These Terms of Service (the “Terms”) govern Your (hereinafter “You”, “Your”, “Yours”, and/or “Merchant”) access to and use of the marketplace, services, and products offered and/or provided by VIDEOCHECKOUT, INC. (hereinafter “Video Checkout”), including Video Checkout’s various websites, SMS, APIs, email notifications, applications, buttons, widgets, ads, and commerce services (the “Services”), and any information, products, text, graphics, photos, videos, links, or other materials uploaded, downloaded or appearing on the Services (collectively referred to as “Content”). You hereby understand and acknowledge that Your use of the Service shall be subject to the terms and conditions set forth these Terms. Your access to and use of the Services are conditioned on Your acceptance of and compliance with these Terms. By accessing or using the Services You agree to be bound by these Terms.
Description of Services
Video Checkout provides a unique internet-based and application-based interface that allows individuals or businesses or organizations (“Seller(s)”) to market and sell goods, services or request donations to interested customers (“Buyer (s)”) by a direct sale and shopping cart software built into a digital video feed or display. Video Checkout is not directly involved in the transaction between Buyers and Sellers. As a result, Video Checkout has no control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of Sellers to sell items or the ability of Buyers to pay for items. Video Checkout does not pre-screen users or the content or information provided by users. Video Checkout cannot ensure that Buyers or Sellers will actually complete a transaction. Consequently, Video Checkout does not transfer legal ownership of items from Sellers to Buyers.
You must have an existing ability to process transactions through a payment service provider approved by Video Checkout. Video Checkout is not a payment service provider and You will not be able to utilize the Service without does without a merchant account with a payment service provider approved by Video Checkout. Video Checkout shall in no way be obligated to provide the Services to You and reserves the right to refuse to provide the Services set forth in these Terms to any individual, business, and/or other business, for any reason.
Your User Name and Password
Once Your application for a Video Checkout account has been approved, as provided herein, and You have either executed or acknowledged these Terms, You will receive a Video Checkout Account (“Account”). You will be provided with a unique user name and password which can be used to log on to the gateway portal provided by Video Checkout for the purpose of accessing data and information related to transactions settled in Your Account, the fees charged under these Terms, and Your Account profile (hereinafter the “Merchant Portal”). You may utilize the temporary user name and password which Video Checkout provides You with, or after logging into the Merchant Portal, You may choose a new user name and password. You are to protect the integrity of Your user name and password and shall not disseminate Your user name or password to any individual who is not directly authorized by Video Checkout to access data and information related to transaction settled in Your Account.
You will be charged a monthly fee of $79 for the Services provided by Video Checkout pursuant to these Terms, which shall be charged in the currency of the United States. Video Checkout may adjust, increase, change, or add fees and/or charges for the Services at any time upon providing written notice to You, and such fees and/or charges shall be immediately payable by You when assessed by Video Checkout. If Video Checkout elects to change or add fees pursuant to this provision, You may terminate these Terms upon providing written notice to Video Checkout of Your desire to do so. If You fail to object to the changed or added fees within thirty (30) days of receiving notice from Video Checkout of the addition or change, You shall waive any right to object, and shall continue to be bound by the terms and conditions of these Terms and any added or changed fees addressed in the notice sent to You.
The Video Checkout Service been designed to integrate with the payment processing services provided by MojoPay. Video Checkout may require that you apply for and obtain a merchant account with MojoPay before You are permitted to receive the Services. Video Checkout may refuse to provide the Services to You unless and until You obtain a MojoPay merchant account and obtain a merchant identification number. Your Service Fees will be charged by and paid to MojoPay, who will forward those fees on to Video Checkout.
Refund / Cancellation Policy
You will be granted a seven (7) day trial period upon signing up for Video Checkout. You may cancel without a charge to your credit card within this seven (7) day trial period. After Your initial trial period comes to an end, Your credit card will be charged and your billing cycle will begin.
If You would like to cancel your Video Checkout account, You must contact Support@VideoCheckout.com to request the cancellation.
You have been asked to submit a “Video Checkout Merchant Application Form” (“Application”) and to provide information therein concerning Your business, including but not limited to, the business name, address, contact information, business type, website, average and maximum transaction size, monthly volume, customer service, employment identification number/social security number, bank account numbers, routing number, information pertaining to the products that You market and sell, the pricing of Your products, and additional information pertaining to Your business and products as required by Video Checkout (hereinafter “Required Information”). If You refuse to provide the Required Information, or if any of the Required Information that You provide is in any way inaccurate, You will forfeit the right to receive the Services, and Video Checkout may immediately terminate Your use of the Services. Once the Application has been submitted to Video Checkout, You may be contacted by a Video Checkout representative, and a request for additional information concerning Your products, pricing, and marketing strategies may be required. This additional information shall be treated by Video Checkout as “Required Information,” as defined above.
