Creator Agreement
Last Modified: March 26, 2026
PayNow Creator Agreement
This User Agreement (the "Agreement"), is a binding agreement between you ("You" or "Creator") and PayNow Services, Inc., a Pennsylvania Corporation ("Provider", "We" or "Us") under which Provider offers certain applications, tools, and services (collectively "Services"). This Agreement provides additional terms and conditions, in addition to the Terms of Use for use of paynow.gg, and paynow.store (collectively, the "Website"), in order to use specific features on the Website, including listing, promoting, or marketing of digital goods, products, content, and related items (the "Items"). The Items are only virtual items, and no physical items shall be listed using PayNow's Services.
BY CLICKING THE AGREE BUTTON, CREATING AN ACCOUNT ON THE WEBSITE OR LISTING ITEMS THROUGH THE SERVICES, YOU (A) ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND ANY OTHER APPLICABLE AGREEMENT, POLICIES, AND ADDITIONAL TERMS POSTED ON OUR WEBSITE; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS DO NOT OPEN AN ACCOUNT OR LIST ITEMS THROUGH THE SERVICES.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 14(M) BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND. IF YOU DO NOT OPT OUT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE SUCH ACTION AGAINST US OR OUR AGENTS ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
1. About PayNow Services, Inc.
This Agreement applies to all Creator accounts, including all subscription plans for the Services, and to all uses of the Website, including when You act in the capacity of a marketing affiliate of another Creator or as a marketplace partner ("Marketplace") of various Creators (each an "Affiliate"). Please review this Agreement carefully and understand its terms before signing up for an account with Us or listing any Items using our Services. If You do not accept this Agreement, You will not be able to promote, market or list Items through or otherwise use the Services.
You may be required to enter into additional or supplemental terms ("Additional Terms") that relate to additional Services or Your geographic location. These Additional Terms are in addition to the terms of this Agreement and do not replace this Agreement unless specifically stated in such Additional Terms or this Agreement.
For avoidance of doubt and as applicable, references to "Creator" under this Agreement apply to Affiliates.
2. Definitions
"Access Credentials" means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Services.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
"Buyer" means a user who makes payment for Items through Creator's PayNow-hosted storefront or a Marketplace Platform.
"Creator Systems" means a Creator's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Creator or through the use of third-party services. For Creators that are Marketplaces, the term "Creator Systems" includes such Creator's Marketplace Platform.
"Documentation" means guides, documents, and specifications related to the Services.
"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent any user from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider disabling device.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means, as applicable to a party, any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
"Personal Information" means information that Creator provides or for which Creator provides access to Provider, information which Provider creates or obtains on behalf of Creator, or information which Creator obtains or otherwise Processes, in accordance with this Agreement that: (i) relates to or directly or indirectly identifies an individual; or (ii) can be used to authenticate an individual.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. "Processing" and "Processed" have correlative meanings.
"Provider Personnel" means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any Subcontractor.
"Provider Systems" means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.
"Resultant Data" means data and information related to Creator's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
"Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Provider.
3. Services
a. Access and Use.
Subject to and conditioned on Creator's compliance with the terms and conditions of this Agreement, Provider hereby grants Creator a non-exclusive, non-transferable right to access and use the Services during the Term, in accordance with the terms and conditions herein.
b. Documentation License.
Provider hereby grants to Creator a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14(g)) license to use the Documentation solely for Creator's internal business purposes in connection with its use of the Services.
c. Service and System Control.
Except as otherwise expressly provided in this Agreement, as between the parties:
i. Provider has and will retain sole control over the operation, provision, maintenance, and management of the Services and related Documentation; and
ii. Creator has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Creator Systems, and sole responsibility for all access to and use of the Documentation by any Person by or through the Creator's Systems or any other means controlled by Creator, including any: (i) information, instructions, or materials provided by any of them through the Services or to Provider; (ii) results obtained from any use of the Services; (iii) Creator Store or Marketplace's Platform layout and design and listings of Items and (iv) conclusions, decisions, or actions based on such use.
d. Reservation of Rights.
Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Documentation, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Documentation, and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials.
e. Changes.
Provider reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider's Services to its Creators; (ii) the competitive strength of or market for Provider's Services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law.
f. Subcontractors.
Provider may from time to time in its discretion engage third parties to perform Services or aspects of the Services (each, a "Subcontractor").
g. Suspension or Termination of Services.
