Terms of Service

Last updated on October 7, 2022

Welcome, and thank you for your interest in Recharge Inc. (“Recharge,” “we,” or “us”) and our website at rechargepayments.com, along with our related websites, networks, applications, mobile applications, and other services provided by us, our subsidiaries and our affiliates (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Recharge regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE REVIEWED AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING RECHARGE’S PRIVACY POLICY AND ACCEPTABLE USE POLICY, TOGETHER WITH ANY ACTIVE ORDER FORMS THAT REFERENCE THESE TERMS AND CONDITIONS (TOGETHER, THESE “TERMS”), AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER. THE TERM “YOU” REFERS TO THE USER, BEING EITHER THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER DURING THE REGISTRATION PROCESS. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND RECHARGE’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY RECHARGE AND BY YOU TO BE BOUND BY THESE TERMS.

ARBITRATION AND WAIVER OF CLASS ACTION NOTICE. THESE TERMS CONTAIN IMPORTANT PROVISIONS INCLUDING AN ARBITRATION PROVISION THAT REQUIRES ALL DISPUTES TO BE RESOLVED BY BINDING ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND A WAIVER OF RIGHTS TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS. PLEASE SEE SECTION 22 (DISPUTE RESOLUTION AND ARBITRATION) AND SECTION 23 (WAIVER OF CLASS ARBITRATION OR ACTIONS) BELOW.

Recharge Service Overview.
1. Recharge provides You, as a store merchant, with certain hosted software to manage subscription payments and orders, recurring billing, and related services.
2. To the extent You wish to use Recharge’s SMS management service (“SMS Service”), such SMS Service shall be subject to the SMS Mobile Message Management Program Terms and Conditions Section of these Terms.
3. You are solely responsible for all of the terms and conditions of the transactions conducted with Your customers, including, without limitation, terms regarding payment, subscriptions, returns, warranties, shipping, handling, transportation, storage, insurance, fees, applicable taxes, text messaging (if applicable), title and licenses, all of which must be in accordance with applicable law.
4. If You choose to access or use Recharge’s API, including any modification or personalization of the API, the Recharge API Agreement shall govern Your access to and use of the API (as defined therein). The Recharge API Agreement is incorporated by this reference into, and made a part of, these Terms. You are solely responsible for any activity that occurs using Your Credentials (as defined in the Recharge API Agreement) and for keeping Your Credentials secure in accordance with the terms of the Recharge API Agreement.
Eligibility. By agreeing to these Terms, You represent and warrant to us that if You are an individual: (a) You are at least 18 years old; (b) You are not currently and have not previously been suspended or otherwise removed from the Service; and (c) Your registration and Your use of the Service is and will remain in compliance with any and all applicable laws and regulations at all times. If You are an entity, organization, or company, the individual accepting these Terms on Your behalf represents and warrants that they have authority to agree and bind You to these Terms.
Accounts and Registration. To access the Service, You must register for an account. When You register for an account, You will be required to provide us with information about Yourself, such as Your name, email address, store URL, or other contact information. You agree that the information You provide to us is accurate, current, and complete and that You will keep it accurate, current, and complete at all times. When You register, You will be asked to provide a password. You are solely responsible for maintaining the confidentiality of Your account and password, and You accept responsibility for all activities that occur under Your account. If You believe that Your account is no longer secure, then You must immediately contact us.
General Payment Terms. Certain features of the Service may require You to pay fees. Except as otherwise expressly stated in an active order form or these Terms, all payment obligations are non-cancellable and all fees are in U.S. Dollars and are non-refundable.
1. Price. Recharge reserves the right to determine pricing for the Service. Unless otherwise expressly set forth in an active order form, Recharge, at its sole discretion, may change the fees for any feature of the Service, including additional fees or charges, on a going-forward basis. Recharge, at its sole discretion, may make promotional offers with different features and pricing to any of Recharge’s customers. These promotional offers, unless made to You, will not apply to the Service we provide to You or these Terms as between Recharge and You. If the pricing for the Subscription Fee or Your Subscription Service (as such terms are defined in Section 4.4 below) increases, we will notify You, and provide You with an opportunity to change Your Subscription Service before applying those changes to Your account or charging Your payment details in connection with an automatic renewal. The notification will inform You of how long You have to change Your Subscription Service before the changes are applied to Your account.