License to Use the Services
Video Checkout gives You a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software that is provided to You by Video Checkout as part of the Services. This license is for the sole purpose of enabling You to use and enjoy the benefit of the Services as provided by Video Checkout, in the manner permitted by these Terms. This license may be revoked by Video Checkout at any time. You shall not acquire any ownership of, right to, or entitlement to utilize the software.
You are responsible for Your use of the Services, for any Content You post in utilizing the Services, and for any consequences thereof. The Content You submit, post, or display will be viewable by other users of Services and through third party services and websites. You should only provide Content that You are comfortable sharing with others under these Terms.
You may use the Services only if You can form a binding contract with Video Checkout, are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction, or otherwise restrictions based upon agreements to which You are party. If You are accepting these Terms and using the Services on behalf of a company, organization, government, or other legal entity, You represent and warrant that You are authorized to do so. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rule and regulations.
The Services that Video Checkout provides are always evolving and the form and nature of the Services that Video Checkout provides may change from time to time without prior notice to You. In addition, Video Checkout may stop (permanently or temporarily) providing the Services (or any features within the Services) to You or to users generally and may not be able to provide You with prior notice. We also retain the right to create limits on Your use of the Services at our sole discretion at any time without prior notice to You.
If You use any Video Checkout Service, You are responsible for maintaining the confidentiality of Your account and password and for restricting access to Your computer, and You agree to accept responsibility for all activities that occur under Your account or password. Video Checkout does sell products for children, but it sells them to adults, who can purchase with a credit card or other permitted payment method. If You are under 18, You may use the Video Checkout Services only with involvement of a parent or guardian. You may not use another user’s account. If You are registering as a business entity, You personally guarantee that You have the authority to bind the entity to these Terms. Video Checkout reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion. Video Checkout cannot and will not be liable for any loss or damage arising from Your failure to comply with the above.
All content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. When You use the Services others are able to see what You purchase or donate. We may not monitor or control the Content posted via the Services and, we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Services or obtained by You through the Services is at Your own risk.
We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Services or endorse any opinions expressed via the Services. You understand that by using the Services, You may be exposed to Content that might be offensive, harmful, in accurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will Video Checkout be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere.
When You use any Video Checkout Service, or send e-mails to us, You are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with You by e-mail or by posting notices on this site or through the other Video Checkout Services. You agree that all agreements, notices, disclosures and other communications that we provide to You electronically satisfy any legal requirement that such communications be in writing.
One or more patents owned by Video Checkout apply to the Services and to the features and services accessible via Video Checkout. Portions of the Video Checkout Services operate under license of one or more patents, which shall remain the sole and exclusive property of Video Checkout.
Parties other than Video Checkout provide services, or sell products or request donations using the Video Checkout Service. In addition, we may provide links to the sites of affiliated companies and certain other businesses. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals or the content of their Web sites. Video Checkout does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.
Risk of Loss
All items purchased using the Video Checkout Service are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to You upon our delivery to the carrier.
Listing and Selling
All products, services and requested donations offered through the Services must be for sale or purchase. By listing an item through the Services, a Seller warrants that the Seller and all aspects of the item comply with VideoCheckout’s published policies. The Seller also warrants that he, she, or it may legally sell the item. All sales are binding. Sellers must accurately describe the item, service or donation request and all terms of sales in their listings. If multiple quantities of an item are made available through a single listing, all items in that listing must be identical. In other words, each unique item must have its own listing.
Sellers must outline their terms of sale for their Video Checkout listing and provide Terms and Conditions on their website or vide and inform Buyer of Terms and Conditions in the confirmation email. Buyers are able to receive an unconditional refund within 15 minutes of purchase.
Sellers are responsible for enforcing their own Terms and Conditions. Video Checkout reserves the right to request that a Seller modify their policies.
Sellers are responsible to ship or deliver orders or otherwise complete the transactions with Buyer in a prompt manner, unless there is an exceptional circumstance, such as: (a) a Buyer fails to meet the terms of the Seller’s listing (such as payment method), or (b) the Seller cannot authenticate the Buyer’s identity.