Provider may, directly or indirectly, and by use of a Provider disabling device or any other lawful means, suspend, terminate, or otherwise deny Creator's, or any other Person's access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its sole discretion, that: (i) Creator or such other Person has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the specifications as determined in Provider's sole discretion; (ii) Creator or such other Person is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section does not limit any of Provider's other rights or remedies, whether at Law, in equity, or under this Agreement.
h. Third Party Terms.
When using our Services, You are responsible for complying with all terms and conditions of any third-party game or software platform related to Items accessed through Provider Systems. In addition, Buyers may make payment for Items from a Creator Store or Marketplace Platform without having an account, by being logged into Buyer's third-party game or software platform account, such as through Facepunch, Steam, and others, and making payment for the Items through the Creator Store or Marketplace Platform without being logged into Provider Systems. In such an event, Buyers are also subject to all terms and conditions of the third-party systems which Buyer uses to access Provider Systems.
Under this Agreement, You are responsible for reviewing the most current version of the applicable terms and conditions of the third-party payment processors We use and ensuring Your understanding and compliance of such terms and conditions before every transaction. Such terms and conditions will be available on the Website payment page or on the respective third-party payment processor websites and are subject to change.
i. Interruption.
Provider shall not be responsible for any interruptions to the Services, and no refunds, compensation, or reimbursements shall be given for such interruptions, including for any lost revenue.
4. Use Restrictions; Service Usage and Data Storage
a. Use Restrictions.
You shall not, and shall not permit any other Person to, access or use the Services and related Documentation except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, You shall not, except as this Agreement expressly permits:
i. copy, modify, or create derivative works or improvements of the Services;
ii. fail to deliver Items You have listed upon Provider's completion of a transaction with a Buyer;
iii. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services to any third-party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
iv. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Website, in whole or in part;
v. bypass or breach any security device or protection used by the Services or access or use the Services through the use of his or her own then valid Access Credentials, or transfer or provide Your Access Credentials to any other party;
vi. input, upload, transmit, or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
vii. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider's provision of Services to any third party, in whole or in part, or manipulate the price of any Item or interfere with any listings;
viii. remove, delete, alter, obscure or otherwise tamper with any trademarks, specifications, Documentation, this Agreement, warranties, or disclaimers from the Services;
ix. remove, delete, alter, obscure or otherwise tamper with any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services or Documentation, including any copy thereof;
x. access or use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other user of the Services or Provider Systems, or violates any rights of privacy), or that violates or circumvents any applicable Law;
xi. create listings, post or upload content that is inappropriate, false, inaccurate, misleading, deceptive, defamatory, or libelous, or distribute any spam, unsolicited or bulk electronic communications, or viruses;
xii. use any robot, spider, scraper, data mining tools, or other automated methods to access the Services for any purposes, or circumvent any technical measures used to provide the Services;
xiii. access or use the Services or Documentation for purposes of competitive analysis of the Services or Documentation, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider's detriment or commercial disadvantage; or
xiv. otherwise access or use the Services or Documentation beyond the scope of the authorization granted under this Section 4.
b. Enforcement of Policies.
If We believe You have violated our policies, including but not limited to policies addressing user due diligence, transaction fraud prevention, chargeback monitoring, and refunds, We may take a range of actions, including but not limited to suspension of Your account, cancelation of Your account, termination of the Services and charging You for any fees that You would have paid, but for Your circumvention or violation of our policies. How We enforce our policies may depend on a variety of factors and any waiver in enforcement of any policy or term shall not preclude Us from the future enforcement for the same activities or Actions, or constitute a future waiver. We retain the right to remove or modify any content You upload.
c. Creator Store & Marketplace Platform Terms.
