Terms of Use

ACTIVITYREZ ONLINE SERVICE SUBSCRIPTION AGREEMENT

Last Updated Date: 07/16/16

Welcome to the ActivityRez Online Service (the “Service”). As ActivityRez’s Client, (hereinafter referred to interchangeably as “Client,” “you,” “your” or “yours” capitalized or lowercase) you can use the Service with your activity data and materials to manage activity reservations. The Service includes all applications, content and functionality made available by ActivityRez or by third parties through the Service.

ActivityRez provides the Service through the website accessible at www.ActivityRez.com (the “Site”). Please read carefully the following terms and conditions (this “Agreement”) and our Privacy Policy, available at https://www.activityrez.com/privacy/, which is incorporated by reference into this Agreement. This Agreement governs your access to and use of the Service and constitutes a binding legal agreement between you and ActivityRez.

YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING THE CHECKBOX OR BY ACCESSING OR USING THE SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event “you” and “your” will refer and apply to that company or other legal entity.

You desire to access and gain a limited license to use the Service, and ActivityRez is willing to allow You to access and use the Service, subject to the terms and conditions of this Agreement. NOW, THEREFORE, the parties hereby agree as follows:

  1. Service.
    1. The Service includes all applications, content and functionality made available by ActivityRez or by third parties through the Service.
    2. Subject to Your compliance with the terms and conditions of this Agreement and payment of all applicable Fees, ActivityRez will make the Service available to You (including Your wholly owned subsidiaries) during the Term (as defined below).
    3. You may access and use the Service solely for Your internal business purposes and You may not resell the Service without prior written permission from ActivityRez. For avoidance of doubt, the limitations set forth above are not intended to prevent You from using system generated White Label functionality providing your plan includes such capabilities or through use of the system’s Application Programming Interfaces, if separately authorized by ActivityRez, or in the course of You providing consulting or other services customarily provided by You to your customers.
    4. By accessing or using the Service, You accept the ActivityRez Privacy Policy, available at https://www.activityrez.com/privacy/ which is incorporated by reference into this Agreement.
  2. Eligibility.
    1. The Service is intended solely for persons who are 18 or older. Any access to or use of the Service by anyone under 18 is expressly prohibited, unless otherwise agreed to in writing by ActivityRez. This restriction is for Your use of the ActivityRez system as a customer of ActivityRez. Your customers (also referred to as “consumers”) may access the system regardless of age, provided local law allows.
    2. By accessing or using the Service You represents and warrants that You and your Authorized Users (defined below) are 18 or older.
  3. Account Registration.
    1. In order to access the Service, You will need to create an account (“Account”).
    2. During the registration process, You will be required to provide certain information and You will establish a password for yourself and each of Your Authorized Users. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. ActivityRez reserves the right to suspend or terminate any Your user account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete.
    3. You are responsible for safeguarding Your passwords. You agree not to disclose Your passwords to any third party and to take sole responsibility for any activities or actions under Your Account, whether or not You have authorized such activities or actions, other than to Authorized Users.
    4. “Authorized Users” means Your employees, consultants, contractors, customers or agents that have been:
      1. assigned a unique username-password combination to access and use the Service
      2. registered on-line to access and use the Service, and
      3. agree to comply with the terms and conditions of this Agreement.
      4. You will immediately notify ActivityRez of any unauthorized use of Your Account.
  4. Fees.
    1. Fees for the Service are set forth in the MOU document signed by you on paper or electronically hereto included with these Terms as your agreement to use the Service.
    2. In consideration for ActivityRez providing the Service to You, You agree to pay all of the fees set forth in the MOU within fifteen (15) days of the date of any invoice sent by ActivityRez to You.
    3. You acknowledge and agree that You are entitled to use only the features and usage levels for the Service that is in the plan you agreed upon (as described in the MOU) and that you have paid for (or provided valid payment if recurring), and You will not access or use more features or usage levels without paying for such additional features and usage levels.
    4. The “Plan” You have selected is defined as the combination of the features and fees ordered by You in the MOU.
    5. Some plans may be available month-to-month and some require an annual or multi-year agreement. Some plans you pay for directly, some are paid for in combination with your credit card fees and some are paid for as a surcharge to your customers (the consumer); or a combination of any of these. Some, but not all plans are upgradeable, either through features, volume pricing discounts or a combination of the two; the specific upgrades and extensions available to You are detailed in the MOU. If not expressly detailed and agreed to in the MOU or this document, then ActivityRez reserves the right to terminate the Your use of any upgrade.
