1. The Subscription Agreement.

1.1 Subscription Agreement. The Subscription Agreement is a contract made by and between Merchant and CDS. The Subscription Agreement will govern Merchant’s access to and use of the (a) Point2Go™ Merchant App effective as of the time it is electronically accepted by Merchant (“Point2Go™ Merchant App”), which has been made available via the Apple App Store, Google Play or other similar marketplace; and (b) all applicable technology and applications, which are designed to facilitate an online loyalty program for Merchant’s business and distribute offers, discounts and rewards to Merchant’s customers, including specifically the Point2Go™ consumer application and the Site (collectively, the “Subscription Services”). The Subscription Agreement is the complete and exclusive understanding and agreement between the parties and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Merchant’s access to and use of the Subscription Services.

1.2 Changes to the Subscription Agreement. CDS last modified this Agreement on the date stated at the beginning of this Agreement. CDS reserves the right, in its sole discretion, to change, modify, add, or remove all or part of any of the documents comprising the Subscription Agreement at any time and agrees to give Merchant notice of any material changes by posting such changes on the Site, emailing the changes to Merchant or posting the changes electronically via the Point2Go™ Merchant App. Merchant is advised to check the Site and Point2Go™ Merchant App from time to time for any changes or updates. Merchant’s continued use of the Subscription Services indicates its acceptance of the changes and updates.

 

2. Registration. In order to receive the Subscription Services, Merchant must (a) complete the Point2Go™ Merchant Request form and receive a Merchant ID from CDS; (b) download the Point2Go™ Merchant App; and (c) agree to the terms in the Subscription Agreement.

 

3. Using the Subscription Services

3.1 Offers. Merchant is solely responsible for the loyalty-based offerings made available to Customers (each an “Offer”). Offers and all of the related information, including branding, trademarks, logos, data, text, images, graphics (“Content”), are provided and solely determined by Merchant. Merchant is solely responsible for ensuring the accuracy, reliability, integrity, quality and validity of all Offers and Content.

3.2 Rewards.Merchant is solely responsible for fulfilling the terms of its Offers and determining the criteria for Customers to earn and redeem rewards, stamps, credits or incentives (“Rewards”). Merchant is solely responsible for honoring Rewards for eligible Customers who earn those Rewards and Merchant agrees not to withdraw or terminate any Offer after it has been made available to Customers without offering a reasonable alternative method for Customers to redeem any Rewards related to the Offer. Merchant shall indemnify CDS under Section 12 for any Customers’ claim related to Rewards.

3.3 Cost of Offers and Rewards. The cost of Offers and Rewards is solely the expense of the Merchant. CDS shall have no responsibility for any costs or expenses (including refunds) associated with Merchant’s Offers or Rewards and Merchants failure to issue, accept, fulfill or redeem any Rewards. Merchant shall indemnify CDS under Section 12 for any costs or expenses incurred by CDS related to Offers and Rewards.

3.4 Content.

a. By providing Content via the Point2Go™ Merchant App, Merchant grants CDS an irrevocable, perpetual, worldwide, royalty-free, non-exclusive, transferable, sublicenseable right and license to use, modify (for formatting and display purposes), publicly perform, publicly display, reproduce and distribute such Content on and through the Site and CDS’s related consumer applications. This license includes the right for CDS to make Content available to other users of the Subscription Services who may access and use your Content.

b. Although CDS assumes no responsibility for monitoring the Site and your use of the Subscription Services, including via the Point2Go™ Merchant App and Point2Go™ App for consumers, for inappropriate Content or conduct, CDS reserves the right at any time in its sole discretion to remove your Content for any or no reason, with or without prior notice or explanation, and without liability.

c. You must not upload, post, email, transmit or otherwise make available any Content that: (i) is deemed harassing, threatening, indecent, obscene, pornographic, libelous, defamatory or otherwise objectionable, unlawful or tortious, harmful to children, or which violates third party privacy rights, as determined by CDS in its sole discretion; (ii) is fraudulent, false, misleading or deceptive; (iii) will or may infringe the intellectual property rights of others; (iv) contains spam or otherwise duplicative or unsolicited messages in breach of any applicable laws, rules and regulations; or (v) contains software viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs.