As part of the Services, Provider may allow You to create and operate a unique store, with a specific landing page ("Creator Store") or, as a Marketplace, integrate a platform to promote and market Items from various other Creators in connection with the Services ("Marketplace Platform"), in addition to marketing, promoting, and creating general listings of Items, subject to the following:
i. You shall not frame Your Creator Store or Marketplace Platform on other websites;
ii. All content of a Creator Store or Marketplace Platform is Your responsibility and You shall not infringe the Intellectual Property Rights of any third party, or Provider with such content;
iii. You shall not list or permit others to list any stolen, fraudulent, or illegally obtained Items, or any Items that were obtained in violation of the policies, procedures or terms of any third-party game or software platform, and all Items shall not infringe the Intellectual Property Rights of a third party;
iv. We may remove a Creator Store or Marketplace Platform at any time, in our sole discretion, or for violation of this Agreement, or any of our other terms and conditions or policies, and You shall not attempt to reverse engineer, decompile, or otherwise attempt to discover the source code, or copy the templates We provide to You;
v. The templates, images, and layouts We provide to You are subject to Intellectual Property Rights, and You shall not in whole or in part, copy, reproduce, publish, distribute, translate or modify them without our prior written consent, or use them with any third-party website or store;
vi. You shall not remove, alter, or obscure any intellectual property notices, including any copyright notices, trademark notices or other related notices from the Website, including in connection with a Creator Store or Marketplace Platform;
vii. You are responsible and liable for keeping Your Access Credentials confidential and for all activities that occur on or through Your account, including all activities in Your Creator Store or Marketplace Platform, including any Losses or transfer of any Items that occur in Your Creator Store or Marketplace Platform, including any third parties who gain access to Your Creator Store or Marketplace Platform through Your Access Credentials.
viii. You will not conduct transactions using a Creator Store, Marketplace Platform, or otherwise, with anyone for which it would be illegal to conduct such transaction, including but not limited to, by age, location or any other reason;
ix. Creator Stores are not transferable to another Person and You shall not sell or otherwise provide Your Access Credentials or access to a Creator Store to any other Person;
x. You will not circumvent any feedback system, including by rating Yourself for transactions of Items offered or bought by You, or pay or request any other Person to do such rating that was not involved in the transaction, or take any other actions that would undermine the confidence of users in the feedback system and our Services;
xi. You will not use any Personal Information obtained directly or indirectly through use of the Services, including any Personal Information of any third party, Buyer or Creator, or bidder to directly market to such Person, or provide, transfer or sell such Personal Information to any third party. You may only use such Personal Information in compliance with applicable privacy and data protection laws, and solely for the purposes of operating Your Creator Store or Marketplace Platform in accordance with this Agreement. Notwithstanding the foregoing, You may, subject to You obtaining affirmative explicit consent, with the ability to easily opt out, market Items on Your Creator Store or Marketplace Platform to parties with whom You have transacted with in the past or expressed interest in the past, and subject to Your strict compliance with Your privacy policy and all applicable privacy and data protection Laws.
xii. Your Creator Store or Marketplace Platform will clearly disclose Provider's role in the transaction, including that Provider is the merchant of record and acts on Your behalf for purposes of processing transactions for Items You have listed, and Provider's Buyer-facing terms and conditions.
5. Creator and Affiliate Obligations.
a. Creator Systems and Cooperation.
Creator shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Provider's specifications all Creator operating systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Creator's premises and Creator Systems as is necessary for Provider to perform the Services in accordance with availability requirements and specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
b. Effect of Your Failure or Delay.
Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Your delay in performing, or failure to perform, any of Your obligations under this Agreement.
c. Corrective Action and Notice.
If You become aware of any actual or threatened activity prohibited under this Agreement, You shall immediately: (a) take all reasonable and lawful measures within Your control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Documentation and permanently erasing from Your operating systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
d. Creator and Affiliate Obligations.
If You market, promote, or list an Item through the Services, You agree to the following:
i. You are responsible for the accuracy and content of any description of an Item, including Items listed in Your Creator Store or Marketplace Platform and for providing an Item that matches Your description;
ii. We may limit the time an Item is offered, terminate a listing or renew a listing that has expired, in our sole discretion;
iii. All content and descriptions and pictures or images uploaded comply with all terms of this Agreement and any other policies We may enact from time to time and You shall not copy descriptions, content, images or other materials from any other listing;
iv. Once a Buyer transacts for an Item at the offered price, or any auction has ended and the reserve price is met, You are obligated to provide the Item to the Buyer and have entered into a binding contract to fulfill the transaction for the Item;
v. Provider does not deliver and grant any applicable rights to Items to Buyers, and You as Creator are responsible for delivering Items and granting any applicable rights to the Buyer. For clarity, Provider is the legal entity responsible for facilitating the transaction, including collecting payments and taxes and compliance with relevant regulations, but does not deliver Items or grant rights in them, to Buyers.