    6. ActivityRez reserves the right to monitor Your use of the Service and to invoice You for access to any additional features or functionality offered through the Service for which You have not paid the applicable Fees, at which time You must either pay for the additional services according to their standard terms OR immediately discontinue their use (please note – whether continuing with additional features/functionality or discontinuing, any sales generated from use of additional features/ functionality will be added to the total transactional plan agreed to by the parties and may result in additional transaction fees based on the transaction plan agreed to by the parties). Unless otherwise agreed to in writing, ActivityRez’s standard professional services fees will be based on an hourly rate of $150 per hour (US$).
    7. If You have authorized ActivityRez to charge any renewals or additional Fees to a credit card or bank account payment (ACH), either as a one time fee or recurring, then ActivityRez will automatically bill such credit card/ACH for incremental Fees invoiced or billed according to plan in accordance with the above.
    8. You are responsible for providing complete and accurate billing and contact information to ActivityRez and notifying ActivityRez of any changes to such information.
    9. Unless these payment terms are otherwise agreed to in writing by ActivityRez, if ActivityRez has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by ActivityRez. You shall reimburse ActivityRez for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
    10. If any amount owing by You hereunder thirty (30) or more days overdue, ActivityRez may, without limiting ActivityRez’ other rights and remedies hereunder accelerate Your unpaid fee obligations so that all such obligations become immediately due and payable by You, and suspend the provision of the Service to You, including suspending the use by any Third Parties You have brought into the system until such amounts are paid in full.
    11. ActivityRez will give You at least seven (7) days’ prior notice that Your Account is overdue, before suspending provision of the Service to You.
    12. After the Term (defined below), or after You reach the volume cap for any usage levels for which You have paid, ActivityRez may terminate Your access to and use of the applicable Services.
    13. Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). You will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on ActivityRez’s net income.
    14. Notifications will follow the process outlined in this agreement.
  5. Your Data. You will be able to use the Service to manage Your activity reservations using any data or materials that You upload to the Service, excluding Third Party Content (defined below) (“Your Data”).
  6. Data Restrictions. You will not upload any data for use with the Service the use of which would subject ActivityRez to any obligations or liabilities that are in addition to or inconsistent with the terms and conditions of this Agreement, including without limitation any data that is subject to regulation under HIPPA, COPPA, the EU privacy directives, or similar data protection legislation, or any personal financial or credit card information of any third parties.
  7. Other Restrictions.
    1. You will not attempt to interfere with or disrupt the Service.
    2. You will not allow access to or use of the Service by anyone other than Authorized Users for any function requiring a log in to the service. This restriction does not apply to your customers use of the e-commerce websites that are generated by the Service or that are connected to the Service via the Service’s API.
    3. You will not:
      1. copy, modify or distribute any portion of the Service;
      2. rent, lease, or provide access to the Service on a time-share or service bureau basis, or otherwise distribute or make the Service available to third parties, and
      3. transfer any of Your rights hereunder to any third party
      4. reverse engineer or attempt to reverse engineer the Service
      5. will not offer a competing service (within 5 years after termination of this agreement).
    4. You acknowledges that the Service constitutes and contains valuable trade secrets of ActivityRez and its licensors, and, in order to protect such trade secrets and other interests, You agree not to disassemble, decompile or reverse engineer the Service or allow any third party to do so, except to the extent such restrictions are allowed by law.
    5. You acknowledge and agree that ActivityRez does not monitor or police communications or third party data uploaded to the Service and that ActivityRez will not be responsible for the content of any such communications or third party data.
    6. You will use the Service exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. You will not use the Service to infringe any third party’s rights, or upload, store, or use with the Service
    7. materials or information which may violate intellectual property rights or other proprietary rights of third parties, or which have been unlawfully obtained or
    8. materials containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
    9. You will keep confidential and not disclose to any third parties, and will ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles for the Service.
    10. You may not access or use the Service if You are a direct competitor of ActivityRez or become a competitor of ActivitRez, and may not enter into any White Label arrangements with direct competitors’ of ActivityRez except with ActivityRez’ prior written consent.
  8. Data Security and Storage.
    1. ActivityRez will use reasonable efforts to store Your Data securely consistent with industry standard security practices.
    2. In the event of any loss or corruption of Your Data, ActivityRez will use its commercially reasonable efforts to restore the lost or corrupted data from the latest backup maintained by ActivityRez in accordance with its archival procedures.
