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Carefully read the following PayLink Merchant Terms of Use and Licensing Agreement and the Gateway Services Agreement. If you agree with these terms, indicate your acceptance below
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PAYLINK MERCHANT TERMS OF USE AND LICENSING AGREEMENT

This Terms of Use and License Agreement for Merchant’s Use of the PayLink Solution ("Agreement") is made effective as of the date you click to agree to these terms and is by and between Payment Logistics Limited, located at 11011 N Torrey Pines Rd #250, La Jolla, CA 92037 ("PL") and the entity and/or individual who signs up for the PayLink Solution (as defined herein), as well as any employees or agents acting on behalf of the entity and/or individual who sign up for the PayLink Solution ("Merchant"). Each Merchant shall require each individual user of the PayLink Solution to accept the terms of this Agreement.

1. RECITALS

1.1 WHEREAS PL, in conjunction with various financial institutions and upstream providers, provides merchant account services and related services that enable merchants to accept credit card, debit card and related payments from consumers (the "Merchant Account Services").

1.2 WHEREAS PL owns and operates a payment gateway that provides connectivity between merchants and various upstream payment networks and third-party merchant account providers (the "Gateway Services"). Some of PL’s client merchants utilize the Gateway Services to process transactions with third party merchant account providers and some of PL’s client merchants utilize the Gateway Services in conjunction with PL’s Merchant Account Services.

1.3 WHEREAS PL provides, among other products and services, a product referred to as PayLink, which is a program designed to allow PL’s client merchants to digitally connect with their patrons to facilitate commerce through various modules, which modules may include, but are not limited to, the following: A) Digital Mobile Checkout; B) Kiosk Pay; C) In-store Patron Ordering; D) Staff Ordering; E) Digital Receipts; F) Wait-List Paging; G) Digital Feedback Survey; H) Online Ordering; I) Loyalty; J) Traditional Pay-at-the-Table; and K) Third Party Integration Interface. PayLink, in whatever form or module it is used, along with all operating manuals, operating procedures, and other information in any form provided concerning PayLink, shall be referred to herein as the "PayLink Solution";

1.4 WHEREAS, in order for PL to provide Merchant with the Merchant Account Services, the Merchant will have executed, or will need to execute, a separate Merchant Processing Agreement ("MPA"). The MPA is a tri-party agreement between the Merchant, PL and a sponsoring bank. The MPA consists of a completed and executed merchant account application, which application is required for each Merchant, and PL’s Program Guide, which each merchant account application incorporates by reference by providing a link to the Program Guide;

1.5 WHEREAS, the PayLink Solution requires the Gateway Services and for PL to provide Merchant with the Gateway Services, the Merchant will have executed, or will need to execute, a separate Gateway Services Agreement ("GSA"). The GSA may be executed alongside the MPA or it may be executed alongside this Agreement or as a separate document.

1.6 WHEREAS, subject to the terms and conditions set forth herein, Merchant wishes for PL to provide Merchant the PayLink Solution pursuant to the terms and conditions set forth herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, PL and Merchant (referred to herein from time to time as the "parties") hereby agree as follows:

2. LIMITED LICENSE

2.1 PL grants Merchant a non-exclusive, non-transferable license to access and use PL’s Intellectual Property (as defined in Seton 2.3), including but not limited to the Customer Data (as defined in Section 3.1), in the course of using the PayLink Solution, but only for the limited purpose of using the PayLink Solution, except as set forth in Section 3.1. Merchant shall not be permitted to sublicense PL’s Intellectual Property. Any rights not expressly granted herein are reserved. There are no implied rights of any kind to PL’s Intellectual Property Rights (as that term is defined in Section 2.3 below). This limited license is to Merchant only, and expressly is not intended to include any related companies, subsidiaries or parent companies.

2.2 Merchant shall not make copies of, or further distribute, any aspect of the PayLink Solution, including copying any portion of any aspect of it, or of any Customer Data (as defined in Section 3.1) onto any other medium, except as expressly set forth herein. Merchant shall not distribute, sublicense, lease, resell, rent, alter, modify or adapt the PayLink Solution, including but not limited to, translating, reverse engineering, or creating derivative works. Except as set forth in Section 3.1, upon termination or expiration of this Agreement, whether terminated with or without cause, and whether Merchant or PL terminates the Agreement, all licenses granted to Merchant hereunder shall immediately terminate, and within five (5) days thereof, Merchant shall either return to PL or destroy any Confidential Information (as defined in Section 3.1), and shall so certify to PL in writing.

2.3 "Intellectual Property" means all of the following: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated with the PayLink Solution; (ii) patents, patentable inventions, computer programs, and software associated with the PayLink Solution; (iii) databases and Customer Data (as that term is defined in Section 3.1 herein) associated with the PayLink Solution; (iv) trade secrets and the right to limit the use or disclosure thereof associated with the PayLink Solution; (v) copyrights in all works, including software programs associated with the PayLink Solution; and (vi) domain names associated with the PayLink Solution. PL’s Intellectual Property rights in the PayLink Solution shall be defined herein, collectively, as "Intellectual Property Rights."

2.4 Other than any express licenses granted by this Agreement, PL grants no right or license to Merchant or Merchant’s agents, employees or resellers, by implication, estoppel or otherwise, to any Intellectual Property Rights of PL. PL shall retain all ownership rights, title, and interest in and to the PayLink Solution, and all Intellectual Property Rights, subject only to the rights and licenses specifically granted herein. PL shall have the sole right, but not the obligation, to pursue copyright and patent protection, in PL’s sole discretion, for its Intellectual Property. The parties will cooperate with each other in pursuing such protection, including without limitation executing and delivering to each other such instruments as may be required to register or perfect PL’s interests in any Intellectual Property Rights and any assignments thereof. Merchant shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from the other party in connection with this Agreement.

2.5 At no time shall Merchant use the Intellectual Property to harm or damage the Intellectual Property. Any unauthorized use of the Intellectual Property will be a material breach of this Agreement.