e. License Grant
When listing an Item or fulfilling any transaction using our Services, You hereby grant Us a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (each including a separate right to further sublicense) right to exercise or use any and all Intellectual Property Rights You have in that content in connection with our provision of our Services, as well as the promotion of our Services, in any media now known or developed in the future, including the right to create derivative works. To the fullest extent permitted under applicable Law, You waive Your right to enforce Your Intellectual Property Rights in that content against Provider, our assignees, sublicensees, and their assignees and sublicenses that use such content in connection with or in furtherance of our Services. You further represent and warrant that all content provided is accurate and that any use of such content (including derivative works) by Us, our users, any Buyer, and any others in furtherance of the Services, does not and will not infringe any Intellectual Property Rights of any third party. Provider does not review listings to ensure content provided by You does not infringe the rights of any third party.
If You list an Item or fulfill any transaction using the Services through a Marketplace Platform, You are granting the Marketplace a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (each including a separate right to further sublicense) right to exercise or use any and all Intellectual Property Rights You have in that content in connection with the Marketplace's provision of the Marketplace Platform. To the fullest extent permitted under applicable Law, You waive Your right to enforce Your Intellectual Property Rights in that content against the Marketplace, its assignees, sublicensees, and its assignees and sublicenses that use such content in connection with a Marketplace Platform. You further represent and warrant that all content provided is accurate and that any use of such content by the Marketplace does not and will not infringe any Intellectual Property Rights of any third party. You may also be subject to such Marketplace's separate terms and conditions.
f. International Transactions.
You understand and agree that the Services may be provided globally and allow for transfer of Items between a Buyer and Creator located in separate countries, and that our Services may be accessible internationally. You may be subject to Additional Terms related to transactions, when You fulfill any transaction for an Item to a Buyer in a different country, and You are responsible for complying with all export rules and regulations for Your country that may be applicable to any international transactions that You enter into through the Services. We may provide or provide access to third party tools, including automated tools, including without limitation language translation tools to help You facilitate these type of transactions and You hereby grant Us a license to copy, translate, modify, and create derivative works of Your content, and any communications between a Buyer and Creator to assist both Buyers and potential Buyers in transacting for Your Items listed for sale. Notwithstanding the foregoing, You understand and agree that any translations are provided AS IS without any warranty of any kind and We do not guarantee the accuracy of such translations, or that such translation services will even be available.
In addition, You consent to the Processing of Your Personal Information in accordance with our Privacy Policy (located at: https://paynow.gg/privacy-policy), including transfer of such Personal Information internationally, to facilitate the Processing and fulfillment of any listing of, offer to transact for, or transfer of any Item. Notwithstanding the foregoing, We may engage third parties to facilitate or provide such services, and You may be subject to the privacy policy of such third party.
6. Records and Data Backup.
The Services do not replace the need for a Creator to maintain records and regular data backups, or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CREATOR DATA.
7. Security.
a. Creator Control and Responsibility
Creator has and will retain sole responsibility for: (a) all Creator data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Creator in connection with the Services; (c) Creator Systems; (d) the security and use of Creator's Access Credentials; and (e) all access to and use of the Services and Documentation directly or indirectly by or through the Creator's Access Credentials, with or without Creator's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
b. Access and Security.
Creator shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services or to Personal Information (including Buyer's Personal Information); and (b) control the content and use of Creator data, including the uploading or other provision of Creator data for Processing by the Services.
8. Fees and Payment.
a. Fees.
We reserve the right to charge for and Creator shall pay Provider the following fees available at https://paynow.gg or at https://dashboard.paynow.gg/billing.
Except in limited circumstances (e.g. We made a mistake in the amount charged), all fees, including any subscription fees, are non-refundable, and if We cancel or terminate Your access to the Services due to a breach of this Agreement by You, all fees, including any subscription fees, are non-refundable, even if the Services have not yet been provided.
b. Returns and Refunds.
When a Buyer transacts for an Item, any Buyer refund requests will be initially directed to Provider for review. You authorize Provider to decide all refund requests in its sole discretion. With respect to any returns or refunds that are rejected or otherwise not approved in accordance with Provider's refund policy, You may still request a refund to the Buyer in Your sole discretion. For any refund issued to a Buyer, any fees initially charged by Provider related to the transaction shall not be refunded to You. For clarity, Provider shall keep any fees related to any refunded transaction, including any processing fees, and may also charge a fee to facilitate a credit related to such return.
c. Subscription Fees.
