Perk Hero Software Inc. (The “Company”)
Last Updated: August 12, 2020
Merchant and the Company hereby agree as follows:
“Anonymized Data” has the meaning set forth in section 11.5;
“App” means the Perk Hero mobile application;
“Application Usage Data” has the meaning set forth in section 11.3;
“Applicable Law” means with respect to each jurisdiction, all (a) laws, statutes, treaties, regulations, guidelines (or their equivalents); (b) orders, interpretations, licenses and permits; and (c) judgments, decrees, injunctions, writs, orders and similar actions by a court of competent jurisdiction; compliance with which is required or customarily observed in such jurisdiction.
“Authorized Representative” has the meaning set forth in section 3;
“Chargeback” has the meaning set forth in section 9.9;
“Confidential Information” has the meaning set forth in section 17;
“Connected Platform” has the meaning set forth in the Stripe Agreement;
“Connected Stripe Account” has the meaning set forth in section 9.3;
“Customer Data” has the meaning set forth in section 11.2;
“End Customer” means the customer of the Merchant who places an order or pays through the Platform;
“Equipment” has the meaning set forth in section 12;
“Loyalty Credit” means incentives, rewards, discounts, points, and/or credits offered to Users by Merchants, which can be earned, claimed, and/or redeemed by Users for goods and/or services, and/or applied as payment, in whole or in part, for goods and/or services, at the Merchant’s POS or Online POS, via the Platform
“Loyalty Program” means the loyalty program that the Merchant has subscribed;
“Marks” has the meaning set forth in section 7;
“Merchant” means the restaurant or other entity that has agreed to participate in the Services;
“Merchant Data” has the meaning set forth in section 11.1 ;
“Merchant Products” means all products offered for take-out or delivery orders at Merchant Venues;
“Merchant Venues” means the Merchant locations that are within the then-current territory serviced by the Company and that have elected to participate in the Services, as may be amended by an exchange of emails;
“Net Sales Proceeds” is the amount the Merchant receives from the Company for payments made through the Platform after all fees and expenses are deducted from the gross proceeds;
“Platform” means the Company’s smartphone application-based mobile payments and loyalty rewards platform that enables merchants to provide their customers with quick secure payments, ordering capabilities, digital rewards, targeted in-app marketing, digital coupons, customer feedback, in-merchant messaging, custom rewards programs, digital receipts, and digital deals;
“Quest” means an in-App loyalty campaign quest that merchants can use to reward End Customers for their loyalty;
“Service(s)” has the meaning set forth in section 2;
“Stripe Agreement” has the meaning set forth in section 9.3;
“Subscription Services” has the meaning set forth in section 10.1 ;
“Term” means the term of the Merchant agreed to on the form when signing up for an account;
“Third-Party IP” has the meaning set forth in section 11.4;.and
“User” means an end-user of the Platform;
The Company hereby grants the Merchant a limited, non-exclusive and nontransferable licence to, where applicable, download, install, display, perform, access and use the Services, which includes access to and use of the Platform on the Equipment (if provided) and any other devices or tablets required for you to be able to access and use the Service for the use of the Merchant (which includes use by the Merchant’s employees, contractors, and agents (“Authorized Representatives”)).
4.1 Support Services
During the Term, the Company will provide Merchant with customer support of the Services. In the event that Merchant requires support of the Services, Merchant may contact the Company’s support team by email at email@example.com .
5.1 Maintenance and Updates
From time-to-time it may be necessary for the Company to perform scheduled or unscheduled repairs or maintenance. In the event that scheduled maintenance is anticipated, the Company will use reasonable efforts to: (i) notify Merchant of the scheduled maintenance; and (ii) perform such scheduled maintenance during the period(s) of lowest anticipated usage of the Services. In the event that the Company releases updates to the downloadable applications used to access the Services, Merchant acknowledges and agrees that such updates may be critical or mandatory in nature and may require Merchant to download and install such updates in order to continue accessing the Services. MERCHANT AGREES THAT THE COMPANY SHALL IN NO EVENT BE LIABLE TO MERCHANT OR ANY THIRD-PARTY FOR ANY INTERRUPTION, SUSPENSION OR TERMINATION OF ACCESS TO THE SERVICES OR FOR ANY LOSSES OR DAMAGES OF ANY KIND RESULTING FROM MERCHANT’S FAILURE TO DOWNLOAD AND INSTALL AN UPDATE.