    3. ActivityRez will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Your Data caused by any third party.
    4. ACTIVITYREZ’ EFFORTS TO RESTORE LOST OR CORRUPTED DATA PURSUANT TO THIS SECTION SHALL CONSTITUTE ACTIVITYREZ’ SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY LOSS OR CORRUPTION OF YOUR DATA. ActivityRez reserves the right to establish or modify its general practices and limits relating to storage of Your Data.
    5. All ActivityRez Clients must comply with the requirements of the Payment Card Industry Security Standards (‘PCI DSS”). As a service provider ActivityRez will maintain all applicable PCI DSS requirements to the extent ActivityRez posses or otherwise store, process, or transmit cardholder data on behalf of Your customer, or to the extent that ActivityRez could impact the security of Your customer’s cardholder data environment. You understand that you must independently maintain your own PCI Certification.
  9. Your Obligations.
    1. Cooperation and Assistance. As a condition to ActivityRez’ obligations hereunder, You will at all times: (a) provide ActivityRez with good faith cooperation and access to such information as may be reasonably required by ActivityRez in order to provide the Service to You; (b) at Your option, provide ActivityRez with feedback, comments, and suggestions for improvements relating to the Service (“Feedback”), and (c) comply with all applicable local, state, federal and foreign laws in using the Service.
    2. Marketing Support. Unless modified by the MOU, during the Term of this Agreement, You grant to ActivityRez a non-exclusive, limited right to use Your name, trademarks, and logos (collectively, “CLIENT Marks“) in the production of marketing materials identifying You as a ActivityRez customer, provided that such use of Your CLIENT Marks is in accordance with any trademark and logo use guidelines that You provide to ActivityRez. Such marketing materials may include but are not limited to ActivityRez’ websites, brochures, press releases, trade show displays, and presentations. ActivityRez will cover the costs of any marketing support set forth in this section. All goodwill developed from such use will be solely for Your benefit. You will permit the service mark “Power by Activityrez” and will not remove this service mark on all of Your ActivityRez connected websites and booking engines without Activityrez’s express written permission.
    3. Enforcement. You are responsible for all activity occurring under Your use of the Service. You will ensure that all Authorized Users comply with this Agreement, including, without limitation, with Your obligations set forth in the “Restrictions” sections above (section 6 and section 7). You will promptly notify ActivityRez of any suspected or alleged violation of this Agreement including any unauthorized use of any password or account or any other known or suspected breach of security. You will cooperate with ActivityRez with respect to: (a) investigation by ActivityRez of any suspected or alleged violation of this Agreement and (b) any action by ActivityRez to enforce this Agreement. ActivityRez may suspend or terminate any Authorized User’s access to the Service upon notice to You in the event that ActivityRez reasonably determines that such Authorized User has violated this Agreement. You will be liable for any violation of this Agreement by any Authorized User.
    4. Telecommunications and Internet Services. You acknowledge and agree that the use of the Service by You and by any of Your Authorized Users are dependent upon access to telecommunications and Internet services. You will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Service, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. If using certified credit card swipers, you may be required to pay a separate fee to purchase a swiping unit from a reseller ActivityRez chooses. ActivityRez will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
    5. Third Party Interactions. During Your use of the Service, You or Your Authorized Users may be provided with access to and use of data, applications, or other content offered by third parties (“Third Party Materials”). Fees for such Third Party Materials (if any) will be as set forth either on the site or through separate agreement between the parties. You agree to pay the applicable Fees for any access to or use of the Third Party Materials with the Service. ActivityRez will not be responsible for and hereby disclaims any liability with respect to the performance, accuracy, reliability, claims, losses, or damages arising from or related to Your or any Authorized Users use of the Third Party Materials or other third-party products, services, software or websites that are accessed via links from within the Service, and You hereby waives any right to and will not seek to impose any liability upon ActivityRez related thereto.
    6. Third Party Content.
      1. Notwithstanding anything to the contrary herein, You acknowledge and agrees that ActivityRez may implement a program pursuant to which activity providers may post and offer their own activity content through the ActivityRez network (“Third Party Content”), and that ActivityRez may make such Third Party Content available through the Service and other ActivityRez offerings.
      2. If You or its Authorized Users upload any activity descriptions, offers, or related content to the Service, but not including Your proprietary rates or Your proprietary information, (“Activity Content” or “Your Activity Content”), You hereby grant to ActivityRez and its customers and end users a non-exclusive, perpetual, royalty free, right and license to access, use, copy, modify, create derivative works of, distribute, publish, display, perform and transmit Activity Content via the Service for purposes of providing and making Your Activity Content available to users of the Service and of related “White Label” services of ActivityRez and its customers.