Provider's Services for Creator Stores or Marketplace Platforms are provided, subject to payment of the subscription fee levels, as provided in Section 8(a). Subscription fee levels are currently based on the total financial value of the completed transactions for Your listed Items, the total number of Items listed, or some combination thereof, as provided in Section 8(a), and in the event that a Creator Store or Marketplace Platform fits within a different fee level, Provider may change the amount of Subscription fees charged. In addition, in the event You prepaid subscription fees at a specific level for the current month, Provider may charge an additional prorated subscription fee level for the remainder of the month, upon You obtaining a higher level for the Creator Store or Marketplace Platform. Creator fees are in addition to any per transaction or Item fees, which are also in addition to any Taxes as provided in Section 8(d) below. Creator fees are non-refundable. If Creator no longer meets the requirements for a certain subscription fee level, Creator may request Provider lower the subscription fee level for the next month.
d. Taxes
All fees and other amounts payable by Creator under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, on each transaction completed through the Services between Buyer and Creator, Provider, as the merchant of record for the transaction and Your commercial agent as authorized under Section 8(j), will calculate the proper amount of taxes due, collect, and instruct our third-party payment processors to remit taxes to the proper jurisdiction for the transaction. For avoidance of doubt, Provider's sole responsibility related to such taxes shall be the calculation, collection, and remittance of the proper taxes to the appropriate authorities based on Buyer location information and Item information provided by Creator. Creator is responsible for providing proper information regarding the relevant Items and the location of each Buyer in the transaction to allow Provider to collect the proper amount of taxes and remit such taxes to the proper jurisdiction. Provider will not bear responsibility for any additional taxes or discrepancies that might arise.
e. Payment.
Creator shall pay all fees as provided in Section 8(a), with any monthly or annual subscription fees due before the start of the relative time period, and Provider will net out and maintain all fees based on transactions completed on the Creator's behalf from the funds provided to Creator's account, or otherwise charged as determined by Provider. If You fulfill any transaction outside of the Services for an Item listed through the Services to a Buyer found through our Services, You are still liable for the fees, as if You completed the transaction through the Services.
f. Late Payment.
If Creator fails to make any payment when due then, in addition to all other remedies that may be available:
i. Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
ii. Creator shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and
iii. Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Creator or any other Person by reason of such suspension.
iv. Provider may deduct any Late Payment of any fees from Creator's payment information on file, or from the proceeds of transactions for Creator's Items.
g. No Deductions or Setoffs.
All amounts payable to Provider under this Agreement shall be paid by Creator to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason; however, Provider shall be able to setoff, deduct, debit or withhold any amounts owed by Creator to Provider from any funds due to Creator.
h. Fee Increases.
Provider may increase fees by providing written notice to Creator at least ten (10) calendar days, and fees on the billing portal on the Website will be deemed amended accordingly.
i. Payment Methods.
You must have a payment method on file when using our Services to list Items or for recurring payments for certain Services. If Your payment method expires, or fails, We may suspend, cancel, or restrict Your account until any fees owed are paid. Please note payments may be processed by or through a third-party servicer, which may place a hold on the payment method, including for recurring payments.
Transactions made through the Services will be in United States Dollars, unless otherwise noted. If You use a different currency, our payment providers will apply an exchange rate and may charge additional transaction fees.
j. Merchant of Record.
When You list an Item through the Services, You authorize Us to act as merchant of record and Your commercial agent to accept orders, negotiate and complete transactions for Items, facilitate the Buyer's payment, handle Buyer disputes and chargebacks, manage the refund process, and provide customer support service to Buyers on Your behalf. When a Buyer completes a transaction for an Item through Your Creator Store or a Marketplace Platform, Provider is facilitating and completing the transaction on Your behalf as merchant of record and Your commercial agent. You further agree that the terms and conditions governing the transaction and disclosed on Your Creator Store or a Marketplace Platform will include the Provider's Buyer Terms. You are fully responsible for fulfilling transactions with Buyers completed by Provider through the Services and complying with all terms and conditions of the transaction, including this Agreement. In the event of a return or refund, Provider, as the merchant of record for the transaction and Your commercial agent, shall provide a refund less any fees to the Buyer in the appropriate amount and will charge You for the amount of the refund through any method permitted by this Agreement. With respect to Buyer disputes, chargebacks, or other reversal of a transaction, as the merchant of record, Provider will resolve such charges with our third-party payment processors directly. Any specific terms You provide to Buyers governing transactions via Your Creator Store or a Marketplace Platform must be consistent with this Section 8(j). In the event that any specific terms You provide conflict with this Agreement or any other Buyer-facing terms of the Provider, the Provider's terms will control. If You do not provide specific terms governing the transaction to Buyers, including a return and refund policy, the terms governing the transaction are located here. As provided in Section 11, Creator shall indemnify Provider against any and all claims, Losses, chargebacks and the like that result from Provider's performance of the Services, including acting as merchant of record and Your commercial agent to complete transactions.