3. CONFIDENTIALITY AND OWNERSHIP OF CUSTOMER DATA

3.1 The parties acknowledge that in the course of Merchant implementing and using the PayLink Solution, Merchant and PL shall collect confidential information of Merchant’s customers ("Customer Data"), and PL shall share with Merchant PL’s Intellectual Property and other information and data concerning the operation of the PayLink Solution. The Customer Data and all non-public aspects of the PayLink Solution, including without limitation information concerning the know-how, technology, techniques, or business or marketing plans related to the PayLink Solution (collectively, the "Confidential Information"), are confidential and proprietary to, and trade secrets of, PL. Merchant stipulates and agrees, as a material condition of using the PayLink Solution, that PL owns and controls the Confidential Information, including but not limited to all Customer Data collected through the operation and implementation of the PayLink Solution. Merchant may use and share the Customer Data while licensed to do so, as set forth in Section 2. To the extent Merchant already possessed customer information prior to sharing such information with PL, PL acknowledges and agrees that this Agreement does not impact Merchant’s rights, if any, to such customer information. In addition, if PL shares Customer Data with Merchant through an external interface (i.e., outside of the PayLink Solution), then PL grants Merchant a continuing, non-exclusive license to use such Customer Data (even after termination of this Agreement), provided Merchant treats Customer Data as Merchant treats its own confidential information, consistent with the guidelines set forth in Section 3.2.

3.2 Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party's obligations under this section or by breach of a third party's confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party's confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from PL, the Merchant shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of PL’s Confidential Information; (ii) not use PL’s Confidential Information in any fashion except to perform its duties hereunder or with PL’s express prior written consent; (iii) disclose PL’s Confidential Information, in whole or in part, only to employees and agents of Merchant who need to have access thereto for Merchant’s internal business purposes; (iv) take all necessary steps to ensure that Merchant’s employees and agents are informed of and comply with the confidentiality restrictions contained herein; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. Merchant shall promptly notify PL of any unauthorized disclosure or use of the Confidential Information. Merchant shall cooperate and assist PL in preventing or remedying any such unauthorized use or disclosure.

3.3 Any employees, agents or representatives of Merchants who accept this Agreement expressly agree to treat Customer Data and Confidential Information as set forth herein.

4. FEES. In addition to any fees that Merchant is obligated to pay pursuant to the MPA and GSA, Merchant shall pay fees, if any, in accordance with the service plan for which Merchant signs up. Failure to comply with or otherwise pay any fees due is a material breach of this Agreement. PL may offset monies owed to PL under this Agreement against monies PL owes Merchant under the MPA. PL may increase the fees it charges upon 20 days prior written notice. PL shall provide notice of a fee increase, and PL may provide notice of a fee increase in any of the following manners, in accordance with the Notice provision set forth herein in Section 11.6.

5. TERM AND TERMINATION

5.1 At all times, PL may terminate this Agreement, upon 30 days written notice to Merchant. Merchant may, except in cases where the PayLink Solution plan for which Merchant signed up lists a minimum contract term, terminate this Agreement, upon 30 days written notice to PL. When a minimum contract term is included in a service plan, Merchant may terminate this Agreement, upon no less than 30 days written notice prior to the end of minimum contract term or any renewal term.

5.2 PL, in its sole discretion, may suspend or terminate this Agreement for any reason at any time without prior notice, if Merchant does not comply with the terms of this Agreement. PL shall provide Merchant written notice if PL terminates the Agreement under this subsection.

5.3 Termination of the Agreement shall immediately terminate and revoke any license the Merchant has pertaining to the PayLink Solution. Merchant acknowledges and agrees that upon termination, PL owns all Customer Data, and that upon termination, Merchant shall have no access to the PayLink Solution, including but not limited to the Customer Data, except as set forth in Section 3.1. PL shall not be responsible to Merchant in any way for any Customer Data after termination.

6. NO WARRANTY; LIMITATION OF LIABILITY; INDEMNITY

6.1 Indemnification . The parties agree to the following indemnification provisions.

6.1.1 Merchant agrees to indemnify, defend, and hold harmless PL, its employees and agents, from and against any loss, liability, damage, penalty or expense (including attorneys' fees, expert witness fees and cost of defense) they may suffer or incur as a result of: (i) any failure by Merchant or any employee, agent or affiliate of Merchant to comply with the terms of this Agreement; (ii) any warranty or representation made by Merchant or any employee or agent of Merchant to PL being false or misleading; (iii) any representation, statement or warranty made by Merchant or any employee or agent of Merchant to any third person other than as specifically authorized by this Agreement; or (iv) the negligence of Merchant or any employee or agent of Merchant.

6.1.2 Subject to the limitations set forth in Sections 6.2 and 6.3, PL agrees to indemnify, defend, and hold harmless Merchant, its employees or agents from and against any loss, liability, damage, penalty or expense (including attorneys' fees, expert witness fees and cost of defense) they may suffer or incur as a result of: (i) any failure by PL or any employee, agent or affiliate of PL to comply with the terms of this Agreement; (ii) any written warranty or representation made by PL or any employee or agent of PL to Merchant being false or misleading, if such written warranty or representation arises out of an employee or agent of PL acting grossly negligent or engaging in willful misconduct; (iii) any representation or warranty made by PL or any employee or agent of PL to any third person other than as specifically authorized by this Agreement, if such representation or warranty was made with gross negligence or constituted willful misconduct; or (iv) the gross negligence or willful misconduct of PL or any employee or agent of PL.

6.2 DISCLAIMER OF ALL WARRANTIES. PL PROVIDES THE PAYLINK SOLUTION "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. PL DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PL OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PL’S OBLIGATIONS.

6.3 Limitation of liability. PL SHALL NOT BE LIABLE TO MERCHANT or its employees or agents OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PAYLINK SOLUTION WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF PL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL PL’S TOTAL LIABILITY TO MERCHANT, ITS AGENTS, EMPLOYEES OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PAYLINK SOLUTION EXCEED TEN THOUSAND DOLLARS ($10,000.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.

