You must open an account with Softmogul (a “Softmogul Account”) to use the Services. Our registration process will ask you for information including your name and other personal information. You must provide accurate and complete information in response to our questions. You must complete this and other processes to access the Services. You must also keep the information that you provide up to date. We reserve the right to suspend or terminate the Softmogul Account of anyone who provides inaccurate, untrue, or incomplete information, uses the Softmogul Account fraudulently or who fails to comply with the account registration requirements.
You must use your and your business’s true and accurate name when signing up for a Softmogul Account.
The software associated with mobile and website applications is part of the Services. Among other things, the software enables you to access and use the Services. You must install any and all software updates to continue to use the Services.
If your request to open a Softmogul Account is approved, Softmogul may request additional information from you at any time.
Your Softmogul Account permits you to account for cash and/or payment card transactions on compatible mobile devices.
Devices modified contrary to the manufacturer’s software or hardware guidelines, including but not limited to
those with disabled hardware or software controls—sometimes referred to as “jail broken”—are not compatible mobile
devices. You acknowledge that the use of a modified device to use the Services is expressly prohibited, constitutes
a violation of the terms of this Agreement, and is grounds for termination of your Softmogul Account. Softmogul
does not warrant that the Services will be compatible with your mobile device or third party carrier.
Your use of the Services will be subject to the Softmogul Mobile Application Licence Agreement (including any additional terms from third party platform providers included within the Softmogul Mobile Application Licence Agreement), the terms of your agreements with your mobile device manufacturer and your carrier.
You must use the Services in compliance with all applicable laws. You may not export the Services directly or indirectly,
and you acknowledge that the Services may be subject to export restrictions imposed by US law, including US Export
Administration Regulations (15 C.F.R. Chapter VII).
By creating a Softmogul Account, you also confirm that you will not accept payments in connection with any illegal activity or goods.
Register facilitates the tracking of payments you receive from your Buyers. This means that we assist you in collecting, analysing and relaying information generated in connection with these payments.
If we reasonably suspect that your Softmogul Account has been used for an unauthorised, illegal, or criminal purpose, you give us express authorisation to share information about you, your Softmogul Account, and any of your transactions with law enforcement.
Summaries of your Softmogul Account activity, including monthly statements, are available on our website for up to one year of account activity. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your Softmogul Account and your use of the Services, and (b) reconciling all transactional information that is associated with your Softmogul Account. If you believe that there is an error or unauthorised transaction activity is associated with your Softmogul Account, you agree to contact us immediately.
You may give your Buyers the option to receive or decline a written receipt. As a convenience, but not in lieu of a written receipt, the Register receipt screen offers Buyers a choice to sign up to receive digital receipts delivered by Softmogul through email. You acknowledge that it is your responsibility to provide Buyers with receipts, proof of purchase or tax invoices, in each case as required by applicable law, and we accept no responsibility or liability for the form, content, accuracy or provision of such receipts, proof of purchase or tax invoices.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with your use of our software and services (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Softmogul specifically disclaims any liability for Taxes.
You are solely responsible for all customer service policies and issues relating to your goods or services, including pricing, order fulfillment, cancellations or no shows by you or a Buyer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us. As between you and us, we are solely responsible for customer service issues relating to your Softmogul Account only.
By using the Services, you may receive information about Buyers or other third parties. You must keep such information confidential and only use it in connection with the Services. You may not disclose or distribute any such information to a third party or use the information for marketing purposes unless you receive the express consent of the Buyer or other third party. You are solely responsible for compliance with any privacy laws applicable to your use of the Services.
In connection with your Softmogul Account, any business listing, and your use of the Services, you may be able to
upload or provide photos, logos, products, loyalty programs, promotions, advertisements and other materials or
information (“Seller Content”). You agree that you will not upload or provide any Seller Content unless you have
created that content yourself or you have permission from the content owner to do so.
You grant us and our subsidiaries, affiliates, and successors a worldwide, nonexclusive, royaltyfree, fullypaid, transferable, and sublicensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display your Seller.
Content throughout the world in any media in order to provide and promote the Services and Softmogul’s business, with or without attribution or reference to you. You retain all rights in your Seller Content, subject to the rights granted to Softmogul in this Agreement. You may modify or remove your Seller Content via your Softmogul Account or by terminating your Softmogul Account.
