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.