d. You represent and warrant that you own or have the necessary licenses, rights, consents, permissions and releases for your Content and to grant the licenses and rights set out in this Agreement. You are also responsible for any fees, royalties or other monies owing by reason of any Content you provide.

e. The Service also contains Content provided by CDS, including, without limitation, text, images and logos (“CDS Content”). CDS Content is protected by copyright, trademark, patent, trade secret and other laws, and CDS owns and retains all rights in the CDS Content and the features and functionality of the Subscription Services. CDS hereby grants you a limited, revocable, non-sublicensable license to reproduce and display the CDS Content (excluding any software code) solely for use in connection with utilizing the Subscription Services.

3.5 Customer Disputes. Any disputes with Customers or third-parties regarding an Offer, Reward, your Content, or any other aspect of any transaction or commercial dealing related to your loyalty program is solely between you and your Customer or the third-party. Merchant shall indemnify CDS under Section 12 for any damages, costs or expenses incurred in responding to or otherwise related to a dispute between Merchant and its Customer or a third-party.

 

4. Using the Point2Go™ Apps.

4.1 You may only use the Point2Go™ Merchant App and the related consumer app, (the “Point2Go™ App” and collectively with the Point2Go™ Merchant App the “Point2Go™ Apps”) in accordance with (a) the Subscription Agreement, as updated by CDS from time to time in its sole discretion; and (b) all applicable laws, rules and regulations. You must design your loyalty program in accordance with the terms and conditions set forth in the Subscription Agreement.

4.2 You are solely responsible for: (a) your acts and/or omissions in connection with your use of the Subscription Services (including, but not limited to, any resulting loss or damage that CDS or any third party may suffer); and (b) any breach or failure to comply with your obligations under the Subscription Agreement, and the consequences thereof (including, but not limited to, any resulting loss or damage that CDS or any third party may suffer).

4.3 You acknowledge and agree that from time to time, and without prior notice, CDS may in its sole discretion: (a) release updates to the Point2Go™ Apps that you may need to install; or (b) prevent you from accessing the Point2Go™ Apps (permanently or temporarily) or certain features within the Point2Go™ Apps

4.4 In addition, you may occasionally experience interruptions, delays or errors when using the Point2Go™ Apps as a result of conditions beyond CDS’ control, technical problems or scheduled downtime for maintenance. CDS will try to minimize these incidents but CDS cannot prevent them from occurring.

4.5 Prohibited Activities. You must not: (a) use any deep-link, robot, spider or other device or process to access or acquire, copy or monitor any portion the Site or the Point2Go™ Apps; (b) attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or network connection to the Site, or to the Point2Go™ Apps by hacking, password mining or any other illegal means; (c) probe, scan or test the vulnerability of the Site, Point2Go™ Apps or any network connected thereto, nor breach the security or authentication measures on the Site, Point2Go™ Apps or any network or systems connected thereto; (d) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms in connection with any aspect of the Site or Point2Go™ Apps; (e) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or Point2Go™ Apps; (f) use any device, software or routine to interfere or attempt to interfere with the proper working of the Site, the Point2Go™ Apps or with any other person’s use of the Site or the Point2Go™ Apps; (g) interfere with or disrupt the Site, the Point2Go™ Apps or servers or networks connected to the Site; (h) collect or store personal data about users of the Site or Point2Go™ Apps other than in accordance with the Subscription Agreement and your use of the Subscription Services; (i) copy or reproduce all or any part of the Point2Go™ Apps or the Site, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization; (j) republish, upload, post, transmit, disclose, or distribute (in any format) the Site or the Point2Go™ Apps (or any part) except as permitted by the Subscription Agreement; (k) remove, relocate or otherwise alter any proprietary rights notices from the Site and the Point2Go™ Apps (or any part thereof); (l) modify, rent, lease, loan, sell, distribute, or create derivative works based on the Site or the Point2Go™ Apps in any manner; (m) exploit the Site, Subscription Services or the Point2Go™ Apps in any unauthorized way whatsoever; or (n) use or access the Point2Go™ Apps or Subscription Services for any benchmarking or competitive purposes.

