEMS WILL BE COMPATIBLE WITH THE PLATFORM OR SERVICE. COMPANY WILL HAVE NO RESPONSIBILITY FOR ANY HARM TO CUSTOMER'S COMPUTER SYSTEM, LOSS OR CORRUPTION OF DATA, OR OTHER HARM THAT RESULTS FROM CUSTOMER'S ACCESS TO OR USE OF THE SERVICES OR PLATFORM. Some states do not allow the types of disclaimers in this Section 9.2, so they may not apply to you.
9.3 Third-Party Services.Links from the Platform to external websites (including external sites that are framed by the Website) or inclusion of advertisements do not constitute an endorsement by Company of those sites or the content, products, advertising and other materials presented on those sites or of the products and services that are the subject of those advertisements, but are for Customer's reference and convenience. Customer accesses such sites or the products and services that are the subject of those advertisements at Customer's risk. It is Customer's responsibility to evaluate the content and usefulness of the information obtained from other sites. Company does not control those sites, and is not responsible for their content. Company provision of links to third-party sites does not mean that Company endorses any of the material on those sites, or has any association with their operators. Customer further acknowledges that use of any site controlled, owned or operated by third parties is governed by the terms and conditions of use for those sites, and not by this Agreement. Company expressly disclaims any liability derived from the use and/or viewing of links that may appear on the Platform. Customer agrees to hold Company harmless from any liability that may result from the use of links that may appear on the Platform.
The term of this Agreement (the "Term") will begin on the Effective Date and will continue until it is terminated pursuant to its terms. Either party may terminate this Agreement at any time. Company may terminate this Agreement by notice to Customer. Customer may terminate this Agreement by terminating Customer's account using the process provided on the Platform for terminating a customer account. The provisions of Sections 1, 2.2, 2.3, 3, 5 (as to any payments due with respect to the period before termination) and 6-12, as well as any other terms of this Agreement that expressly extend or by their nature should extend beyond termination or expiration of this Agreement, will survive and continue in full force and effect after any termination or expiration of this Agreement. Any license(s) granted to Customer under this Agreement will automatically terminate on termination or expiration of this Agreement.
11.1 Assignment.Customer will not assign, transfer or delegate its rights or obligations under this Agreement to any third party without Company’s prior written consent. For the purposes of this Agreement, any sale or transfer by Customer of all or substantially all of its stock or assets or by merger or otherwise by operation of law is considered an assignment, requiring Company’s express written consent. Company may freely assign this Agreement or transfer any of its interest herein, including to any Company Affiliate, to a purchaser of all or substantially all of Company’s assets, and to a successor in interest of Company as part of a corporate reorganization, consolidation or merger. This Agreement and each of the provisions hereof will inure to the benefit of and be binding on each party’s successors, administrators and permitted assigns.
11.2 Severability.If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision will be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement will, nevertheless, continue in full force and effect without being impaired or invalidated in any way.
11.3 Entire Agreement; No Reliance.This Agreement constitutes the entire agreement and understanding between the parties with respect to its subject matter, and this Agreement merges and supersedes all prior agreements, discussions and writings with respect to its subject matter. Each party represents that it has not relied on any representations made by the other party or its representatives or on any descriptions, illustrations or specifications contained in any physical or digital text including websites, proposals, catalogues or other publicity material. Each party has relied only on the express terms of this Agreement, and not on any representations of the other party not set forth herein, nor on any other documents or materials of the other party not expressly made a part hereof.
11.4 Force Majeure.Neither party will be held responsible for any delay or failure in performance of any part of this Agreement (with the exception of any obligation to make payments to the other party hereunder) to the extent such delay or failure is caused by fire, flood, explosion, war, terrorism, strike, embargo, governmental action or failure to act, the act of any civil or military authority, act of God, inability to secure material or transportation facilities, acts or omissions of carriers, power outages, computer failures, or by any other causes beyond its control whether or not similar to the foregoing.
11.5 No Waiver.The waiver, modification, or failure to insist by a party on any of the provisions of this Agreement will not void, waive, nor modify any of the other provisions nor be construed as a waiver or relinquishment of such party’s right to performance in the future of any such provision.
11.6 Relationship of the Parties.The relationship of the parties under this Agreement is one of independent contractors, and no agency, partnership, employment, joint venture or similar relationship is created hereby. Except as specifically authorized, neither party will have any authority to assume or create obligations on the other party's behalf, and neither party will take any action that has the effect of creating the appearance of its having such authority.