Sellers must establish and consistently implement the ability to properly handle their customer inquiries regarding transactions, returns, exchanges, refunds, product inquiries, and the like. If Video Checkout determines, in its sole discretion, may immediately terminate these Terms and refuse to provide Sellers with the Services.
Sellers shall establish, maintain and disclose to their customers a fair and consistent policy for the exchange or return of merchandise, give proper credit or refund for all such exchanges or returns and issue credit vouchers for amounts due their customers. Sellers shall be solely liable for the amount of any return or exchange, and any fees, costs, expenses, associated with or related to the return or exchange. Sellers shall be responsible for establishing, implementing, and maintaining a risk monitoring policy with respect to excessive returns received from their customers.
All losses incurred by Video Checkout attributable to Sellers use of the Services or transactions with their customers will be a Seller’s sole responsibility, including without limitation, all chargebacks, fines, fees, expenses, and other costs.
Any expenses that You incur in connection with Sellers transacting business and processing transactions as contemplated under these Terms, or incurred in performing pursuant to these Terms, including but not limited to transportation, meals, lodging, entertainment, fees to other persons, agents, or advisers, state taxes, federal taxes, salaries, penalties, interest, damages, fines, costs, or liabilities that arise from or are related to Sellers’ duties and obligations set forth in these Terms, shall be paid solely by Seller.
You understand and hereby acknowledge that You shall be solely responsible for any tax liabilities, including but not limited sales, use, excise, or other taxes, arising from Your business activities or the specific transactions that You process through or with Video Checkout.
Video Checkout shall have the right to demand an inspection of Your Business premises, records, practices and policies, during regular business hours, upon written notice of said inspection having been given to You. Video Checkout shall also have the right to demand an audit of Your Business premises, records, practices, policies, or the transactions that You have processed through or with Video Checkout. If Video Checkout demands such an audit, You shall be responsible for all fees, costs, and expenses arising from the audit.
Compliance with Applicable Rules and Regulations
You shall abide by and be in full compliance with all applicable state, federal, and local laws, statutes, rules, regulations, guidelines and procedures with respect or in any way related to Your transactions ( “Applicable Rules and Regulations”).
Prohibited Business Activities
By utilizing the Services, You also hereby agree that you will not accept any payments from any individual, business, and/other entity, or otherwise conduct any business which is in any way related to or could be regarded as: (1) any illegal activity; (2) affiliate marketing; (3) credit repair services; (4) debt counseling or consolidation services; (5) pharmaceuticals or neutraceuticals; (6) telemarketing; (7) prepaid illegal drugs or illegal drug paraphernalia; (8) alcohol; (9) sales in any foreign currency; (10) betting, gambling, or any other wagers; (11) transactions with high risk of returns or chargebacks; (12) cross-marketing or up-sell businesses; (13) telemarketing; (14) adult entertainment; and/or (15) firearms or weapons.
You will honor any valid credit or debit card (hereinafter the “Card” or “Cards”) properly tendered for use that falls within Your designated categories of acceptance, check each Card for validity and currency, and examine one or more Card security features before completing a Card transaction. When accepting any Card and completing any Card transaction, You must follow all procedures and rules set forth in, or incorporated by reference into, these Terms, including but not limited to, obtaining authorization for all sales transactions from the holder of the Card (hereinafter “Cardholder”). In the event Video Checkout, for whatever reason, is unable to obtain, or due to system delays chooses not to wait to obtain, authorization from its Bank, who is unable to obtain or chooses not to wait to obtain authorization from an Association, Video Checkout may at its option “stand-in” for such entities and authorize the sales transaction based on criteria established by Video Checkout, and You shall remain responsible for such sales transaction as if it was actually settled in accordance with these Terms. Any authorization obtained by You shall be noted by You in the appropriate place on the sales transaction. All sales transactions and credit vouchers will be on forms acceptable to Video Checkout or in a format approved by Video Checkout in writing, and will be completed to include the Cardholder’s signature, the signature of the authorized user (if different), the date, a description of the merchandise sold or services rendered, and the total charges therefor. At least one copy of the sales transaction receipt or credit voucher will be electronically delivered to the Cardholder. All sales transactions that You deliver to Video Checkout will represent the obligations of a Cardholder in amounts set forth therein for merchandise sold or services rendered only and shall not involve any element of credit for any other purpose.
