klosebuy merchant terms

KLOSEBUY MERCHANT AGREEMENT AND TERMS OF USE

1. GENERAL

This KloseBuy Merchant Agreement and Terms of Use ("Agreement"), which is a legal agreement between you (“You” or “Your” or "Merchant”) and KloseBuy, Inc., a Delaware corporation ("KloseBuy"), shall govern Your use of and access to the KloseBuy merchant website portal, mobile applications, and connected services (“Platform”). By Your signing up for the Platform, either directly through the KloseBuy website located at www.KloseBuy.com (“Website”), or indirectly through a third-party provider, or by checking or clicking any acceptance boxes on the Website, and/or submitting or entering any information on Your business to use the Platform, You (a) accept this Agreement and agree to be bound by each of its terms, and (b) represent and warrant to KloseBuy that (i) You are at least 18 years of age and have the authority to enter into this Agreement, (ii) this Agreement is binding and enforceable against You, (iii) to the extent an individual is accepting this Agreement on behalf of an entity, such individual has the right and authority to agree to all of the terms set forth herein on behalf of such entity, and (iv) You have read and understand KloseBuy's Privacy Policy, the terms of which are posted on the Website and incorporated herein by reference (the "Privacy Policy"), and agree to abide by the Privacy Policy. KloseBuy may amend this Agreement from time to time, and each of which amendments shall be deemed to be effective after posting the updated Agreement at the Website. During the length of this Agreement, KloseBuy will provide the Platform as described in the Website and this Agreement. In the event of any inconsistency among terms and conditions contained in the Website and this Agreement, the order of control shall be this Agreement, then the Website terms and conditions. For purposes of clarity, the terms and conditions of this Agreement and those terms and conditions contained within the Website are incorporated by reference and govern your use of the KloseBuy Platform.

2. INTELLECTUAL PROPERTY RIGHTS.

KloseBuy is the sole and exclusive owner of all right, title and interest in and to any data provided to KloseBuy by your customers or any end user to KloseBuy in connection with the KloseBuy Platform, including without limitation all e-mail and/or other contact information (“Customer Data”). As such, you shall not, unless the applicable customer has separately taken all steps necessary to opt in to provide contact information to you through the Platform, be provided with or otherwise have access to the Customer Data. KloseBuy owns all right, title and interest in and to the KloseBuy Platform (which includes, for purposes of clarity, all software and/or mobile applications related thereto) including, without limitation, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto. Except as set forth in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the KloseBuy Platform, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.

KloseBuy hereby grants to you a limited, non-transferable, non-exclusive, revocable license to access and use KloseBuy’s Platform for internal business purposes so long as your account with KloseBuy remains current and active. If KloseBuy provides you with a password to access the Platform, you are solely responsible for protecting the password and for any authorized or unauthorized use made of the password. The Platform, and all source code, object code, software, copyrights and other intellectual property associated therewith, are and shall remain the sole and exclusive property of KloseBuy. You shall refrain from permitting any third party to use your password or otherwise access the Platform. KloseBuy shall have the right to terminate the license granted hereby immediately in the event that you have breached any terms or conditions set forth in the Agreement, including the failure to keep Your payment account current.

Without limiting any of KloseBuy’s rights set forth in the Agreement, KloseBuy reserves the right, in its sole discretion but without any obligation on its part, to reject, remove, delete and/or cancel any information or content displayed on the Website, any portion of the KloseBuy Platform, and/or within any print materials, including without limitation any information and/or content that, in KloseBuy’s view, contains content or links which do not meet KloseBuy’s specifications or requirements. In addition, KloseBuy shall be entitled, in its sole discretion and without notice to any party, to redesign and/or modify all or any portion of the KloseBuy Platform (including without limitation any mobile application and/or software) at any time.

3. RESTRICTIONS.

You: (i) will use the KloseBuy Platform solely for Your internal business purposes; and (ii) will not, for You, any of Your affiliates or any third party (a) modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the KloseBuy Platform, (b) sell, rent, lease, license or sublicense, assign, distribute, or transfer the KloseBuy Platform, (c) copy any tangible versions of the KloseBuy Platform, or (d) remove from any of the KloseBuy Platform any language or designation indicating the confidential nature thereof or the proprietary rights of KloseBuy. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the KloseBuy Platform where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. KloseBuy retains the right, in its sole discretion but without any obligation on the part of KloseBuy to monitor or evaluate any communications, to approve, modify or refuse any KloseBuy-related communications or proposed communications or messages to Your customers or any KloseBuy end users.

