TERMS OF SERVICE

“Starter”, “Small Business”, and “Growth” Plans

Incorporated Terms – Confidentiality; Warranties; Limitation of Liability; Company Data; Miscellaneous Policies

Last Updated January 18, 2023

The terms below are incorporated into, and form an integral part of, the Ability Commerce Terms of Service. Unless otherwise defined herein, capitalized terms shall have the meaning ascribed them in the Terms of Service. Any breach of the terms below will be deemed a material breach of the Terms of Service.

CONFIDENTIAL INFORMATION.

COMPANY agrees to observe complete confidentiality with respect to the SERVICE and to this AGREEMENT and its exhibits, and will not copy, reproduce, publicize, or otherwise disseminate it to third parties.
Ability Commerce agrees to observe complete confidentiality with respect to vendor information, customer information, product information, illustrations and business methods used by the COMPANY, and will not copy, reproduce, publicize, or otherwise disseminate it to third parties.
All information relating to COMPANY that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Ability Commerce and will not be disclosed or used by Ability Commerce except to the extent that such disclosure or use is reasonably necessary to the performance of Ability Commerce's Work.
1.4 All information relating to Ability Commerce that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by COMPANY and will not be disclosed or used by COMPANY except to the extent that such disclosure or use is reasonably necessary to the performance of COMPANY's duties and obligations under this AGREEMENT.
These obligations of confidentiality will extend for a period of two (2) years after the termination of this AGREEMENT but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
Any breach of confidentiality will automatically terminate this AGREEMENT. Both Ability Commerce and COMPANY agree that the remedies at law for breach of confidentiality are inadequate and that the harmed party will be entitled to equitable relief, including without limitation, injunctive relief, specific performance and/or other remedies in addition to remedies provided at law.
Survival. The terms of this Section will survive for as long as the Confidential Information remains confidential.

WARRANTIES.

Owner. Ability Commerce warrants that it is the lawful owner of the Ability CCS Retail Cloud Software and it has the authority to grant the License, sold as a monthly subscription Plan specified herein.
Compliance with Laws. Each Party represents and warrants that it is and shall remain in compliance with all applicable federal, state, and local laws, rules, and regulations applicable to such Party. That Ability Commerce has the authority to enter into the AGREEMENT and that it is the valid and binding obligation of Ability Commerce to provide the SERVICE in compliance with all applicable laws, rules, and regulations that Ability Commerce will perform the SERVICE in a skillful manner and in accordance with all applicable industry standards.
This WARRANTIES Section will survive any termination or expiration or these Terms.

LIMITATION OF LIABILITY AND INDEMNIFICATION.

Neither party will be liable to the other for special, indirect, or consequential damages incurred or suffered by the other arising because of or related to the use of the Software, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. Each party’s total liability under this AGREEMENT with respect to the Software, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by COMPANY under this agreement.
Each party agrees to indemnify the other party, its Affiliates, and their respective officers, directors, members, shareholders, employees, agents, assigns and successors, and shall hold them harmless against any losses, liabilities, damages, costs or expenses (including reasonable attorneys' fees) resulting from a third-party claim, arising out of or alleged to have arisen out of, (a) such party's breach of its obligations, representations or warranties under this AGREEMENT or (b) bodily injury, death or property damage caused by such party. The indemnified party agrees to give prompt written notice to the indemnifying party of any such claim; provided, that any delay in furnishing such notice shall not discharge the indemnifying party from its indemnification obligation hereunder, except to the extent such delay results in actual prejudice to the indemnifying party. The indemnifying party shall undertake and conduct the defense of any claim so brought. The indemnifying party shall keep the indemnified party advised of the progress of any such claim and the indemnified party shall have the right to participate in such claim at its own expense. If the indemnifying party shall fail to take timely action to defend any such claim, then the indemnified party may defend such claim at the indemnifying party's expense. The indemnifying party shall not have the right to settle, compromise or otherwise enter into any agreement regarding the disposition of any claim without the indemnified party's prior written consent, which may not be unreasonably withheld, except for a claim solely for monetary damages.
Ability Commerce indemnifies COMPANY for any claim suffered by COMPANY in the event the SERVICE infringes the IP rights of any third-party.
The Limitations of Liability set forth in this section shall not apply to a party’s damages arising from the other party’s negligence or willful misconduct.
This LIMITATION OF LIABILITY AND INDEMNIFICATION Section will survive any termination or expiration or these Terms.

