End User Agreement
Last updated: Dec 21st, 2023
PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A CLASS ACTION WAIVER. PLEASE READ THESE PROVISIONS BEFORE USING THE WEBSITE OR OUR SERVICES.
This HOOX End User Agreement (“Agreement”) is a contract between HOOXPAY LTD. An Israeli company (“HOOX,” “our,” “we,” or “us”) and the end users of HOOX’s Services (the buyers, as described below). End users of HOOX’s services are referred to as “you” or “your” in this Agreement.
Each of HOOX and you is a Party, and HOOX and you are, collectively, the Parties. By accessing or using the Services you agree to be bound by this Agreement. You represent that you have the power and authority to bind the entity on whose behalf you are agreeing to this Agreement.
Your use of the Services must at all times be in compliance with this Agreement.
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HOOX SERVICES
1.1 HOOX has developed a software solution that enables Issuers and Merchants (“Hoox customer/s”) to collaborate in real time and provide incentives, rewards, discounts or other benefits for consumers, (collectively, the “Services”). HOOX may offer the Services in relation to your transactions through any such HOOX customer to you directly or through a HOOX customer. HOOX may modify or limit the Services at HOOX’s sole discretion for any purpose deemed appropriate by HOOX.
1.2 HOOX has absolute discretion over your participation in the Services, and may block, suspend or terminate your access to the Services at any time, in whole or in part, if your use of the Services violates this Agreement or other agreements between you and HOOX, including HOOX's Privacy Policy. Your access to the Services may be dependent on your completing any required onboarding and timely and accurately responding to inquiries from HOOX directly or through the HOOX customers or any third-party service providers about any other information HOOX needs from you to provide the Services to you.
1.3 You acknowledge and understand HOOX’s ability to offer the Services to you may require that one or more HOOX customers maintain a relationship in good standing with HOOX. HOOX reserves the right to terminate a relationship with a HOOX customer at any time and for any reason.
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YOUR USE OF THE SERVICES
2.1 You agree to use the services only for commercial, business, or non-profit purposes. Individual use of the Services for personal, family, or household purposes is not permitted.
2.2 During the term of this Agreement and subject to your compliance with this Agreement, HOOX grants you a non-exclusive, non-transferable, non-sublicensable, limited, revocable right to use Hoox’s services.
2.3 You must always use the Services in compliance with applicable law, including laws regarding privacy, intellectual property, and export control. You may not: (a) sell, resell, or lease the Services or access or attempt to access the Services by any means other than the interface we provide or authorize; (b) circumvent any access or use restrictions put into place to prevent certain uses of the Services or their related systems or networks; (c) use the Services to store, share or transmit content which is unlawful, infringing, harmful or which violates any person’s rights, including privacy rights and intellectual property rights; (d) store or transmit a virus, malware, or other malicious or harmful code or files through the Service; (e) interfere with or disrupt the integrity or performance of the Service; (f) disassemble, translate, reverse engineer , or otherwise attempt to derive source code or specific data from the Service, in whole or in part, nor will you use any mechanical, electronic, or other method to trace, decompile, disassemble, or identify the source code of, or specific data available through the Service or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions).
2.4 HOOX or a HOOX customer may request certain information from you in order to assess whether HOOX should facilitate your offerings from HOOX customers or whether HOOX may offer you other benefits. You represent and warrant that the information you provide to us, or to the HOOX customer on our behalf, will be true, accurate, current, and complete, and that you have the legal right to provide it, and you acknowledge that we may rely in our Services concerning you on information provided to us by a HOOX customers facilitating an offering with you. You agree to facilitate HOOX's assessment of your ability to use the Services through timely providing necessary information and responding to any question from HOOX or its designee (including the HOOX customers).
2.5 You agree to immediately (a) and fully cooperate with HOOX to investigate any suspected illegal, fraudulent, or improper activity on the part of HOOX customer, a buyer, or any other third party and (b) inform HOOX at least 30 days’ prior to any material change to your business (including any change of control).
2.6 You agree HOOX does not sell goods or services to you and that HOOX does not collect sales taxes from you and you do not owe such taxes to HOOX. The HOOX customer is solely responsible for the accuracy and collection of any calculated taxes charged to you.
2.7 You agree that if you Participate in a Transaction with a HOOX customer and that HOOX customer sells or assigns all rights, title, and interest in a receivable to us that is owed by you to that HOOX customer, we acquire and obtain all rights that the HOOX customer has with respect to that sold receivable.