6.1 Beta Testing
From time-to-time, the Company may offer Merchant the opportunity to participate in beta testing of new services, devices, software and features that may not have been thoroughly tested for quality assurance. IN THE EVENT THAT MERCHANT ACCEPTS AN OFFER FROM THE COMPANY TO PARTICIPATE IN ANY BETA TESTING, MERCHANT AGREES THAT THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES OF ANY KIND THAT MERCHANT MAY INCUR AS A RESULT OF SUCH PARTICIPATION, INCLUDING, BUT NOT LIMITED TO, ANY INTERRUPTION OF THIRD-PARTY SERVICES, LOSS OR DAMAGES TO MERCHANT’S HARDWARE OR LOSS OF OR DAMAGE TO DATA, INCLUDING TRANSACTION OR CARD INFORMATION.
7.1 Intellectual Property
The Services are and will always remain the exclusive, sole and absolute property of the Company. Merchant does not acquire any right, title or interest in or to the Services. The Company owns all rights in and to the trademarks, service marks, logos, trade names, domain names and other identifiers used and displayed on or in connection with the Services (aside from any Merchant Data which may be displayed therein) (the “Marks”), and Merchant agrees not to challenge, directly or indirectly, the Company’s use, ownership or registration of the Marks. Any rights not expressly granted herein with respect to the Services are reserved by the Company.
The Company has implemented technical and organizational measures designed to secure the Services and data from accidental loss and unauthorized access, use, alteration or disclosure; however, the Company cannot guarantee that unauthorized third-parties will never be able to defeat those measures to gain access to the Services, and as such, Merchant understands that its use of the Services is at Merchant’s own risk. Merchant will use reasonable measures consistent with applicable laws and regulations to protect the security of the Services, Customer Data and Merchant Data in order to prevent a data breach. In the event that Merchant becomes aware of or suspects any unauthorized access to or use of the Services, an Account, Customer Data or Merchant Data, Merchant shall immediately notify the Company along with a detailed description of the actual or suspected data breach. Merchant and the Company agree to fully cooperate with each other in the event of a data breach.
9.1 Payment Processing and POS Integration
Merchant acknowledges that the Company is a technology provider. It is not a bank, credit union, payment processor or other financial institution. Payment processing services for users on the Platform are provided by third-party payment processors.
Merchant hereby authorizes the Company to hold, receive and disburse funds on its behalf and to transfer the funds to the Bank Account to effectuate payment to the Company of any Fees, and for Merchant to receive any Net Sales Proceeds. Merchant’s authorization permits the Company to generate a paper draft or an electronic funds transfer to process each Payment transaction that Merchant authorizes. Merchant’s authorization under this Section 9.2 will remain in full force and effect during the Term.
9.3 Payment Processing and Stripe Connected Account
As a condition of the Company enabling payment processing services through Stripe, the Merchant agrees to provide the Company with accurate and complete information about its business, and authorizes the Company to share such information and transaction information related to Merchant’s use of the payment processing services provided by Stripe. Merchant represents and warrants that all information it has provided to the Company or will provide to Stripe is accurate and complete. The Merchant hereby agrees with the Company, and with Stripe, that it will perform all of its obligations under the Stripe Agreements. The Merchant agrees not to use the Stripe Services in any manner that is fraudulent, unlawful, deceptive or abusive.
MERCHANT AGREES TO INDEMNIFY AND HOLD THE COMPANY AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SUPPLIERS AND LICENSORS HARMLESS WITH RESPECT TO ANY SUITS OR CLAIMS BY STRIPE OR ANY THIRD PARTY (AND ANY RELATED COSTS, INCLUDING LEGAL FEES) ARISING DIRECTLY OR INDIRECTLY OUT OF ANY ACTIVITY ON ITS STRIPE CONNECTED ACCOUNT, WHETHER INITIATED BY MERCHANT OR NOT (INCLUDING ALL TRANSACTIONS, DISPUTES, REFUNDS, REVERSALS, CLAIMS, FINES ASSOCIATED WITH SUCH ACTIVITY, AND USE OF THE SERVICES IN A MANNER PROHIBITED UNDER THESE TERMS OF SERVICE OR YOUR STRIPE AGREEMENTS), AND WITHOUT LIMITATION INCLUDING (A) ANY FAILURE BY MERCHANT TO PAY ANY AMOUNT OWING BY MERCHANT TO STRIPE IN ANY WAY RELATED TO YOUR STRIPE CONNECTED ACCOUNT, OR (B) ANY CLAIM MADE AGAINST THE COMPANY BY STRIPE AS A RESULT OF ANY INACCURATE OR INCOMPLETE INFORMATION PROVIDED BY MERCHANT TO STRIPE (OR PROVIDED BY MERCHANT TO THE COMPANY AND WHICH THE COMPANY PROVIDED TO STRIPE).
