This End User License Agreement and Terms of Service (this “Agreement”) sets forth the legally binding terms between Exut, LLC (“Exut” “us” or “we”) and the Merchant whose name appears on the registration form (“Merchant” or “you”) regarding your use of Exut’s App (as it may be updated from time to time) designed to enable end users (“Customers”) to purchase goods and services from Merchant. The parties hereby agree as follows.
A. Exut is the owner of certain proprietary computer software that is engineered to enable Customers to purchase goods and services from Merchants (the “App” and/or “Service”).
B. Customer shall mean any person legally permitted or able to purchase goods and services from merchants using the App. Exut does not guarantee that any certain number of Customers will purchase goods and services from any Merchants using the App.
C. “Total Transaction Amount” shall mean the total amount of the monetary purchase made by a Consumer from a Merchant.
1. Provision of Service and License Grant. Subject to the terms and conditions of this Agreement, during the Term, Exut: (a) will provide Merchant with access to the Service and/or App, and (b) hereby grants Merchant a limited, non-exclusive and nontransferable license to download, install and use the App on a single smart phone, tablet or other mobile device that Merchant owns or controls. Merchant shall be charged an activation fee for each tablet or mobile device that it uses to access the Service as described in Paragraph 10.
2. Intellectual Property Rights.
a. Merchant acknowledges that all right, title, and interest in and to the App and Services and the Software, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “Exut IP”), is, and at all times shall remain, the sole and exclusive property of Exut. Exut’s IP contains trade secrets and proprietary information owned by Exut and is protected by United States copyright laws (and other laws relating to intellectual property). Except the right to use the Services, as expressly provided herein, this Agreement does not grant to Merchant any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Services or the Software. Merchant shall not attempt, or directly or indirectly allow any Authorized User or other third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Services and/or Software in any form or media or by any means. The provisions of this paragraph 2 shall survive termination of this Agreement.
3. Cooperation. Merchant shall cooperate with Exut as may be reasonably required to enable the provision of the Service and the App. Merchant hereby grants to Exut a non-exclusive license to use Merchant’s trademarks and other applicable proprietary rights (collectively, “Merchant Properties”) as may be reasonably necessary or helpful in connection with the provision of the Service hereunder.
4. Representations About Merchant. Merchant represents and warrants to us that it has the power and authority to enter into this Agreement, and that the information that it provides to us about Merchant or its account in connection with the Service will be current, true, accurate, supportable and complete. Merchant represents that by executing this Agreement that it will not be in violation of any other agreement.
5. Authorized Users. During the Term, Merchant may allow its employees and agents (referred to as “Authorized Users” in this Agreement) to use the Service on Merchant’s behalf. Examples of Authorized Users include Merchant’s administrative users who have authority to manage and administer Merchant’s account (“Admins”) and other Merchant-affiliated personnel (“Basic Users”). Any breach by an Authorized User will be deemed to be a breach by Merchant. Merchant and Admins shall be solely responsible for managing and administering Basic User accounts, including issuing user names and passwords for Basic User accounts. Merchant and Admins shall be solely responsible for the security and confidentiality of Merchant’s account information, including user names and passwords, and will ensure that no third party uses Merchant’s account. Merchant and Admins shall immediately notify Exut in the event that Merchant or an Admin becomes aware of any unauthorized access to the Service or any violation of the terms of this Agreement.
6. Reservation of Rights. You acknowledge that the App is licensed, not sold, to you. We reserve all rights in and to the Service and the App and all related intellectual property not expressly granted under this Agreement. “Exut,” and all associated logos displayed within the Service and the App are our trademarks (unless otherwise noted). Without limiting the generality of the foregoing, subject to the limited rights granted hereunder, Merchant acknowledges and agrees that, as between Merchant and Exut, all right, title and interest, including all copyright, trademark, patent, trade secret (including all modifications, improvements, upgrades, and derivative works thereof) and other intellectual property or proprietary rights, related to the Service and the App belong exclusively to Exut. Merchant shall honor and comply with any and all contractual, statutory or common law rights of Exut, as well as any applicable third parties, arising out of or relating to the provision or use of the Service or the App.