7. MERCHANT’S RESPONSIBILITIES. Merchant shall be exclusively responsible for the supervision, management, and control of its use of the PayLink Solution, including, but not limited to: (a) assuring proper configuration of equipment or devices; (b) establishing adequate operating methods; (c) implementing procedures sufficient to satisfy its obligations for security under this Agreement, including appropriate action between it and its employees to prevent misuse, unauthorized copying, modification, or disclosure of any aspect of the PayLink Solution constituting Confidential Information; and (d) diligently reconciling sales on a daily, weekly and monthly basis between and among Merchant’s PayLink Solution account, point of sale ("POS") system (if the PayLink Solution is used with an integration to Merchant’s POS system), the Gateway Services, Merchant’s merchant account (whether Merchant uses the Merchant Account Services or a third party merchant account provider), and bank deposit account. Merchant shall ensure the sales deposits match the transaction volume actually processed, and if the PayLink Solution is used with an integration to the Merchant’s POS system, ensure the transactions processed in the PayLink Solution are accurately reflected in the POS system. As to subdivision 7(d), Merchant must notify PL within seven (7) days of the date that any discrepancy occurred or the date any unsettled transactions should have otherwise been deposited to Merchant’s bank deposit account. Merchant expressly agrees that PL’s only obligation and liability to merchant for discrepancies or unsettled transactions shall be to work in good faith with Merchant to assist in reconciling discrepancies or capturing unsettled transactions, to the extent possible and as permitted by the rules of the card brands, payment networks or other entities governing such transactions and that liability shall only give rise when proper notice is given in accordance of the foregoing sentence.

8. ACCEPTANCE. Merchant, and any individuals or entities acting on behalf of Merchant, shall have deemed to have accepted the PayLink Solution upon clicking to accept the terms of this Agreement or upon using the PayLink Solution in any manner. Any individual who clicks to accept the terms of this Agreement on behalf of Merchant represents and warrants that he or she is authorized to accept the terms of this Agreement on behalf of Merchant. Merchant, by using the PayLink Solution in any manner, confirms and ratifies that the individual who accepted the terms of this Agreement on behalf of Merchant was authorized to do so.

9. UPDATES AND SHUTDOWNS

9.1 From time to time PL may, at its discretion, release updates to the PayLink Solution. In the event PL notifies Merchant of any such update, Merchant shall integrate such update into its system within thirty (30) days of its receipt of such notice. Merchant acknowledges that failure to install updates in a timely fashion may impair the functionality of the PayLink Solution and related services provided hereunder. PL will have no liability for Merchant’s failure to properly install the most current version of the PayLink Solution, and PL will have no obligation to provide support or services for any outdated versions of the PayLink Solution.

9.2 PL reserves the right, from time to time, without prior notice, to shut down and restart any module of the PayLink Solution or any software operating the PayLink Solution for maintenance, unexpected technical difficulties, software upgrades and other reasons for reasonable time periods as PL may deem necessary from to time to time in its sole and absolute discretion.

10. SECURITY OF INFORMATION. PL will use commercially reasonable efforts to maintain the security of the PayLink Solution and all Confidential Information. Merchant will use commercially reasonable efforts to maintain the security of the access credentials it utilizes to access the PayLink Solution and maintain the security of its POS system and any other portions of its business that are integrated with or interact with the PayLink Solution, including maintaining the security of all Confidential Information Merchant receives as a result of using the PayLink Solution. Merchant shall take such reasonable efforts at its sole cost and expense, and such reasonable efforts shall include, without limitation: (i) creating firewalls to protect against unauthorized access to Merchant’s systems by its employees, contractors, customers, or by any other person; and (ii) implementing commercially reasonable security techniques suggested by PL from time to time. Merchant further agrees that it will be bound by and comply with all of the Card Organizations’ (i.e., Visa, MasterCard, American Express and Discover Network) security rules and regulations as they now exist or as each may be amended or supplemented from time to time including but not limited to the Payment Card Industry Data Security Standards ("PCI DSS"). Merchant acknowledges that the Card Organization rules are generally available on the Internet. Notwithstanding the foregoing, the parties recognize that there is no guarantee or absolute security of information that is communicated over the Internet.

11. GENERAL PROVISIONS

11.1 Compliance with Laws; Privacy Policy. The parties shall comply with all applicable international, national, state, regional and local laws and regulations in performing their duties hereunder, including, but not limited to the rules and regulations of Visa, MasterCard, American Express, Discover Network and other card brands. For the sake of clarity, each party is responsible for complying with any state or federal consumer privacy laws concerning the collection of consumer’s personal information, including but not limited to compliance with the California Consumer Privacy Act ("CCPA") or any other similar state or federal laws. Because PL owns the Customer Data (as addressed in Section 3.1), PL will implement a compliance program concerning PL’s compliance with the CCPA and similar laws, and the Merchant shall be responsible for its own compliance with the CCPA or any similar laws. Merchant agrees to PL’s use and disclosure of Merchant’s personal information in accordance with PL’s privacy policy which can be found online at https://paymentlogistics.com/privacypolicy . PL’s privacy policy, as modified from time to time with notification to Merchant, is incorporated by this reference into this Agreement.

11.2 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.

11.3 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.

11.4 Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Merchant may not assign this Agreement without the written consent of PL.

11.5 Amendments. Except as otherwise provided in this Agreement, no provision of this Agreement may be amended, modified or waived except by a written agreement signed by both parties. Notwithstanding, PL explicitly reserves the right to modify the terms of this Agreement by providing notice to Merchant. Merchant agrees that continued use of the PayLink Solution after PL provides notice shall constitute Merchant’s acceptance of such changes.

11.6 Notices. Merchant agrees that PL may provide any and all notices under this Agreement as follows: (1) written notice sent via Registered US Mail, Federal Express, or UPS, to the address listed on the MPA or (if changed) the address on file with PL, (2) a written statement message on the monthly statement Merchant receives from PL or its agents for the Merchant Account Services, or (3) written notice provided electronically through the PayLink administrative portal, to which the Merchant has access as a result of PL or its agent sending an email to Merchant, notifying Merchant that a message is waiting for Merchant in the portal. Merchant must provide any notices to PL as follows: (1) written notice sent via Registered US Mail, Federal Express, or UPS, to the address listed on the then-current terms of use, (2) via email to the following email address: legal@paymentlogistics.com.