 

5. Fees and Payment.

5.1 Prices. Prices for the Subscription Services are as set forth in the Point2Go™ Merchant Request Form and such price may be subject to sales tax. Payments are due monthly on the first business day of each month. Merchant must keep its billing information updated and if such information becomes inaccurate, the Subscription Services will be immediately suspended or terminated.

5.2 Refunds. The Subscription Services are provided “as is” and without any warranties; provided, however, CDS will fully refund Merchant’s payment if: (a) Merchant requests a refund from CDS within forty-eight (48) hours of downloading the Point2Go™ Merchant App and states that the Point2Go™ Merchant App does not function properly and the value of the Point2Go™ Merchant App cannot be substantially consumed or used; (b) Merchant terminates the Subscription Services, pursuant to Section 6.2(a) or (b), and notice of such termination was received by CDS within the first fifteen (15) days of the month (and, with respect to Section 6.2(b), CDS has failed to cure the breach within the fifteen (15) day cure period); or (c) CDS immediately (and without notice) terminates Merchant’s access to the Subscription Services pursuant to Section 6.2(c) below. Refunds are for payments actually made and shall not exceed the amount paid in any more than two months.

 

6. Term and Termination.

6.1 Term and Termination. The term of the Subscription Agreement and the Subscription Services will continue on a month-to-month basis and will automatically renew at the start of each calendar month unless terminated by either party as follows:

a. Merchant may terminate the Subscription Services and Subscription Agreement at any time for no specific reason. If Merchant terminates, Merchant shall provide at least sixty (60) days’ advance notice to its Customers that it is terminating its use of the Point2Go™ Apps and will allow Customers to continue participating in any existing Offers and redeem Rewards for such sixty (60) day notice period.

b. Either party may terminate the Subscription Services and Subscription Agreement by giving the other party upon written notice (email sufficing) if the other party has breached a material provision of the Subscription Agreement and the termination shall be effective: (i) if the breach is not capable of being cured, immediately; (ii) if the breach is non-payment of subscription fees, five (5) business days from notice unless payment is received; (iii) if for any other breach capable of being cured, thirty (30) days after the breaching party receives notice of the breach, unless the breach is cured or if cure would reasonably take longer than 30 days, that breaching party has initiated good faith steps to cure within the 30 day period.

c. CDS may terminate the Subscription Services, immediately and without notice, if it is determined that the Subscription Services or Point2Go™ Merchant App: (i) infringes or otherwise violates the intellectual property rights of a third party; (ii) violates any applicable law, regulation, card association rule, or is subject to an injunction; or (iii) has a virus, malware or spyware. In the event of this termination, CDS will provide a refund pursuant to Section 5.2 above.

d. With respect to the termination rights set forth in subsections (a) and (b) above, the Subscription Services will continue during any applicable notice or cure period and will be deemed terminated at the end of such period, which shall be considered the “termination date.”

e. Upon termination, Merchant shall lose access to all data stored within the Point2Go™ Apps and Subscription Services, effective as of the termination date.

6.2 Survival of Terms. Any provisions that by their nature require survival in order to be effective, shall survive the termination of this Agreement.

 

7. Protection and Use of Information; Privacy Policy.

7.1 All information that CDS collects from Merchants and their Customers is protected by and subject to CDS’s Privacy Policy, which is available for review on the Site.

7.2 In addition to the uses permitted by the Privacy Policy, CDS may use Merchant’s contact information (available to CDS via the Point2Go™ Merchant App) to (a) provide Merchant with information about activating and using particular features of the Subscription Services; (b) provide Merchant with service-related notifications, including, but not limited to, notification of planned service outages; and (c) provide Merchant with updates and information about the success of its loyalty program. Merchant will have the right to opt-out of any communications, except service-related notifications, from CDS. CDS may share information regarding Merchant’s participation in the Point2Go™ App program, Merchant’s location, hours of operation and Merchant’s Offers and Rewards.