Card Sales or Donations
You shall only complete and deliver to Video Checkout sales transactions or donation transactions produced as the direct result of bona fide sales made by You to Cardholders and for only those products and/or services identified by You, for Video Checkout, in connection with Your Application. You shall obtain VideoCheckout’s prior written approval before accepting Cards for the purchase of products and/or services not identified on Your Application. You are expressly prohibited from processing, factoring, laundering, offering and/or presenting to Bank sales transactions which are produced as a result of sales made by any person or entity other than Yourself.
Account Servicing Documents
You shall only complete and deliver to Video Checkout sales transactions or donation transactions produced as the direct result of bona fide sales made by You to Cardholders and for only those products and/or services identified by You, for VideoCheckout’s, in connection with Your Application. You shall obtain VideoCheckout’s prior written approval before accepting Cards for the purchase of products and/or services not identified on Your Application. You are expressly prohibited from processing, factoring, laundering, offering and/or completing sales transactions through the Services which are produced as a result of sales made by any person or entity other than Yourself.
You retain Your rights to any Content You submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, You grant Video Checkout a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (no known or later developed).
You agree that this license includes the right for Video Checkout to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Video Checkout for the syndication, broadcast, distribution or publication or such Content on other media and services, subject to our terms and conditions for such Content use.
Such additional uses by Video Checkout, or other companies, organizations or individuals who partner with Video Checkout, may be made with no compensation paid to You with respect to the Content that You submit, post, transmit or otherwise make available through the Services.
We may modify or adapt Your Content in order to transmit, display or distribute it over the computer networks and in various media and/or make changes to Your Content as are necessary to conform and adapt that Content to any requirements or limitations or any networks, devices, services or media.
You are responsible for Your use of the Services, for any Content You provide, and for any consequences thereof, including the use of Your Content by other users and our third party partners. You understand that Your Content may be syndicated, broadcast, distributed, or published by our partners and if You do not have the right to submit Content for such use, it may subject You to liability. Video Checkout will not be responsible or liable for any use of Your Content by Video Checkout in accordance with these Terms. You represent and warrant that You have all the rights, power and authority necessary to grant the rights granted herein to any Content that You submit.
Video Checkout Rights
All right, title, and interest in and to the Services (excluding Content provided by users) are and will remain the exclusive property of Video Checkout and its licensors. Nothing in the Terms gives You a right to use the Video Checkout name or any of the Video Checkout logos, domain names and other distinctive brand features. Any feedback, comments, or suggestions You may provide regarding Video Checkout, or the Services is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to You.
Restrictions on Content
Your content shall not: (i) be false, inaccurate, or misleading; (ii) be fraudulent or involve the sale of illegal, counterfeit or stolen items; (iii) infringe upon any third-party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy; (iv) violate these Terms, and Video Checkout policies or guidelines, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (v) contain items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) as hazardous to consumers and therefore subject to a recall; (vi) be defamatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including Video Checkout staff or other users), or falsely state or otherwise misrepresent Your affiliation with any person, through for example, the use of a similar email address, nickname, create of a false account or any other method or device; (vii) interfere with a Seller’s business or listings; or (viii) take any action that may undermine online reviews or feedback.
Restrictions on Use
You may not do any of the following while accessing or using the Services: (i) access, tamper with, or use non-public areas of the Services, VideoCheckout’s computer systems, or the technical delivery systems of Video Checkout providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Video Checkout (and only pursuant to those terms and conditions), unless You have been specifically allowed to do so in a separate agreement with Video Checkout; (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; (v) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services; (vi) host images not part of a listing; (vii) appear to create liability for Video Checkout or cause Video Checkout to lose (in whole or in part) the services of VideoCheckout’s ISPs or other suppliers; (viii) link directly or indirectly, reference or contain descriptions of goods or services that are prohibited under these Terms, or other policy or guideline documents as posted on Video Checkout; or (ix) list any item for sale through the Services that, by paying to Video Checkout the listing fee or the final value fee, could cause Video Checkout to violate any applicable law, statue, ordinance or regulation, or that violates the Terms.
Video Checkout respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to noticed of alleged copyright infringement that comply with applicable law and are properly provided to us. If You believe that Your Content has been copied in any way that constitutes copyright infringement, please provide us with the following information:
- A physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Your contact information, including Your address, telephone number, and an email address;
- A statement by You that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and, under penalty of perjury, that You are authorized to act on behalf of the copyright owner.
We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to You. In appropriate circumstances, Video Checkout will also terminate a Your Account if You are determined to be a repeat infringer.
