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TERMS AND CONDITIONS

 

ZODAKA END-USER LICENSING AGREEMENT / TERMS OF USE


This End-User License Agreement (“EULA”) is a legal agreement between you and Zoda Pay, Inc., doing business as Zodaka, the author of Zodaka software, including all HTML files, XML files, Java files, graphics files, animation files, data files, technology, development tools, scripts and programs, both in object code and source code (the “Software”), as well as the deliverables provided pursuant to this EULA, which may include associated media, printed materials, and “online” or electronic documentation (“Documentation”). 

By creating a Zodaka account or otherwise using the Software, you agree to be bound by the terms and conditions set forth in this EULA. If you do not agree to the terms and conditions set forth in this EULA, do not download, install, or use the Software.


The Software is provided to you as is, and you agree to accept the Software without modification.  You agree that your use of the Software and the documentation of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time by Zodaka. In addition, some services offered through the Software may be subject to additional terms and conditions promulgated by Zodaka or third parties from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into this EULA by this reference.

The Software is licensed to you and not sold.  You further represent you are a U.S. citizen or legal U.S. resident and are at least 18 years old. You further represent that any information you provide to Zodaka is truthful and accurate.

1. Grant of License. 

A) Scope of License. Subject to the terms of this EULA, Zodaka hereby grants to you a royalty-free, non-exclusive license to use the Software. You do not need to pay a license fee for the use of the Software. 

B) Use. The Software is intended to be used solely between parties in the United States of America that are establishing or have contractual relationships with Zodaka, including members of the Zodaka Network (“Network Member”). You agree you will not modify or use the Software in any way or for any purpose other than in a manner approved by Zodaka, including but not limited to any activity that is inconsistent with the applicable local laws where you use the Software. 

Zodaka reserves the right in its sole discretion to terminate the use of its Software to any Network Member at any time.

In order to access the Software, you will be required to create an account for the Services (“Account”) and provide certain registration information. When creating your Account, you agree to (a) provide accurate, truthful, current and complete information; and (b) maintain and promptly update your Account information if there are any changes. You may be required to provide us with personal information and documentation including, but not limited to, your email address, a self-selected password, street address, telephone number, government issued identification number, date of birth, Articles of Incorporation, financial statements, passports, or a business license. You authorize Zodaka, directly or through third parties, to make inquiries or verify that this information is accurate. If we cannot verify that the information provided by you is complete and accurate, we may deny access to your Account, your use of the Service, or close your Account. We reserve the right to suspend or terminate the Account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements. 

You agree that we may share some or all of the information about you and your transactions with third parties who provide the Services hereunder.  Anyone that we share information with may use the information to perform their obligations under their agreements with us, to operate and promote their respective networks, to perform analytics and create reports, to prevent fraud, and for any other lawful purpose. You agree that any third parties who provide the Services hereunder can make independent eligibility determinations and conclude that you are not permitted to use the Services.

To the extent that any information we collect about you is personally identifiable information, it is subject to the terms of our Privacy Policy. Please refer to our Privacy Policy for information about how Zodaka collects, uses and discloses personally identifiable information from its users.

2. Description of Rights and Limitations. 

A) Limitations. You agree that you have no rights whatsoever to make modifications to the Software or this EULA. You agree you will not, directly or through third parties, reverse engineer, decompile, or disassemble the Software. 

B) Update and Maintenance Zodaka, at its sole discretion may modify or replace this EULA, the Software or the Zodaka Network any time, and will provide you with a notice posted on our company website and an email to your registered email address.

3. Feedback and Data. 

You may, and are encouraged to, provide to Zodaka suggestions, comments, and feedback regarding the Software, including but not limited to performance, usability, bug reports and test results, with respect to the Software (collectively, "Feedback"). Additionally, Zodaka will collect data from you with respect to your use of the Software and services provided through the Software (“Data”)  in accordance with our Privacy Policy, and you consent to this data collection. 

4. Title to Software. Zodaka represents and warrants that it has the legal right to enter into and perform its obligations under this EULA, and that your use of the Software, in accordance with the terms of this EULA, will not infringe upon the intellectual property rights of any third parties. 

5. Intellectual Property. All now known or hereafter known tangible and intangible rights, title, interest, copyrights, and moral rights in and to the Software, including but not limited to all images, photographs, animations, video, audio, music, text, data, computer code, algorithms, and information, are owned by Zodaka. The Software is protected by all applicable copyright laws and international treaties. You agree you will not remove or alter any copyright notices on the Software and Documentation. 

6. Agency Relationship.  (a) Zodaka acts as your agent based upon your direction and your requests to perform tasks on your behalf relating to the Services we provide through our software. Zoda Pay Inc., DBA Zodaka, acts solely as a facilitator to help facilitate payments between members of the Zodaka Network. You acknowledge that Zodaka is not: (i) a bank or a depository institution; nor (ii) acting as a trustee, fiduciary or escrow with respect to your Account. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venturer of Zodaka.