2. Order Form. If You enter into an order form with Recharge, You agree to pay for the Services on the pricing terms set forth in the order form during the term and any automatic renewal terms, as applicable, as set forth in the order form, unless otherwise agreed upon in writing by both parties.
3. Authorization. You authorize Recharge to charge all sums for the orders that You make and any level of Service You select as described in these Terms or published by Recharge, including all applicable taxes, to the payment method specified in Your account, which may include billing via an invoice from Recharge. If You pay any such sums with a credit card, Recharge may seek pre-authorization of Your credit card account prior to Your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Your purchase.
4. Subscription Service. The Service may include automatically recurring payments for periodic charges (“Subscription Service”). If You activate a Subscription Service, You authorize Recharge to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date on which You first purchase Your subscription to the Service. For Your “Subscription Fee”, please see https://rechargepayments.com/pricing/ or Your active order form, as applicable. Your account will be charged the Subscription Fee plus all applicable fees and taxes automatically on or after the Subscription Billing Date. The subscription will continue unless and until You cancel or we terminate Your subscription. We, or the relevant ecommerce platform hosting Your store(s), will bill the periodic Subscription Fee plus all applicable fees and taxes to the payment method specified in Your account, which may include billing via an invoice from Recharge. If You believe that Recharge has billed You incorrectly, You must contact Recharge no later than sixty (60) days after the applicable billing date in order to be eligible for an adjustment or credit, and failure to do so within the aforementioned period will constitute Your agreement that the amounts charged are accurate and valid. Unless otherwise agreed by the parties, You may cancel the Subscription Service by initiating the cancellation process in Your account or contacting us.
5. Delinquent Accounts. Recharge may suspend or terminate Your access to the Service, including fee-based portions of the Service, if any amount in Your account is due but unpaid. In addition to amounts due for the Service, a delinquent account may be charged additional fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees.
Licenses
1. Limited License. Subject to Your complete and ongoing compliance with these Terms, Recharge grants You, solely for Your access to and use of the Service, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, You may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service, except as expressly permitted or directed by Recharge; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. For the avoidance of doubt, if You are prohibited under applicable law from using the Service, You may not use it.
3. Feedback. If You choose to provide input and/or suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), whether or not such Feedback is provided in response to a request from Recharge, then You hereby grant Recharge an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to freely use and exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
4. Scripts. Recharge may, in its discretion, make available certain code (“Scripts”) to be copied and pasted and, solely to the extent expressly permitted by Recharge, customized and/or otherwise modified by You (for example, to enable integrations with partners). You agree not to customize and/or modify Scripts except to the extent expressly permitted by Recharge. You agree Recharge bears no responsibility for Scripts that You may customize or modify, and You take full responsibility for any liability arising in connection with any such customized and/or modified Scripts. To the extent that You obtain any ownership in any customization or modification that You may make to a Script as authorized hereunder, You agree that this shall not affect the ownership rights in such Script, and You hereby grant Recharge a perpetual, irrevocable, fully-paid, transferable, sublicensable, worldwide right and license under any intellectual property rights that You may own in all such customizations and modifications. For the avoidance of doubt, Scripts and any improvements and/or modifications that we make to such Scripts are owned by Recharge and protected by intellectual property and other relevant laws.
Data
1. Data Privacy. Please read the Recharge Privacy Policy carefully for information relating to our collection, use, storage, and disclosure of Personal Information (as defined therein). The Recharge Privacy Policy is incorporated by this reference into, and made a part of, these Terms. Additionally, if: (a) You are established in the United Kingdom (“UK”) or European Economic Area (“EEA”); (b) You provide goods or services to customers in the UK or EEA; (c) You are otherwise subject to the requirements of the UK or EEA privacy laws; or (d) You are subject to the requirements of applicable local privacy law, Recharge’s collection and use of personal information is also subject to our Data Processing Addendum. Our Data Processing Addendum is incorporated by this reference into, and made a part of, these Terms.
2. Recharge may collect and analyze information related to Your account including, without limitation, information relating to the provision, use and performance of various aspects of the Service and related systems and technologies, as well as information concerning Your Content (as defined below in Section 9) and data derived therefrom, for any purpose including the legitimate business purposes of providing and improving the Service (subject to Section 6.1 with respect to Personal Information). Recharge may improve the Service through product development, account traffic monitoring, diagnostic testing, and corrective actions.