7.3 CDS will share Customer names and related information with Merchant, as permitted by Customers in connection with their registration for and use of Merchant’s loyalty program.

7.4 Merchant will not use or release any Customer information (including to CDS) except with such Customer’s express consent, including in connection with a Merchant’s marketing campaign to potential customers and CDS’ assistance with such marketing. Merchant will abide by and is solely responsible for all applicable laws and regulations in connection with its use or release of Customer’s and potential customer’s information.

 

8. Technology.

Merchant acknowledges that the Subscription Services, the Point2Go™ Merchant App, and any CDS equipment, database, software and other technology used to provide the Subscription Services and operate the Site (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of CDS. Merchant will not, and will not permit any third party to: (a) alter, modify, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of Technology; (b) interfere in any manner with the operation of the Technology or attempt to gain unauthorized access to the Technology; (c) sublicense, delegate, or transfer any of Merchant’s rights or obligations under this Agreement, including, without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties, or otherwise make available the Technology to any third party; or (d) use the Technology except as explicitly permitted by the Subscription Agreement.

 

9. Ownership and Licensing (End User License Agreement).

9.1 CDS grants to you a personal, non-exclusive, non-transferable, revocable license to download and use the Point2Go™ Merchant App on devices owned by you and to access and use the Site for your internal business use only in accordance with the Subscription Agreement and without the right to sub-license or assign in any way. CDS may from time to time upgrade, update or modify the Point2Go™ Merchant App, release new versions of the Point2Go™ Merchant App or create new related modules, each of which may, at CDS’ sole discretion, be included in this license. For the avoidance of doubt, this license is provided by CDS or its agents, subcontractors, representatives or employees.

9.2 All intellectual property rights in or related to and all data collected through the Point2Go™ Merchant App and the Site are and remain the sole and exclusive property of CDS and its licensors, and all right, title and interest associated with the Point2Go™ Merchant App and the Site not expressly granted by CDS under the Subscription Agreement are withheld.

9.3 You are not granted any rights or license in or to the CDS or Point2Go™ names, trademarks, service marks, graphics or logos, which are and will remain the sole and exclusive property of CDS.

9.4 Subject to the license granted to CDS in Section 3.4 a., all intellectual property rights in or related to your Content are and remain your sole and exclusive property, and all right, title and interest associated with your Content, not expressly granted by you herein, are withheld. You hereby irrevocably waive and cause to be waived against CDS any claims and assertions of moral rights or attribution with respect to your Content.

9.5 The licenses granted hereunder may be subject to other licenses currently held by us or our subcontractors. Should any license held by us to certain technology or software be terminated or suspended, the corresponding license(s) granted to you hereunder may also be terminated or suspended in our sole and absolute discretion. You acknowledge and agree to such potential termination or suspension and hereby waive any and all damages, whether actual, incidental or consequential resulting therefrom.

 

10. Disclaimers of Warranties

10.1 THE SITE AND THE Point2Go™ MERCHANT APP ARE PROVIDED “AS IS” AND “AS AVAILABLE.” CDS EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES AND CONDITIONS OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, CDS MAKES NO WARRANTY THAT: (A) THE SUBSCRIPTION SERVICES AND Point2Go™ MERCHANT APP WILL MEET MERCHANT’S REQUIREMENTS; (B) THE SUBSCRIPTION SERVICES AND Point2Go™ MERCHANT APP WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SUBSCRIPTION SERVICES AND Point2Go™ MERCHANT APP WILL BE ACCURATE, TIMELY, OR RELIABLE; OR (D) THE QUALITY OF SUBSCRIPTION SERVICES AND Point2Go™ MERCHANT APP WILL MEET MERCHANTS EXPECTATIONS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSIONS OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.