2.8 Your ability to use the Service may change from time-to-time. HOOX does not guarantee the availability of the Services.
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THIRD PARTY PRODUCTS
HOOX may use third party products and services (collectively, “Third Party Products”) as part of its delivery of the Services. We have no control over Third Party Products. Third Party Products may be subject to additional terms between you and the provider of the Third Party Product, as disclosed to you by HOOX or the provider. Your continued use of the Services after any such terms have been disclosed to you constitutes your acceptance of the terms. HOOX may terminate this Agreement immediately if you breach any Third Party Product terms. HOOX provides no warranty or other guarantee related to any Third Party Products.
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HOOX customers
7.1 HOOX is a third-party service provider to, and does not control, the HOOX customers. Neither HOOX nor the HOOX customers have the power to bind the other party or incur obligations on the other party’s behalf. If you have an issue with a HOOX customer or a good or service provided by a HOOX customer, you need to contact the customer directly, and not HOOX. HOOX does not endorse, recommend, warrant, or bear any responsibility for any representations made by HOOX customers, or for any HOOX customer’s implementation or use of the Services. HOOX is not liable to you for any loss or damage that you suffer due to the actions (or inaction) of a HOOX customer. For example, HOOX has no responsibility for a HOOX customer’s failure to honor contractual agreements or actual or implied warranties, deliver goods or services, delivery of faulty goods or services, delivery of timely goods or services, errors in any documentation provided by a HOOX customer, or providing inaccurate or faulty invoices created by entities other than HOOX or based on information provided by such other entities.
7.2 A HOOX customer may appoint a third party to facilitate the completion of transactions between you and the HOOX customer. In such cases, the third party may communicate with you on the HOOX customer’s behalf. These communications may identify both the HOOX customer and the third party, and, where you have initiated multiple transactions with HOOX customers that have all appointed the same third party facilitator, that third party may use a single communication to communicate with you about all of these transactions. The presence of any third party, or any of the factual scenarios described above, does not change the fact that a transaction is between you and the relevant HOOX customer. The HOOX customer is the entity responsible for providing the product or service that you purchase, and if there are any issues, you will need to contact the HOOX customer directly. Any such issues do not eliminate or reduce any amounts owed to HOOX.
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DATA
You understand and agree that: (a) the Service hosts, processes, and otherwise stores data you input on servers located in the United States; and (b) HOOX may use the cloud infrastructure of third party providers for its Service if such providers meet or exceed the safeguards for the protection and security of your Data agreed upon by HOOX under our Privacy Policy. Please see the Hoox Privacy Policy for a detailed description of HOOX’s data practices.
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INTELLECTUAL PROPERTY RIGHTS
9.1 All rights not expressly granted to you under this Agreement are reserved by HOOX and its licensors. This Agreement does not give you an interest in or to HOOX’s intellectual property rights, and nothing in this
Agreement constitutes a waiver of HOOX’s intellectual property rights under any law. All logos related to HOOX, are either trademarks or registered trademarks of HOOX or its licensors. You may not copy, imitate or use them without HOOX's prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of HOOX. You may not copy, imitate, or use them without our prior written consent. All right, title and interest in and to the HOOX website, any content thereon, the Services, the technology related to the Services, and any and all technology and any content created or derived from any of the foregoing, is the exclusive property of HOOX and its licensors.
9.2 If you provide any feedback, comments or suggestions ("Feedback"), you grant HOOX a royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into the Services or any of our current or future products or services.
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WARRANTIES; DISCLAIMERS; LIMITATION OF LIABILITY.
10.1 You represent and warrant that: (i) you have the authority to enter into this Agreement and perform your obligations under this Agreement, (ii) this Agreement does not conflict with any other agreement you are subject to and bound by, (iii) you will use the Services on behalf of a United States-domiciled or Canadian-domiciled business entity; and (iv) you do not conduct business for any unlawful purpose.
10.2 HOOX provides the Services on an “as is” basis, without representations or warranties of any kind, and HOOX expressly disclaims all warranties, statutory, express, implied or otherwise, including warranties of accuracy, merchantability, non-infringement and fitness for a particular purpose. HOOX further disclaims any warranty that the operation of the Services will be uninterrupted or error-free. To the maximum extent permitted by law: (a) in no event will HOOX be liable for lost profits, loss of use, loss of data (including end-user information), cost of procurement of substitute goods or services, or for special, punitive, incidental, indirect or consequential damages, however caused, and on any theory of liability, whether in contract, tort (including negligence and strict liability), or otherwise, and whether or not advised of the possibility of such damages; and (b) HOOX’s maximum aggregate liability under, arising out of or relating to this Agreement will not exceed $1000.