You shall not use the Platform or any communications service, chat room, message board, blog, forum, newsgroup, or other interactive service that may be available to You on or through the Platform to post, transmit, convey, facilitate, submit, distribute, store or destroy, or otherwise make available any information or content, including texts, emails, push notifications, communications, software, images, sounds, data, photographs, descriptions, drawings, content, audio materials, messages or other information (collectively, "Posted Information"): (a) that is false, misleading or inaccurate in any way; (b) that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information or limit the functions of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any other party; (c) that is defamatory, obscene or trade libelous; d) contains explicit or graphic descriptions or accounts of sexual acts, including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals; e) includes any inside information and/or proprietary or confidential information learned or disclosed under nondisclosure agreements; f) in a manner that will infringe the intellectual property rights of others; g) in violation of any applicable law, statute, ordinance or regulation; or h) in violation of the any acceptable use policy or other policy posted within the Platform from time to time. You shall not violate or attempt to violate the security of the Platform.

You may not use the Platform for any purpose that: a) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, or otherwise violates KloseBuy's rules or policies; b) victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability, or any other classification protected by law; c) invades any person's or entity's privacy or other rights; d) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling; e) misidentifies You or impersonates any person or entity, including, without limitation, any employee or representative of KloseBuy, or falsely states, implies, or otherwise misrepresents Your affiliation with a person or entity by, for example, pretending to be someone other than You or pretending to represent a company or organization that You are not affiliated with or authorized to represent; or f) could otherwise reasonably be deemed or viewed to be unethical, illegal or offensive.

You may not knowingly solicit or collect personal information from a child 12 years old or younger without appropriate prior verifiable parental consent. You may not take any action on the Platform or use the Platform content to harm minors in any way. You may not use the Platform or Platform content in a manner that violates any state or federal law regulating commercial e-mail, facsimile transmissions or telephone solicitations.

Other than what is permissible within the Platform, You may not modify, re-render, frame, mirror, truncate, add to, inject, filter or change the order of the information contained on any page of the Platform for any purpose without our express written consent. You may not copy, use, edit, translate, reverse engineer, decompile, modify, derive, or reproduce any code or source relating to the Platform, including without limitation, any service or product KloseBuy offers.

You may not use any page-scrape, deep-link, robot, crawl, index, spider, click spam, macro programs, Internet agent, or other automatic device, program, algorithm or methodology which is intended to approximate any of the foregoing actions, to use, access, copy, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor any portion of the KloseBuy Website and/or Platform or take any action in respect of merchants and/or other company information listed at the KloseBuy Website and/or Platform from time to time.

You may not cause to appear any pop-up, pop-under, exit windows, expanding buttons, banners advertisement, or anything else which minimizes, covers or otherwise inhibits the full display of the Platform. You may not use the Platform in any way that depletes the Platform infrastructural resources, slows the transferring or loading of any Platform page or interferes with the normal operation of the Platform. You may not upload or transmit to the Platform any device, software, program or file that may damage the operation of any computer or the Platform, including without limitation, viruses or corrupt files. You may not violate the restrictions in any robot exclusion header. You may not disguise the origin of information transmitted to, from, or through the Platform. You may not circumvent any measures implemented by KloseBuy Inc. aimed at preventing violations of this Agreement. When you use the Platform or any information included therein for an authorized purpose, you must include all proprietary notices without changing, hiding or deleting them.

4. FEES; PRICING AND PAYMENT TERMS; TAXES.

KloseBuy’s current fees for the KloseBuy Platform are set forth on either the Website, Platform, or applicable third party re-seller website. KloseBuy reserves the right to amend the fees payable for the KloseBuy Platform at any time upon thirty (30) days’ prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next Subscription Period.

When you provide your payment information to KloseBuy, you are providing KloseBuy with an authorization to process any and all payments as outlined in this Agreement. In certain instances, the payment processing may not occur immediately, and your payment may show as “pending” during this time period. In addition, KloseBuy may request an authorization for the amount of your anticipated transaction in advance and may estimate the final value of the transaction, which may be more than the amount of the actual transaction. KloseBuy will release any funds authorized in excess of the amount of the actual transaction at the time the transaction settles. You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the KloseBuy Platform.

