ChartHop Standard Terms and Conditions

PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE PURCHASING AND/OR USING THE SERVICES OFFERED BY CHARTHOP, INC. (“CHARTHOP”). BY SIGNING AN ORDER FORM WHICH REFERENCES THESE TERMS (AN “ORDER FORM”), YOU AND THE ENTITY YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND TO BECOME A PARTY TO THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. THESE TERMS INCLUDE AND INCORPORATE ANY APPLICABLE ORDER FORM MUTUALLY EXECUTED BY CHARTHOP AND CUSTOMER.

1. ACCESS TO THE SERVICE Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) ChartHop grants Customer the right to access and use the services specified in each Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with ChartHop’s applicable official user documentation (the “Documentation”).
2. IMPLEMENTATION Upon payment of any applicable fees set forth in each Order Form, ChartHop agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If ChartHop provides Implementation Assistance in excess of any agreed-upon hours estimate, or if ChartHop otherwise provides additional services beyond those agreed in an Order Form, Customer will pay ChartHop at its then-current hourly rates for consultation.
3. CUSTOMER CONTACT Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to ChartHop. The Primary Contact shall designate “Owners” and “Technical Owners” who have the ability to create and distribute accounts and login credentials. Customer shall be responsible for the use and activity in connection with all such accounts.
4. SERVICE UPDATES From time to time, ChartHop may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that ChartHop shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that ChartHop may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that ChartHop shall use commercially reasonable efforts to give Customer sixty (60) days prior notice of any major changes.
5. FEEDBACK Customer may from time to time provide suggestions, comments, or other feedback to ChartHop with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for ChartHop notwithstanding anything else. Customer shall, and hereby does, grant to ChartHop a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
6. OWNERSHIP As between the parties, ChartHop retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by ChartHop for the purposes of this Agreement, including any Updates, improvements, modifications, copies, and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Nothing in this Agreement will impair ChartHop’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software, or technologies that Customer may develop, produce, market, or distribute.
7. CONFIDENTIALITY Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand to be confidential (“Proprietary Information”). Proprietary Information of ChartHop includes non-public information regarding features, functionality, and performance of the Service, and the Documentation. Proprietary Information of Customer includes Customer Data (as defined below). The Receiving Party agrees: (i) to take commercially reasonable precautions to protect Disclosing Party’s Proprietary Information, (ii) except as requested by Customer (including to those integration partners chosen by Customer, if any) or as otherwise permitted herein, not to disclose the Disclosing Party’s Proprietary Information to any third party other than the Receiving Party’s employees, consultants or subcontractors on a need-to-know basis and subject to confidentiality obligations at least as protective of the Disclosing Party’s Proprietary Information as those imposed herein, (iii) except in performance of the Services or as otherwise permitted herein, not to use any of Disclosing Party’s Proprietary Information, (iv) promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of Disclosing Party’s Proprietary Information, reasonably assist the Disclosing Party to prevent further unauthorized use or disclosure, and provide the Disclosing Party with information about the incident as the Disclosing Party may reasonably request in writing, and (v) upon the Disclosing Party’s written request, at the Receiving Party’s option, either destroy or return the Disclosing Party’s Proprietary Information to the Disclosing Party, provided the Receiving Party may retain copies of the Disclosing Party’s Proprietary Information disclosed or derived hereunder in order to comply with applicable law, rule, or regulation or pursuant to internal document retention policies. “Proprietary Information” shall not include any information that (a) is or becomes generally available to the public, (b) was in the Receiving Party’s possession or known by the Receiving Party prior to receipt from the Disclosing Party, (c) was rightfully disclosed to the Receiving Party without known restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing set forth in this Agreement will prevent the Receiving Party from complying with any law, rule, regulation, court order or other legal requirement that compels disclosure of any Proprietary Information. ChartHop reserves the right to use Customer’s name as a reference for marketing or promotional purposes on ChartHop’s website and in other communication with existing or potential ChartHop customers without the prior consent of Customer.
8. FEES; PAYMENT Customer shall pay ChartHop fees for the Service as set forth in each Order Form (“Fees”). All invoices issued under this Agreement are payable in U.S. dollars within the number of calendar days as specified by the Payment Term (as set forth in the applicable Order Form) from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Service (excluding taxes based on ChartHop’s net income). All Fees paid are non-refundable and are not subject to set-off.
9. RESTRICTIONS Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction), (ii) modify, translate, or create derivative works based on the Service, (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service, (iv) use the Service for the benefit of a third party, (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof, (vi) use the Service to build an application or product that is competitive with any ChartHop product or service, (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service, (viii) bypass any measures ChartHop may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service), or (ix) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party. Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to the use and distribution of login credentials by the Customer’s employees or agents and uploading Customer Data (as defined below) onto the Service. Customer represents, covenants, and warrants that Customer shall (i) use the Service in compliance with all applicable local, state, national and foreign laws, treaties, and regulations , and all compulsory industry self-regulations, whether now existing or hereafter enacted, including without limitation those related to advertising, data privacy, international communications, export and the transmission of technical or personal data, state licensing, tax reporting, UDAAP and other laws related to unfair or deceptive acts or practices, the Federal USA PATRIOT Act, the Payment Card Industry Data Security Standard Requirements, the Federal Gramm-Leach-Bliley Act, Federal Telephone Consumer Protection Act, the Federal CAN-SPAM Act, and the EU General Data Protection Regulation, as they may be amended from time to time, and (ii) not use the Service in a manner that violates any third-party intellectual property, contractual or other proprietary rights.