7. Feedback. If Merchant or any of its Authorized Users submit comments, suggestions, or other feedback regarding the Service or the App (“Feedback”), Merchant agrees that we will own such Feedback and will be free to use such Feedback for any purpose.
8. Restrictions On Use Of The Service. Merchant and the Authorized Users may use the Service, and the App solely for their respective intended purpose in accordance with this Agreement. Merchant may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Service or the App. Merchant may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service or the App, or any part thereof, or integrate the Service or the App with other technology, other than as is expressly contemplated by our pertinent documentation. If for some reason these restrictions are prohibited by applicable law or by an agreement we have with one of our licensors, then the activities are permitted only to the extent necessary to comply with such law or licenses. Merchant shall not exploit the Service or the App in any unauthorized way whatsoever, including, but not limited to, (i) by trespass, (ii) by burdening network capacity or consuming a disproportionate share of the resources on which the Service or the App relies (e.g. compute time, disk storage, and network bandwidth), or (iii) by utilizing the Service or the App in a way that unnecessarily interferes with the normal operation thereof.
Neither Merchant nor any User may use the Service or App in any manner or for any purpose other than as expressly permitted by this Agreement. Neither Merchant nor any User may, or may attempt to (a) reverse engineer, disassemble, or decompile the Service or App or apply any other process or procedure to derive the source code of any software included in the Service, (b) access or use the App and Service in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (c) resell or sublicense the Service or App. All licenses granted to Merchant in this Agreement are conditional on Merchant’s continued compliance with this Agreement, and will immediately and automatically terminate if Merchant does not comply with any term or condition contained in this Agreement. During and after the Initial Term, Merchant will not assert, nor will Merchant authorize, assist, or encourage any third party to assert, against us or any of our affiliates, Merchants, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service Merchant has used.
9. Limitations on Availability. The Service and the App, or some aspects thereof may not be available in all languages or in all countries. We make no representation that the Service or the App is available or permitted in any particular location. Use of the Service and the App is void where prohibited. Merchant uses the Service and the App at Merchant’s own initiative and is responsible for compliance with any applicable laws. We may also impose limits on the use or access to the Service or the App as required by law. Further, Merchant acknowledges that elements of the platform that make the Service possible are provided by third parties.
10. Fees. For use of and access to the Service and App, Merchant agrees to pay Exut the following fees (the “Fees”):
(i) Merchant shall pay flat rate of 2.9% + .30¢ (STRIPE) plus a 2% (EXUT) per successful charge made with the EXUT Mobile App by a Consumer.
(STRIPE) 2.9% + .30¢
(iii) Merchant authorizes Exut to charge the credit card (or other electronic payment method) on file with Merchant’s account for all Fees within (10) days of such fees occurring.
Fees are payable in United States dollars and are exclusive of applicable sales, excise, use or similar taxes. Merchant shall pay all taxes owed directly to the requisite county, state or federal agency or entity as required by applicable law. Should Merchant not pay any amount when due, Exut may (at its discretion and in addition to other remedies it may have) suspend Merchant’s and Authorized Users’ access to the Service.
11. Support, Maintenance and Updates. During the Term of this Agreement, Exut will use commercially reasonable efforts to provide Merchant with email support related to the Service and the App. Scheduled system maintenance shall take place from time to time, and during such time, the Service may be unavailable. Emergency maintenance may be required at other times in the event of system failure. We make no guarantees about uptime. Exut may, but is not required to develop and provide App updates from time to time, which may include upgrades, bug fixes, patches and other corrections or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features or functionality. You agree that Exut has not obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on the settings of your mobile device, when your device is connected to the Internet the App will automatically download and install available Updates, or you will be prompted to download an install available Updates. You acknowledge that the App or any of its features may not operate properly if you fail to install Updates. You further agree that all Updates will be deemed part of the App and subject to the terms of this Agreement.
12. Term. This Agreement will commence on the Effective Date and will continue on a month-to-month basis until terminated as set forth below.