9.7 Right to Change Service Provider
From time to time, the Company may change the service provider it uses for payment processing, or the Company may offer the option of using other service providers to support the Services, or the Company may elect to itself perform some or all of the services that were previously provided by the service provider.
9.8 Deposit of Net Sales Proceeds
Once Merchant’s Bank Account information is verified, the Company will deposit the Net Sales Proceeds collected to Merchant’s Bank Account within five to seven business days.
9.9 Compliance with Agreement
If Merchant has not provided goods or services consistent with this Agreement with respect to a particular transaction(s), the Company will have the right to refuse to pay any Net Sales Proceeds to Merchant and/or to pay a refund to any End Customer. There may be times when an End Customer may not be the authorized user of a credit card or the End Customer may otherwise contest the transaction. In these instances, the amount of a transaction may be reversed or charged back (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by our processor, or an End customer or its financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of these terms. You agree to comply with the Chargeback process and to the liability associated with such Chargebacks.
The Company reserves the right to adjust the Net Sales Proceeds due for any period to compensate the Company for any Chargebacks, calculation errors, Merchant employee fraudulent use, and any refunds paid to Customers, whether or not related to the period on which such adjustment is made, or to offset against such Net Sales Proceeds any other claim the Company may have arising hereunder.
9.10 Non-compliant Transactions
The Company may decide not to authorize or settle any transaction that Merchant submits to the Company if the Company reasonably believes that the transaction is in violation of any Company agreement, or exposes Merchant, End Customers, or the Company to harm. Harm includes without limitation fraud, a violation of individual or proprietary rights and other criminal acts.
9.11 Compliance with Law
The card processing networks require that Merchant and the Company comply with all Applicable Law. The Company may modify this Agreement to comply with, and as a result of, amendments to Applicable Law.
9.12 POS Integration
If you are using a POS system that presently supports a Perk Hero Platform integration, the Company grants you during the term of this Agreement a limited, royalty-free, non-exclusive, non-transferable license to the latest software solely for the purpose of powering such integration to the Platform (“POS software”) in order to permit Perk Hero transactions and engage and execute marketing quests, subject to the license terms contained herein. The Company, or such third parties as may be specifically identified within portions of the POS software, owns all legal right, title and interest in and to the POS software, and any updates to same that may be released in the future by the Company, including any intellectual property rights (including any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights). Except as expressly licensed to you herein, the Company reserves all such rights.
9.13 Self-Installed POS Integration
Many POS integrations may be self-installed by Merchant via instructions provided by the Company. The Company will support, but is not responsible for, the physical installation or setup of any POS integration with the Platform. The Company is not responsible for any fees imposed by your POS provider, dealer, or other third party as a result of such integration, such as license fees, or professional services fees. The Company does not warrant compatibility of the Platform or with any POS system other than the presently supported POS systems. You are required to properly maintain the Perk Hero software supporting your POS integration, including but not limited to performing all POS system updates, anti-virus updates, firewall maintenance, operating system updates and security patches, and you will be solely responsible for any and all losses incurred as the result of a failure to properly maintain such POS system.
9.14 Remote Access for Maintenance of POS Integration
Once Perk Hero POS software is installed on your POS system, you authorize the Company to remotely access your POS system for the purposes of general maintenance, issue resolution, communication, and/or upgrades using software tools. Merchant agrees to keep all Perk Hero account and password information strictly confidential and further to limit those employees of Merchant who may access such information. You agree to indemnify and hold harmless the Company for any loss resulting from another’s use of any Perk Hero password or account, as may be applicable, either with or without your knowledge.