Provider facilitates payment for transactions through third-party payment processors that receive payments from Buyers for transactions completed by Provider on Your behalf. To the extent that Provider, rather than its third-party payment processors, is deemed to have received Buyer funds, You agree that (i) in receiving the Buyer's payment and remitting it to you, Provider is acting as Your agent for the limited purpose of facilitating the transaction for the related Items; (ii) receipt by Provider of the Buyer's payment constitutes Your receipt of such payment and satisfies the Buyer's payment obligation; and (iii) You shall have recourse against only Provider, and not against the Buyer, for any payment that Provider receives and fails to remit to you.
k. Affiliates.
You may designate another Creator to be an Affiliate for a specific Item or Items you list ("Designating Creator"). The Designating Creator may designate up to 30% of the payment amount generated from completed transactions for the Item(s) to be transferred to the Affiliate. The Designating Creator is responsible for all Affiliate designations and Provider is not liable for the Designating Creator's failure to completely and accurately input any required Affiliate information, including an identification number, or to assign the proper Item(s) in the Creator Store to the Affiliate designation. The Designating Creator, not Provider, is legally responsible for compensating Affiliate based on any agreement between Designating Creator and Affiliate. Provider's only obligation with respect to payouts to Affiliates is to facilitate payment to the Affiliate in accordance with the Designating Creator's instructions, through Provider's third-party payment processors.
As Designating Creator, you may also designate one or more Marketplaces that will market your Items on their Marketplace Platforms. By designating a Marketplace through the Services, you accept the split of the payment amount set by the Marketplace for completed transactions for Your Item(s) sold through such Marketplace and instruct Us to facilitate such payments through our third-party payment processors. Your relationship with a Marketplace may also be registered with Us by the Marketplace and by listing Your Items on such Marketplace, you agree with the designation of such Marketplace as your Affiliate, and the split of the payment amount set by the Marketplace. Designating Creator and the applicable Marketplace are responsible for all Marketplace designations and Provider is not liable for the Designating Creator's or Marketplace's failure to completely and accurately input any required information, including an identification number, or to assign the proper Item(s) on the Marketplace Platform to the appropriate Creator. Provider is not legally responsible for the compensation arrangement between you and any Marketplace based on any agreement between the Designating Creator and Marketplace. Provider's only obligation with respect to payouts to Creators listing items on a Marketplace Platform is to facilitate payment to the designated Creator in accordance with the Marketplace's instructions. If You act as an Affiliate, You agree that Provider is authorized to act as Your agent when facilitating payment to You for the specified payment amount in accordance with the Designating Creator's instruction.
9. Intellectual Property Rights.
a. Documentation.
All right, title, and interest in and to the Documentation, including all Intellectual Property Rights therein, are and will remain with Provider and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. You have no right, license, or authorization with respect to any of the Documentation except as expressly set forth in Section 3(b). All other rights in and to the Documentation are expressly reserved by Provider. In furtherance of the foregoing, You hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
b. Trademarks.
Our name and logos, and other slogans that We use in connection with the Services are the trademarks, service marks or trade dress of Provider in the United States and other countries. You shall not use any such Intellectual Property Rights without prior express written permission.
c. Intellectual Property Rights.
All Intellectual Property Rights in and to the content, images, or anything else appearing on or used in operation of the Website, or used in our Services are owned by or licensed to Provider.
d. Software.
Any software is licensed, not sold, and You do not have any ownership interest in such software or any other Intellectual Property Rights of Provider under or in connection with this Agreement.