      3. If you remove or change Your Activity Content through the Service, ActivityRez will use commercially reasonable efforts to make corresponding updates to the version of Your Activity Content that ActivityRez makes available to third parties pursuant to the foregoing. Activity Content will be deemed Third Party Content as defined in this section. Any Authorized Users who separately agree to the ActivityRez click thru agreement presented upon registration or other posted terms with ActivityRez will be deemed to have separately agreed to provide their Activity Content and Third Party Content to ActivityRez through the Service, and such Third Party Content will not be You Data hereunder.
  10. Proprietary Rights.
    1. Subject to the limited license and rights expressly granted hereunder, ActivityRez and its licensors exclusively own and retain all rights, title and interest in and to the Service (including all software used for the provision of the Service and all data made available through the Service, other than You Data), including all Intellectual Property Rights therein or relating thereto.
    2. ActivityRez will exclusively own all rights, title and interest in and to any reviews, ratings, rankings or similar content derived from publishing on the ActivityRez network (collectively the “Feedback”), and You hereby assigns to ActivityRez all of Your rights, title, and interest in the Feedback, including all Intellectual Property Rights therein or relating thereto, and, at ActivityRez’ request and expense, You will execute documents and take such further acts as ActivityRez may reasonably request to assist ActivityRez to acquire, perfect and maintain such Intellectual Property Rights in the Feedback.
    3. You will exclusively own all rights, title and interest in and to Your Data. Your Data is deemed Confidential Information (as defined in Section 11) under this Agreement.
    4. All rights not expressly granted to You are reserved by ActivityRez. All trademarks, service marks, logos, trade names and any other proprietary designations of ActivityRez used herein are trademarks or registered trademarks of ActivityRez.
  11. Confidentiality.
    1. Definition and Exclusions.
      1. By virtue of this Agreement, the parties may have access to each other’s Confidential Information.
      2. “Confidential Information”, as used in this Agreement, means any written, machine-reproducible and/or visual materials that are labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure. ActivityRez Confidential Information includes, without limitation, the Service and any software used for the provision of the Service, whether in source or executable code, documentation, nonpublic financial information, pricing other than pricing publicly disclosed on ActivityRez’ website, business plans, techniques, methods, processes, and the results of any performance tests of the Service.
      3. Your Data is deemed Your Confidential Information.
      4. Confidential Information will not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
    2. Use and Nondisclosure.
      1. During the Term and for a period of five (5) years after expiration or termination of this Agreement, neither party will make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each party will take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein.
      2. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information. Furthermore, You acknowledges and agrees that, upon expiration or termination of the Agreement, ActivityRez will either destroy or deliver You Data back to You, and will have no other obligation to You regarding such You Data under this Agreement. You is prohibited from using their data in another competing system through direct connection to ActivityRez or in any other form other than standard reports provided by ActivityRez, without ActivityRez’s express permission.
  12. Warranty. ActivityRez provides the Service “As Is” with no warranty of any kind. You assumes sole responsibility and liability for results obtained from the use of the Service and for conclusions drawn from such use. You will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of You Data and any activity reservations or other output based upon Your use of the Service. You is solely responsible for acquiring and maintaining any business/government license necessary to conduct its business activities. ActivityRez will have no liability for any claims, losses, or damage caused by errors or omissions in any information provided by You, including, without limitation, You Data, in connection with the Service or any actions taken by ActivityRez at Your direction. WITHOUT LIMITING THE FOREGOING, ACTIVITYREZ MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE AND ACTIVITYREZ DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. ACTIVITYREZ FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ACTIVITYREZ FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ACTIVITYREZ OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
  13. Term and Termination.
    1. Term. Unless otherwise specified in the MOU, this Agreement will commence on the Effective Date and will continue in effect for a period of (1) one year, at which time it will automatically renew for additional periods of one (1) year, unless either party provides thirty (30) days’ notice of non-renewal before the end of any one (1) year period. If applicable, ordering any month-to-month plan will automatically renew for a subsequent month in perpetuity until cancelled by either party. If you are on a
    2. pay as you go plan then there is no automatic renewal. The initial (1) one year term and any renewal terms are collectively referred to herein as the “Term.”
    3. Early Termination Restrictions/Obligation to Pay All Fees. Early termination is allowed only for cause (You will not be entitled to a refund of any pre-paid Fees received by ActivityRez and any fees due according to the Term and Service plan selected by You for year two forward).