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INDEMNIFICATION
You agree to defend, indemnify and hold HOOX harmless (including payment of reasonable attorney’s fees) against any claim or demand made or incurred by any third party, including but not limited to a HOOX customer, arising out of or relating to (a) your breach of any provision of this Agreement; (b) your use of the Services or our website; (c) your obligations to pay fees or fines to HOOX; (d) negligence or willful misconduct of your affiliates, employees, contractors, or agents; and (e) all third-party indemnity obligations HOOX incurs as a direct or indirect result of your acts or omissions.
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CREDIT TERMS AND LATE FEES
You agree that moneys owed to us based on your use of the Services are a debt owed by you to us. You agree that moneys owed to us by you are due to us on or after the due date. If you fail to pay us amounts owed by the due date stated on an invoice or in other written agreements or communications, you agree to pay us a late fee, in the sum indicated in this Agreement or in any agreement between you and the relevant HOOX customer, per month that the debt, or a portion thereof, remains unpaid and outstanding.
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COLLECTIONS
In connection with your use of the Services, you may be required to pay us money by a due date, provided to you in writing. If you fail to make a required payment to us, you acknowledge and agree that HOOX or its agents may pursue any and all legal means to collect funds owed to us by you. If your company is a sole proprietorship, we reserve the right to seek to collect funds from you personally.
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COMMUNICATIONS
14.1 You agree that using the Services available to you constitutes your electronic signature. You also agree that your electronic consent has and will have the same legal effect as a physical signature.
14.2 You agree that we and any agents acting on our behalf may send notices to, receive communications from, or otherwise contact, including via text or SMS, You or any of your employees or representatives. We may send notices or otherwise communicate with you using the contact information provided to us, our agents, or a HOOX customer, including phone numbers associated with mobile phones or devices, and may use autodialing or automated voice messaging technology.
14.3 You agree that HOOX may monitor or record your interactions or activities with us. HOOX may also monitor or record any communications for quality assurance or other reasonable business purposes.
14.4 You agree that we will send notices to you via contact information provided to us by you or a HOOX customer and are considered received 24 hours after they are sent. You understand that you may not use the Services unless you consent to receive all communications electronically. If you withdraw consent, you will not be able to use the Services. You further agree to provide HOOX with your current contact information.
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TERM AND TERMINATION
This Agreement commences when you start using the Services and continues until you stop using the Services, unless earlier terminated by either HOOX or you. You may cease using the Services at any time. HOOX may suspend your ability to use the Services or terminate this Agreement at any time. Upon termination of this Agreement, your right to use the Services will immediately cease, except that all obligations, responsibilities and liabilities deriving from actions prior to termination or expiration of this Agreement will survive its termination or expiration. This exception includes, but is not limited to, any payments owed to HOOX for your prior use of the Services.
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CONFIDENTIALITY
16.1 Meaning of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information will not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.
16.2 Standard of Care. Except as otherwise permitted in writing by Disclosing Party, Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), (b) not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, and (c) limit access to Confidential Information of Disclosing Party to those of its employees, contractors, advisors, and agents with a need to know or who need access for purposes consistent with this Agreement and who are bound by confidentiality obligations at least as stringent to those in this Agreement.
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ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW LEGAL CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, UNLESS YOU OPT OUT AS SET FORTH BELOW.
17.1 Dispute Resolution. We hope that you are completely satisfied with our Services. If you are not satisfied, please contact us. We will make every reasonable effort to resolve any disagreements that you have with us. However, if we are unable to resolve any dispute that arises in connection with your transaction, the Services, or this Agreement, to your satisfaction, this section governs the dispute resolution process.
17.2 You and We Agree to Arbitrate Disputes Between Us. Either you or we may, at either’s sole election, require that the sole and exclusive forum for resolution of a Dispute be final and binding arbitration pursuant to this Binding Arbitration section. Disputes are subject to arbitration regardless of whether they arise from contract, tort, a constitution, statute, common law, principles of equity, or any other legal theory. Disputes include matters arising as initial claims, counterclaims, cross-claims, third-party claims, or otherwise. Nothing in this section affects the right of a party to seek temporary injunctive or declaratory relief from a court of appropriate jurisdiction in conjunction with a Dispute that is subject to arbitration in order to prevent imminent and irreparable harm.