13. Termination. Merchant may stop using the EXUT-Service at any time. Such termination will be effective immediately. In no event shall termination relieve Merchant of the obligation to pay any Fees payable to Exut for the period prior to the effective date of termination. If Merchant prepaid any Fees, Exut will refund to Merchant the prepaid Fees covering the remainder of the Term after the effective date of termination; provided that if Merchant received a prepayment discount, the amount refunded will be less any applicable discount for the periods prior to the effective date of termination.
14. Effect of Termination. Upon termination of this Agreement: (i) all license and other rights granted to you under this Agreement will terminate, and (ii) Merchant must cease all use of the Service and destroy all copies of the App. Paragraphs 2, 8, 14, 16, 17, and 20-23 shall survive any termination or expiration. All other rights and obligations shall be of no further force or effect.
15. Default. Merchant shall be in default of this Agreement if Merchant fails to make any payment when due and fails to cure said default within five (5) days after receipt of written notice thereof from Exut. In addition to the monetary breach described in the previous sentence, either party will be in default of this Agreement if the party is in material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice thereof from the non-breaching party. If a party is in default, the nonbreaching party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in this Agreement. In the event Merchant breaches or attempts to breach any of the provisions of this Agreement, Exut shall have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempt to breach, Merchant hereby acknowledging the inadequacy of any remedy at law.
16. Data Ownership. The User Data/Personal Data and Its Ownership. The User data or Personal Data (collectively the “Data”) of a person who is a Customer which shall also be known and treated by both parties as Confidential Information) shall include: (a) The data collected, used, processed, stored, or generated as a result of a Customer making a purchase (the “Purchase”) with the Merchant using the App; and (b) personally identifiable information (“PII“) collected, used, processed, stored, or generated as the result of any purchase including, without limitation, any information that identifies a Customer, such as a Customer’s social security number, date of birth, address, telephone number, biometric data, mother’s maiden name, email address, credit card information, or an individual’s name in combination with any other of the elements listed herein. The Data is and shall remain the sole and exclusive property of the person who is considered a Customer. The person retains all ownership in and to the User Data.
Merchants’ Use of The Data and PII. Merchant pursuant to the Agreement shall collect, process, and store the Data only to the extent necessary in use of the Service and/or App. Merchant shall: (a) keep and maintain the Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose the Data solely and exclusively in the use of the Service and/or App, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available to third parties either the Data or the PII without Customer’s prior written consent; (d) ensure that it uses the Data solely and exclusively in the use of the Service and/or App.
17. Indemnification. Merchant shall indemnify and hold Exut harmless from any and all damages, claims, lawsuits, legal fees and costs of any kind relating to any claim or lawsuit brought or filed by any Customer or third party related to any purchase made by any Customer from Merchant using the App. Merchant shall also indemnify and hold Exut harmless from any and all damages, claims, lawsuits, legal fees and costs of any kind relating to any claim or lawsuit brought or filed by any person or entity related to Merchant's use or misuse of the App or Service.
18. Accessibility/Performance. Exut shall use commercially reasonable efforts to make the Service available to Merchant on a 24x7 basis (twenty-four hours per day, seven days per week) during the Term, except for: (i) scheduled system back-up or other on-going maintenance as required and scheduled for Exut’s Software in advance by Exut, or (ii) for any unforeseen cause beyond Exut's reasonable control, including but not limited to internet service Exut or communications network failures, denial of service attacks or similar attacks, or any force majure events occurring which have an effect on the Software as set forth in this Agreement. Exut will monitor performance indicators on the systems and network infrastructure (its own and that of third party suppliers) in order to gauge the overall performance of its hosting services, and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Software.
19. Backup. IT IS MERCHANT’S SOLE RESPONSIBILITY TO BACK-UP ITS DATA DURING THE TERM, AND MERCHANT AGREES AND ACKNOWLEDGES THAT POST TERMINATION OR EXPIRATION, IN MAY NOT HAVE ACCESS TO ANY DATA VIA THE SERVICE.