Termination of Services
The Terms will continue to apply until terminated by either You or Video Checkout as provided below. You may end Your agreement with Video Checkout at any time for any reason by deactivating Your Account and discontinuing Your use of the Services. You do not need to specifically inform Video Checkout when You stop using the Services. If You stop using the Services without deactivating Your account, Your account may be deactivated due to prolonged inactivity.
We may suspend or terminate Your account or cease providing You with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe; (1) You violated these Terms or any Video Checkout policy or guideline; (2) You fail to pay or reimburse the fees, expenses or charges referenced herein when they become due; (3) You fail to abide by VideoCheckout’s policies and procedures; (5) You fail to abide by the Applicable Rules and Regulations; (4) You fail to provide accurate information to Video Checkout, whether incident to your opening of a Video Checkout account or Video Checkout application; (6) You fail to sell a minimum gross transactional volume per month established by Video Checkout; (7) You are subject a voluntarily or involuntarily bankruptcy proceeding or becomes financially insolvent; (8) Video Checkout believes in its reasonable discretion that there has been a material deterioration in Your financial condition, Your business, or the reputation of Your business; (9) You cease to do business; (10) there is a change of ownership which affects more than 30% of Your then outstanding ownership; (11) Your representations as set forth herein are discovered to be false; and (12) the Required Information is inaccurate or false; (13) You create risk or possible legal exposure for Video Checkout; or (14) our provision of the Services to You is no longer commercially viable. We will make reasonable efforts to notify You by the email address associated with Your account or the next time You attempt to access Your account.
If Your Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by these Terms, (b) to immediately stop using the Services, (c) that Video Checkout shall reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (d) that Video Checkout shall not be liable to you or any third party for termination of access to the Services or for deletion of your information or account data.
If Video Checkout terminates a listing or Your account, if You close Your account, or if they payment of Your Video Checkout fees cannot be completed for any reason, You remain obligated to pay Video Checkout for all unpaid fees plus any penalties, if applicable.
Disclaimers and Limitations of Liability
Please read this section carefully since it limits the liability of Video Checkout and its parents, subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the Video Checkout Entities”). Each of the subsections below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer or implied warranties or the limitation of liability in contracts, and as a result the contents of this section may not apply to You. Nothing in this section is intended to limit any rights You may have which may not be lawfully limited.
- The Services are Available “As-Is” Your access to and the use of the Services or any Content are at Your own risk. You understand and agree that the Services are provided to You on an “As Is” and “As Available” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, THE VIDEOCHECKOUT ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. The Video Checkout entities make no warranty and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services of any Content; (ii) any harm to Your computer system, loss of data, or other harm that results from Your access to or use of the Services or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; and (iv) whether the Services will meet Your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained for the Video Checkout Entities or through the Services, will create any warranty not expressly made herein.
- Links The Services may contain links to third-party websites or resources. You acknowledge and agree that the Video Checkout Entities are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the Video Checkout Entities of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from Your use of any such websites or resources.
- Limited Liability TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE VIDEOCHECKOUT ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCENDENTAL, SPECIAL, CONSWQUENTIAL OR PUNIITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER I NCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE OF THE SERV ICES; (II) ANY CONDUST OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, I NCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (III) ANY CONTENT OBTAINED FROM THE SERVICES; (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL THE AGGREGATE LIABILIYT OF THE VIDEOCHECKOUT ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID VIDEOCHECKOUT, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICE SGIVING RISE TO THE CLAIM. THE LIMITATION OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT, (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE VIDEOCHECKOUT ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
You release Video Checkout Entities from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with disputes with one or more user, or an outside party.
You hereby agree to indemnify, defend, and to hold harmless, including the payment of attorney’s fees, Video Checkout, its officers, directors, shareholders, affiliates, and agents, from and against any and all liability, claims, losses, judgments, lawsuits, decrees, disputes, demand, proceeding, or anything of the like, arising out of or related to: (1) any dispute between You and any other user of Video Checkout with respect or related to any transaction processed by or through Video Checkout; (2) the accuracy of any information provided by You to Video Checkout; (3) any alleged infringement of another party’s intellectual property rights; (4) Your breach of the duties, terms, obligations, representations, and/or warranties set forth in this Terms of Service; (5) Your failure to protect the identity of Customers and other information which the Customer or any other regulating agency might regard as private and confidential; and/or (7) Your negligence, misrepresentation, omission, or fraud which results in liability, loss, or damage to Video Checkout.
Intellectual Property/Ownership of Services.