11.7 Section Headings. The section headings contained in this Agreement are for convenient reference only and shall not in any way affect the meaning or interpretation of this Agreement.

11.8 Entire Agreement; Binding Effect. This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement. Notwithstanding the foregoing, to the degree the parties have executed an MPA or GSA, the MPA and/or GSA shall remain in effect, except to the degree expressly modified by this Agreement. Whenever possible, this Agreement and the MPA and GSA shall be interpreted harmoniously, and to the degree there is any conflict, this Agreement shall control in regard to the PayLink Solution.

11.9 Jurisdiction; Venue; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California (irrespective of its choice of law principles). The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in federal or state court in San Diego, California. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the exclusive personal jurisdiction and venue of such courts.

11.10 Force Majeure. No party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by (i) fire, flood, earthquake, elements of nature or other acts of God; (ii) any terrorist attacks or outbreak or escalation of hostilities, war, riots or civil disorders in any country; (iii) any act or omission of the other party or any government authority; (iv) any labor disputes (whether or not employees' demands are reasonable or within the party's power to satisfy); or within the party’s power to satisfy); or (v) the nonperformance by a person for any similar cause beyond the reasonable control of such party, including without limitation, failures or fluctuations in telecommunications or other equipment. In any such event, the non-performing party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable. To avail itself of this Force Majeure provision, Merchant must provide written notice to PL of Merchant’s default or delay in performance within thirty (30) days of any default or delay in performance and state the specific reasons for not performing or for any delay in performance. All parties understand that the PayLink Solution currently employs SMS text messaging, that neither PL nor the Merchant controls the SMS carriers, and that a carrier in a variety of circumstances could take actions that block or blacklist SMS messaging. PL is not liable if this or similar actions concerning SMS text messaging that are out of its control occur. Notwithstanding anything to the contrary in this paragraph, Merchant must meet its monetary obligations to PL, and Merchant’s failure to receive payment or funds from any third party shall not excuse the performance of Merchant’s obligations to PL under this Agreement.

11.11 Attorney’s Fees. In any litigation or arbitration arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, including expert witness fees and fees on any appeal. The parties agree that any fees a party pays out of pocket to an attorney, expert or vendor shall be deemed reasonable.

11.12 Survival. Sections 3, 4, 6, 8, 10, and 11 (including all subsections), and any other sections that would naturally survive termination, shall survive termination of this Agreement, regardless of who terminates the Agreement.

11.13 Effective Date. The Effective Date of the Agreement shall be the date Merchant first accepts the terms of the Agreement.

IN WITNESS THEREOF, this Agreement is hereby executed and agreed to, upon Merchant clicking to accept the terms of this Agreement or upon Merchant (or any agent, employee or representative of Merchant) using the PayLink Solution.




GATEWAY SERVICES AGREEMENT

This Gateway Services Agreement ("Agreement") to accept and process electronic payment transactions using the Paygistix Gateway is made between you, the Merchant (also "you" and "your(s)"), and Payment Logistics Limited (also "PLL", "we", "us" and "our"(s)). According to the terms of this Agreement and any applicable operating procedures, you agree to utilize the Paygistix Gateway for electronic payment transaction processing purposes and we agree to provide electronic payment transaction and processing services as set forth herein.

1) Definitions. Capitalized terms used in this Agreement shall have the meaning given as defined in this Agreement.

a. Claim means any arbitration award, assessment, charge, citation, claim, damage, demand, directive, expense, fine, interest, joint or several liability, lawsuit or other litigation, notice, infringement or misappropriation of any Intellectual Property Right or violation of any law, and any consequential, indirect, special, incidental or punitive damages and any attorney’s fees and expenses incurred in connection therewith. For purposes of the foregoing Claim definition, a Claim shall be considered to exist even though it may be conditional, contingent, indirect, potential, secondary, unaccrued, unasserted, unknown, unliquidated, or unmatured.

b. Confidential Information means the Software, Documentation, operational procedures, the terms and conditions of this Agreement (including any schedule, exhibit or addendum), pricing or other proprietary business information, and any other information provided to you by us, whether or not such information is marked as confidential; provided, however, that Confidential Information will not include information that: (a) is or becomes generally known to the public through no fault of yours; (b) was lawfully obtained by you from a third party free of any obligation of confidentiality; (c) was already in your lawful possession prior to receipt thereof, directly or indirectly, from the disclosing party; (d) is independently developed by you without the use of the Confidential Information; (e) is disclosed with our express written permission; or (f) is disclosed pursuant to a lawful court or governmental order, provided you provide us with prompt prior written notice of any proceeding that may involve such an order, and an opportunity to contest any disclosure at such proceeding.

c. Customer means your customer who would like to provide payment for your goods or services.

d. Documentation means any and all manuals and other written materials in any form provided for use with the Software, as amended by us from time to time, the terms of which are incorporated in this Agreement as if fully set forth herein.

e. Intellectual Property Rights means any and all patents, copyrights, trademarks, trade secrets, service marks, and any other intellectual property rights, and any applications for any of the foregoing, in all countries in the world.

f. Merchant Account means an account set up for a merchant that requires a card processor, bank, merchant i.d., terminal i.d., merchant account number, or otherwise named unique merchant number. Multiple physical or virtual storefronts that process transactions under the same unique merchant number shall be deemed as one (1) Merchant Account.

g. Operational Procedures means our published policies and procedures contained in the various documents provided to you, as amended from time to time, concerning the Services provided pursuant to this Agreement.

h. Paygistix Services (also "Services") means the suite of Paygistix products or services offered through the Paygistix Gateway, including but not limited to, Paygistix Virtual Terminal, Paygistix Web, Paygistix Mobile, Paygistix Register, Paygistix Connect, Paygistix Terminal, Paygistix Client, Paygistix Cloud, Paygistix Wireless, Paygistix Point-to-Point Encryption, any other products labeled with the Paygistix brand and any transaction processing services provided through Paygistix branded products such as transmission of payment related transactions to the appropriate payment processing networks or third party service providers, transaction responses (approved, declined, etc.), and the detailed reporting of those transactions.

i. Platform means our operated, or approved, electronic payment platform(s) and/or gateway(s) through which the payment services contemplated under this Agreement are provided.

j. Software means all protocols, software components (including software that is installed within your network, web applications that you access remotely and other related components) and other interfaces and software provided by us to you pursuant to this Agreement, and any and all Updates to such Software.

k. Updates means an embodiment of the Software that provides enhancements and/or improvements.

l. Your Systems means any web site(s), devices, applications or other systems operated or maintained by you or on your behalf through which transactions are submitted for processing, and all of your other associated systems.

