ShootProof Seller Agreement

Last updated: March 14, 2017

This Seller Agreement (“Agreement”) is a legal agreement between you (“you,” “your”) and ShootProof, LLC (“ShootProof,” “we,” “our” or “us”) governing your use of ShootProof’s payment processing services (the “Services).

The Services allow you to accept payments from Buyers using Cards. We are not a bank and we do not offer banking services as defined by the United States Department of Treasury. Instead, we are a payment service provider that facilitates the processing of payments you receive from your Buyers. This means that we collect, analyze, and relay information generated in connection with these payments.

1. Definitions

“Balance” has the meaning set forth in Section 30.

“Buyer” means any person or business engaging in a Card transaction directly with the Seller.

“Card” means any US-issued and most non-US issued credit, debit, prepaid, or gift cards bearing the logo of a Card Organization.

“Card Organization” means Visa, U.S.A., Inc., MasterCard International, Inc., Discover Financial Services, LLC and other credit and debit card providers, debit network providers, gift card and other stored value and loyalty program providers. Card Organization also includes the Payment Card Industry Security Standards Council.

“Card Organization Rules” means all applicable rules, regulations or requirements issued or promulgated from time to time by a Card Organization.

“Chargeback” has the meaning set forth in Section 14.

“FBO Accounts” has the meaning set forth in Section 12.

“Fees” has the meaning set forth in Section 7.

“Reserve” has the meaning set forth in Section 20.

“Seller” means any person that signs up for a ShootProof Account to accept payments using the Services.

“ShootProof Account” has the meaning set forth in Section 2.

“Taxes” has the meaning set forth in Section 26.

2. ShootProof Account

A ShootProof account (“ShootProof Account”) is required to use the Services. The registration process for the ShootProof Account will require you to submit your name, address, and other personal and/or business information. You must provide accurate and complete information in response to our questions. You must also keep the information that you provide up to date. Failure to provide accurate and complete information, or failure to comply with the account registration requirements, may result in a suspension or termination of your ShootProof Account.

3. Software

Software associated with website applications and hardware products may be required to enable access and use of the Services. If requested, you must install any and all software updates to continue to use the Services.

4. Representations and Warranties

By creating a ShootProof Account, you confirm that you are either a legal resident of the United States, a United States citizen, or a business entity authorized to conduct business by the state(s) in which you operate. The Services and your ShootProof Account may only be used for business purposes in the fifty states of the United States of America and the District of Columbia. 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).

You further represent and warrant to us that: (a) you are at least eighteen (18) years of age; (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) the name identified by you when you registered is your name or business name under which you sell goods and services; (d) any sales transaction submitted by you will represent a bona fide sale by you; (e) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser; (f) you will fulfill all of your obligations to each Buyer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business and employees, including any applicable tax, wage and hour, and tip laws and regulations; (h) except in the ordinary course of business, no transaction submitted by you through the Services will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) 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; (j) no transaction submitted by you through the Services will involve your Cards (except for reasonable test swipes); and (k) your use of the Services will be in compliance with this Agreement.

5. Underwriting

You agree that ShootProof shall have the right to verify information about you with third party service providers in order for us to provide the Services, including obtaining a consumer report that contains your name and address. You further agree that ShootProof may periodically obtain additional reports to determine whether you continue to meet the requirements for a ShootProof Account.

ShootProof may request additional information from you at any time. For example, ShootProof may ask you to present invoices from your suppliers, a government issued identification such as a passport or driver’s license, a business license, or other information ShootProof may also ask for permission to inspect your business location. If you refuse any of these requests, your ShootProof Account may be suspended or terminated.

You agree that ShootProof may share information about you and your ShootProof Account with its third party providers and/or acquiring bank. After you submit your application, ShootProof or its third party providers and/or acquiring bank may conclude that you will not be permitted to use the Services. You agree that ShootProof is permitted to share information about you and your application (including whether you are approved or declined), and your ShootProof Account with your bank or other financial institution. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the Service, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct ShootProof’s risk management process.

6. Card Organization Rules

The Services allow you to accept payments initiated with Cards. You agree to comply with all Card Organization Rules, as such may be changed from time to time. You understand that we may modify this Agreement from time to time in order to comply with the Card Organization Rules. Significant portions of the Card Organization Rules are available to the public at http://usa.visa.com/merchants/operations/op_regulations.html and http://www.mastercard.com/us/merchant/pdf/BM-Entire_Manual_public.pdf.