Ownership; Proprietary Rights
1. As between You and Recharge, the Service is owned and operated by Recharge. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), Scripts, products, software, services, and all other elements of the Service (“Materials”) are protected by intellectual property and other relevant laws. All Materials included in the Service are the property of Recharge or its third-party licensors. Except as expressly authorized by Recharge, including under these Terms, You may not access or make use of the Materials. Recharge reserves all rights to the Materials not granted expressly in these Terms.
Third Parties
1. Third-Party Services. Certain features and functionalities within the Service may allow You and Your customers to interface or interact with, access, use, and/or disclose information to compatible third-party services, products, technology and Content (collectively, “Third-Party Services”) through the Service. Recharge does not provide any aspect of the Third-Party Services and does not assume any liability arising in connection with any use of such Third-Party Services, including any compatibility issues, errors, or bugs in the Service or the Third-Party Services that may be caused in whole or in part by the Third-Party Services or any update or upgrade thereto. You are solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for You to use the Third-Party Services in connection with the Service.
  1. Third-Party Services and Linked Websites. Recharge may provide tools through the Service that enable You to export information to a Third-Party Service. By using one of these tools, You agree that Recharge may transfer that information to the applicable Third-Party Service. You acknowledge and agree that the Third-Party Service is not under Recharge’s control, and, to the fullest extent permitted by law, Recharge is not responsible for any Third-Party Service’s use of any exported information. The Service may also contain links to third-party websites. Linked third party websites are not under Recharge’s control, and Recharge is not responsible for their content.
2. Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to You subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict You from obtaining Third-Party Components under the applicable third-party licenses or to limit Your use of Third-Party Components under those third-party licenses.
3. Authorized Service Providers
  1. You may utilize an Authorized Service Provider (as defined below) to integrate into and/or implement the Service (or components thereof, including our API) and provide services related thereto.
  2. You may utilize an Other Service Provider (as defined below) to integrate into and/or implement the Service (or components thereof, including our API) and provide services related thereto, provided, that, You shall be responsible for such Service Provider’s compliance with these Terms as if such Service Provider was a party hereto. To the fullest extent permitted by law, You will indemnify and hold the Recharge Entities (as defined below) harmless from and against any and all liabilities, damages, losses, costs and expenses, including reasonable attorneys’ fees, incurred by the Recharge Entities related to any claim, suit, action or proceeding brought by a third party arising out of or connected with Your use of any Other Service Provider for purposes of the integration and/or implementation of the Service (or components thereof, including our API).
  3. In such event, You and such Authorized Service Provider or Other Service Provider, as applicable, are solely responsible for all costs or expenses arising out of the use of such Authorized Service Provider or Other Service Provider, as applicable. No Authorized Service Provider or Other Service Provider shall have any authority or ability to exercise any control, including any business or technical control, over the Service.
  4. “Authorized Service Provider” means those individuals, agencies, companies and entities that Recharge has a contractual relationship with.
  5. “Other Service Provider” means those individuals, agencies, companies, and entities that (i) are not competitors of Recharge (as determined in its sole discretion); (ii) are providing services to You pursuant to an enforceable agreement with You, consistent with general industry standards; (iii) agree to be bound by these Terms as if a party hereto; and (iv) access and use the Service solely for Your benefit.
Your Content and Responsibility
1. Content Generally. Certain features of the Service may permit You to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“Content”) and to publish Your Content on the Service. You retain any copyright and other proprietary rights that You may lawfully hold in Your Content.
2. Limited License Grant to Recharge. By uploading or otherwise publishing or providing Content to or via the Service, You grant Recharge a worldwide, non-exclusive, royalty-free, fully-paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, process, or modify for the purpose of formatting for display, and distribute such Content, in whole or in part, in any media formats and through any channels now known or hereafter developed.
3. Limited License Grant to Other Users. By uploading or otherwise publishing or providing Content to or via the Service to other users of the Service, You grant those users a non-exclusive license to access and use such Content as permitted by these Terms and the functionality of the Service.