You agree not to upload or provide Seller Content or otherwise post, transmit, distribute, or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy or trademark; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Softmogul’s or its partners’ products and services, as determined by Softmogul in its sole discretion; or (f) in Softmogul’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose Softmogul, its affiliates, its customers, or Buyers to harm or liability of any nature.
Although Softmogul has no obligation to screen, edit, or monitor any Seller Content, Softmogul reserves the right, and has absolute discretion, to remove, screen, edit, or disable any Seller Content at any time and for any reason without notice. You understand that by using the Services, you may be exposed to Seller Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any Seller Content, including any loss or damage to any of your Seller Content.
Softmogul respects the copyright and trademark rights of others and asks you to do the same. Softmogul has adopted a Copyright & Trademark Policy regarding claims that third party material infringes the copyrights or trademarks of others. Softmogul responds to all valid notices of such copyright and trademark infringement, and it is Softmogul’s policy to suspend or terminate the access privileges of those who repeatedly infringe the copyrights and trademarks of others.
We have implemented technical and organisational measures designed to secure your personal information from accidental loss and from unauthorised access, use, alteration, or disclosure. However, we cannot guarantee that unauthorised third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
If your Softmogul Account is terminated or suspended for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Services, (c) that the licence provided under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (e) that Softmogul shall not be liable to you or any third party for termination or suspension of access to the Services or for deletion of your information or account data.
You may terminate this Agreement and other Softmogul agreements by closing your Softmogul Account at any time.
We may terminate this Agreement or suspend or close your Softmogul Account for any reason or no reason at any time upon notice to you. We may also immediately (and without notice) suspend or terminate the Services and access to your Softmogul Account if you (a) have violated the terms of this Agreement, any other agreement you have with Softmogul, or Softmogul’s policies, (b) pose an unacceptable credit or fraud risk to us, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.
We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or in connection with any termination or suspension of the Services.
Softmogul grants you a personal, limited, nonexclusive, revocable, nontransferable licence, without the right to
sublicense, to electronically access and use the Services solely to manage your occupancy rate, expenses and
the funds you receive, provide email receipts to your customers and utilize such other Services as Softmogul
may make available through the HOS by Softmogul application from time to time, in accordance with this Agreement.
The Services include our website and any mobile applications, software, programs, documentation, tools, internetbased
services, components, and any updates (including software maintenance, service information, help content, bug
fixes or maintenance releases) thereto provided to you by Softmogul. You will be enterms-title content-bodyd
to download updates to the Services, subject to any additional terms made known to you at that time, when Softmogul
makes these updates available.
While we want you to enjoy the Services, you may not, nor may you permit any third party to do any of the following: (i) access or monitor any material or information on any Softmogul system using any manual process or robot, spider, scraper, or other automated means unless you have separately executed a written agreement with Softmogul referencing this Section 22(i) that expressly grants you an exception to this prohibition; (ii) copy, store, reverse engineer, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way software, material or information from Softmogul; (iii) permit any third party to use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) violate the restrictions in any robot exclusion headers on the Services or any Softmogul service or product, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) use the Services other than as expressly allowed under this section.
All rights granted to you under this Agreement shall terminate immediately in the event that you are in breach of any term or condition hereof.
The Services are licenced and not sold or assigned. Softmogul reserves all rights not expressly granted to you in
this Agreement. The Services are protected by patent, copyright, trademark, trade secret and other intellectual
property laws. Softmogul owns the terms-title content-body, copyright and other worldwide Intellectual Property
Rights (as defined below) in the Services and all copies of the Services. This Agreement does not grant you any
rights to Softmogul’s trademarks or service marks.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Services or our other products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place Softmogul under any fiduciary or other obligation, and that we are free to use the Idea without any compensation to you, and we are enterms-title content-bodyd to disclose the Idea on a nonconfidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Softmogul does not waive any rights to use similar or related ideas previously known to Softmogul, or developed by its employees, or obtained from sources other than you.
You will indemnify, defend, and hold us (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies; (b) your unauthorized, wrongful or improper use of the Services; (c) any transaction submitted by you through the Services (including without limitation the accuracy of any Seller Content or product, service, or transaction information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) your violation of any thirdparty right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (e) your violation of any law, rule or regulation of the United Kingdom or any other country; (f) any other party’s access and/or use of the Services using your unique name, login, password or other appropriate security code.