Your use of Card Organization logos is governed by the Card Organization Rules; you agree to familiarize yourself with and to comply with these requirements.

7. Our Fees

You agree to pay the applicable fees listed on our Fee Schedule at (“Fees”) for use of the Services, as amended from time to time. Any changes to the Fees shall take effect 30 days following the posting of such changes.

8. Prohibited Transactions

You agree that you will not use the Services to accept payments in connection with the following businesses or business activities: (1) any illegal activity or goods, (2) buyers or membership clubs, including dues associated with such clubs, (3) credit counseling or credit repair agencies, (4) credit protection or identity theft protection services, (5) direct marketing or subscription offers or services, (6) infomercial sales, (7) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit with a physician including re-importation of pharmaceuticals from foreign countries), (8) unauthorized multi-level marketing businesses, (9) inbound or outbound telemarketers, (10) prepaid phone cards or phone services, (11) rebate based businesses, (12) up-sell merchants, (13) bill payment services, (14) betting, including lottery tickets, casino gaming chips, off-track betting, and wagers at races, (15) manual or automated cash disbursements, (16) prepaid cards, checks, or other financial merchandise or services, (17) sales of money-orders or foreign currency, (18) wire transfer money orders, (19) high-risk products and services, including telemarketing sales, (20) automated fuel dispensers, (21) adult entertainment oriented products or services (in any medium, including internet, telephone, or printed material), (22) sales of (i) firearms, firearm parts or hardware, and ammunition; or (ii) weapons and other devices designed to cause physical injury (23) internet/mail order/telephone order cigarette, tobacco or vaporizer sales, (24) drug paraphernalia, (25) occult materials, (26) hate or harmful products, (27) escort services, or (28) bankruptcy attorneys or collection agencies engaged in the collection of debt.

9. Authorization

You authorize us to act as your agent to hold, receive, and disburse funds on your behalf in connection with the Services. Your authorization permits us to generate a paper draft or an electronic funds transfer to process each payment transaction that you authorize. You agree that our receipt of transaction proceeds satisfies the Buyer’s obligation to you. We will disburse to you funds actually received by us on your behalf, less amounts owed to us, subject to any Chargeback or Reserve withheld or applied in accordance with this Agreement.

10. Access to ShootProof Account Funds

Subject to the payout schedule selected by you through your ShootProof Account, we will deposit amounts received by us for transactions you submit through the Services (less any applicable Fees) to your verified bank account. If ShootProof is not able to debit or credit the bank account you link to your ShootProof Account, we will suspend your ShootProof Account until such bank account information is updated by you.

Funds for any given transaction will not be deposited until the transaction is deemed complete. Transactions will be deemed complete when we have received or sent the funds and when we or the designated financial institutions have accepted the transaction or funds.

Once you validate your US bank account, and have a positive balance in your ShootProof Account, ShootProof will initiate a payout to your bank account in accordance with the payout schedule selected by you in your ShootProof Account. It may take two or more days from the date of the payout schedule for funding to occur.

11. Availability of Funds

Should ShootProof need to conduct an investigation or resolve any pending dispute related to your ShootProof Account, we may defer payout or restrict access to your funds for the entire time it takes for us to do so. We also may defer payout or restrict access to your funds as necessary to comply with applicable law or court order, or if otherwise requested by law enforcement or governmental entity.

12. Funds Held for Your Benefit

Funds associated with your ShootProof Account will at all times be held separate from our corporate funds in one or more For Benefit Of (FBO) accounts at Wells Fargo Bank, N.A. (or such successor bank as ShootProof may determine) (the “FBO Accounts”). You acknowledge that we have the right to direct payment of funds from the FBO Account. ShootProof will maintain records that properly identify the Seller for whom funds are associated with. We will not use your funds for our corporate purposes, will not voluntarily make funds available to our creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit our creditors to attach the funds. You will not receive interest or any other earnings on any funds that we handle for you.