10. CUSTOMER DATA For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer, its employees or agents to the Service in the course of using the Service. Customer shall retain all right, title, and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not ChartHop, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants to ChartHop that Customer owns all rights, title, and interest in and to the Customer Data, or that Customer has otherwise secured all necessary rights and consents in the Customer Data as may be necessary to permit the access, use and distribution thereof as contemplated by this Agreement, including all rights and consents necessary under any applicable privacy laws for ChartHop to process consumer Personal Data in accordance with this Agreement. “Personal Data” means any information that identifies or relates to a particular individual and also includes information referred to as “personally identifiable information” or “personal information” under applicable data privacy laws, rules or regulations. ChartHop shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data, including through the mechanisms and procedures described in the ChartHop Security Statement available at https://docs.charthop.com/security-statement (as may be updated from time to time). ChartHop is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to ChartHop’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that ChartHop may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Service to Customer, and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for ChartHop’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing ChartHop’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by ChartHop in connection with Customer’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Customer or any individuals. ChartHop shall own any Aggregated Anonymous Data. ChartHop shall maintain all Customer Data for six (6) months following termination or expiration of this Agreement to enable the Customer to reference such Customer Data. The Parties will each comply with applicable portions of the Data Protection Addendum available at https://docs.charthop.com/data-processing-addendum
11. THIRD PARTY SERVICES Customer acknowledges and agrees that the Services have the ability to operate with or use application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). ChartHop is not responsible for the operation of any Third-Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. ChartHop does not make any representations or warranties with respect to Third Party Services or any third-party providers. Any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third-party provider and is governed by such third party’s terms and conditions and privacy policies.
12. TERM; TERMINATION This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until ninety (90) days following the expiration of all Order Form Terms. For each Order Form, the “Order Form Term” shall consist of the Initial Term and any subsequent Renewal Terms as set forth in that Order Form. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, ChartHop may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with ChartHop’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) ChartHop shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation, (b) prior to any such suspension or limitation, ChartHop shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation, and (c) ChartHop shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
13. INDEMNIFICATION a. Customer: Customer shall defend, indemnify, and hold harmless ChartHop, its affiliates and each of its and its affiliates’ employees, contractors, officers, directors, suppliers and representatives from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to the Customer Data or Customer’s use of the Service. b. ChartHop: ChartHop shall defend, indemnify, and hold harmless Customer, its affiliates and each of its and its affiliates’ employees, contractors, officers, directors, suppliers, and representatives from all Losses that arise from or relate to claims that the Service infringes, violates, or misappropriates any third-party intellectual property or proprietary right. The foregoing obligations of ChartHop do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by ChartHop (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by ChartHop, (iv) combined with other products, processes or materials not provided by ChartHop (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service is not strictly in accordance herewith. c. Procedure: Each indemnitor’s indemnification obligations hereunder shall be conditioned upon the indemnitee providing the indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the indemnitor of its indemnity obligations if the indemnitor is materially prejudiced by such failure), (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense), and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).
14. REPRESENTATIONS AND WARRANTIES Each party represents and warrants that (a) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized, (b) it has full power and authority to enter into this Agreement and to perform its obligations hereunder, (c) this Agreement is legally binding upon it and enforceable in accordance with its terms, and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
15. DISCLAIMER EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
16. LIMITATION OF LIABILITY IN NO EVENT SHALL CHARTHOP, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, OFFICERS OR REPRESENTATIVES BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID AND/OR PAYABLE BY CUSTOMER TO CHARTHOP HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
17. ARBITRATION AGREEMENT. Please read the following ARBITRATION AGREEMENT carefully because it requires Customer to arbitrate certain disputes and claims with ChartHop and limits the manner in which Customer can seek relief from ChartHop. Both Customer and ChartHop acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, ChartHop’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of this Agreement, and that upon Customer’s acceptance of this Agreement, Personnel will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer as the third-party beneficiary hereof. a. Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of this Agreement directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York County, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. b. Infringement. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. c. Waiver of Jury Trial. CUSTOMER AND CHARTHOP WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. Customer and ChartHop are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between Customer and ChartHop over whether to vacate or enforce an arbitration award, CUSTOMER AND CHARTHOP WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge. d. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither Customer nor ChartHop is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (e) below. e. Exclusive Venue. In any circumstances where the foregoing arbitration agreement permits either Customer or ChartHop to litigate any dispute arising out of or relating to the subject matter of this Agreement in court, then the foregoing arbitration agreement will not apply to either party, and both Customer and ChartHop agree that any judicial proceeding will be brought in the state or federal courts located in, respectively, New York County, New York, or the federal district in which that county falls. f. Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with ChartHop.
18. MISCELLANEOUS This Agreement represents the entire agreement between Customer and ChartHop with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between Customer and ChartHop with respect thereto. In the event of a conflict between these Terms and an Order Form, these Terms shall control unless otherwise expressly agreed upon by Customer and ChartHop in the applicable Order Form through language that references these Terms and communicates the parties’ intent to modify one or more specific provisions of these Terms with respect to such Order Form. The Agreement shall be governed by and construed in accordance with the laws of the State of New York excluding its conflicts of law rules. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth in an Order Form by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) ChartHop may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. Customer agrees that the parties may undertake certain transactions contemplated by this Agreement via electronic signatures. Customer agrees that by executing any documents with an electronic signature, Customer is creating a legally valid and enforceable signature just as if the relevant document was signed by Customer in hardcopy.