This Agreement is between American Changer Corp., a Delaware corporation, (“Changer”) and the party desiring to access and use, whether as a system operator or consumer, (“User”) Changer’s payment system (including, but not limited to, in certain cases, access to an account through a website, or a mobile application, provided by Changer) that enable consumers to purchase credits for games, rides and other purposes using cash and credit and debit cards (or other forms of payment supported by such system) to be loaded on RFID cards or into accounts created by consumers in such mobile application or on a website provided by Changer(the “System”). User should read this Agreement carefully.
User is granted a non-exclusive and non-transferable license to access and use the System and, if User is a system operator, all data and other information available to User through the System in connection with such use solely (a) for their intended purpose as determined by Changer, in its discretion, and as otherwise expressly set forth in this Agreement and (b) in accordance with all applicable law. User will not (and will not permit any third party to) (a) copy, display, distribute, download, make derivative works of, modify, store, transmit, or otherwise access or use the System, except as expressly permitted herein, (b) disassemble, decompile, reverse engineer, or otherwise attempt to learn the source code or structure of, or any algorithms or coding techniques used within, the System, and (c) permit any individual to use the System if he or she is under 13 years old unless such use is in compliance with all applicable law.
In using the System, User may be able to establish an account on a website or a mobile application that is provided by Changer for administrative and other purposes relating to the use of the System. Each such account will require that User adopt and use a user name and password that complies with whatever protocol is from time to time established by Changer. User (a) is responsible for selecting User’s user name and password and maintaining their confidentiality, and (b) shall immediately notify Changer in writing of any loss or unauthorized access to, or disclosure, modification or use of, User’s user name or password. Changer will not have any liability to User or any third party arising from User’s failure to adequately protect User’s user name or password, and may at any time, in its discretion and without notice to User, disable User’s user name or password. In addition, Changer may rely on any use of User’s user name or password, whether by User or any third party, as having been authorized by User unless User previously notified Changer in writing of any loss or unauthorized access to, or disclosure, modification or use of, User’s user name or password, and Changer has had a reasonable opportunity of not less than five business days to act on such notice.
If User is a system operator, User will be able to use a website or mobile application provided by Changer to elect certain options and for other administrative purposes. If any individual using the System is doing so as an employee of User (and not as a consumer), and his or her employment is terminated for any reason, User must immediately terminate his or her access to any account established on the System by him or her and, if applicable, give another employee such access.
All right, title and interest in any data or other information (including, but not limited to, any data or other information available to an operator to use of the System) contained in, or accessible through, the System (“Content”) belongs to, or is licensed by, Changer. If User is deemed to own any right, title or interest in any Content, notwithstanding the preceding sentence, User (a) assigns to Changer all such right, title and interest and (b) must execute and deliver to Changer all assignments and other writings, and take all other action, requested by Changer in connection with such assignment. User may access and use any Content solely in connection with User’s use of the System as set forth herein, and shall at all times use commercially reasonable efforts to protect all Content from loss or unauthorized access, disclosure, modification or use, except that User may disclose such Content to a third party solely in connection with User’s authorized use of the System as set forth in this Agreement or as required by applicable law.
6. Intellectual Property Rights
The System may contain trademarks and service marks owned by Changer. All such trademarks and service marks shall at all times remain the property of Changer. All patents, copyrights and other intellectual property rights in, or relating to, the System or any Content are also owned or licensed by Changer, and shall at all times remain the property of Changer or its licensors, as applicable. Access to the System does not give User a license or other right in any intellectual property of Changer or its licensors, except as may be expressly authorized in writing by Changer.
8. User’s Responsibilities
User is solely responsible and liable for (a) all equipment, software, and services necessary to access and use the System, (b) using commercially reasonable measures to protect against loss, or unauthorized access to, or disclosure, modification or use of, any data and other information, or unauthorized access to, or disclosure, modification or use of, any equipment or software, relating to the System, (c) establishing and enforcing privacy, security, and other policies for all such data and other information in the possession or under the control of User, (d) performing all of User’s obligations pursuant to this Agreement (including, but not limited to, backing up and otherwise protecting all data and other information as set forth in this Agreement), (e) obtaining and maintaining applicable licenses and rights for use of any third-party equipment and software that are necessary to access and use the System, and for paying all amounts therefor, (f) all amounts payable with respect to the System (including, but not limited to, all amounts relating to any individual’s use of any account of User established on the System), (g) all accuracy, quality and compliance with applicable law of all data and other information available to User in accessing and using the System, and (g) ensuring that each individual using the System is at least 13 years or such use is otherwise in compliance with all applicable law.