You hereby understand and acknowledge that in entering into these Terms, it has obtained a non‑exclusive, non-assignable, non-transferable, and right to use the Services only. Video Checkout shall at all times retain exclusive ownership of the Services, including any intellectual property rights in the Services, as between You and Video Checkout, including without limitation, any materials delivered to You hereunder and any invention, development, product, trade name, trademark, service mark, software program, or derivative thereof, developed in connection with providing the Services or during the term of these Terms. Video Checkout further retains all rights, title, interest, and ownership, as between You and Video Checkout, in all data and other information provided to You by Video Checkout in performing pursuant to these Terms. All designs, marks, art, images, and logos (the “Marks”) related to Video Checkout are registered trademarks of Video Checkout or its affiliates, or in the case that trademarks have not been registered, Video Checkout and its affiliates, and specifically, the Banks and Card Associations, shall retain all rights, title, interest, and ownership in the Marks. You may not copy, imitate or use the Marks without our prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks of Video Checkout. You may not copy, imitate, or use the Marks without VideoCheckout’s prior written consent. All rights, title, interest, and ownership in and to the Video Checkout website, any content thereon, the technology related to the Services, and any and all technology and any content created or derived from any of the property discussed in this Paragraph, shall remain the exclusive property of Video Checkout.
Waiver and Severability
The failure of Video Checkout to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
Agreement to Arbitrate
You and Video Checkout agree that any claim, dispute, or controversy arising out of or related to these Terms shall be submitted to final and binding arbitration before JAMS, or its successor, in Orange County, California, in accordance with the laws of the State of California (including but not limited to the California Arbitration Act), before a single arbitrator agreeable to the Parties. The arbitration shall be conducted pursuant to the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time of the filing of the demand for arbitration, which You can access and review at http://www.jamsadr.com/rules-comprehensive-arbitration/. The arbitration fees shall be equally split and shared by You and Video Checkout. If either Video Checkout or You refuse to submit an alleged claim, dispute, or controversy arising out of these Terms to arbitration, the refusing party shall have waived, and will be unable to recover any fees and costs incurred, if they would otherwise be available to that party in any such action.
The above agreement to arbitrate shall not operate to deprive a party of its right to obtain provisional, injunctive, or other equitable relief from a court of competent jurisdiction, pending dispute resolution and arbitration. For purposes of any proceeding for provisional, injunctive, or other equitable relief, the parties consent to the jurisdiction of, and venue in, the court of the State of California in Orange County, California.
Choice of Law and Jurisdiction
These Terms and any arbitration or action related thereto will be governed by the laws of the State of California, without regard to or application of its conflict of law provisions or Your state or country of residence. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in the federal or state courts located in Orange County, California, United States, and You consent to the jurisdiction of a venue in such courts and waive any objection as to inconvenient forum.
If You are a federal, state, or local government entity in the United States using the Services in Your official capacity and legally unable to accept the controlling law, jurisdiction or venue clause above, then those clauses do not apply to You. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of California (excluding choice of law).
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
These Terms of Service constitutes the entire understanding and agreement of the parties with respect to the subject matter of these Terms, and supersedes all prior agreements or understandings, written or oral, between the Parties with respect to the subject matter of these Terms. These Terms of Service supersede all other agreements and/or understandings between the Parties, both written and oral, with respect to the matters set forth herein. The Parties may choose to amend and/or modify the terms of these Terms. Any such amendment or modification must be confirmed in writing with the express consent of the Parties.
Advice of Counsel/Interpretation
The Parties to these Terms, and each of them, hereby confirm and admit that each has read and understands these Terms, and that each has either been fully advised and represented by counsel or has had the opportunity to seek the advice of counsel, with respect to these Terms and all negotiations giving rise to it. These Terms is the result of the negotiations of the Parties, and each has had significant input into the drafting and construction of these Terms, and thus, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of these Terms. The Parties understand and agree that these Terms shall be construed fairly as to all parties and not in favor of or against any of the parties regardless of which party has prepared these Terms, such that the application of California Civil Code section 1654, providing “[i]n cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist,” is hereby waived.
In the event that one or more of the provisions, or portions thereof, of these Terms is determined to be illegal or unenforceable, the remainder of these Terms shall not be affected thereby and each remaining provision or portion thereof shall continue to be valid and effective and shall be enforceable to the fullest extent permitted by law.
These Services are operated and provided by Video Checkout, Inc.
26800 Aliso Viejo Parkway Aliso Viejo, CA 92656