2) Fees. Client shall pay PLL the fees for the Paygistix Services as set forth on the Paygistix Gateway Application or as set forth in any other application or agreement where fees are designated as Paygistix Services fees. A separate account with us for the Paygistix Services shall be required for each separate Merchant Account held by you. FEES FOR THE PAYGISTIX SERVICES MAY BE MODIFIED BY US FROM TIME TO TIME BY PROVIDING NOTICE TO YOU PURSUANT TO SECTION 27 OF THIS AGREEMENT.

3) Designated Automatic Funds Transfer Account

a. You authorize us to initiate and/or transmit automatic credit and/or debit entries to the account and depository already on file with PLL or identified in the Paygistix Gateway Application or in any subsequent written designation (Designated Automatic Funds Transfer Account). This authority includes, but is not limited to, the initiation and transmission of such entries, request or orders as may be necessary to:

i. Debit or charge the Designated Automatic Funds Transfer Account for any fees, assessments or other reimbursements due to us under the terms of this Agreement or our operating procedures;

ii. Reverse or adjust any entries made in error or by mistake however caused, or,

iii. Revoke any provisional credit with respect to any entry or group of entries.

b. You agree to be bound by all applicable terms and provisions of the rules of the National Automated Clearinghouse Association (NACHA) or other applicable association or network, in effect from time to time.

c. You agree that we may adopt or use such schedules, facilities, intermediaries and/or means of transmission, or alternatives as we believe suitable and that we accept no undertaking and make no warranty or assurances regarding the date or time at which entries will be received by, credited to or debited from the Designated Automatic Funds Transfer Account.

d. You acknowledge that we have no control over you, your agents or employees, intermediaries such as NACHA or other facilities involved in the initiation or transmission of entries to and from the Designated Automatic Funds Transfer Account, and that such facilities or intermediaries may be damaged, impaired or otherwise fail to function properly or timely due to circumstances beyond our control. You agree that we shall have no responsibility or liability for any loss or damage resulting, wholly or partial, from such failures or circumstances beyond our control, and you assume the risk of any such loss or damage.

e. You acknowledge that we are providing ACH Services at cost and that we would not do this if we were exposed to liability and cost other than those required by law. Consequently, you agree that we shall not be liable to any extent not required by Uniform Commercial Code. You agree that in no event shall we be liable for any indirect or consequential losses or damages, damages to person or property, or any loss of profits notwithstanding notice to us of the possibility of such losses.

4) Term; Termination. The Paygistix Services shall commence as of the effective date of this Agreement and shall remain in effect until terminated by either party as provided herein. Either party may terminate these Services upon giving the other party at least thirty (30) days prior written notice. We may suspend or terminate your access to the Paygistix Services without prior notice, with or without cause. Regardless of the reason for termination, you shall be responsible for the payment of all fees due up to and including the effective date of termination.

5) License Grant

a. Software License. Subject to the terms and conditions of this Agreement, PLL grants to you a royalty free, non-exclusive, nontransferable limited license to use the Software, during the term of this Agreement for the sole and limited purpose of submitting payment transactions to us for processing, and otherwise using our Services as set forth herein.

6) Documentation License. Subject to the terms and conditions of this Agreement, PLL grants to you, and you hereby accept, a royalty free, non-exclusive, non-transferable limited license, without right of sublicense, to use the Documentation during the term of this Agreement for the sole and limited purpose of supporting your use of the Software and the Paygistix Services. You shall strictly follow all Documentation provided to you, as it may be amended from time to time by us, in our discretion. To the extent that there is any conflict between the Documentation and the terms of this Agreement, the terms of this Agreement shall govern and control.

7) Use Restrictions. You shall not, and shall not cause or permit any third party to (i) use the Software in any way, other than in accordance with this Agreement, the Documentation or as otherwise instructed by us in writing; (ii) use the Software or Documentation, either directly or indirectly, to develop any product or service that competes with the products and services provided under this Agreement; (iii) disassemble, decompile, decrypt, extract, reverse engineer or modify the Software, or otherwise apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Software or any algorithm, process, procedure or other information contained in the Software, except as otherwise specifically authorized in accordance with this Agreement; (iv) provide the Software or Documentation to any third party, other than to your authorized employees and contractors who are subject to a written confidentiality agreement, the terms of which are no less restrictive than the confidentiality provisions of this Agreement; (v) make any copies of the Software or Documentation, except as is incidental to the purposes of this Agreement, or for archival purposes (any copies made hereunder shall contain all appropriate proprietary notices); (vi) rent, lease, assign, sublicense, transfer, distribute, allow access to, or timeshare the Software or Documentation;(vii) circumvent or attempt to circumvent any applicable security measures of the Software;(ix) attempt to access or actually access portions of the Paygistix Services not authorized for your use; or (x) use the Software for any unlawful purpose.

8) Updates. From time to time we may, at our discretion, release Updates. In the event we notify you of any such Update, you shall integrate and install such Update into your Systems within thirty (30) days of your receipt of such notice. You acknowledge that failure to install Updates in a timely fashion may impair the functionality of the Platform or any of our Services provided hereunder. We will have no liability for your failure to properly install the most current version of the Software or any Update, and we will have no obligation to provide support or services for any outdated versions.