13. Commercial Entity Agreement

In order to serve the role of a payment service provider, we must enter into agreements with Card Organizations, processors and acquiring banks. In some cases, a Card Organization requires that our Sellers enter into an agreement directly with ShootProof’s acquiring bank. If you are such a Seller, you will be required to complete and agree to the “Commercial Entity Agreement” attached hereto as Exhibit A in order to use the Services. This may happen during the registration process or at some other time. If you fail to complete a “Commercial Entity Agreement,” we may suspend or terminate your ShootProof Account.

14. Your Liability and Obligations for Chargebacks

A transaction may be reversed or charged back to your ShootProof Account (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Card Organization, our third party provider, or a Buyer or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement. You are responsible for the amount of any Chargeback. If requested, you agree to assist us, at your expense, in the investigation of your transactions processed through the Services. Your failure to assist us in a timely manner, including providing any necessary documentation within ten (10) days of our request, may result in an irreversible Chargeback. We reserve the right to charge a fee, upon notice to you, for investigating Chargeback disputes.

15. Our Collection Rights for Chargebacks

If a Chargeback occurs, we may withhold the Chargeback amount in a Reserve. We may debit the amount of any Chargeback and any associated Fees, fines, or penalties listed in the Fee Schedule or assessed by the Card Organization or our processor from your ShootProof Account (including without limitation any Reserve), any proceeds due to you, your bank account, or other payment instrument registered with us. If you have pending Chargebacks, we may delay payouts from your ShootProof Account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a Buyer’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the Buyer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all ShootProof Account deficit balances unpaid by you.

16. Excessive Chargebacks

If we determine that you are incurring an excessive amount of Chargebacks, we may place conditions on the use of your ShootProof Account. These conditions may include, without limitation, (a) establishing new processing fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts, or (d) terminating or suspending the Services.

17. Contesting Chargebacks

You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Services. To that end, you permit us to share information about a Chargeback with the Buyer, the Buyer’s financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release the reserved funds to your ShootProof Account. If a Chargeback dispute is not resolved in your favor by the Card Organization or issuing bank or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in this Agreement. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within ten (10) days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.

18. ShootProof Account History

When a payment is made to your ShootProof Account, we will update your ShootProof Account activity on the website and provide you a transaction confirmation. Summaries of your ShootProof 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 ShootProof Account and your use of the Services, and (b) reconciling all transactional information that is associated with your ShootProof Account. If you believe that there is an error or unauthorized transaction activity is associated with your ShootProof Account, you agree to contact us immediately. Your failure to notify us in writing of any asserted error(s) within thirty days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.

19. Right of Setoff

To the extent allowed by applicable law, you grant us a security interest in, as well as a right of setoff against, all of your accounts with us, including any reserve and any funds processed through the Services, that may now or hereafter be in your possession and would otherwise be payable to you pursuant to the terms of this Agreement. You authorize us, without prior notice or demand, to recoup, collect, charge, and/or setoff all sums owing on the indebtedness against any and all such accounts and other obligations, and to defer payout or restrict access to funds to allow us to protect our security interest, collection, charge and setoff rights as provided for in this section, whether the obligation is liquidated, unliquidated, fixed, contingent, matured or unmatured. If you owe us an amount that exceeds the balance in your ShootProof Account, we may charge or debit a payment instrument registered in your ShootProof Account.

20. Reserve

At any time and from time to time, we may temporarily suspend or delay payments to you and/or designate an amount of funds that you must maintain in your ShootProof Account or in a separate reserve account (a “Reserve”) to secure the performance of your payment obligations under this Agreement. We may require a Reserve for any reason, including if you have a high rate of Chargebacks, refunds, or other indications of performance problems related to your use of the Services. The Reserve may be raised, reduced or removed at any time by ShootProof, in its sole discretion. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your ShootProof Account, including but not limited to any funds (a) deposited by you, (b) due to you under this Agreement, or (c) available in your bank account, or other payment instrument registered with us. You grant us a security interest in and lien on any and all funds held in any Reserve, and also authorize us to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your ShootProof Account. You will execute any additional documentation required for us to perfect our security interest in any funds in the Reserve. This security interest survives for as long as we hold funds in your Reserve.

21. Restricted Use

You may not act as a payment intermediary, aggregator or service bureau or otherwise resell the Services on behalf of any third party. This means that you may not use the Services to handle, process or transmit funds for any third party. You also may not use the Services to process cash advances.