10. Representations and Warranties.
a. Mutual representations and warranties.
Each party represents and warrants to the other party that:
i. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
ii. to the extent applicable, the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
iii. when You agree and accept this Agreement, it will constitute the legal, valid, and binding obligation, enforceable against You in accordance with its terms.
b. Disclaimer of warranties.
ALL SERVICES AND DOCUMENTATION ARE PROVIDED "AS IS." PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CREATOR'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CREATOR AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
FOR ANY ISSUE WITH THE ITEMS LISTED THROUGH THE SERVICES, YOU ARE REQUIRED TO WORK DIRECTLY WITH THE BUYER TO RESOLVE SUCH AND YOU HEREBY UNDERSTAND AND AGREE THAT PROVIDER SHALL NOT HAVE ANY LIABILITY FOR AND DOES NOT PROVIDE ANY WARRANTIES OF ANY KIND FOR ANY ITEMS, AND ALL ITEMS ARE GENERATED BY THIRD PARTIES, AND AS SUCH PROVIDER CANNOT AND DOES NOT ACCEPT ANY LIABILITY FOR OR RELATED TO SUCH ITEMS AND DISCLAIMS ALL WARRANTIES RELATED TO SUCH ITEMS, AND WITHOUT THIS DISCLAIMER OF ALL WARRANTIES COULD NOT AND WOULD NOT OFFER THE SERVICES. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT PROVIDER DETERMINES THAT YOU HAVE NOT FULFILLED YOUR OBLIGATIONS TO ANY BUYER WITH RESPECT TO THE ITEMS, PROVIDER MAY TERMINATE THIS AGREEMENT, CLOSE THE CREATOR STORE OR MARKETPLACE PLATFORM OR TAKE ANY OTHER ACTION PROVIDER DEEMS NECESSARY IN ITS SOLE DISCRETION, INCLUDING PROVIDING THE BUYER A REFUND FOR WHICH YOU WILL BE LIABLE.
11. Indemnification.
a. You agree that You will be responsible for Your use of the Services, and You agree to indemnify, defend, and hold harmless Provider and its Subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a "Provider Indemnitee") from and against any claim, liability, damage, Loss, and expense, including reasonable attorneys' fees and costs, resulting from any Action by a third party (other than an affiliate of a Provider Indemnitee) due to or arising out of:
i. Your access to, use of, or alleged use of the Services or Personal Information;
ii. Promoting, marketing, listing or offering invalid, stolen or fraudulent Items;
iii. any materials or information (including any documents, data, specifications, software, content, or technology) that You provided or are provided on Your behalf, including Provider's compliance with any specifications or directions You provided or are provided on Your behalf to the extent prepared without any contribution by Provider;
iv. any allegation of facts that, if true, would constitute Your breach of any of its representations, warranties, covenants, or obligations under this Agreement;
v. any actions Provider takes as merchant of record on Your behalf, including the resolution of returns, refunds, Buyer disputes, or other transaction reversals; and/or
vi. any violation of applicable Law or rights of a third-party.
b. Provider reserves the right, at Provider's own cost, to take on the exclusive defense and control of any matter subject to indemnification by You (without limiting Your indemnification obligations with respect to that matter), and in that case, You agree to cooperate with Provider's defense of that claim.
c. Mitigation.
If any of the Services or Documentation are, or in Provider's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Your use of the Services or Documentation is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
i. obtain the right for You to continue to use the Services and Documentation materially as contemplated by this Agreement;
ii. modify or replace the Services and Documentation, in whole or in part, to seek to make the Services and Documentation (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Documentation, as applicable, under this Agreement; or
iii. by written notice to You, terminate this Agreement and require You to immediately cease any use of the Services and Documentation or any specified part or feature thereof.
d. Sole Remedy
THIS SECTION 11 SETS FORTH YOUR SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND DOCUMENTATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
12. Limitations of Liability.
a. EXCLUSION OF DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE TO YOU UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (e) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. CAP ON MONETARY LIABILITY.
THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED TWO TIMES THE TOTAL AMOUNTS OF FEES PAID TO PROVIDER BY YOU (IN YOUR CAPACITY AS A CREATOR OR AFFILIATE, NOT AS A BUYER) UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR ONE THOUSAND DOLLARS ($1,000), WHICHEVER IS LESS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. Term and Termination.
a. Term.