10.2 CDS HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSSES YOU MAY INCUR FROM UNAUTHORIZED USE OF YOUR Point2Go™ ACCOUNT, EITHER WITH OR WITHOUT YOUR KNOWLEDGE. HOWEVER, YOU COULD BE HELD LIABLE FOR LOSSES INCURRED BY CDS OR ANOTHER DUE TO THE UNAUTHORIZED USE OF YOUR Point2Go™ ACCOUNT AND YOU WILL INDEMNIFY AND HOLD CDS HARMLESS FOR ANY IMPROPER OR ILLEGAL USE OF THE SUBSCRIPTION SERVICES.

10.3 CDS DOES NOT REVIEW OR MONITOR MERCHANT CONDUCT OR ANY PROMOTIONAL CONTENT INPUT INTO A Point2Go™ MERCHANT APPLICATION. ACCORDINGLY YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF PROMOTIONAL CONTENT IS AT YOUR SOLE RISK. CDS HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSSES YOU MAY INCUR RELATING TO YOUR CONDUCT OR PROMOTIONAL CONTENT.

10.4 THE SITE MAY INCLUDE LINKS TO OTHER WEBSITES PROVIDED BY THIRD PARTIES. CDS HAS NO CONTROL OVER THE CONTENT OF THOSE WEBSITES. CDS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY SUCH WEBSITES, THEIR CONTENT OR THEIR PRIVACY PRACTICES. CDS WILL NOT BE RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO, ANY LOSS OR DAMAGES CAUSED BY USE OR RELIANCE ON ANY CONTENT, FEATURES, GOODS OR SERVICES MADE AVAILABLE THROUGH SUCH WEBSITES. CDS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION ENTERED INTO BY YOU IN CONNECTION WITH OTHER WEBSITES PROVIDED BY THIRD PARTIES.

 

11. Limitation on Liability.

11.1 YOU WILL HAVE NO CLAIMS AGAINST CDS AND IN NO EVENT WILL CDS, ITS AFFILIATES OR ITS LICENSORS BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS INCURRED BY YOU, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, COMPENSATORY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR PERSONAL INJURY, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF PRIVACY, LOSS OF PROFITS OR REVENUE INCURRED BY YOU OR ANY THIRD PARTY IRRESPECTIVE OF WHETHER WE HAVE BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS ARISING FROM YOUR ACCESS TO, OR USE OF, OR INABILITY TO USE THE SITE OR THE Point2Go™ MERCHANT APP.

11.2 IF THE DISCLAIMERS OR LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FOR ANY REASON HELD BY A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION TO BE VOID, UNENFORCEABLE OR INAPPLICABLE, SUCH PROVISIONS WILL BE LIMITED OR ELIMINATED TO THE MINIMUM EXTENT NECESSARY AND REPLACED WITH A VALID PROVISION THAT BEST EMBODIES THE INTENT OF THE SUBSCRIPTION AGREEMENT, PROVIDED, IN NO EVENT WILL THE AGGREGATE LIABILITY OF CDS OR ITS AFFILIATES TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THE SUBSCRIPTION AGREEMENT OR YOUR ACCESS TO AND USE OF THE SITE, THE SUBSCRIPTION SERVICES, OR THE Point2Go™ MERCHANT APP EXCEED THE AMOUNT OF SIX MONTHS OF FEES ACTUALLY PAID FOR THE Point2Go™ MERCHANT APPS, REGARDLESS OF THE FORM OR THEORY OF THE ACTION OR CLAIM.

 

12. Indemnification and Waiver.

12.1 BY USING THE SUBSCRIPTION SERVICES AND Point2Go™ MERCHANT APP, MERCHANT AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD CDS, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS (INCLUDING THIRD PARTY CLAIMS) ARISING OUT OF (A) THE SUBSCRIPTION AGREEMENT; (B) MERCHANT’S USE OR ACCESS TO THE SUBSCRIPTION SERVICES, THE SITE AND Point2Go™ MERCHANT APP; (C) THE CONTENT INCLUDING, WITHOUT LIMITATION, YOUR FAILURE TO HONOR ANY OF YOUR COMMITMENTS REGARDING OFFERS AND REWARDS.