ARBITRATION AGREEMENT, CLASS ACTION WAIVER AND MEDIATION.

Purpose. This Arbitration Agreement and Class Action Waiver (“Arbitration Agreement”) facilitates the prompt and efficient resolution of any disputes that may arise between you and Ability Commerce. For this Arbitration Agreement, “Ability Commerce” means Ability Commerce, Inc., a Florida corporation, and each of its affiliated companies, and each of their respective officers, directors, employees, and agents. This Arbitration Agreement applies to these Terms and any other agreement you may have with Ability Commerce.

Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial. You have the right to opt-out of this Arbitration Agreement (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.

Please read this Arbitration Agreement carefully. It provides that all disputes between you and Ability Commerce will be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this Arbitration Agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees, if otherwise authorized by applicable law).

The term “Dispute” means any dispute, claim, or controversy between you and Ability Commerce regarding any aspect of your relationship with Ability Commerce, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.

WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
Pre-Arbitration Dispute Resolution. For all Disputes you must first give Ability Commerce an opportunity to resolve the Dispute. You must commence this process by mailing written notification to:

Legal Department
Ability Commerce, Inc.
55 S.E. 2nd Avenue, 1st Floor
Delray Beach, FL 33444

That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If Ability Commerce does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.
Arbitration Procedures. If this Arbitration Agreement applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or Ability Commerce may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration will be commenced as an individual arbitration and will in no event be commenced as a representative or class arbitration. All issues will be for the arbitrator to decide, including the scope of this Arbitration Agreement.

For arbitration before the AAA, the AAA’s Commercial Arbitration Rules and the AAA’s Optional Rules for Emergency Measures Of Protection will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Arbitration Agreement governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action, representative action, or collective action procedures or rules apply to the arbitration.

Because your contract with Ability Commerce, these Terms, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”), if applicable, governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Exclusions from Arbitration/Right to opt Out. Notwithstanding the above, you or Ability Commerce may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court or equivalent in the applicable jurisdiction; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to

Legal Department
Ability Commerce, Inc.
55 S.E. 2nd Avenue, 1st Floor
Delray Beach, FL 33444

Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Ability Commerce through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Ability Commerce. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator’s award will be in writing, will be signed by the arbitrator, and will include a determination of all the questions submitted to the arbitrator the decision of which is necessary to determine the controversy. Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You may initiate arbitration in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution. If Ability Commerce initiates an arbitration, it may only do so in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution or the billing address for your account.
Payment of Arbitration Fees and Costs. Ability Commerce will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded by the arbitrator as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Ability Commerce as provided in the “Pre-Arbitration Dispute Resolution” Section and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover from Ability Commerce your actual and reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver. The parties agree that the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both you and Ability Commerce specifically agree in writing to do so following initiation of the arbitration. Neither you, nor any other user of the Services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding without having complied with the opt-out requirements above.
Limitation of Procedural Rights. You understand and agree that, by entering into this Arbitration Agreement, you and Ability Commerce are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and Ability Commerce might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). You give up those rights, to the extent permitted by applicable law. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.
Severability. If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.
Continuation. This Arbitration Agreement will survive the termination of your contract with Ability Commerce and your use of the Services.

Anti-Corruption, Export and Sanctions Compliance. With respect to these Terms, you represent, warrant, and agree that you:

have not and will not violate, or cause any party to be in violation of, any applicable anti-bribery or anti-corruption law (including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.S. domestic bribery statute in 18 U.S.C. 201, the U.S. Travel Act, or the UK Bribery Act 2010), anti-kickback laws, anti-money laundering and anti-terrorist financing laws, sanctions, embargoes, export controls, import controls, anti-fraud laws, or any other applicable law, regulation, or order (collectively, “Applicable ABAC Laws”);
have not and will not use or apply the SERVICE in violation of Applicable ABAC Laws;
have not and will not with a corrupt, improper, or illegal intention directly or indirectly (through third parties) pay, provide, promise, offer, authorize, solicit, or accept any money, gift, hospitality, entertainment, favor, financial advantage, or other thing of value to or from any individual, organization, political party, or entity whether in the public or private sector in any country in order to obtain, retain, or direct regulatory approvals, licenses, permits, business, contracts, investments, sales, tax or duty assessments, import or export clearances, foreign exchange clearances, or other advantages;
shall cause all your employees, officers, directors, agents, contractors, vendors, and partners (collectively, “Relevant Parties”) to comply with all the terms contained in this Anti-Corruption, Export and Sanctions Compliance Section;
are not, and will ensure that your Relevant Parties and customers are not, (a) nationals, residents, agents or representatives of Iran, Cuba, North Korea, Syria, the Crimea Region of Ukraine, or any other region subject to comprehensive U.S. sanctions; (b) on the List of Specially Designated Nationals & Blocked Persons, the Sectoral Sanctions Identifications (SSI) List, or Foreign Sanctions Evaders List maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, or any other applicable list of sanctioned, embargoed, blocked, criminal, or debarred persons maintained by any U.S. or non-U.S. government, the European Union, Interpol, the United Nations, the World Bank, or any other public international organization (each such list, a “Sanctions List”); (c) an entity that is 50% or more owned, individually or in the aggregate, directly or indirectly, by, is controlled by (including without limitation by virtue of such person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any person or entity on a Sanctions List; or (d) otherwise the target of any sanctions, suspensions, embargoes or debarment by the U.S. government or any other government or public international organization;
shall secure all necessary export/sanctions licenses or authorizations to the extent applicable and necessary;
shall implement an effective, risk-based compliance program and necessary internal controls (including, but not limited to, conducting sanctions screenings of your Relevant Parties and customers) to ensure compliance with Applicable ABAC Laws and this Anti-Corruption, Export and Sanctions Compliance Section;
shall reasonably cooperate with Ability Commerce to (a) ensure compliance with sanctions, embargoes, and other Applicable ABAC Laws and/or (b) review and remediate actual or potential violations of sanctions or other Applicable ABAC Laws, including, but not limited to, suspending, or terminating the supply of products or services to customers or other persons that appear on a Sanctions List or are otherwise the target of sanctions and other similar restrictions.

A violation of the foregoing representations, warranties, or covenants will constitute a material breach of these Terms, and, in the event of such a violation, Ability Commerce may, at its sole option, terminate these Terms for cause and without further liability or obligation on the part of Ability Commerce. Any such breach will entitle Ability Commerce to seek to be indemnified by you and/or obtain injunctive and other emergency or equitable relief, in addition to any other remedies which may be available under applicable laws.

COMPANY DATA.

Ownership of Data. Ability Commerce acknowledges and agrees that unless expressly stated elsewhere, Ability Commerce has no proprietary, financial, or other interest in COMPANY’s data.
Protection of Data. Ability Commerce will follow PCI guidelines to safely protect COMPANY data.

MISCELLANEOUS.

Payment Card Industry Data Security Standards (ABILITY CCS software)

As a payment application vendor, Ability Commerce hereby informs COMPANY of COMPANY’s responsibility to operate its business per the requirements of the Payment Card Industry Data Security Standards (PCI DSS). It is Ability Commerce's intent to remain up to date with and will make best efforts to comply with PCI DSS current standards. Ability Commerce will complete the following as part of the implementation and as required for any major changes to the payment application: Attestation of compliance; the SAQ-D for service providers and quarterly PCI vulnerability scans. This is required by the PCI standards counsel.

In the event of a breach that puts cardholder data at risk, the PCI Security Standards Council (PCI SSC) may step in and potentially manage the process (which may include risk assessment, mitigation, required remediation, etc.). As part of those efforts, the PCI SSC has the right to release to the public a variety of information regarding any security breach involving cardholder data. This could cause public relations damage to both Ability Commerce and COMPANY.

To assist COMPANY in meeting these critical requirements, a PA-DSS Implementation Guide has been written and will be provided to COMPANY. Ability Commerce is released of any liability should COMPANY fail to utilize this guide with the daily implementation and use of the SERVICE.
Intellectual Property.

