1.1 These Terms of Service (“Agreement”) govern your use of the FutureProof Retail (“FPR”) mobile app, services, website and related FPR software and services (collectively, the “Services”). Through this Agreement, FPR grants you a limited license to use the Services. This Agreement forms a legally binding agreement between you and FPR.
1.2 FPR refers to Express Checkout LLC, a Delaware limited liability company doing business as FutureProof Retail and having its principal place of business at 245 West 29th Street, 6th Floor, New York, NY 10001. FutureProof Retail is proudly made in America. Reach us at (724) CHECKOUT or [email protected] FPR transmits all data from FPR apps using SSL Secured 128 bit encryption.
1.3 FPR allows shoppers like you to pay for physical goods at participating “bricks and mortar” or offline merchants (“Merchants”) via FPR’s mobile applications. All transactions will be processed in local currency unless otherwise reflected in the Services. You may only purchase goods that are in stock and which you will carry away from the Merchant’s premises at the time of purchase. Accordingly, no shipping or delivery options or terms are available in connection with the Services.
2.1 You must agree to this Agreement prior to using the Services. If you do not agree to the terms set forth in this Agreement, you may not use the Services or FPR apps.
2.2 By undertaking any of the following actions, you agree to be bound by this Agreement:
a) clicking that you accept or agree to these terms when asked to do so;
b) registering with the Services as defined below; or
c) using the Services.
2.3 By agreeing to this Agreement, you acknowledge and agree that you have read, understand and accept these terms and conditions and you agree to be bound by this Agreement and all terms, policies and guidelines incorporated in this Agreement by reference.
3.1 Your use of the Services is subject to this Agreement and any additional terms provided by any Merchant from whom you may make a purchase in connection with your use of the Services ("Merchant Terms"). In case of conflict between this Agreement and Merchant Terms, as between you and FPR, this Agreement prevails. FPR does not accept and is not responsible for returns, exchanges, refunds or any other post-purchase requests. Please see the applicable Merchant for details.
3.2 Subject to your compliance with this Agreement, FPR hereby grants to you a limited, worldwide, royalty-free, non-exclusive, revocable, non-transferable, non-sublicensable license solely to access and use the Services in accordance with the accompanying documentation and in-app instructions. You may not use the Services in any other manner or for any other purpose.
3.3 FPR prohibits the use of the Services by children under the age of 18 or by minors as defined in your applicable jurisdiction. By using the Services, you warrant that you are of majority age or older.
4.1 Some of the Services require you to register an account with FPR through FPR apps. You must provide true and complete account information and keep your account information up-to-date by updating such information in the applicable FPR apps. You may not share accounts among individuals or allow others to use your account.
4.2 To facilitate self-checkout, you are required to provide a photograph of yourself taken through the applicable FPR app when creating your account. This photograph must accurately portray you in sufficient detail to reasonably allow merchants to recognize you during your checkout process.
6.1 If you use the Services on behalf of any business or another third party, you represent to FPR that you are authorized to accept this Agreement on behalf of that business or third party and, through your use of the Services, that business or other third party hereby accepts and is bound by this Agreement.
7.1 You and any business or other third party subject to this Agreement shall indemnify, defend and hold harmless FPR and its officers, agents and employees, and merchants from and against any claims, demands or causes of action (a) alleging infringement of any third party intellectual property rights based on the use of (i) any other software or hardware that is used in conjunction with the Services, or (ii) the Services not in conformance with this Agreement or the applicable documentation, (b) based on your unauthorized use of the Services, or (c) based on or resulting from your breach of any provision of this Agreement.
8.1 The Services are provided “AS IS” and “WITH ALL FAULTS” and without warranty of any kind. You agree that the use of the Services is at your risk.
8.2 FPR MAKES NO WARRANTY OF ANY KIND TO YOU OR ANY THIRD PARTY, EXPRESSED, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, OPERATION OF THE SERVICES, OR OUTPUT OF OR RESULTS OBTAINED FROM THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OPERABILITY OR NON-INFRINGEMENT, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY FPR AND WAIVED BY YOU.