User’s right to access and use the System is subject to User’s payment of all fees from time to time charged by Changer with respect to the System (including, but not limited to, usage fees, cloud hosting fees, and software, maintenance, support and development fees), plus all taxes and other government-imposed fees as set forth in Section 10. Changer may change such fees at any time upon notice to User. All fees and taxes payable hereunder by User will be charged to a credit or debit card used by User to access the System or otherwise designated by User, and so long as this Agreement is in effect, User irrevocably authorizes Changer to charge such fees and taxes to such credit or debit card. Subject to the immediately following sentence, User must at all times provide Changer with the credit or debit card number, expiration date, security code and any other information to be used for this purpose. If Changer agrees in a writing signed by it, User will not need to provide such a credit card, and Changer will send User an invoice each month for such fees and taxes, which will be payable by User within thirty days after it is (a) sent electronically, (b) delivered to a recognized delivery service, or (c) mailed via the U.S. Postal Service by Changer. Upon any portion of such invoice not being paid when due, and continuing until the day before such portion is irrevocably paid, User must pay interest on such portion at a per year rate equal to the prime rate of interest published in The Wall Street Journal on the day such invoice first becomes due, plus six percent.
Any amount payable by User pursuant to this Agreement does not include any applicable federal, state, county, or local duty, surcharge, tax, tariff or other government-imposed fee. Any such duty, surcharge, tax, tariff or other government-imposed fee (except for any tax on the net income of Changer) assessed or payable upon the license granted hereunder, any services rendered by Changer pursuant to this Agreement, or otherwise relating to this Agreement (including, but not limited to, any sales or use taxes) shall be added to such amount and paid to Changer by User as set forth in Section 9.
Changer (or, as applicable, its licensors) shall exclusively own all right, title and interest (including, but not limited to, all intellectual property rights) in and to (a) the System (including, but not limited to, all object and source codes of any mobile application therein) and all documentation relating thereto. If User is deemed to own any right, title or interest in the System or any such documentation under applicable law, notwithstanding the preceding sentence, User (a) assigns to Changer all such right, title and interest and (b) must execute and deliver to Changer all assignments and other writings, and take all other action, requested by Changer in connection with such assignment.
12. Revised Versions
Changer will from time to time make available to User an enhancement, modification, upgrade or improvement of the then-current version of the System. Upon Changer’s doing so, User shall promptly download and begin using only the version of the System as so enhanced, modified, upgraded and improved. After any such enhancement, modification, update or improvement is made available to User, all references to the System hereunder will be deemed to include the System as modified by such enhancement, modification, update and improvement, and Changer will have no obligation to support or maintain any earlier version of the System.
This Agreement shall be in effect as of the date User gains access to the System and continue in effect until terminated as set forth in this Section. Changer may terminate this Agreement at any time, whether with or without notice to User. User may terminate this Agreement at any time by giving Changer not less than 30 days’ prior written notice of User’s desire to so terminate as set forth in Section 24. Any such termination by User shall not be effective until the date designated by User in such notice, or if no such date is designated, 30 days after such notice is received by Changer.
Upon termination of this Agreement, (a) User shall immediately terminate its use of the System, (b) Changer may, without notice, immediately terminate User’s access to the System, (b) User shall pay Changer all amounts due through the effective date of such termination, and (c) all licenses granted to User under this Agreement, User’s right to access and use the System, and User’s account in the System shall immediately terminate.
Each provision of this Agreement that is, by its terms, reasonably intended to survive any termination of this Agreement shall so survive and may be enforced by Changer or User at any time after such termination.
User shall indemnify, defend, and hold harmless Changer from all costs, damages, expenses, fines, liabilities, losses, penalties and payments incurred by Changer (including, but not limited to, fees and disbursements of counsel to Changer) in connection with any claim relating to (a) User’s failure to perform any obligation pursuant to this Agreement (including, but not limited to, backing up and otherwise protecting all data and other information as set forth in this Agreement), or any warranty or representation made by User in this Agreement being untrue or misleading in any respect, (b) any unauthorized use of the System by User or any third-party using User’s account, user name, or password, (c) any data or other information available to User in accessing and using the System, (d) any infringement of any third-party intellectual property or other rights in connection with User’s using the System (not including any such infringement arising from User’s use of the System as contemplated by this Agreement), (e) any use of the System by an individual under 13 years old or in violation of any applicable law, and (f) except to the extent Changer is grossly negligent or engages in intentional misconduct, any use of, or reliance on, the System for any purpose.
THE SYSTEM IS MADE AVAILABLE TO USER “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, CHANGER (A) DOES NOT WARRANT OR REPRESENT THAT (I) THE SYSTEM WILL ALWAYS BE AVAILABLE FOR USE, (II) ANY USE OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE, (III) DEFECTS IN THE SYSTEM WILL BE CORRECTED, (IV) THE SYSTEM IS, OR WILL BE, FREE OF VIRUSES OR OTHER HARMFUL CODE, OR (V) THE SYSTEM WILL BE IN COMPLIANCE WITH ANY APPLICABLE LAW OR OTHER STANDARDS, AND (B) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Some jurisdictions do not allow limitations on how long an implied warranty lasts in a consumer transaction, so the above limitation may not apply to a consumer.