12.2 YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM CDS, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS AS A RESULT OF ITS DECISION TO (A) REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, (B) WARN YOU, SUSPEND OR TERMINATE YOUR ACCESS TO THE SITE AND THE Point2Go™ MERCHANT APP, OR (C) TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF CDS' CONCLUSION THAT A VIOLATION OF THE SUBSCRIPTION AGREEMENT HAS OCCURRED.

12.3 ALL CLAIMS, CONTROVERSIES AND DISPUTES ARISING OUT OF THE SUBSCRIPTION AGREEMENT, USE OF THE Point2Go™ MERCHANT APP OR OTHERWISE RELATING TO THE SERVICES SHALL BE RESOLVED INDIVIDUALLY WITHOUT RESORT TO ANY CLASS ACTION OR OTHER COLLECTIVE LITIGATION. MERCHANT HEREBY WAIVES ANY RIGHT TO RECOVER DAMAGES OR ANY OTHER RELIEF AS A MEMBER OF A CLASS OR SIMILAR COLLECTIVE ACTION.

 

13. Notice. Any notice, consent, approval and other communication (“Notice”) provided to CDS by Merchant under the Subscription Agreement must be delivered in writing by email to point2go@cdsus.com. CDS may provide Notice to Merchant under the Subscription Agreement by (a) posting of a general notice on the Site or via the Point2Go™ Merchant App, (b) electronic mail to Merchant’s email address on record with CDS, or (c) certified or registered mail (postage prepaid and return receipt requested) to Merchant’s address on record. Merchant consents to receiving Notice as described in the preceding sentence and agrees that all Notices received electronically will satisfy any legal requirement that Notices be in writing. Any Notice sent under this Section 13 will be effective upon either receipt, expiration of forty-eight (48) hours after posting to the Site, or twelve (12) hours after sending (if sent by email), whichever occurs earliest.

 

14. Governing Law and Venue. The Subscription Agreement will be governed by the laws of the State of Washington, USA, including conflict of laws principles. The parties hereby irrevocably consent to jurisdiction and venue in the state and federal courts sitting in the county of King County, Washington. In any such dispute, the prevailing party will be entitled to recover its reasonable attorneys’ fees and expenses from the other party. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THE SUBSCRIPTION SERVICES, THE Point2Go™ APPS AND USE OF THE SITE.

 

15. General

15.1 A failure by CDS to enforce any right or provision of the Subscription Agreement will not constitute a waiver by CDS of future enforcement of that right or provision or any other right or provision.

15.2 If any provision of the Subscription Agreement is held to be invalid or unenforceable, that provision will be inoperative only to the extent necessary and will be severed from the remainder of the Subscription Agreement. The rest of the Subscription Agreement will remain in full force and effect.

15.3 Except as specifically stated, no third party will have any rights under, or be able to enforce, the Subscription Agreement.

15.4 You may transfer your subscription and the Rewards awarded to your Customer as part of a transfer or sale of your business or the assets thereof by completing transfer forms provided by CDS. Except as authorized by such transfer process, you must not assign or transfer any of your rights or obligations under the Subscription Agreement, in whole or in part, by operation of law or otherwise, without the prior written approval of CDS.

15.5 The Subscription Agreement establishes an independent contractor relationship between you and CDS, and does not create any affiliate relationship, partnership, joint venture, employment relationship, agency, or fiduciary or other special relationship between you and CDS. Except as expressly stated in the Subscription Agreement, neither party has the authority to act or purport to act as the other party's agent or representative for any purpose.

15.6 The Subscription Agreement constitutes the entire and complete legal agreement between you and CDS regarding its subject matter, and completely replaces any prior or contemporaneous agreements or understanding, written or oral, between you and CDS regarding its subject matter. Each party acknowledges that it has not relied on any oral or written representations made to it other than as expressly set out in the Subscription Agreement. Nothing in this Section 15.6 will limit or exclude your liability for fraud.

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