The scope of this Binding Arbitration section is to be given the broadest possible interpretation that is enforceable. You and we agree that this Agreement is entered into pursuant to a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. § 1, et seq., governs the interpretation and enforcement of this Binding Arbitration section.
17.3 Arbitration Procedures. In the event you or we elect to resolve a Dispute through final and binding arbitration pursuant to the terms of this section, the Dispute will be resolved by arbitration before a single arbitrator, as provided in this section. All issues will be for the arbitrator to decide, except issues relating to arbitrability, the scope or enforceability of this Binding Arbitration section, or the interpretation or enforceability of the Prohibition of Class and Representative Actions and Non-Individualized Relief provision below shall be for a court of competent jurisdiction to decide.
Arbitration will be administered by JAMS or the American Arbitration Association (“AAA”), at the election of the party initiating arbitration. The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, AAA’s Commercial Arbitration Rules (if AAA is chosen as the administrator) or JAMS’s Comprehensive Arbitration Rules & Procedures or Streamlined Arbitration Rules & Procedures depending on the amount in dispute (if JAMS is chosen as the administrator), except to the extent such rules and procedures conflict with this Binding Arbitration section or any countervailing applicable law. You may review JAMS’s rules and procedures by visiting its website at www.jamsadr.com. You may review AAA’s rules and procedures by visiting its website at www.adr.org. In the case of a conflict between the rules and procedures of the administrator and this Binding Arbitration section, this section shall control, subject to countervailing applicable law, unless all parties to the arbitration consent to have the rules and procedures of the administrator apply.
If the value of the relief sought in arbitration is $50,000 or less, you or we may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and us subject to the discretion of the arbitrator to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise.
Either you or we may commence arbitration by providing a written demand for arbitration to JAMS or AAA and the other party detailing the nature of the Dispute and the relief requested. The arbitrator will apply the substantive law as described in Section 3.4. Each party shall bear the expense of its own attorneys’ fees and its out-of-pocket costs incurred in connection with the arbitration, except the appropriate apportionment of any administrative fees and expenses or arbitrator fees and expenses associated with the arbitration shall be determined by the arbitrator in the arbitration award. The award of the arbitrator shall be final and binding, and judgment on the award may be entered in any court of competent jurisdiction.
17.4 Prohibition of Class and Representative Actions and Non-Individualized Relief. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS A PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED OR COULD HAVE BEEN ASSERTED IN COURT ON A PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS. YOU AND WE ALSO AGREE NOT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION AGAINST US OR YOU. UNLESS CONSENTED TO IN WRITING BY ALL PARTIES TO THE ARBITRATION: (1) NO PARTY TO THE ARBITRATION MAY JOIN, CONSOLIDATE, OR OTHERWISE BRING CLAIMS FOR OR ON BEHALF OF TWO OR MORE INDIVIDUALS OR ENTITIES IN THE SAME ARBITRATION UNLESS THOSE PERSONS OR ENTITIES ARE PARTIES TO A SINGLE TRANSACTION, AND (2) AN AWARD IN ARBITRATION SHALL DETERMINE THE RIGHTS AND OBLIGATIONS OF THE NAMED PARTIES ONLY, AND ONLY WITH RESPECT TO THE CLAIMS IN ARBITRATION, AND SHALL NOT (A) DETERMINE THE RIGHTS, OBLIGATIONS, OR INTERESTS OF ANYONE OTHER THAN A NAMED PARTY, OR RESOLVE ANY CLAIM OF ANYONE OTHER THAN A NAMED PARTY; NOR (B) MAKE AN AWARD FOR THE BENEFIT OF, OR AGAINST, ANYONE OTHER THAN A NAMED PARTY. NO ADMINISTRATOR OR ARBITRATOR SHALL HAVE THE POWER OR AUTHORITY TO WAIVE, MODIFY, OR FAIL TO ENFORCE THIS PROVISION, AND ANY ATTEMPT TO DO SO, WHETHER BY RULE, POLICY, ARBITRATION DECISION OR OTHERWISE, SHALL BE INVALID AND UNENFORCEABLE. ANY CHALLENGE TO THE VALIDITY OF THIS PROVISION SHALL BE DETERMINED EXCLUSIVELY BY A COURT OF COMPETENT JURISDICTION AND NOT BY JAMS, AAA, OR ANY ARBITRATOR.