20. Confidentiality. Merchant acknowledges that the Service, the App, the terms of this Agreement, and any other proprietary or confidential information provided to Merchant by Exut (“Exut Confidential Information”) constitutes valuable proprietary information and trade secrets of Exut. Exut acknowledges that the Data provided to Exut by Merchant (“Merchant Confidential Information”) constitutes valuable proprietary information and trade secrets of Merchant. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its internal use except as provided herein, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
21. Acknowledgements Regarding App Marketplace. You acknowledge that this Agreement is between you and Exut and not with Apple, Inc., Google Inc. or any sponsor of any application marketplace (each a “application sponsor”) and that Exut (not the application sponsor) is responsible for the App and the Service. YOU ACKNOWLEDGE AND AGREE THAT NO APPLICATION SPONSOR MAKES ANY WARRANTIES WHATSOEVER UNDER THIS AGREEMENT OR HAS ANY WARRANTY OBLIGATIONS WITH RESPECT TO THE APP OR THE SERVICE. You acknowledge that the application sponsors have no obligation whatsoever to furnish any maintenance and support services with respect to the App or for addressing any claims relating thereto or your possession and/or use thereof, including, but not limited to (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You further acknowledge that the application sponsors have no responsibility for the investigation, defense, settlement or discharge of any third party intellectual property claims that the App or your use thereof infringes intellectual property rights. If you install the App on an iOS-based device, Apple, Inc. and its subsidiaries, are third party beneficiaries of this Agreement and will have the right to enforce this Agreement against you.
22. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND THE APP ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH MERCHANT’S ENJOYMENT OF THE SERVICE AND THE APP, THAT THE FUNCTIONS CONTAINED IN OR THE SERVICES PERFORMED OR PROVIDED BY THE SERVICE OR THE APP WILL MEET MERCHANT’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE OR THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE OR THE APP WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WE GIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
23. Limitation of Liability. EXUT WILL NOT BE LIABLE FOR ANY INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO MERCHANT’S USE OF OR INABILITY TO USE THE SERVICE OR THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EXUT’S AGGREGATE LIABILITY TO MERCHANT FOR DAMAGES EXCEED THE LESSER OF $100.00 (ONE HUNDRED DOLLARS) OR THE AMOUNT MERCHANT PAID FOR THE SERVICE, IF ANY, IN THE SIX (6) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO MERCHANT.
24. Export and Other Restrictions. Merchant may not use or otherwise export or re-export the Service, the App or elements thereof except as authorized by United States law and the laws of the jurisdiction in which the Service was accessed or obtained. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Service, Merchant represents and warrants that it is not located in any such country or on any such list. Merchant also agrees that it will not use the Service or the App for any purposes prohibited by applicable law.
25. Reference. Exut may include the name, logo of and success stories of Merchant in Exut’s website, press releases, promotional and sales literature, and lists of Merchants, in each case accordance with Merchant’s standard trademark usage guidelines. Furthermore, Merchant shall use commercially reasonable efforts to cooperate with Exut with regard to the publication of at least one (1) press release regarding Merchant’s use of the Service and at least one (1) case study discussing the benefits of the Service.
26. Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, illegal acts of third parties, failure of the public Internet or changes in the accessibility of third party websites, power outages, labor disputes or governmental demands or restrictions or any similar supervening conditions beyond the parties’ respective control (“Force Majeure Event”).
27. Governing Law and Venue. The laws of the State of Idaho, excluding its conflicts of law rules, govern this Agreement and Merchant’s use of the Service and the App. Venue and jurisdiction of any lawsuit involving this Agreement exists exclusively in the state and federal courts in Kootenai County, Idaho, unless Exut seeks injunctive relief that, in Exut’s judgment, would not be effective unless obtained in some other venue.
28. Miscellaneous. This Agreement constitutes the entire agreement between us regarding the subject matter hereof. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. This Agreement will not be changed, modified, or amended except by a writing executed by both parties or if you electronically accept a subsequent agreement or amendment delivered via the Service or the App. We may freely transfer or assign this Agreement and any of our rights or obligations hereunder. Merchant may not transfer or assign this Agreement or any of its rights or obligations hereunder without our prior written consent, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. This Agreement may be executed in counterparts and electronic signatures shall be binding.
Photo courtesy Liane Metzler.