9) Licensors. The licenses granted hereunder may be subject to other licenses currently held by us. Should any license held by us to certain technology or software be terminated or suspended, the corresponding license(s) granted to you hereunder may also be terminated or suspended in our sole and absolute discretion. You acknowledge and agree to such potential termination or suspension and hereby waive any and all damages, whether actual, incidental or consequential resulting therefrom.

10) Export Compliance. You agree not to export or re-export the Software or any underlying information or technology except in full compliance with all applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) to any country to which the United States has embargoed goods (or any national or resident thereof); (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders; or (iii) in any manner not in full compliance with the requirements of the United States Bureau of Industry and Security and all applicable Export Administration Regulations. If you have rightfully obtained the Software outside of the United States, you agree not to re-export the Software except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which you obtained the Software. You warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

11) Federal Acquisition Regulations. If you are acquiring the Software on behalf of any part of the United States Government (the "Government"), the following provisions apply: Any use, duplication, or disclosure by the Government is subject to the restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. We are the contractor/manufacturer, with the address set forth below. Any use, modification, reproduction, release, performance, display or disclosure of the Software and/or the accompanying documentation by the Government or any of its agencies shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

12) Return / Destruction. Upon termination or expiration of the Paygistix Services, all licenses granted hereunder shall immediately terminate, and within five (5) days thereof, you shall either return to us or destroy the Software and the Documentation, and shall so certify to us in writing.

13) No Other Licenses. Except as expressly provided above, no license for any patents, copyrights, trademarks, trade secrets or any other intellectual property rights, express or implied, are granted hereunder.

14) Use of Transaction Data. As permitted by applicable law and regulations, we reserve the right to copy and distribute to third parties any information associated with your use of the Software or your activities on the Paygistix Services.

15) Platform Matters

a. Integration with Your Systems. While we provide Software to you, you acknowledge that the Software itself is insufficient to allow your Systems to function with the Platform. Programming, development and maintenance of your Systems and their functionality are your sole responsibility. You have the sole responsibility to select and employ any competent programming agent(s) to accomplish the programming required to make your Systems function correctly with the Platform and the payment services contemplated hereunder ("Integration"). You shall be responsible for all technical support for your Systems and Integration related issues. You agree that you will use commercially reasonable efforts to complete the Integration as soon as possible. You will be responsible for all of your own development and implementation costs associated with such Integration. Notwithstanding any other provision of this Agreement, you acknowledge that unless and until you complete the Integration, no services need be provided by us to you pursuant to this Agreement, except as otherwise specifically provided in section 16) below. In addition, you acknowledge and agree that, even if you have completed Integration, if you have not entered into a valid merchant processing agreement with an authorized bank card processor, you cannot receive payment processing services through the Paygistix Services.

16) Set-Up Assistance Services. Subject to section 15) above, upon your request to us, and upon payment of any applicable fees, we will provide you with set-up services to assist with the Integration.

17) Shutdowns. We reserve the right, from time to time, without prior notice, to shut down and restart the Platform for maintenance and/or software upgrades for reasonable time periods of one minute or more.

18) Orders by Customers. You are solely responsible for accepting, processing, and filling any orders for purchases by your Customers, and for handling any inquiries arising therefrom. You shall use the highest standards in the industry in responding to complaints by Customers. We are not responsible or liable for any unauthorized access to your data or Your Systems by any means or device.

19) Security of Information. We will use commercially reasonable efforts to maintain the security of the Software and the Platform. You will use commercially reasonable efforts to maintain the security of Your Systems. Such steps by you will be taken at your sole cost and expense, and shall include, without limitation (i) creating firewalls to protect against unauthorized access to Your Systems by your employees, contractors, Customers, or by any other person; and (ii) implementing reasonable protective techniques suggested by us. You further agree that you will be bound by and comply with all of our and all Card Organization security rules and regulations as they now exist or as each may be amended or supplemented from time to time. Notwithstanding the foregoing, the parties recognize that there is no guarantee or absolute security of information that is communicated over the Internet.

20) Privacy. We have adopted an online Privacy Statement to inform individuals as to our online collection and use of personal information. You agree that, during the term of this Agreement, you will adequately communicate and comply with an appropriate privacy policy explaining your online collection and use of the personal information of your Customers. Unless required by law, Card Organization rules, or done pursuant to this Agreement, you shall not, under any circumstances, sell, purchase, provide, or otherwise disclose any customer’s account information, transaction information, or other personal information to any third party. You shall store all data securely. We may advise potential users of the Services that we have a relationship with you.

21) Audit Rights. Upon notice to you, we may audit your usage, records and security of the Software, your Customer’s payment processing information, and the services provided hereunder to ensure (i) that you are using the Software and the services in full compliance with the provisions of this Agreement; (ii) that all applicable fees have been paid; (iii) that you are adhering to your Privacy Policy; and; (iv) that you are in full compliance with all applicable laws, regulations and rules (including but not limited to Card Organization rules). Any such audit shall be conducted during regular business hours at your offices and shall not interfere unreasonably with your business.

22) Indemnification. You shall indemnify, defend, and hold harmless PLL and the employees, officers, directors, shareholders, agents, corporate parents and affiliates of PLL (the, "Indemnitees") from and against any and all claims, liabilities, losses, damages, costs or expenses (including, without limitation, fees and expenses of attorneys and consultants and court costs) either directly or indirectly related or attributable to, in whole or in part, the negligence or wrongful act of yours, or any of your employees, agents or nominees, in performance hereunder, or the breach of this Agreement or any provision hereof by you, or any of your employees, agents or nominees in any way associated with or related to this Agreement. This indemnification obligation of yours shall include, without limitation, any and all claims for contractual, tortious, exemplary, punitive or statutory damages of any nature whatsoever and any and all injunctive or other equitable relief. You expressly agree that you shall indemnify and hold Indemnitees harmless for fines or penalties imposed on PLL by VISA, MasterCard, Discover, American Express or any of PLL’s vendors where such fines are the result of any actions or inaction of yours or any of your employees and agents. The indemnification covenants set forth herein shall survive any termination of this Agreement.