11.7 Notices.Any notice required or permitted under this Agreement will be given in writing by personal delivery, by USPS Priority Express Mail, by nationally recognized overnight delivery service (e.g. UPS), or e mail. Any notice will be deemed received on the earlier of the date of actual delivery or the date on which delivery is refused, regardless of whether the party has vacated the physical address or discontinued the e-mail address. The notice address and e-mail address for Customer will be the address and e-mail address on record with Company as modified by Customer through the Platform from time to time. The notice address for Company will be 24 Hollywood Blvd SW, Suite 5 Fort Walton Beach, FL 32548 and the e-mail address for Company will be contact@accuage.net, as reflected in this Agreement as modified form time to time, pursuant to its terms.
11.8 Third Party Beneficiaries.This Agreement does not and is not intended to confer any rights or remedies on any person or entity other than the parties hereto.
11.9 Amendment.Company may revise this Agreement from time to time and the most current version will always be posted on the Website. If a revision, in our sole discretion, is material Company may, but have no obligation to, notify Customer, including by postings to relevant Company blogs, so please check those pages regularly. By continuing to access or use the Platform and Services after revisions become effective, Customer agrees to be bound by the revised terms. If Customer does not agree to the new terms, Customer must cease using the Platform and Services and terminate Customer's account using the process provided on the Platform for terminating a customer account.
11.10 Governing Law; Arbitration.Any disputes between the parties arising out of or relating to the Agreement (“Disputes”) will be governed by Florida law regardless of Customer's location and notwithstanding of any conflicts of law principles. Except for Disputes relating to Intellectual Property Rights, any Disputes will be resolved exclusively by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in Fort Walton Beach, Florida, in English, with a written decision stating legal reasoning issued by the arbitrator(s) at either party’s request, and with arbitration costs and reasonable documented attorneys’ costs of both parties to be borne by the party that ultimately loses. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction. If there is more than one Dispute between the parties, all such Disputes may be heard in a single arbitration under this Section 11.10. Except to the extent required by applicable Law that cannot be waived or modified by this Agreement, Disputes under this Agreement may not be consolidated into a single arbitration proceeding with disputes between the Company and other persons, even if those disputes are governed by an arbitration proceeding similar or identical to this Section 11.10 and even those other persons are similarly situated and their disputes are similar or identical in the nature to a Dispute under this Agreement.
The following terms will be defined as set forth below for purposes of this Agreement:
“Access Credentials” means the secure method by which Company provides Customer, generally through Customer’s own computer systems, access to control the Platform.
“Affiliate” means, in respect of a party, any company or other business entity controlled by, controlling, or sharing common control. For the purposes of this definition, “control” will mean the direct or indirect power to direct or cause the direction of the management and policies of a company or other business entity, whether through ownership of 50% or more of the voting interest, by contract, or otherwise.
“Company Data” means any information, electronic file, data or report (excluding User Data) that is provided or generated in the course of Company’s provision of the Services.
“Company Rights” means all Intellectual Property Rights owned, licensed or otherwise transferred to Company, including those Intellectual Property Rights involved in or relating to any aspect of the Services, the Platform, or Company Data, but excluding Customer Content and User Data.
“Customer Content” means any material or information provided to Company by or on behalf of Customer as part of the Services.
“Customer Rights” means all Intellectual Property Rights owned or licensed by Customer in relation to Customer Content, excluding Intellectual Property Rights owned by Company.
“Fees” means the amount payable by Customer to Company for the Services.
“Intellectual Property Rights” means all copyrights fixed in any medium now known or hereafter discovered, including copyrights in computer programs, pictorial works, audiovisual works, literary works, musical works, sound recordings, motion pictures and the like; patents, trademarks, trade names, trade secrets, design rights, design models, database rights and topography rights, all rights to bring an action for passing off, rights of privacy or publicity, and any other similar form of intellectual rights in intangible property or proprietary rights, statutory or otherwise, whether registered or not, and whether applied for or not, all rights to apply for protection in respect of any of the above rights and all other forms of protection of a similar nature or that relate to intangible property, ideas or expression, as they may exist anywhere in the world.
“Specifications” means the documentation and specifications provided by Company to Customer from time to time (through the Website, the Software or otherwise) with respect to use and integration of the Service and Platform.
“User” means any person submitted by Customer through the Platform for age verification Services.
“User Data” means any personally identifiable information of User submitted by Customer through the Platform for use in providing the Services.