4. Content Representations and Warranties. Recharge disclaims any and all liability in connection with all Content that You upload or otherwise publish or provide to or via the Service. You are solely responsible for all Content that You upload or otherwise publish or provide to or via the Service and the consequences of uploading or otherwise publishing or providing such Content to or via the Service. By uploading or otherwise publishing or providing any Content to or via the Service, You affirm, represent, and warrant that:
  1. You are the creator and owner of all Content that You upload or otherwise publish or provide to or via the Service, or have the necessary licenses, rights, consents, and permissions to authorize Recharge and users of the Service to use and distribute such Content as necessary to exercise the licenses granted by You in this Section, in the manner contemplated by Recharge, the Service, and these Terms;
  2. All Content that You upload or otherwise publish or provide to or via the Service, and the use of such Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Recharge to violate any law or regulation; and
  3. All Content that You upload or otherwise publish or provide to or via the Service could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
5. Content Disclaimer. We are under no obligation to edit or control Content that You or other users post or publish, and are not and will not be in any way responsible or liable for such Content. Recharge may, however, at any time and without prior notice, screen, remove, edit, or block any Content that we determine in our sole discretion violates these Terms or is otherwise objectionable. You understand that when using the Service, You will be exposed to Content from a variety of sources and acknowledge that such Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do hereby waive, any legal or equitable right or remedy You have or may have against Recharge with respect to such Content. If Recharge is notified by a user or Content owner that such Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the Content, which we reserve the right to do at any time and without notice. For clarity, Recharge does not permit copyright-infringing activities in connection with the Service.
6. Monitoring Content. Recharge does not control and does not have any obligation to monitor: (a) Content, including any Content made available by third parties; or (b) the use of the Service by Your customers. You acknowledge and agree that Recharge reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Recharge chooses to monitor any Content, Recharge still assumes no responsibility or liability for Content or any loss or damage incurred as a result of the use of such Content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
7. Your Use of the Service. You agree to comply with all applicable laws and regulations applicable to Your use of the Service, including, but not limited to, any and all requirements and obligations under applicable automatic renewal and data protection laws and regulations.
Email Communications
1. We may send You emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions directly in the promotional email.
Acceptable Use Policy
1. By using the Service, You covenant and represent and warrant to Recharge that You will comply with and will not violate, attempt to violate, or assist or permit any third party to violate our Acceptable Use Policy.
2. The Acceptable Use Policy is incorporated by reference into these Terms as if set out in full in these Terms. In the event of any conflict or inconsistency between the terms and conditions of these Terms and the Acceptable Use Policy, the Acceptable Use Policy will control.
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
2. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
3. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any Content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
4. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
5. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other Service account without permission;
6. sell or otherwise transfer the access or other rights granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or
7. attempt to do any of the acts described in this Section or permit any person to engage or assist any person in engaging in any of the acts described in this Section.
Digital Millennium Copyright Act
1. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If You have an intellectual property rights-related complaint about Materials hosted by or distributed through the Service, You may contact our Designated Agent at the following address:
  Recharge Inc.
  ATTN: Legal Department (Copyright Notification)
  1507 20th St.
  Santa Monica, CA 90404
  Email: [email protected]
2. Any notice alleging that Materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
  1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
  2. a description of the copyrighted work or other intellectual property that You claim has been infringed;
  3. a description of the Material that You claim is infringing and where it is located on the Service;
  4. Your address, telephone number, and email address;
  5. a statement by You that You have a good faith belief that the use of the Materials on the Service of which You are complaining is not authorized by the copyright owner, its agent, or the law; and
  6. a statement by You that the above information in Your notice is accurate and that, under penalty of perjury, You are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner’s behalf.
3. Repeat Infringers. Recharge will promptly terminate the accounts of users that are determined by Recharge to be repeat infringers.
SMS Mobile Message Management Program Terms and Conditions
1. Authorized Use. By using the SMS Service, You agree to:
  1. Comply with all laws, rules and regulations governing the SMS Service communications, including but not limited to the Telephone Consumer Protection Act of 1991;
  2. Be responsible for ensuring that all of Your customers who are engaged by You through the SMS Service (“SMS End Users”) agree to Your terms of service (the “End User Terms of Service”) and that You at all times have in effect enforceable End User Terms of Service related to the sending of SMS/MMS messages;
  3. Be responsible for ensuring that all programs used in connection with the SMS Service, including the administration thereof, comply with all applicable laws, rules, and regulations; and
  4. If requested by Recharge, include in the End User Terms of Service terms that are: (i) substantially similar to and no less restrictive than the pass-through terms set forth in the SMS Service Terms and Conditions provided by Recharge; and (ii) required by all Telemarketing Laws (as defined below). You will provide the End User Terms of Service to Recharge when reasonably requested by Recharge.
