You have elected to download software for the Quick Codes Mobile Wallet©, which is a service that allows you to process card based transactions using the Qwick Codes Mobile Wallet Application and a MagneSafeâ„¢ Secure Card Reader Authenticator. (SCRA) (the "Services"). The following are the terms governing your use of the Services (the "Terms"). By clicking "I Accept" below, you agree to be bound by all the Terms, all applicable laws, and any additional terms or conditions to which you may agree with Magensa from time to time, and that the Terms constitute a binding agreement between you and the provider of the Services, Magensa, LLC, a Delaware limited liability company, and each of its affiliates, parent company and subsidiaries (Magensa, LLC and its affiliates, parent company and subsidiaries being referred to collectively in these Terms as "Magensa") and each of their successors and assigns. There may not be any oral agreement between you and Magensa. Please review the Terms periodically to see whether they have changed. If you violate the Terms, you may be prohibited from using the Services or barred from future use of the Services, notwithstanding that you have purchased approved hardware, and Magensa may bring legal action against you. The Terms constitute a valid, binding and enforceable legal agreement between you and Magensa, and Magensa reserves the right to change the Terms at any time, and from time to time, by posting a link to, or posting, the changes to the Terms where these Terms are posted. Such change will be effective with respect to you commencing the first time that you use the Services after such changes have been posted.
Eligibility and Access to Services
The Services are available only to individuals who are legally able to form a legally binding contract under applicable law. In order to use the Services, you must register with Magensa. As part of that registration, you will receive a user name and password. You are solely responsible for maintaining the confidentiality of your user name and password and are fully and solely responsible for all actions that occur under your user name and password. If, in the course of using the Services, any information you provide (whether during the registration process or otherwise) cannot be verified or authenticated, you may be prohibited from using the Services.
Either you or Magensa may terminate the Services immediately upon notice to the other. Magensa may provide such notice by electronic communication to you or by a posting a link to, or posting, the termination notice where these Terms are posted. Any notice given by Magensa by such posting will be effective immediately upon the posting.
Use of Approved Hardware
You may use the Services only in connection with the MSCRA or other hardware that has been approved by Magensa for use with the Services (the "Hardware"). No other hardware may be used with the Services. You may be prohibited from using the Services if you use any unapproved hardware. A list of approved hardware is available from Magensa by contacting email@example.com
In exchange for your use of the Services, you agree: (1) to use only the Hardware in connection with the Services and not any unapproved hardware; (2) to provide Magensa with current, complete and accurate user information; (3) to update such information as necessary to ensure that it remains current, complete and accurate; (4) not to use the Services for any unlawful purpose; (5) not to impersonate any person or entity; (6) not to interfere with or disrupt networks connected to the Services or violate the regulations, policies or procedures of such networks; (6) not to attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, by any means; and (7) not to engage in any other conduct that, in Magensa's sole and absolute discretion, may be considered unauthorized, illegal or objectionable.
Magensa reserves the right, in its sole and absolute discretions, to modify, suspend or discontinue any part of or all the Services at any time, for any reason whatsoever, with or without notice to you. Magensa also reserves the right, in its sole and absolute discretion, to impose limits on certain features and services and to restrict access to any or all of the Services at any time, for any reason whatsoever, with or without notice to you. You agree to these limitations, notwithstanding that you may have purchased Hardware. Magensa will not be liable to you or any other person or entity for any claim, action, liability or otherwise arising out of Magensa's exercise of any such rights. Any such modifications may result in a change in the way you use the Services.
Service Outages; Third Party Providers
Magensa does not warrant that the Services will always function or be error-free. In addition, you understand that your use of the Services requires systems and services provided by third parties. You acknowledge that you understand that Magensa has no responsibility for any such third parties and you agree that Magensa cannot and will not be liable for any of their acts or omissions. These third parties include, without limitation, payment processors, merchants, banks, financial institutions or networks, credit card issuers, telecommunications carriers, third party software developers (such as, without limitation, developers and providers of operating systems for "smart phones" and other mobile devices), internet service providers, and third party manufacturers of "smart phones" or other mobile devices. For example, without limitation, in no event will Magensa be liable or responsible for any of the following: (1) any mistake by a third party in authenticating data, for security purposes or otherwise, in connection with verifying whether you are eligible to complete the transaction for which you are accessing the Services; (2) any mistake by a third party payment processor in connection with your accessing of the services (such as, without limitation, a third party payment processor altering the dollar value of a credit submitted for verification); (3) any mistake in transmission of data by a merchant or the third party payment processor; (4) any failure in transmission systems or the failure of the internet to transmit information; (5) any failure of any "smart phone" or other mobile device or application on or through which the Services are accessed; and (6) the failure of any credit card issuer to authorize a transaction with respect to which you seek to use the Services. Magensa in its sole and absolute discretion may rely on information provided by third parties (such as, without limitation, information provided by a third party payment processor and Magensa will have no liability or responsibility whatsoever with respect to such information.
Confidentiality of Information
Magensa will not have any responsibility or liability for ensuring the secure transmission of any data regarding you that is transmitted to Magensa or to any third party. You understand that all data will be transmitted by third parties and those third parties, and not Magensa, are responsible for implementing security measures, procedures and standards with respect to the transmission of your data and information. In no event will Magensa have any responsible for protecting any of your confidential information.
Verification of Information
You understand that as part of the Services, information and data will be transmitted to Magensa for the purpose of verifying and authenticating such information and data in order to determine whether to approve a transaction you have requested with a third party merchant or payment rocessor. Magensa will not have any liability for its failure to verify or authenticate such information and data or its decision not to verify or authenticate such information and data, whatever the reason for the failure or decision. All such decisions to verify and authenticate such information and data will be made by Magensa in its sole and absolute discretion.