23) LIMITATION OF LIABILITY

a. PLL IS NOT LIABLE FOR THE MERIT AND LEGITIMACY OF THE ORDERS FORWARDED BY YOU. ALL LIABILITY FOR VALIDITY OF ORDERS REMAINS WITH YOU. WE ARE NOT RESPONSIBLE FOR ANY DATA ENTRY ERRORS, CUSTOMER MISREPRESENTATIONS, OR REPORTING ERRORS RESULTING FROM YOUR ACTIONS. WE SHALL NOT BE LIABLE TO YOU OR YOUR CUSTOMER FOR THE ACCURACY OF THE INFORMATION PROVIDED BY THE PAYGISTIX GATEWAY OR OUR SERVICES.

b. IN NO EVENT SHALL WE BE LIABLE TO YOU, OR TO ANY OTHER PERSON OR ENTITY, UNDER THIS AGREEMENT, OR OTHERWISE, FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OR INJURY TO EARNINGS, PROFITS OR GOODWILL.

c. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL OUR LIABILITY UNDER THIS AGREEMENT FOR ALL CLAIMS ARISING UNDER, OR RELATED TO, THIS AGREEMENT EXCEED, IN THE AGGREGATE (INCLUSIVE OF ANY AND ALL CLAIMS MADE BY YOU AGAINST US, WHETHER RELATED OR UNRELATED), THE LESSER OF: (I) THE TOTAL AMOUNT OF FEES PAID BY YOU FOR THE OUR SERVICES DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE EVENT GIVING RISE TO SUCH CLAIM(S) OCCURRED; OR (II) $10,000.00.

d. NOTWITHSTANDING PROVISIONS SET FORTH HEREIN, WE WILL NOT BE LIABLE FOR ANY CLAIMS UNDER THIS AGREEMENT ARISING DIRECTLY OR INDIRECTLY FROM OR OTHERWISE CONCERNING: (A) ANY TERMINATION, SUSPENSION, DELAY OR DISRUPTION OF SERVICE (INCLUDING BILLING FOR A SERVICE) BY THE INTERNET, ANY COMMON CARRIER OR ANY THIRD PARTY SERVICE PROVIDER; (B) ANY FAILURE, DISRUPTION OR MALFUNCTION OF THE SOFTWARE, THE SERVICES PROVIDED HEREUNDER OR THE INTERNET, OR ANY COMMUNICATIONS NETWORK, FACILITY OR EQUIPMENT BEYOND OUR REASONABLE CONTROL, WHETHER OR NOT ATTRIBUTABLE TO ONE OR MORE COMMON CARRIERS OR THIRD PARTY SERVICE PROVIDERS; (C) ANY FAILED ATTEMPTS BY YOU OR YOUR CUSTOMERS TO ACCESS ANY SYSTEMS OR TO COMPLETE PROCESSING TRANSACTIONS; OR (D) ANY FAILURE TO TRANSMIT, OBTAIN OR COLLECT DATA FROM CUSTOMERS OR FOR HUMAN, MACHINE OR SOFTWARE ERRORS OR FAULTY OR YOUR OR YOUR CUSTOMER’S ERRONEOUS INPUT.

24) DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE PAYGISTIX GATEWAY, OUR SERVICES AND THE SOFTWARE ARE AT YOUR SOLE RISK WE MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AND NO IMPLIED AT LAW WARRANTY SHALL ARISE FROM THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION, OUR PROCEDURES, THE SERVICES PROVIDED HEREUNDER, OR FROM PERFORMANCE BY US, INCLUDING, WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) ANY WARRANTIES OF NONINTERFERENCE OR NON-INFRINGEMENT; OR (C) ANY WARRANTIES THAT ANY PRODUCT OR SERVICE PROVIDED HEREUNDER (INCLUDING BUT NOT LIMITED TO THE SOFTWARE) WILL (1) MEET YOUR REQUIREMENTS; (2) OPERATE ACCORDING TO YOUR EXPECTATIONS; (3) PROVIDE ACCURATE DATA; OR (4) OPERATE UNINTERRUPTED OR ERROR FREE. ANY AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED BY US AND WAIVED BY YOU. WE DO NOT WARRANT THAT ANY ERRORS WILL BE CORRECTED. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, ALL SOFTWARE AND SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN "AS-IS, WITH ALL FAULTS" BASIS. THIS DISCLAIMER OF WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. All decisions to reject any processing transaction or payment for your products or services are solely your responsibility.

25) Notices. You agree to notify us of any change in your name, type of business, or any other information provided on the Paygistix Gateway Application or provided to us in any account registration form or application that gives rise to your use of the Paygistix Services, at least thirty (30) business days prior to the effective date of change. Any notice or other communication required or permitted to be given hereunder shall be in writing, addressed or transmitted to the party to be notified at such party’s address or number at such party’s last known address or number, and shall be (i) if sent by us, hand delivered or delivered by facsimile transmission, overnight courier or certified, registered, regular mail, or e-mail, or via messaging delivered through any graphical user interface for which the Paygistix Services are accessed, or by including such notice on your monthly Merchant Account statement when you utilize PLL’s Merchant Account services; or (ii) if sent by you, certified or registered mail, postage prepaid return receipt requested to 11011 N. Torrey Pines Road, Ste 250, La Jolla, CA 92037. Any notice delivered hereunder shall be deemed effective, as applicable, upon delivery, if hand delivered or sent by overnight courier; upon receipt as evidenced by the date of transmission indicated on the transmitted material, if by facsimile transmission or e-mail; on the date of delivery indicated on the return receipt, if mailed by certified or registered mail; or ten (10) days after mailing, if by regular mail (or as otherwise required by applicable law). The parties’ addresses may be changed by written notice to the other party as provided herein.

26) Subcontractors. PLL may subcontract all or part of the Services using a variety of providers globally, but, notwithstanding any such subcontract, PLL shall remain fully responsible for performance of the Services as set forth in this Agreement, including ensuring the compliance of subcontractors with the terms of this Agreement applicable to such subcontractors.