Notwithstanding anything herein to the contrary, KloseBuy, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use all or any portion of the KloseBuy Platform, at any time, upon electronic or other notice to you, if you have not paid all amounts due on or before the payment due date, or for any other breaches of this Agreement, or any other exhibits, addenda or attachments to this Agreement or links contained in this Agreement, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by KloseBuy to collect any unpaid amounts owed by you.

5. TERM; TERMINATION; SURVIVAL.

The KloseBuy Platform Agreement term, as further described below, is effective when You sign up and select a Subscription Plan, and agree to these terms and conditions on either the Website, Platform, or applicable re-seller website. You may amend Your Subscription Plan to include additional KloseBuy features through Your Web profile. When You make changes through Your Web profile, You are providing explicit authorization for KloseBuy to process payment on Your existing KloseBuy account and method of payment without any further authorization necessary from You.

The Agreement will remain in full force, and Your Subscription Plan will automatically renew on a month–to–month Subscription Plan at the then-current rates. If You select a Subscription Plan and choose to pay the annual fees in advance, Your Subscription Plan will automatically renew for successive 1-year terms upon expiration of the initial term of any Subscription Plan at the then-current applicable rates as indicated in Your profile section of the Platform.

A merchant may cancel its Subscription Plan through the profile section in the Platform, thereby terminating this Agreement. Once terminated, Your Subscription Plan will no longer renew under the applicable terms. If not otherwise cancelled, at the end of any Subscription Plan (monthly or yearly, as applicable), Your Subscription Plan will automatically be renewed on an annual or monthly (as applicable) basis at the then-current applicable rates as indicated in Your profile section of the Platform. Current fees will be charged to the credit card or ACH on file as indicated in Your profile section of the Platform, and KloseBuy is not responsible for notifying a customer of an automated renewal. There are no refunds for payments paid.

KloseBuy may terminate the Agreement and/or your access to the KloseBuy Platform in the event you fail to remain current in all fees due and owing to KloseBuy or in the event you breach any of your obligations under the Agreement.

In the event of any termination of the Agreement or the KloseBuy Platform, KloseBuy shall be entitled to send e-mail and/or other communications to some or all of your loyalty program members, notifying each such member of your termination of the KloseBuy Platform. In addition to the foregoing permissible e-mail, KloseBuy shall be entitled to take other actions, at its discretion, to assist your loyalty program members in protecting the points earned within the KloseBuy Platform and providing them an opportunity to redeem points earned.

Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect.

6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

(i) KloseBuy warrants that KloseBuy has the authority to enter into this Agreement.

(ii) You represent, warrant and covenant to KloseBuy that: (a) You have the authority to enter into this Agreement; (b) you will only use the KloseBuy Platform for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and (c) you will not use the KloseBuy Platform to send any e-mail or other communications which violate any applicable regulation, rule, industry protocol or law (including, without limitation, the CAN-SPAM Act).

(iii) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, KLOSEBUY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, KLOSEBUY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO ANY MINIMUM LEVEL OF UPTIME FOR THE KLOSEBUY PROGRAM OR THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT USING ANY KLOSEBUY PROGRAM OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF KLOSEBUY PROGRAMS OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. KLOSEBUY PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND UNDER NO CIRCUMSTANCES SHALL KLOSEBUY BE LIABLE TO YOU OR ANY OTHER PARTY ON ACCOUNT OF ANY DOWNTIME WITHIN ANY KLOSEBUY PLATFORM OR APPLICATION.

7. CONFIDENTIAL INFORMATION.

Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of KloseBuy. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.

8. CONFIDENTIALITY; NON-SOLICITATION.

You agree to treat as confidential all Confidential Information of KloseBuy, not to use such Confidential Information for any purpose other than to the limited extent necessary to use the Platform and not to disclose such Confidential Information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, You shall use at least the same degree of care which You use to prevent the disclosure of Your own confidential information of like importance to prevent the disclosure of Confidential Information disclosed by KloseBuy, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. In addition, during the Term and for a period of one year thereafter, You shall refrain from directly or indirectly soliciting, enticing, persuading or inducing any individual who is then, or has been within the 1-year period prior to the applicable date, an employee of KloseBuy to terminate employment with KloseBuy or to become employed by or enter into contractual relations with any other individual or entity.