2. Consents. Recharge reserves the right to require SMS End Users to provide consent to receive SMS/MMS messages as well as to agree to any related terms and conditions. Recharge may, at its discretion, choose not to provide the SMS Service communications to SMS End Users who do not provide or maintain appropriate consents.
3. Representations, Obligations, and Indemnity. You represent and warrant that: (a) You will comply with all laws and regulations with respect to the content and transmission of calls, texts, and other messages (“Messages”) sent using the SMS Service, including, without limitation, all federal and state telemarketing-related laws, rules and regulations, the Telephone Consumer Protection Act (47 U.S.C. § 227) and the FCC’s implementing regulations (47 C.F.R. § 64.1200) (such laws, rules and regulations, as amended from time to time, collectively, the “Telemarketing Laws”); (b) as to each customer to be contacted by Recharge on Your behalf, You (i) have obtained all consents that may be required by the Telemarketing Laws and Your privacy policy; and (ii) will retain documentary proof of such consents for at least five (5) years from the date such customer’s contact information is provided by You to Recharge; (c) You will suppress and will not provide to Recharge contact information for any customer who has registered his or her telephone number on the national Do-Not-Call Registry or any similar state registries or has otherwise indicated that he or she does not wish to be contacted by You or Recharge; (d) You will not take actions that may subject Recharge to any laws due to the import of customer data; and (e) You will provide a reasonable means for customers to rescind consent to receive Messages and will not send Messages to customers who have opted out of receiving Messages from You.
Modification of these Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Subject to Section 4, revisions will be effective immediately except that, for existing users, material revisions will be effective the earlier of (i) Your assent to the updates or (ii) 30 days after the earlier of posting or notice to You of such revisions unless otherwise stated. If a change to these Terms materially modifies Your rights or obligations, as determined in our sole discretion, we may require that You accept the modified Terms in order to continue to use the Service. If You do not agree to the modified Terms, You should remove all Content that You uploaded or otherwise published or provided to or via the Service and discontinue Your use of the Service. Except as expressly permitted in this Section, as between You and Recharge, these Terms may be amended only by a written agreement signed by authorized representatives of each of You and Recharge.
Term, Termination and Modification of the Service
1. Term. These Terms are effective beginning on the earlier of when You accept the Terms, or first download, install, access, or use the Service, and shall end when terminated as described in this Section 16. If You violate any provision of these Terms, Your authorization to access the Service and these Terms shall automatically terminate. In addition, unless an active Order Form specifies a Service term length, Recharge may, at its sole discretion, terminate these Terms or Your account on the Service, or suspend or terminate Your access to the Service, at any time for any reason or no reason, with or without notice. Unless You have agreed otherwise in an active order form, You may terminate Your account and these Terms at any time by initiating the cancellation process in Your account or contacting us.
2. Termination for Cause. Either party may terminate these Terms (including all related active order forms) upon written notice to the other party for: (i) failure to cure any material breach of these Terms within thirty (30) days after written notice; (ii) ceasing operation without a successor; or (iii) becoming the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors. Except where an exclusive remedy is specified, the exercise of either party of any remedy under these Terms, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
3. Early Termination. If You terminate use of the Service pursuant to an order form for any reason prior to the end of the term specified in such order form, then as a genuine pre-estimate of Recharge’s damages, and not as a penalty, Recharge will have the right to charge You the store fee, account management fee and any monthly fee, all multiplied by the number of months remaining during the term specified in such order form, as well as any one-time, non-recurring fees specified in such order form, as applicable. The parties expressly agree that the damages which Recharge might reasonably anticipate to be sustained by Recharge upon any such termination are difficult to ascertain and measure because of their indefiniteness or uncertainty and that the amount set forth above is a reasonable estimate of the damages that would likely be caused and shall be due regardless of proof of actual damages.