    4. Termination for Cause. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days (unless these payment terms are modified in writing by ActivityRez).
    5. Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, You and Your Authorized Users right to access and use the Service will immediately terminate, You and Your Authorized Users will immediately cease all use of the Service, and You will return to ActivityRez and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to ActivityRez or its licensors (including Third Party Materials). Upon expiration or termination of this Agreement, ActivityRez will have no obligation to deliver any copy of Your Data to You, and may delete Your Data at any time. Furthermore, upon expiration or termination of this Agreement, ActivityRez will cease use of Your Marks; provided, however, that (a) ActivityRez will have a reasonable time to remove Your Marks from ActivityRez’ marketing website as well as from any promotional materials, (b) ActivityRez will be entitled to distribute all of the promotional materials printed during the Term that include the You Marks, and (c) ActivityRez will not be required to remove any such printed materials from circulation.
    6. Survival. The rights and obligations of the parties contained in Sections 9.3, 10, 11, 12, 13.1, 13.2, 13.3, 13.4, 14, 15 and 16 will survive any expiration or termination of this Agreement.
  14. Indemnification
    1. Indemnification by ActivityRez. ActivityRez will defend (or settle) any suit or action brought against You to the extent that it is based upon a claim that the Service infringes or misappropriates the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against You. ActivityRez’ obligations under this section are contingent upon: (a) You providing ActivityRez with prompt written notice of such claim; (b) You providing reasonable cooperation to ActivityRez, at ActivityRez’ expense, in the defense and settlement of such claim; and (c) ActivityRez having sole authority to defend or settle such claim. In the event that ActivityRez’ right to provide the Service is enjoined or in ActivityRez’ reasonable opinion is likely to be enjoined, ActivityRez may obtain the right to continue providing the Service, replace or modify the Service so that it becomes non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to You (other than refunds for ActivityRez termination as set forth above). THE FOREGOING STATES THE ENTIRE OBLIGATION OF ACTIVITYREZ AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE. ActivityRez will have no liability under this section to the extent that any third-party claims described herein are based on any use of the Service in a manner that violates this Agreement or the instructions given to You by ActivityRez. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
    2. Indemnification by You. You will defend (or settle), indemnify and hold harmless ActivityRez, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from the use by You or by any Authorized User of the Service, or (ii) You Data, or the use by You or by any Authorized User of the Service in violation of this Agreement, infringes or violates the Intellectual Property Rights or other proprietary rights of a third party. Your obligations under this section are contingent upon: (a) ActivityRez providing You with prompt written notice of such claim; (b) ActivityRez providing reasonable cooperation to You, at Your expense, in the defense and settlement of such claim; and (c) You having sole authority to defend or settle such claim.
  15. Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS 7 OR 9.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. Notwithstanding any other provisions of this Agreement, in no event will ActivityRez’ aggregate liability to You and any Third party in connection with this Agreement OR Your ACCESS TO AND USE OF THE SERVICE exceed the total Fees paid by You IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION, regardless of the form OR THEORY of THE claim or action. in no event will ActivityRez’ aggregate liability to You and any third party in connection with its confidentiality and indemnification obligations hereunder exceed ONE HUNDRED THOUSAND DOLLARS ($100,000).
  16. Payment Gateways, Marketplace & Default Rate. Your plan may include access to one or more Payment Gateways offered through ActivityRez for an additional fee. In addition, some plans may REQUIRE using the ActivityRez payment gateway in order to continue use of the service, others are OPTIONAL and You may use any supported Gateway/Processor (ask ActivityRez for the current list of supported Gateways/Processors). These conditions are detailed in the MOU per the plan You have selected. In addition, You may have access to the ActivityRez Marketplace, presently called “ActivityDirect” (note, the name of the marketplace may change from time to time).
    1. Additional contractual obligations specific to the ActivityRez Marketplace (aka ActivityDirect). ActivityDirect presently uses Complete Merchant Solutions (https://secure.cmsonline.com/), Braintree Payment Solutions LLC (www.braintreepayments.com) and Vantiv (www.vantiv.com) for payment processing for Marketplace transactions. In order for You to use any of these payment processing services, You must enter into the Merchant Services Agreement (MSA) with either ActivityRez or the processor and if using a marketplace account, its sponsoring bank (if not using a marketplace account You may use their own merchant account). Braintree’s MSA is available at www.braintreepayments.com/agreements/merchant and Vantiv’s or CMS’s will be provided if that option is selected. If utilizing Braintree’s product (not available in all locations), by accepting this Agreement, You agree: (a) that you have downloaded, printed the MSA, and (b) that you have reviewed and agree to the Braintree MSA. Please note that ActivityDirect is not a party to the MSA and that you, Braintree and Braintree’s sponsoring bank are the three parties to the MSA and that ActivityDirect has no obligations or liability to you under the MSA. If you have questions regarding the MSA, please contact Braintree at 877.434.2894. If utilizing Vantiv’s product a separate agreement will be required.