This Agreement commences as of the effective date and, unless terminated earlier pursuant any of the Agreement's express provisions, will continue in effect (the "Term").
b. Termination.
In addition to any other express termination right set forth elsewhere in this Agreement:
i. Either Party may cancel this Agreement upon providing written notice to the other Party, subject to payment of any outstanding amounts owed.
c. Effect of Termination or Expiration.
Upon any termination of this Agreement, except as expressly otherwise provided in this Agreement:
i. All rights, licenses, consents, and authorizations granted by Provider to You hereunder will immediately terminate;
ii. You shall immediately cease all use of any Services or Documentation;
iii. Provider may disable all Your access to the Documentation and its account;
iv. Provider may deduct any fees You owe through any method permitted by this Agreement;
v. Upon termination of this Agreement, all fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and You shall pay such fees, together with all previously-accrued but not yet paid fees.
d. Surviving Terms.
The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 4, Section 8, Section 9, Section 10, Section 11, Section 12, this Section 13, and Section 14.
14. Miscellaneous.
a. Further Assurances.
On a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute, and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
b. Relationship of the Parties.
Except as otherwise provided in this Agreement, the relationship between the parties is that of independent contractors and nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
c. Notices.
Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party as follows (or to such other address or such other Person that such party may designate from time to time in accordance with this Section 14(c):
PayNow Services, Inc.:
1442 Pottstown Pike #421
West Chester, PA 19380-1271
Email: support@paynow.gg
If to Creator:
The contact information provided in Creator's account.
Notices sent in accordance with this Section 14(c) will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email (in each case, with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the fifth (5th) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
d. Interpretation.
For purposes of this Agreement: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
e. Headings.
The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
f. Entire Agreement.
This Agreement and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, any related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) this Agreement, excluding any exhibits, schedules, attachments, and appendices; (b) any exhibits, schedules, attachments, and appendices to this Agreement as of the effective date; (c) any other documents incorporated herein by reference; (d) Provider's Privacy Policy; and (e) the Website Terms of Use.
g. Assignment.
You shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of Law, or otherwise, without Provider's prior written consent.
h. Force Majeure.
i. No Breach or Default. In no event will Provider be liable or responsible to You, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond Provider's reasonable control (a "**Force Majeure Event**"), including (i) acts of God; (ii) flood, fire, earthquake, pandemics, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, Law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power, network, or transportation facilities
ii. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Provider shall give prompt written notice to You stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
i. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
j. Amendment and Modification.
Provider may amend or modify this Agreement at any time by providing notice of such amendments or modifications. Your continued use of the Services is Your consent and agreement to such amendments or modifications.
k. Severability.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
l. Governing Law; Submission to Jurisdiction.
This Agreement is governed by and construed in accordance with the internal Laws of the State of Pennsylvania without giving effect to any choice or conflict of Law provision or rule that would require or permit the application of the Laws of any jurisdiction other than those of the State of Pennsylvania. Any legal suit, Action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted in the federal courts of the United States located in Philadelphia, Pennsylvania or the courts of the State of Pennsylvania in each case located in the Chester County Pennsylvania, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, Action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, Action, or other proceeding brought in any such court.
m. Agreement to Arbitrate; Waiver of Jury Trial.
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND PROVIDER, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT PROVIDER AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. SUCH DISPUTES INCLUDE, WITHOUT LIMITATION, DISPUTES ARISING OUT OF OR RELATING TO INTERPRETATION OR APPLICATION OF THIS ARBITRATION PROVISION, INCLUDING THE ENFORCEABILITY, REVOCABILITY, OR VALIDITY OF THE ARBITRATION PROVISION OR ANY PORTION OF THE ARBITRATION PROVISION. ALL SUCH MATTERS WILL BE DECIDED BY AN ARBITRATOR AND NOT BY A COURT OR JUDGE.
YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
The arbitration will be administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at this page. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by You or by Us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator's decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude You from bringing issues to the attention of federal, state, or local agencies and, if the Law allows, they can seek relief against Us for You.
n. Equitable Relief.
You acknowledge and agree that a breach or threatened breach by You of any of Your obligations under Section 4(a), Section 5, Section 8(c) Section 9, Section 10, Section 11, and Section 12 would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at Law, in equity, or otherwise.
o. Attorneys' Fees.
In the event that any Action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.