In exchange for the Services, Merchant agrees to pay to the Company the applicable fees for the Services plus applicable shipping fees and Taxes (the “Fees”).
A description of the payment terms and associated fees for the Services are set forth in the form that the Merchant completed and agreed to when signing up for a Perk Hero account.
Fees attributable to certain Services are paid to the Company on a recurring monthly basis (the “Subscription Services”) and certain Services which are paid to the Company in a non-recurring, one-time manner and certain transaction fees. Fees attributable to Subscription Services are paid in advance and will be billed on thirty (30) day intervals (each such date is referred to as a “Billing Date”).
Any amounts past due from Merchant shall accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or, if less, the maximum rate allowed by applicable law, in addition to all reasonable expenses associated with the collection thereof. Except as otherwise expressly provided within this Agreement, all Fees are non-refundable, non-cancelable and non-creditable. In making payment of Fees, Merchant acknowledges that Merchant is not relying upon future availability of any Service beyond the current Term or any upgrades or future enhancements to the Services.
10.2 Customer Fees
Merchant acknowledges that the Company may also elect (in its sole discretion) to charge End Customer fees, including but not limited to an order fee, transaction fee, convenience fee or fee for access to premium features, as well as an additional markup for Merchant Products.
Perk Hero offers a series of highly customizable, pre-built quest structures that can be selected, modified, and implemented by you, via the Perk Hero Merchant Dashboard interface. The fee for offering a Quest is a separate fee and and is at the Merchant’s cost. The fee for offering a Quest may be monthly or based on redeemed Quest Loyalty Credit, or a combination of both. You have complete control over your quest strategy. You can choose to run as many, or as few, quests as you’d like, via the Platform.
You authorize the Company to advertise your quests to Users via the App and through third-party applications that publicize offers and Quests available on the Platform. When the Company advertises Quests, and related Loyalty Credits (including rewards and incentives) associated with your use of the Platform, including within the Perk Hero App, we do so as your marketing service. You retain the legal obligation to award, redeem, and/or apply Loyalty Credit to Users’ purchases of goods and/or services as promised to Users. You grant the Company a limited, non-exclusive license to use your business name, logo, and related information in order to promote your use of the Platform to Users, including in the App.
10.4 Redemption of Loyalty Rewards earned through Loyalty Program and Quests
Fees are exclusive of applicable federal, state, provincial, local or other governmental sales, use, property, value added, goods and services taxes, fees or charges now in force or enacted in the future (the “Taxes”), unless otherwise expressly indicated by the Company. Merchant is responsible for all applicable Taxes that arise from or as a result of Merchant’s subscription to and/or purchase of the Services. If Merchant is not charged Taxes by the Company, Merchant is fully and solely responsible for determining if Taxes are payable, and if so, calculating and self-remitting Taxes to the appropriate tax authorities in Merchant’s jurisdiction, along with any penalties, late charges or interest associated with the Taxes. Merchant represents and covenants that it will indemnify the Company and its parent, subsidiary and affiliate entities and their respective officers, directors, agents and employees for any liability or expense that the Company or its parent, subsidiary and affiliate entities and their respective officers, directors, agents or employees may incur in connection with such Taxes.
10.5 Change in Fees
The Company reserves the right to change Fees upon thirty (30) days’ advance notice to Merchant, and Merchant’s continued use of the Services following such change will be deemed an acceptance of the change unless Merchant otherwise terminates this Agreement prior to the effective date of such change.
10.6 Disputing Fees
Merchant is responsible for promptly and carefully reviewing amounts invoiced and its payment of Fees. In the event that Merchant wishes to dispute any Fees charged to or paid by Merchant under this Agreement, Merchant must provide the Company with written notice of the dispute (the “Disputed Fees Notice”) by sending an email to firstname.lastname@example.org within thirty (30) days of the date that the invoice at issue was made available by the Company (the “Dispute Timeframe”). Such Disputed Fees Notice should set out the nature of the dispute along with all available supporting documentation. In the event that Merchant provides the Company with such a Disputed Fees Notice outside of the Dispute Timeframe, the Company shall have no obligation to investigate or effect any adjustments to the disputed Fees, and any voluntary efforts by the Company to assist Merchant in investigating such disputed Fees shall not create any obligation to continue such investigation or any future investigation.