Lost or Stolen Devices
You will access the Services through your own personal computer(s) or "smart phone" or other mobile device. If you lose your computing device(s) or your SCRA(s) or if your mobile device is stolen or malfunctions, you may not be able to access the Services.
Your Acts or Omissions; Indemnity
You are solely responsible for your acts or omissions and Magensa will not have any liability for any claim, action or liability that arises out of or is in any way connected with your acts or omissions. In order to access the Services you will be required to provide certain user codes, and Magensa will have no responsibility or liability if you lose any of those codes.
You agree to indemnify, defend (with counsel of Magensa's choosing and under Magensa's control) and hold harmless Magensa, and each of its parent companies, subsidiaries and affiliated companies, and each of their and Magensa's employees, officers, directors, managers, agents and representatives, from and against any and all claims, demands, liabilities, losses, damages, judgments, costs and expenses, including reasonable attorneys' fees and costs, arising out of or related to (i) your breach of any of your agreements or obligations in these Terms or (ii) your misconduct in using the Services or improper use of the Services (including acts of fraud, misrepresentation or theft). Magensa has the sole and absolute discretion to settle any claim or other matter for which it is entitled to indemnity under this paragraph and your indemnity will cover the full amount of the settlement.
Magensa will not have any liability or responsibility for any delay in or failure to provide any of the Services as a result of circumstances beyond Magensa's control, and all such delay and failure is hereby excused. Such excusing circumstances include: shortages of materials; acts of God; fire; flood; war; embargo; labor trouble; failure or delay by third parties; riots; and laws, rules, regulations and orders of any governmental authority. If any material delay or material inability to perform continues for more than ten days, Magensa may, acting in its sole and absolute discretion, cease providing the Services.
LIMITATIONS ON LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, IN NO EVENT WILL MAGENSA, NOR WILL ANY OF MAGENSA'S MEMBERS, MANAGERS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSEES, SUCCESSORS OR ASSIGNS, BE LIABLE OR RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS, IN CONNECTION WITH OR AS A RESULT OF THESE TERMS OR MAGENSA'S OR ANY OF THEIR CONDUCT OR PERFORMANCE IN CONNECTION WITH PROVIDING THE SERVICES, EVEN IF SUCH AMOUNTS ARE OR SHOULD HAVE BEEN REASONABLY FORESEEABLE TO MAGENSA OR MAGENSA IS OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOST PROFITS. FURTHERMORE, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, MAGENSA HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT, WITH RESPECT TO THE SERVICES, ANY PRODUCTS OR OTHERWISE UNDER THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OF CERTAIN WARRANTIES OR THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND AS A RESULT, SOME OF THE ABOVE EXCLUSIONS OR LIMITATIONS (OR BOTH) MAY NOT APPLY TO YOU. IF, DESPITE THE FOREGOING PROVISIONS, LIABILITY IS NEVERTHELESS IMPOSED ON MAGENSA, OR ON ANY OF ITS MEMBERS, MANAGERS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSEES, SUCCESSORS OR ASSIGNS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF MAGENSA AND ITS MEMBERS, MANAGERS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSEES, SUCCESSORS AND ASSIGNS UNDER OR IN CONNECTION WITH THESE TERMS AND THE SERVICES EXCEED THE TOTAL PRICE YOU PAID FOR THE HARDWARE THAT YOU USED TO ACCESS THE SERVICES THAT GAVE RISE TO SUCH LIABILITY, REGARDLESS OF THE NUMBER OF CLAIMS. No information, whether oral or written, obtained by you with respect to the Services or Magensa, or any of Magensa's agents, employees, representatives or licensees will create any warranty, express or implied, not expressly made in these terms. Magensa will not be liable for any damages to, or viruses that may infect, your computer equipment or other property on account of your access to or use of the Services or your downloading of any material or information from, or referred to by, the Services.
All disputes and claims relating to or arising out of these Terms or your use of the Services and any other claims or causes of action relating to the performance of the Services or these Terms, including, without limitation, any construction or interpretation or any provision of these Terms, must be settled totally and finally by binding arbitration in Seal Beach, California, or such other location as Magensa prescribes, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The decision of the arbitrator referred to in this paragraph will be final and binding on you and Magensa and may be reduced to a judgment in any court of competent jurisdiction. The arbitrator will have the right to award any type of relief permitted by these Terms, including injunctive relief. Notwithstanding the foregoing provisions of this paragraph, in lieu of arbitration, you may elect to bring your dispute or claim in any small claims court in Los Angeles County, California, that has jurisdiction over the parties. Furthermore, for any arbitration you bring where the amount in controversy is less than $10,000, you may elect, in your sole and absolute discretion, in lieu of holding the arbitration in person, to hold such arbitration by telephone or based only on the written submissions of the parties to the arbitrator.
Notwithstanding the immediately preceding paragraph, Magensa retains the right to seek an injunction or other similar equitable relief against you in any court having jurisdiction over the parties.
You agree that if you file or assert any claim, cause of action, counterclaim or any other action (each an "Action") against Magensa relating to or arising out of these Terms, your use of the Services, or the performance of the Services or these Terms (including, without limitation, any construction or interpretation or any provision of these Terms and any claim or action concerning Magensa's performance or alleged failure to perform), you agree to do so on an individual basis and not with any other person or entity or as part of a class action or other similar proceeding. Furthermore, you agree that all such Actions will be brought in your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.