27) Amendment. We may modify any provision of this Agreement by providing written notice to you. If such modification is not required for regulatory or compliance purposes, you may choose not to accept the requirements of any such change by providing us with written notice not more than twenty (20) days after the effective date of the modification. Upon receipt of your notice, we shall have thirty (30) days to provide you with a written response that we are waiving the modification for you. In the event we do not provide a written waiver of such modification within the allotted timeframe, you may provide us with no less than 30 days advanced written notice that you are terminating the Agreement for this reason and we shall waive any early termination fee that might otherwise apply. Your continued use of the Services beyond the timeframes listed herein shall constitute your acceptance of any modifications we notify you of. All notices and communications sent under this section 27 shall be made in accordance with section 25 of this Agreement.

28) Third Party Beneficiaries. Our respective affiliates and any persons or entities we use in providing the Services are third party beneficiaries of this Agreement and each of them may enforce its provisions as it was a party hereto. Except as expressly provided in this Agreement, nothing in this Agreement is intended to confer upon any person or entity any rights or remedies, and the parties do not intend for any persons or entities to be third-party beneficiaries of this Agreement.

29) Card Organization Rules. The parties acknowledge that the Visa, MasterCard and Discover Network Card Organization Rules give Visa, MasterCard and Discover Network certain rights to require termination or modification of this Agreement with respect to transactions involving Visa, MasterCard and Discover Network Cards and the Visa, MasterCard and Discover Network Card systems and to investigate you. The parties also acknowledge that issuers of other Cards, for which we perform services on your behalf, may have similar rights under their applicable Card Organization Rules with respect to this Agreement’s applicability to transactions involving such other Cards.

30) Choice of Law. Our Agreement shall be governed by and construed in accordance with the laws of the State of California (without regard to its choice of law provisions).

31) Venue. We have substantial facilities in the State of California and many of the services provided under this Agreement are provided from these facilities. The exclusive venue for any actions or claims arising under or related to this Agreement shall be in the appropriate state or federal court located in San Diego County, California.

32) WAIVER OF JURY TRIAL. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT.

33) Force Majeure. No party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by (i) fire, flood, earthquake, elements of nature or other acts of God; (ii) any terrorist attacks or outbreak or escalation of hostilities, war, riots or civil disorders in any country; (iii) any act or omission of the other party or any government authority; (iv) any labor disputes (whether or not employees' demands are reasonable or within the party's power to satisfy); or within the party’s power to satisfy); or (v) the nonperformance by a person for any similar cause beyond the reasonable control of such party, including without limitation, failures or fluctuations in telecommunications or other equipment. In any such event, the non-performing party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail, and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable. To avail yourself of this Force Majeure provision, you must provide written notice to PLL of your default or delay in performance within thirty (30) days of any default or delay in performance and state the specific reasons for not performing or for any delay in performance. All parties understand that some components of the Services may employ SMS text messaging, that neither PLL nor Merchant controls the SMS carriers, and that a carrier in a variety of circumstances could take actions that block or blacklist SMS messaging. PLL is not liable if this or similar actions concerning SMS text messaging that are out of its control occur. Notwithstanding anything to the contrary in this paragraph, you must meet your monetary obligations to PLL, and your failure to receive payment or funds from any third party shall not excuse the performance of your obligations to PLL under this Agreement.

34) Compliance with Laws. In performing its obligations under this Agreement, each party agrees to comply with all laws and regulations applicable to it, including, but not limited to the rules and regulations of Visa, MasterCard, American Express, Discover Network and other card brands. For the sake of clarity, each party is responsible for complying with any state or federal consumer privacy laws concerning the collection of consumer’s personal information, including but not limited to compliance with the California Consumer Privacy Act ("CCPA") or any other similar state or federal laws. Merchant agrees to PL’s use and disclosure of Merchant’s personal information in accordance with PLL’s privacy policy which can be found online at https://paymentlogistics.com/privacypolicy . PLL’s privacy policy, as modified from time to time with notification to you, is incorporated by this reference into this Agreement. You further agree to cooperate and provide information requested by us, as we determine necessary, to facilitate our compliance with any applicable law including without limitation the rules and regulations promulgated by the Office of Foreign Assets Control of the US Department of the Treasury. You further acknowledge and agree that you will not use your merchant account and/or the Services for illegal transactions, for example, those prohibited by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq, as may be amended from time to time, or processing and acceptance of transactions in certain jurisdictions pursuant to 31 CFR Part 500 et seq. and other laws enforced by the Office of Foreign Assets Control (OFAC).

35) Headings. The headings contained in this Agreement are for convenience of reference only and shall not in any way affect the meaning or construction of any provision of this Agreement.

36) Severability. The parties intend every provision of this Agreement to be severable. If any part of this Agreement is not enforceable, the remaining provisions shall remain valid and enforceable.

37) Entire Agreement; Waiver. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter thereof and supersedes any previous agreements and understandings. A party’s waiver of a breach of any term or condition of this Agreement shall not be deemed a waiver of any subsequent breach of the same or another term or condition. For avoidance of doubt and notwithstanding the foregoing, PLL’s Merchant Account services and PLL’s PayLink services are provided by PLL under the terms of separate agreements, which if executed by the parties, shall remain in full force and effect, however use of the Paygistix Services to process transactions for PLL’s Merchant Account services or PLL’s PayLink services are governed under the terms of this Agreement. When you have entered into an agreement for PLL’s Merchant Account services or PLL’s PayLink services, then whenever possible, this Agreement and those agreements shall be interpreted harmoniously, and to the degree there is any conflict, this Agreement shall control in regard to the Paygistix Services and those agreements shall control respectively with regards to PLL’s Merchant Account services and PLL’s PayLink services.

38) Effective Date. The Effective Date of the Agreement shall be the date you first accept the terms of the Agreement.

IN WITNESS THEREOF, this Agreement is hereby executed and agreed to, upon you clicking to accept the terms of this Agreement or upon you (or any agent, employee or representative of yours) using the Paygistix Services.


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