17.5 Severability. If any portion of this Binding Arbitration section, other than the Prohibition of Class and Representative Actions and Non-Individualized Relief is deemed invalid or unenforceable, the remaining portions of this section shall nevertheless remain valid and in force. If a court decides that any of the provisions of the Prohibition of Class and Representative Actions and Non-Individualized Relief is invalid or unenforceable because it would prevent the exercise of a non-waivable right to pursue public injunctive relief and that decision is not overturned after any rights to appeal are exhausted, then any claim regarding the entitlement to such relief (and only that form of relief) must be severed from arbitration and may be litigated in court. Also, if a court decides that any of the provisions of the Prohibition of Class and Representative Actions and Non-Individualized Relief is invalid or unenforceable for any other reason and that decision is not overturned after any rights to appeal are exhausted, then any claim that may not be arbitrated in accordance with the provisions of the Prohibition of Class and Representative Actions and Non-Individualized Relief that are held to be invalid or unenforceable must be severed from arbitration and may be litigated in court. For the sake of clarity, in no event shall any court decision finding a provision of the Prohibition of Class and Representative Actions and Non-Individualized Relief invalid or unenforceable be deemed to authorize an arbitrator to adjudicate claims or make awards beyond those authorized in this Binding Arbitration section.
17.6 Future Amendments to this Binding Arbitration Section. Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any amendment to this Arbitration section (other than an amendment to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by this Binding Arbitration section that have arisen or may arise between you and us.
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GENERAL
18.1 Governing Law and Jurisdiction. This Agreement is governed by the laws of the state of Delaware excluding rules as to choice and conflicts of law and, subject to Section 17, the courts in the state of Wilmington County, Delaware will have exclusive jurisdiction; however, HOOX or its affiliates may bring suit for payment in the country where You are located. You and HOOX agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
18.2 Changes to Agreement. Unless otherwise required by law, HOOX may change the Agreement from time to time, and such change will become effective upon the date on which it is posted on the HOOX website. You are responsible for checking the website regularly for such changes. By continuing to access or use the Services you agree to be bound by the revised Agreement.
18.3 Construction. The headings contained in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. The singular includes the plural, and the plural includes the singular. The terms “include” and “including” are not limiting. Reference to any agreement or other contract includes any permitted modifications, supplements, amendments, and replacements. Any reference to a URL or to terms incorporated by reference will be deemed to mean that URL and those terms as may be updated from time to time.
18.4 Survival, Severability and Waiver. All provisions of this Agreement which by their nature are meant to extend beyond the expiration or termination of this Agreement will survive such expiration or termination. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the remaining provisions of this Agreement will otherwise remain in full force and effect and enforceable. The failure by either Party to insist upon strict performance of any of the provisions contained in this Agreement will in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other Party in the performance of or compliance with this Agreement.
18.5 Force Majeure. HOOX is not responsible for any breach or delay in the performance of its obligations pursuant to this Agreement for reason of fire, flood, riot, act of terrorism, strike, labor conflict, freight embargo, delay in shipping, act of a public enemy, of war, of civil disorder, of interruption, of a failure or an interruption of the Internet or phone service, or for any other cause reasonably beyond the control of Agreement
18.6 Relationship. Nothing in this Agreement will be deemed or is intended to be deemed, nor will it cause, any of the Parties to be treated as partners, joint ventures, or otherwise as joint associates for profit. You do not have any authority of any kind to bind HOOX.
18.7 Entire Agreement. This Agreement contains the entire agreement between HOOX and you relating to your use of the Services and supersedes any and all prior agreements between HOOX and you in relation to the subject matter of this Agreement. You confirm that, in agreeing to accept this Agreement, You have not relied on any representation except made by HOOX.
18.8 Assignment; No Third Party Rights. You may not assign your rights or delegate your obligations under this Agreement without HOOX’s prior written consent. Any purported assignment contrary to this section will be null and void. HOOX may assign this Agreement and its rights hereunder without your consent. Except as stated in this Agreement, this Agreement does not create any right or cause of action in or on behalf of any person or entity other than the Parties. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ respective successors and permitted assigns.
Questions or Additional Information - If You have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@hooxpay.com.