(b)  Each consumer member of the Zodaka Network (“Customer”) hereby appoints Zodaka as its limited payment agent solely for the limited purpose of facilitating payments to a merchant member of the Zodaka Network (a “Merchant”) in payments processed by, received and held by a depository institution identified by Zodaka (the “Institution”). Zodaka shall cause the Institution to debit the designated amount of funds from the Customer’s bank account and transfer such funds directly or indirectly to the Merchant. Payment through the Institution as directed by the Customer will be considered the same as a payment made directly to the Merchant and the Merchant will provide the purchased merchandise to the Customer in the agreed-upon manner as if the Merchant received the payment directly from the Customers. Each Merchant understands that the Institution’s obligation to pay the Merchant is subject to and conditional upon the Institution’s successful receipt of the associated payments from the Customer. In accepting appointment as a limited payment agent Zodaka assumes no liability for any acts or omissions by a Merchant. Each Customer acknowledges and agrees that, notwithstanding the fact that Zodaka and the Institution are not parties to the agreement between the Customer and the Merchant, Zodaka acts as the Merchant’s payment collection agent for the limited purpose of the Institution accepting payments from the Customer on behalf of the Merchant. Upon a Customer’s payment of the collected funds, the Customer’s payment obligation to the Merchant for the agreed upon amount shall be extinguished, and Zodaka through the Institution shall be responsible for remitting the funds to the Merchant. In the event that Zodaka, through the Institution, does not remit any such amounts, the Merchant will have recourse only against Zodaka and the Institution and not the Customer directly.

7   Transaction Management.   Zodaka is a software platform that only provides transaction management, facilitation, and reconciliation services.  Zodaka acts as a financial technology provider by creating, hosting, maintaining and providing services to you via the Internet directly or through third parties.  

Merchants are solely responsible for the products and quality of the products they offer.  Zodaka is not responsible for any dispute between you and any Merchant. You agree that all disputes with a Merchant or any product or service will be addressed directly with the merchant and that you have no rights to involve Zodaka in such dispute in any manner, including disputing any transaction with Zodaka other than unauthorized transactions that did not result in you receiving any merchandise.  If you return any product to a Merchant, you agree to wait for the Merchant to process a refund in accordance with its policies and procedures and agree you have no right to dispute any transaction initiated through the Service pending the Merchant’s action.

All transactions are subject to Zodaka’s then-applicable fee schedule.

8. Duration. Each time you use our Software you agree to the current terms of this EULA and any other agreement that you are a party with us. We reserve the right to suspend any user of our Software temporarily or permanently in our sole discretion.   . 

9. Governing Law and Arbitration. This Agreement shall be governed by, and interpreted and construed in accordance with, the laws of the State of California, conflicts of law excluded. 

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules (including the Optional Rules for Emergency Measures of Protection). The arbitration hearing shall take place in Oakland, California, before a single arbitrator. Judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party in any action to enforce this EULA shall be entitled to recover costs and expenses including, without limitation, attorneys’ fees. 

10. Non-Transferable. This EULA is not assignable or transferable by you, and any attempt to do so is void. 

11. Severability. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this EULA shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this EULA shall otherwise remain in full force and effect and enforceable. 

12. WARRANTY DISCLAIMER. ZODAKA, THE AUTHOR OF THE SOFTWARE, HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE SOFTWARE. THE SOFTWARE AND ANY RELATED DOCUMENTATION IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. YOU ACCEPT ANY AND ALL RISKS ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE. 

13. LIMITATION OF LIABILITY. ZODAKA SHALL NOT BE LIABLE TO YOU, OR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH YOU, ANY LOSS OF PROFITS, INCOME, SAVINGS, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, DIRECT OR INDIRECT DAMAGE, WHETHER ARISING IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. THESE LIMITATIONS SHALL APPLY REGARDLESS OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.    NOTWITHSTANDING THE FOREGOING, YOU AGREE THAT UNDER NO CIRCUMSTANCES SHALL ZODAKA’S AGGREGATE LIABILITY TO YOU, OR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH YOU, EXCEED THE FINANCIAL AMOUNT ACTUALLY PAID BY YOU TO ZODAKA FOR USE OF THE SOFTWARE IN THE MOST RECENT CALENDAR YEAR. 

14. INDEMNIFICATION. You  agree to defend, indemnify, and hold harmless Zodaka, its affiliates, and its and their respective employees, officers, directors, agents, and third-party service providers from and against any and all claims, suits, liabilities, damages (actual and consequential), losses, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) arising from or in any way related to any third-party claims relating to your use of the Services, violation of these Terms, applicable law or any third-party rights, or your fraud or willful misconduct as determined by us in our sole discretion. Such indemnified parties reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate in asserting any available defenses.

15.  Entire Agreement. This EULA constitutes the entire agreement between you and Zodaka with respect to the Software, and supersedes all prior understandings of you and Zodaka, including any prior representation, statement, condition, or warranty with respect to the subject matter of this EULA.  To the extent you have another agreement with Zodaka, any inconsistency between such agreement and this EULA shall be governed by such agreement.

For additional information regarding this EULA, please contact: 

Zodaka info@Zodaka.com