    2. Default Rate. In order for resellers to sell your product through the ActivityDirect network you will be asked to provide a default rate and commission for your products available to all resellers in the ActivityDirect network.
    3. Recurring Payment Authorization  / Here’s How Recurring Payments Work
      1. Client authorizes regularly scheduled charges to Client’s Visa, MasterCard, American Express or Discover card.or via ACH (if in the US).  Client understands they will be charged the amount based on the terms of the MOU/SOW.  A receipt will be emailed to the Client and each charge will appear on their statement.  Client agrees that no prior-notification will be provided unless the date or amount changes, in which case they will receive notice from Activityrez at least 10 days prior to the payment being collected, however for any metered billing plans (ie. a % of overall transactions billed in arrears), Activityrez will either send Client the data used to calculate the billing or will provide Client online access to the same data.  If the client is using ActivityRez processing, they may be required to provide ACH information and attach a voided check in order to receive funds (form attached).
    4. Credit Card Processing Chargeback and Refund Procedures
      1. Client understands that an authorization code is not a guarantee of acceptance or payment of a transaction.  Receipt of an authorization code does not mean the Client will not receive a chargeback for the transaction.
      2. Funds deposited into this account will be owned by the Client, but will be held until such time that any contingent or unmatured liability known at the time related to refunds and chargebacks have been settled.  At that time, funds will be transferred via ACH payment to the account the Client specified in the Account Provisioning Information.
      3. In the event of refunds and chargebacks, funds will be first debited from the customer account before being debited from the Client account.  However, in the event the customer account cannot be debited or have sufficient funds, Client must maintain sufficient balances in the bank account they use for the ACH to cover any chargebacks that may be required that were previously not known as contingent and unmatured liabilities or you Client will be subject to additional insufficient fee charges.
    5. PCI Standards & Processor Choice.
      1. Client must comply with the requirements of the Payment Card Industry Security Standards (“PCI DSS”) whether using ActivityRez processing or not.  As a service provider ActivityRez will maintain all applicable PCI DSS requirements to the extent ActivityRez possess or otherwise stores, process, or transmit cardholder data on behalf of your customer, or to the extent that the Company could impact the security of Client’s customers cardholder data environment. Client understands that they must independently maintain their own PCI certification. It is recommended that the Client maintain a secure website using a SSL certificate (https).  If Activityrez is the payment processing platform for the Client, Client understands that all fees and chargebacks are the sole responsibility of you, the Client.  If ActivityRez discontinues support of a particular processor, Client may be required to change to a new processor of ActivityRez’s choosing, in order to continue to use the system.
    6. Credit Card Process & Provisioning.
      1. Funds in process will be held in trust and may be held in reserve (if a reserve is required).  Client may also have the option to use their own processing and merchant account for an additional fee.  All processing fee and availability subject to underwriting.  Shortly after engagement, once Client’s account is set-up, Client will receive instructions on how to log into the account management portal to review processed transactions.
  17. General.
    1. Governing Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of Hawaii, without regard to its conflict of law provisions, unless otherwise specified in the MOU. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in Maui County. You hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
    2. Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
    3. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
    4. Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
    5. Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
    6. Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
    7. Assignment. Neither party may assign this Agreement without prior written consent unless in connection with a merger, acquisition, or sale of all or substantially all of such party’s assets, and provided that the surviving entity has agreed to be bound by this Agreement.
    8. Entire Agreement. This Agreement together with the exhibits hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. Any modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.
    9. Equitable Relief. You and ActivityRez acknowledge that a breach by You or ActivityRez of any confidentiality or proprietary rights provision of this Agreement may cause either party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, either party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy will be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
    10. No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
    11. Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
    12. Notice. ActivityRez may give notice to You by e-mail to Your e-mail address on record in ActivityRez’ account information. You may give notice to ActivityRez by sending an e-mail to info@ActivityRez.com.
    13. Counterparts. This Agreement may be executed in counterparts, each of shall constitute an original, and all of which shall constitute one and the same instrument.

Contacting ActivityRez

If you have any questions about this Agreement, please contact ActivityRez at info@ActivityRez.com