22. Unauthorized or Illegal Use

We reserve the right not to authorize or settle any transaction that you submit if we believe it is in violation of this Agreement, fraudulent, illegal, or otherwise likely to cause harm to ShootProof, its third party providers, or customers. If we reasonably suspect that your ShootProof Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your ShootProof Account, and any of your transactions with law enforcement.

23. Accepted Cards

We may remove or add Cards that we accept at any time without prior notice. We will generally only process Cards that receive an authorization from the applicable Card Organization and Card issuer. You understand that there may be times when the Buyer may not be the authorized user of the Card or that such Buyer may otherwise contest the transaction through the Chargeback process (described below). You agree to comply with the Chargeback process and to liability associated with such Chargebacks.

24. Customer Service

You will adhere to all customer service policies of ShootProof. However, you are solely responsible for all customer 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 any ShootProof Account, payment, Card processing, debiting or crediting.

25. Refunds and Returns

By accepting payment Card transactions with a ShootProof Account, you agree to process returns of, and provide refunds and adjustments for, your goods or services through your ShootProof Account in accordance with this Agreement, Card Organization Rules, and ShootProof policies. Card Organization Rules require that you will (a) maintain a fair return, cancellation or adjustment policy; (b) disclose your return or cancellation policy to Buyers at the time of purchase, (c) not give cash refunds to a Buyer in connection with a Card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a Card sale refund. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data. If you accept returns and are making an uneven exchange of merchandise (e.g., the sales price is not the same), you must issue a credit for the total amount of the merchandise being returned and complete a new sale for any new merchandise. Please be aware, if your refund policy prohibits returns or is unsatisfactory to the Buyer, you may still receive a Chargeback relating to such sales.

You can process a refund through your ShootProof Account up to five (5) days from the day you accepted the payment from Buyer. ShootProof has no obligation to accept any returns of any of your goods or services on your behalf.

26. Taxes

You are solely 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 the 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. ShootProof specifically disclaims any liability for Taxes.

ShootProof has certain tax reporting requirements if you receive more than $20,000 in sales and more than 200 payments. If this applies to you, ShootProof is required by law to report to the Internal Revenue Service, your name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year.

27. Privacy and Confidentiality

You agree that you have read, understood and accepted ShootProof’s Privacy Policy (available at https://www.shootproof.com/legal/privacy-policy), which is incorporated herein by reference.

Any personal information you receive about Buyers or other third parties through use of the Services must be kept confidential, and can only be used in connection with the Services. You may not disclose, use, or distribute such personal information for any other reason without the express consent of the Buyer or other third party.

28. Data Security and Privacy

You represent to us that you do not have access to Card information (such as the cardholder’s account number, expiration date, and CVV2). In the event that you receive such Card information in connection with the processing services provided under this Agreement, you agree that you will not use it for any fraudulent purpose or in violation of any Card Organization Rules, including but not limited to Payment Card Industry Data Security Standards (“PCI DSS”) or applicable law. If at any time you believe that Card information has been compromised, you must notify us promptly and assist in providing notification to the proper parties. You must ensure your compliance and that of any third party service provider utilized by you, with all security standards and guidelines that are applicable to you and published from time to time by Visa, MasterCard or any other Card Organization, including, without limitation, the Visa U.S.A. Cardholder Information Security Program (“CISP”), the MasterCard Site Data Protection (“SDP”), and (where applicable), the PCI Security Standards Council, Visa, and MasterCard PA-DSS (“Payment Application Data Security Standards”) (collectively, the "Security Guidelines"). If any Card Organization requires an audit of you due to a data security compromise event or suspected event, you agree to cooperate with such audit. You may not use any Card information other than for the sole purpose of completing the transaction authorized by the customer for which the information was provided to you, or as specifically allowed by Card Organization Rules, Operating Procedures or required by law. The following links provide more information on PCI DSS and CISP compliance: https://www.pcisecuritystandards.org and http://www.visa.com/cisp.

We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized 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.

29. Termination.

You may terminate this Agreement at any time by closing your ShootProof Account. Any pending transactions will be cancelled. You are responsible for withdrawing all funds held in our custody for you, less any applicable Fees, prior to terminating your ShootProof Account. If you do not make such a withdrawal, we will continue to hold the funds until we receive a written request to release the funds; provided, however, that we may release the funds to you earlier at our sole discretion. If an investigation is pending at the time you close your ShootProof Account, we may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds in dispute, we will release those funds to you.