4. Effect of Termination. Upon any termination of these Terms: (a) Your license rights under these Terms will terminate and You must immediately cease all use of the Service; (b) You will no longer be authorized to access Your account or the Service; (c) You will no longer have access to any Content that You uploaded or otherwise published or provided to or via the Service; and (d) You must pay Recharge any unpaid amount that was due prior to termination. Additionally, upon any termination of these Terms, You must promptly: (i) stop using or distributing any Materials or Scripts that may be installed on any user property and (ii) delete (or, at our request, return) any and all copies of the Materials and Scripts, any Recharge documentation, and any other Recharge Confidential Information (as defined below) in Your possession, custody, or control.
5. All sections of these Terms which by their nature should survive termination will survive termination of these Terms, including but not limited to, all payment obligations accrued prior to termination, confidentiality obligations, indemnification, warranty disclaimers, dispute resolution and arbitration provisions and limitations of liability.
Modification of the Service. Recharge reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to You. Recharge will have no liability for any change to the Service or any suspension or termination of Your access to or use of the Service.
Publicity. You grant Recharge a non-exclusive, transferable, sub-licensable and royalty-free right and license to use the name(s), logo(s) and trademark(s) of You and Your store(s) to identify You in Recharge’s marketing materials and website as a Recharge customer; provided, that such usage by Recharge will be in accordance with Your then-existing usage guidelines (as communicated in writing by You to Recharge). You acknowledge and agree that Recharge does not certify or endorse, and has no obligation to certify or endorse, any of Your products, services or Content.
Indemnity. To the fullest extent permitted by law, You are responsible for Your use of the Service, and You will indemnify and hold harmless Recharge and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Recharge Entities”) from and against any and all liabilities, damages, losses, costs and expenses, including reasonable attorneys’ fees, incurred by the Recharge Entities related to any claim, suit, action or proceeding brought by a third party arising out of or connected with: (a) Your unauthorized use of, or misuse of, the Service; (b) Your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) Your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between You and any third party in connection with these Terms or the Service. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You (without limiting Your indemnification obligations with respect to that matter), and in that case, You agree to cooperate with our defense of those claims.
Disclaimers; No Warranties. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. RECHARGE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. RECHARGE DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND RECHARGE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY OF THE RECHARGE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE RECHARGE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER PROVIDER OR USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING YOUR CONTENT. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. RECHARGE DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT RECHARGE IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
Limitation of Liability
1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE RECHARGE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY RECHARGE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
2. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE RECHARGE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO RECHARGE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE APPLICABLE CLAIM; OR (B) $100.
3. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY RECHARGE TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 21 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
4. BECAUSE SOME STATES OR JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) MAY NOT ALLOW EXCLUSIONS OR DISCLAIMERS OF REPRESENTATIONS, WARRANTIES OR GUARANTEES REGARDING THE MATTERS SET FORTH IN THESE TERMS, THOSE LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NOTHING IN THESE TERMS AFFECTS STATUTORY RIGHTS THAT CANNOT BE WAIVED OR LIMITED BY CONTRACT.
Dispute Resolution and Arbitration. In the event of any controversy or claim arising out of or relating to these Terms, or any breach thereof, such controversy or claim shall be determined and finally settled by confidential, binding arbitration, conducted in English, held in Los Angeles County, California, administered by the American Arbitration Association (“AAA”) before a sole arbitrator in accordance with the then-current AAA Commercial Arbitration Rules. The award rendered by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Any claimants must file an individual request for arbitration, specifying such claimant’s identity, such claimant’s counsel, and a detailed description of the legal claims being asserted and the requested relief, including a good faith calculation of the specific amount in dispute. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
Waiver of Class Arbitration or Actions. Any claims that You or Recharge assert under these Terms will be brought on an individual basis only and not on a class, consolidated, representative or collective basis. Only individual relief is available for controversies and claims arising out of or relating to these Terms, or any breach thereof, and You and Recharge agree that class arbitrations and class actions are not permitted under any circumstances. You understand that, by agreeing to these Terms, You and Recharge are waiving the right to participate in any form of class arbitration and/or class action.