18. LIMITATION OF LIABILITY
CHANGER WILL IN NO EVENT BE LIABLE TO USER OR ANY THIRD PARTY IN CONNECTION WITH THE SYSTEM, THIS AGREEMENT, OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS). EXCEPT ONLY IN THE CASES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY CHANGER, IN NO EVENT WILL ANY LIABILITY OF CHANGER WITH RESPECT TO THE SYSTEM, THIS AGREEMENT OR OTHERWISE EXCEED THE LESSER OF (A) ALL DIRECT DAMAGES ACTUALLY INCURRED BY USER OR (B) U.S. $1,000. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT), EVEN IF THE POSSIBILITY OF ANY DAMAGES SHOULD HAVE BEEN FORESEEN BY CHANGER, AND EVEN IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the limitations or exclusions of liability for incidental or consequential damages in a consumer transaction, so the above limitation or exclusion may not apply to a consumer.
Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If, however, any such provision is prohibited by or invalid under such law, it will be deemed modified to conform to the minimum requirements of such law, or if for any reason it is not deemed so modified, it will be prohibited or invalid only to the extent of such prohibition or invalidity without the remainder of such provision, or any other provision of this Agreement, being prohibited or invalid.
20. Relationship of Parties
This Agreement does not create a partnership, agency or other similar relationship between the parties. Each of Changer and User is (a) an independent contractor pursuant to this Agreement, and (b) solely responsible for all of its employees, contractors and other agents. Neither Changer nor User may incur any indebtedness, liability or obligation on behalf of the other party, unless the other party consents thereto in a writing signed by the other party.
Changer may amend the terms and conditions of this Agreement at any time. User will be bound by such amendment (a) immediately upon Changer’s sending an electronic message with respect to such amendment to the address Changer has in its records for User, (b) five business days after Changer’s sending notice with respect to such amendment by regular mail to the address Changer has in its records for User, or (c) immediately upon User’s posting the terms of this Agreement as so amended on www.americanchanger.com in each case regardless of whether or not User have actually read or assented to such amendment.
This Agreement shall be governed by, and interpreted and enforced in accordance with, the internal law of the State of Florida, without regard to principles of conflict of laws. Any dispute relating to the System or this Agreement must be submitted exclusively to a court located in Broward County, Florida within one year after the event giving rise to such dispute. User consents to any such court being a proper venue for such dispute, and waives any right to object to such court being an improper venue, whether for inconvenience or otherwise. If any lawsuit is commenced, User waives any right to a jury trial, (b) consents to all findings of fact be determined by the presiding judge, and (c) waives any right to bring or join any claim against Changer as a member or other participant in any class action or other similar form of litigation. The party prevailing in any such dispute shall collect from the other party all costs and expenses incurred by it in connection with such dispute (including, but not limited to, all fees and disbursements of counsel).
23. Equitable Remedies
User (a) acknowledges that User’s failure to comply with any provision of Sections 2, 3, 5, 6, 11, 14, 20, 22, and 23 will cause Changer irrevocable harm and that a remedy at law for such a failure would be an inadequate remedy for Changer and (b) consents to Changer’s obtaining from a court having jurisdiction specific performance, an injunction or any other equitable relief in order to enforce such compliance without being required to post a bond or other security, regardless of whether User has actually failed to comply, has threatened to not comply or Changer has a reasonable basis to believe that User will not comply, with any such provision. Changer’s right to obtain equitable relief pursuant to this Section shall be in addition to, and not in lieu of, any other remedy that Changer may have under applicable law.
User must send all notices relating to the System or this Agreement to Changer at 1400 NW 6th Place, Ft. Lauderdale, Florida 33309. Any such notice will be effective only upon actual receipt by Changer. Changer may send notices to User through electronic mail, regular mail or a posting on www.americanchanger.com. Any such notice will be effective (a) immediately upon Changer’s sending such notice to the address it has in its records for User in the case of electronic mail, (b) five business days after Changer’s sending such notice to the address it has in its records for User in the case of regular mail, and (c) immediately upon User’s using the System after such notice is posted on www.americanchanger.com.
THE INDIVIDUAL ENTERING INTO THIS AGREEMENT REPRESENTS AND WARRANTS TO CHANGER THAT HE OR SHE (A) IS ENTERING INTO THIS AGREEMENT ON HIS OR HER OWN BEHALF, AND IF APPLICABLE, ON BEHALF OF HIS OR HER EMPLOYER, (B) HAS SUFFICIENT CAPACITY TO ENTER INTO THIS AGREEMENT ON HIS OR HER OWN BEHALF, AND IF APPLICABLE, ON BEHALF OF HIS OR HER EMPLOYER, AND (C) IF APPLICABLE, HE OR SHE IS AUTHORIZED TO ACCEPT THE TERMS OF THIS AGREEMENT ON BEHALF OF HIS OR HER EMPLOYER.
Effective Date: November 23, 2019