We may terminate this Agreement or suspend or close your ShootProof Account for any reason or no reason at any time upon notice to you. A termination of this Agreement or suspension may occur if you (a) have breached terms of this Agreement or any other agreement you enter into with ShootProof, (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. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement.

Upon termination or suspension of your ShootProof Account 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 license 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 ShootProof 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.

30. Dormant ShootProof Accounts

If there is no activity in your ShootProof Account (including access or payment transactions) for at least two years, consecutively, and you have a monetary balance (“Balance”) in your ShootProof Account, we will notify you by sending an email to the email address associated with your ShootProof Account and give you the option of keeping your ShootProof Account open and maintaining the Balance, withdrawing the Balance, or requesting a check. If you do not respond to our notice within thirty days, we will automatically close your ShootProof Account and escheat your funds in accordance with applicable law, and if permitted, to ShootProof.

31. Indemnity

You agree to indemnify, defend, and hold ShootProof and its licensee, licensors, and third party service providers (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all losses, liabilities, damages, claims, costs, losses, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) (a) resulting from any breach of any warranty, covenant or agreement or any misrepresentation by you under this Agreement, terms of use or service, policies, or the Card Organization Rules; (b) arising out of your or your employees’ or your agents’ negligence or willful misconduct in connection with any transaction submitted through the Services; (c) arising out of your use of the Services; or (d) arising out of any third party indemnifications we are obligated to make as a result of your actions (including indemnification of any third party service provider).

32. No Warranties

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 NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SHOOTPROOF AND ITS PROCESSORS, SERVICE PROVIDERS, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE CONTENT 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 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 OR YOUR USE OF THE SERVICE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE OFFERED BY A THIRD PARTY THROUGH OUR SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE.

33. Limitations of Liability and Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SHOOTPROOF, ITS PROCESSORS, SERVICE PROVIDERS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR 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 SERVICES. UNDER NO CIRCUMSTANCES WILL SHOOTPROOF BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR SHOOTPROOF ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHOOTPROOF, ITS PROCESSORS, SERVICE PROVIDERS, SUPPLIERS, AND 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 UNAUTHORIZED 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 SERVICES 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 SERVICES; AND/OR (VII) SELLER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL SHOOTPROOF, ITS PROCESSORS, SERVICE PROVIDERS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR 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 SHOOTPROOF IN CONNECTION WITH YOUR USE OF THE SERVICES 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, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SHOOTPROOF 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.

34. Dispute Time Limit

The timeline for disputes, unless otherwise required by applicable law, must be commenced within one year after the cause of action accrues.

35. Force Majeure

No party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused directly or indirectly by a force majeure event. In any such event, the non-performing party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable.

36. Governing Law

This Agreement shall be governed by Georgia law, without regard to its choice of law or conflicts of law.

37. Disputes and Arbitration

In the unlikely event that ShootProof has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any ShootProof claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) in the city of Atlanta, Georgia under the commercial rules then in effect for the AAA, except as provided herein. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing ShootProof from seeking injunctive or other equitable relief from the courts as necessary to protect any of ShootProof’s proprietary interests. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND SHOOTPROOF ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

38. Entire Agreement

This Agreement constitutes the entire agreement between the parties with respect to the subject matter thereof, and supersedes any previous agreements and understandings. In the event of a conflict between this Agreement and any other ShootProof agreement or policy, this Agreement shall prevail on the subject matter of this Agreement.

39. Right to Amend

ShootProof reserves the right to amend 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 deem, in our sole discretion, to be reasonable according to the circumstances. Notice may include notice on our website at shootproof.com. Any use of our Services after publication of any such change shall constitute your acceptance of this Agreement as modified.

40. Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by ShootProof without restriction.

41. Severability

The parties intend every provision of this Agreement to be severable. If any part of this Agreement is not enforceable, the remaining provisions shall remain valid and enforceable. In such case, the parties will in good faith modify or substitute a provision consistent with their original intent. If any remedy fails of its essential purpose, then all other provisions, including the limitations on liability and exclusion of damages, will remain fully effective.

42. Survival

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: 4, 5, 9, 10-22, and 25-42.

Exhibit A

Commercial Entity Agreement

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