Confidentiality
1. Confidential Information. For the purposes of these Terms, each party (“Disclosing Party”) may provide the other party (“Receiving Party”) with certain information (“Confidential Information”) in whatever form (written, oral or visual) that is designated by Disclosing Party as proprietary or confidential, or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. For the avoidance of doubt, the Service, all Recharge developer or administrator documentation guides for and provided with the Service, as may be updated by Recharge from time to time, and all enhancements and improvements thereto, will be considered Confidential Information of Recharge.
2. Protection of Confidential Information. Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except for exercising its rights and performing its obligations under these Terms. Receiving Party will limit access to the Confidential Information to those of its employees, representatives, and contractors who: (i) have a need to know such Confidential Information in furtherance of the provision or receipt of the Service, as applicable, and (ii) who are subject to confidentiality obligations no less restrictive than those set forth herein. In addition, Receiving Party will protect Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than a commercially reasonable degree of care. At Disclosing Party’s request or upon termination of these Terms, Receiving Party will return to Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that Receiving Party does not have a continuing right to use under these Terms, and, upon request, Receiving Party shall provide to Disclosing Party written notice certifying compliance with this sentence, unless prohibited by applicable law.
3. Exceptions. The confidentiality obligations set forth in this Section 24 will not apply to any information that: (a) is or becomes generally available to the public through no fault of Receiving Party; (b) is lawfully provided to Receiving Party by a third party free of any apparent confidentiality duties or obligations; (c) was already known to Receiving Party without restriction at the time of disclosure; or (d) was independently developed by Receiving Party without use or reference to the Confidential Information. Receiving Party may disclose Confidential Information if compelled or required to do so by law or by the order of a court or similar judicial or administrative body, provided that Receiving Party promptly (to the extent legally permitted) notifies Disclosing Party in writing of such required disclosure so that Disclosing Party may, at its own cost and expense, seek an appropriate protective order.
4. Remedies. Any breach or threatened or attempted breach of this Section 24 may result in immediate, irreparable harm for which monetary damages would be an inadequate remedy. If a court of competent jurisdiction finds that Receiving Party has breached (or attempted or threatened to breach) any of the obligations set forth in this Section 24, Receiving Party agrees that, without any additional findings of irreparable injury or other conditions to injunctive relief, it will not oppose the entry of an appropriate order compelling its performance and restraining it from any further breaches (or attempted or threatened breaches).
Beta Offerings. From time to time, Recharge may, in its sole discretion, invite You to use, on a trial basis, pre-released or beta features that are in development and not yet available to all customers (“Beta Offerings”). Beta Offerings are not part of the Service, and Beta Offerings may be subject to additional terms and conditions, which Recharge will provide to You prior to Your use of the Beta Offerings, as applicable. Such Beta Offerings and all materials relating thereto will be considered Confidential Information and subject to the confidentiality provisions in these Terms. Without limiting the generality of the foregoing, You agree that You will not make any public statements or otherwise disclose Your participation in the Beta Offerings without Recharge’s prior written consent. Recharge makes no representations or warranties that the Beta Offerings will function. Recharge shall not be responsible for any liabilities, damages, losses, costs, or expenses arising out of or in connection with a Beta Offering. Recharge may discontinue a Beta Offering at any time, in its sole discretion, or decide not to make a Beta Offering generally available.
Miscellaneous
1. General Terms. These Terms, together with any agreements, terms or policies expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between You and Recharge regarding Your use of the Service. You may not assign or transfer these Terms or Your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
2. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Recharge submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles, California for resolution of any lawsuit or court proceeding permitted under these Terms.
3. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
4. Consent to Electronic Communications. By using the Service, You consent to receiving certain electronic communications from us as further described in our Privacy Policy. You agree that any notices, agreements, disclosures, or other communications that we send to You electronically will satisfy any legal communication requirements, including that those communications be in writing.
5. Contact Information. The Service is offered by Recharge Inc., located at 1507 20th St., Santa Monica, CA 90404. You may contact us by sending correspondence to that address or by sending us a message.
6. Notice to California Residents. If You are a California resident, under California Civil Code Section 1789.3, You may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
7. No Support. Unless otherwise agreed to between You and Recharge, we are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies. In addition, You are responsible for providing customer service (if any) to Your customers. We will not provide any support or services to Your customers unless we have a separate agreement with You obligating us to provide support or services.
8. International Use. The Service is hosted from the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.