User Content.

License. We do not claim any intellectual property rights over the content you provide to Ability Commerce. All your content remains yours. When providing content using the SERVICE (directly or indirectly), you grant us a non-exclusive, worldwide, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, patent, publicity, moral (where permitted), database, and/or other intellectual property rights (collectively, "IP Rights") you have in that content or associated with your business in connection with our provision of the SERVICE, in any media known now or developed in the future.
Representations and Warranties. You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under these Terms. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with these Terms, does not and will not infringe any IP Rights of any third-party. To the extent permitted by applicable law, Ability Commerce takes no responsibility and assumes no liability for any content provided by you or any third- party.

Ability Commerce Content.

Restrictions. All rights not expressly granted by Ability Commerce to you in these Terms are hereby reserved by Ability Commerce. There are no implied rights save to the extent rights cannot be excluded by applicable law. You may not use, imitate, or copy, in whole or in part, any Ability Commerce trademark, service mark, trade dress, logo, or other branding (collectively, “Marks”) without, in each instance, Ability Commerce’s prior written consent, in Ability Commerce’s discretion. All permitted use of Ability Commerce’s Marks will inure to the benefit of Ability Commerce.
Ownership. As between the parties, the SERVICE including, without limitation, any and all APIs, Software, documentation, images, video, content, logos, page headers, custom graphics, design and user interface elements, scripts, and other materials contained therein or provided in connection therewith, and all modifications, enhancements, and updates thereto, as well as all IP Rights associated with any of these materials (collectively, "Ability Commerce IP") are owned by Ability Commerce and/or its third-party sponsors, partners, and suppliers. You have no right or license in or to the Ability Commerce IP other than the right to use the SERVICE, in compliance with the Terms, during the applicable subscription period.

NON-ASSIGNMENT. Neither party will assign this AGREEMENT, in whole or in part, without the prior written consent of the other party. This AGREEMENT will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
DISPUTE. This AGREEMENT shall be governed by the laws of the State of Florida, and the venue for any dispute arising under this AGREEMENT shall be the Circuit Court, Palm Beach County, Florida.
USE OF NAME AND TRADEMARKS. COMPANY hereby grants Ability Commerce a non-exclusive right to use COMPANY’s name, trade names, trademarks, and service marks (collectively, “COMPANY’s Marks”) to promote the SERVICE excluding a COMPANY solely registered for the TRIAL SERVICE.
NOTICES. All notices required or permitted hereunder must be electronically communicated via email. Email communication originating from COMPANY to Ability Commerce is to be sent to sales@abilitycommerce.com. COMPANY consents to receiving email from Ability Commerce, including marketing emails, through the email address COMPANY representative provided which is associated with the SERVICE account. All notices from Ability Commerce intended for receipt by COMPANY shall be deemed delivered when sent to the email address COMPANY representative has provided to Ability Commerce. COMPANY agrees that all agreements, notices, disclosures, and other communications that are provided to COMPANY electronically satisfy any requirement that such communications be in writing.
RELATION OF PARTIES. The performance by Ability Commerce of its duties and obligations under this AGREEMENT will be that of an independent contractor, and nothing in this will create or imply an agency relationship between Ability Commerce and COMPANY, nor will this AGREEMENT be deemed to constitute a joint venture or partnership between the parties.
SEVERABILITY. If any term of this AGREEMENT is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this AGREEMENT will remain in full force and effect.
FORCE MAJEURE. Neither party will be held responsible for any delay or failure in performance of any part of this AGREEMENT to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control. COMPANY is not responsible for payment of SERVICE that is delayed due to Force Majeure.
NO WAIVER. The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in signed by the party waiving its rights. This AGREEMENT may be modified only by authorized representatives of the parties hereto. Parties are to provide any such notifications via email with pdf of signatured notification to sales@abilitycommerce.com.
ENTIRE AGREEMENT. Modification; Order of Precedence. This AGREEMENT constitutes the entire agreement between the parties relating to its subject matter and this AGREEMENT supersedes all prior agreements and understandings between the parties, oral or written, with respect to its subject matter and may not be changed unless mutually agreed upon in writing by both parties.