You represent and warrant to us that: (a) you have attained the legal age of majority in your jurisdiction; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) if you are registering and using the Services on behalf of an organisation, you have the authority, power and right to act on the organisation’s behalf under this Agreement; (d) the name identified by you when you registered is your name or business name under which you sell goods and services; (e) you and all transactions initiated by you will comply with all national, federal, state, and local laws, rules, and regulations applicable to you and/or your business and employees, including any applicable tax, employment, wage and hour, and tip laws and regulations, in your jurisdiction; (f) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (g) your use of the Services will be in compliance with this Agreement.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
OR NONINFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SOFTMOGUL OR THROUGH
THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, SOFTMOGUL,
ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT
THAT THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE
WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL
BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT OR DATA DOWNLOADED
OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
SOFTMOGUL DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND SOFTMOGUL WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRDPARTY PROVIDERS OF PRODUCTS OR SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SOFTMOGUL, ITS SUPPLIERS, OR ITS LICENSORS (OR
THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS,
GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY
OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL SOFTMOGUL BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING
FROM HACKING, TAMPERING, OR OTHER UNAUTHORISED ACCESS OR USE OF THE SERVICE OR YOUR SOFTMOGUL ACCOUNT, OR THE
INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOFTMOGUL, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICE; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORISED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) SELLER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
IN NO EVENT SHALL SOFTMOGUL, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, BREACH OF STATUTORY DUTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SOFTMOGUL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Services are controlled and operated from facilities in the United States. Softmogul makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
Subject to the additional third party terms from third party platform providers, as set out in the Mobile Application Licence Agreement, all third party hardware and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. SOFTMOGUL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL SOFTMOGUL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact Softmogul Support with any dispute. If we cannot resolve your concerns, we agree to an informal and inexpensive dispute resolution process requiring individual arbitration.
You and Softmogul agree to arbitrate all Disputes. Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST SOFTMOGUL. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (w ww.adr.org) or JAMS (w ww.jamsadr.com) according to this provision and the applicable arbitration rules for that forum. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in their local smallclaims court rather than through arbitration. The Federal Arbitration Act, 9 U.S.C. §§ 116, fully applies. If you are a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county or parish where you reside. Otherwise, any arbitration hearing will occur in San Francisco, California, or another mutually agreeable location. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For any Dispute, Softmogul will pay all the arbitration fees. If you prevail on any claim for which you are legally enterms-title content-bodyd to attorney’s fees, you may recover those fees from the arbitrator. For any claim where you are seeking relief, Softmogul will not seek to have you pay its attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Softmogul also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of Softmogul services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of San Francisco, California, or federal court for the Northern District of California.
This Agreement and any Dispute will be governed by California, U.S.A. law and/or applicable United States federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within California, U.S.A., without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction.
Unless otherwise required by law, an action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our website at softmogul.com or any other website maintained or owned by us for the purposes of providing services in terms of this Agreement. Any use of the Services after our publication of any such changes shall constitute your acceptance of this Agreement as modified. However, any Dispute that arose before the modification shall be governed by the Agreement that was in place when the Dispute arose.
This Agreement, and any rights and licences granted hereunder, may not be transferred or assigned by you, but may be assigned by Softmogul without restriction.
Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and Softmogul, and they describe the entire liability of Softmogul and its vendors and suppliers (including processors) and your exclusive remedy with respect to your access and use of the Services. In the event of a conflict between this Agreement and any other Softmogul agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that Softmogul may have under trade secret, copyright, patent, or other laws. Softmogul’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: 912, 1415 and 2136.
“Buyer” means any person that enters into a cash or payment card transaction with a Seller.
“Dispute” means any claim, controversy, or dispute (whether involving contract, tort, equitable, statutory, or any other legal theory) between you and Softmogul including but not limited to any claims relating in any way to this Agreement (including its breach, termination, or interpretation), any other aspect of our relationship, Softmogul advertising, and any use of Softmogul software or services. “Dispute” also includes any claims that arose before this Agreement and that may arise after termination of this Agreement.
“Seller” means any person that signs up for a Softmogul Account to use Register to manage inventory, expenses and payments, to provide email receipts to Buyers or to use any other Service that Softmogul may make available through the Register application from time to time.
“Softmogul” means Softmogul and its suppliers and licensors (and its and their respective affiliates, agents, directors and employees).