8.3 Limitation of Liability. IN NO EVENT SHALL FPR OR ITS AGENTS OR EMPLOYEES HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR THE COST OF SUBSTITUTE GOODS OR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITY OR CLAIMS OF THIRD PARTIES) ARISING IN ANY MANNER IN CONNECTION WITH THE SERVICES OR OTHERWISE ARISING OUT OF THIS AGREEMENT, THE PERFORMANCE OR BREACH HEREOF OR THE SUBJECT MATTER HEREOF, HOWEVER CAUSED, WHETHER BY NEGLIGENCE OR OTHERWISE, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT PRODUCT LIABILITY, INFRINGEMENT OR OTHERWISE, AND WHETHER OR NOT FPR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. UNDER NO CIRCUMSTANCES SHALL FPR AND ITS AGENTS’ AND EMPLOYEES’ COLLECTIVE MAXIMUM LIABILITY TO YOU OR ANY THIRD PARTY UNDER ANY THEORY OF RECOVERY EXCEED ONE HUNDRED UNITED STATES DOLLARS (US$100.00).
9.1 YOU AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OR YOUR USE OF, PURCHASE OF, OR SUBSCRIPTION TO THE SERVICES SHALL BE FINAL AND BINDING ARBITRATION. Arbitration proceedings shall be administered by the American Arbitration Association in English in accordance with its Commercial Arbitration Rules before a single arbitrator located in New York County, New York, except that, to the extent that either party has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's patent, copyright, trademark or trade secret rights, such other party may seek injunctive or other appropriate relief in any state or federal court in the State of New York, and you consent to exclusive jurisdiction and venue in such courts. Either party may appear in an arbitration proceeding by remote means (e.g., telephone) and may submit documents electronically. No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statute of limitation or this Agreement. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages. Each party shall bear its own costs, fees and expenses of arbitration. If costs related to such arbitration are determined to be excessive in a consumer dispute, FPR will pay all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. The arbitration proceedings and arbitrator’s award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors and senior management and to immediately family members of a party who is an individual.
9.2 To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF SERVICE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to the Services be instituted more than eighteen months after the cause of action first arose.
10.1 FPR may, in its sole discretion, discontinue or modify the Services or terminate or suspend your access to them at any time.
10.2 FPR reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time, in its sole discretion, by providing notice of the changes through the applicable FPR mobile application or posting changes at http://www.futureproofretail.com/termsofuse (or another URL that FPR may provide from time to time). You are advised to regularly review the policy. You accept modifications of this Agreement through online acceptance of the terms or through your continued use of any part of the Services following the posting of any such changes or modifications. FPR’s changes to this Agreement will not affect your or FPR’s pre-existing rights or obligations to the extent applying such changes to your or FPR’s pre-existing rights or obligations would render any provisions of this Agreement unenforceable.
11.1 Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
11.2 The failure of either party to enforce any term or condition of this Agreement shall not constitute a waiver of either party’s right to enforce each and every term and condition of this Agreement. No breach under this Agreement shall be deemed waived or excused by either party unless such waiver or consent is in writing signed by the party granting such waiver or consent. The waiver by or consent of a party to a breach of any provision of this Agreement shall not operate or be construed as a waiver of or consent to any other or subsequent breach by such other party.
11.3 The parties agree that this Agreement states the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and representations of the parties, oral or written. This Agreement shall be binding upon and inure to the benefit of the parties’ authorized successors, legal representatives, and authorized assigns.
11.4 All notices, demands, requests, consents or other communications required or permitted by this Agreement (“Notices”) shall be in writing and sent to the parties at their current known addresses, or to such other address as either party may specify in writing. Notices shall be deemed duly served on or delivered (1) when delivered personally, (2) when sent to the other party by certified mail, return receipt requested, (3) when delivered by hand or sent by recognized overnight courier (with acknowledgement received by the courier) or (4) if via email, when confirmed via reply email.
11.5 This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to its principles of conflicts or choice of law that could result in the application of the substantive law of another state. The parties hereby opt out of the Uniform Computer Information Transaction Act to the fullest extent permitted by law.
11.6 THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
11.7 Subject to Section 9, any and all disputes between the parties or arising under this Agreement shall only be resolved exclusively by courts located in New York County, New York and the parties hereto consent to venue therein and the exclusive personal jurisdiction thereof.
11.8 In the event of any dispute arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
11.9 The provisions of Sections 5, 6, 7, 8, 9, 10 and 11, shall survive any termination or expiration of this Agreement.