9. DISPUTE RESOLUTION; GOVERNING LAW.

In the event of a points dispute or mistake between a Merchant and User, KloseBuy may in its sole discretion and without liability of any kind unilaterally make adjustments to User points (it being understood that KloseBuy shall not be (i) obligated to make any such adjustment or otherwise get involved with or provide any assistance towards resolving any such dispute, or (ii) be liable to any party for any damages, expenses or liabilities arising out of any such dispute). To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. This Agreement is governed by the State of Florida and you expressly agree to the exclusive jurisdiction for any claim or dispute with KloseBuy in the federal and state courts within the jurisdiction of the United States District Court for the Southern District of Florida. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.

10. INDEMNIFICATION.

You will defend, indemnify, and hold KloseBuy and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your breach of this Agreement, your negligence or misconduct, any dispute you may have with any other party in connection with the KloseBuy Platform or otherwise related in any way to any KloseBuy Platform, your unauthorized use or misuse of the KloseBuy Platform or any unauthorized combination of any KloseBuy Platform with any hardware, software, products, data or other materials not specified or provided by KloseBuy.

11. LIMITATION OF LIABILITY.

KloseBuy’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by You to KloseBuy under the Agreement during the twelve (12) months preceding the date on which the applicable claim occurred. To the maximum extent permitted by applicable law, in no event will KloseBuy be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services or the KloseBuy Platform, however caused and regardless of theory of liability. In addition, KloseBuy will not be liable for damage (physical or otherwise) incurred by you upon any asset or property from the installation or removal of any KloseBuy product and will not be responsible for replacement or cost of repair if damages occur. This limitation will apply even if such damages were foreseeable and you have been advised or are aware of the possibility of such damages.

12. NOTICE.

Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to KloseBuy customer service personnel (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally.

13. ASSIGNMENT.

You may not, without the prior written consent of KloseBuy, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void; provided, however, that in the event of a sale of substantially all of your assets or equity to a third party or any merger of your entity with or into a third party, this Agreement shall be deemed, without any further action on the part of any party, to automatically be assigned to and assumed by the acquirer in such transaction and as such, shall be binding on such acquirer. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.

14. NO THIRD PARTY BENEFICIARIES.

The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.

15. AMENDMENT; WAIVER.

This Agreement may be changed by KloseBuy upon posting an updated version of the Agreement at KloseBuy’s Website, Platform, and/or within an applicable re-seller website, any such change to become effective seven (7) business days after posting such updated version of the Agreement as described above. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.

16. SEVERABILITY.

If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.

17. FORCE MAJEURE.

Neither party shall be liable to the other if such party is prevented from performing any of its obligations under the Agreement (excluding fee payment obligations) due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by You to KloseBuy provided prior to the force majeure event.

18. INDEPENDENT CONTRACTOR.

The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

19. COMPLIANCE WITH LAWS.

Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.

20. ENTIRE AGREEMENT.

The Agreement, or any other exhibits, addenda or attachments to this Agreement or links contained in this Agreement, which are incorporated by reference herein, constitute the entire agreement between KloseBuy and You with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.

21. CONNECTIONS - TERMS OF USE.

The following terms shall, in addition to all of the other terms set forth in this Agreement, govern your use of KloseBuy’s “Connections”, which, at a general level, allows You to communicate with KloseBuy members. If You violate any of these terms, KloseBuy, in addition to any other rights or remedies that KloseBuy may have hereunder or otherwise, may suspend or terminate Your account. You shall, as a condition to making any use of Connections, be required to follow these terms of use:

a. You will not send Spam. You are responsible to know current anti-SPAM and similar regulations that may be in effect from time to time, and as a general rule, the sending of mass emails to persons without their permission is Spam.

b. You represent and warrant that Your use of Connections will comply with all applicable laws and regulations. You are responsible for determining whether KloseBuy’s Platform, and more specifically Connections, are suitable for you to use in light of any regulations such HIPAA, GLB, EU Data Privacy Laws and/or other laws. If You are subject to regulations (such as HIPAA) and you use Connections or the Platform services, then KloseBuy will not be liable if any such service does not meet those requirements.

c. You shall refrain from using an outside unsubscribe process.

d. You shall refrain from using Connections to send anything offensive, to promote anything illegal, to harass anyone, or to publish confidential or otherwise private information. Not limiting the foregoing, You may not send emails or push notifications: (i) displaying pornography or other sexually explicit communications; (ii) offering to sell illegal goods or services; (iii) that violate CAN-SPAM Laws or any other applicable laws or regulations: (iv) that share Your password; (v) that advertise or otherwise promote a competing product to KloseBuy; (vi) that import or incorporate any Social Security numbers, passwords, security credentials, or sensitive personal information of any kind.