11.1 Merchant Data
11.2 Customer Data
11.3 Application Usage Data
11.4 Merchant and Third-Party IP
Merchant grants to the a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (i) Merchant’s business name, name, image, likeness, logos, trademarks, services marks, domain names and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text, menu items and any other content provided, specified, recommended, directed, authorized or approved to use by Merchant (collectively, the “Merchant IP”); and (ii) any third-party’s business name, name, image, likeness, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text, menu items and any other content provided, specified, recommended, directed, authorized or approved for use by Merchant (collectively, the “Third-Party IP”), in each case in connection with the Services, or in all media or formats now known or hereinafter developed in order to provide and promote the Services, the Company’s business and Merchant’s business. Any use of the Merchant IP or Third-Party IP as contemplated herein is within the Company’s sole discretion.
11.5 Anonymized Data
Outside of providing Merchant with the Services, the Company may aggregate, use, disclose, compile, distribute and publish statistical or analytical data regarding the Services, Merchant Data, Customer Data and/or Application Usage Data in an aggregate and anonymized form only (the “Anonymized Data”) and may make such Anonymized Data publicly available, provided that such information does not directly identify any Confidential Information. As between the Company and Merchant, the Company owns all such Anonymized Data.
Merchant will install any equipment reasonably required by the Company for Merchant to receive Orders and accept payments through the Platform (including, without limitation, a tablet, NFC circuitry and related Perk Hero firmware, incorporated into a package such as a table topper or other automated, electronic means of receiving orders or payments) (“Equipment”). Any Equipment provided by the Company will remain the Company’s sole property and may be used solely for purposes related to fulfilling Merchant’s responsibilities under this Agreement. Merchant agrees to use any security procedures or protocols or access credentials as requested by the Company. Merchant will not allow any third-party to use the Platform; copy, modify, rent, lease, sell, distribute, reverse engineer or otherwise attempt to gain access to the source code of the Platform; damage, destroy or impede the services provided through the Platform; transmit injurious code; or bypass or breach any security protection on the Platform. The Company may restrict or rescind Merchant’s right to use the Platform at any time. Merchant will be responsible for any damage to or loss of any Equipment provided by the Company, which will be promptly reimbursed by Merchant (at the replacement cost thereof). The Company may recover the replacement cost of damaged or lost Equipment by deducting such amount from payments owing to the Merchant.
13.1 Prohibited Activities
The Merchant may not use the Services for the following businesses or business activities: (1) any illegal activity or goods, (2) paraphernalia that may be used for illegal activity, (3) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit, including re-importation of pharmaceuticals from foreign countries), (4) unauthorized multi-level marketing businesses, (5) inbound or outbound telemarketers, (6) prepaid cards, cheques, insurance or other financial merchandise or services, (7) sales of money-orders or foreign currency, (8) wire transfer money orders, (9) high-risk products and services, including telemarketing sales, (10) adult entertainment oriented products or services (in any medium, including internet, telephone, or printed material), (11) sales of (i) firearms, firearm parts or hardware, and ammunition; or (ii) weapons and other devices designed to cause physical injury, (12) internet/mail order/telephone order of age restricted products, (13) cigarettes or tobacco, (14) hate or harmful products, or (15) escort services.
14.1 Drop shipping
Drop shipping, or allowing a third-party to fulfill orders to customers on your behalf, is generally acceptable. If you intend to fulfill orders using a drop shipper, you must always:
- Be the seller of record of your products
- Identify yourself as the seller of your products on all packing slips, invoices, external packaging, and other information included or provided in connection with them
- Remove any packing slips, invoices, external packaging, or other information identifying a third-party drop shipper prior to shipping the order
- Be responsible for accepting and processing customer returns of your products
Examples of drop shipping that is not permitted include:
- Purchasing products from another online retailer and having that retailer ship directly to customers, if the shipment does not identify you as the seller of record or if anyone other than you (including the other online retailer) appears on packing slips, invoices, or external packaging
- or Shipping orders with packing slips, invoices, external packaging, or other information indicating a seller name or contact information other than your own.
Effect of Termination and Non-Renewal. Merchant acknowledges and agrees that Merchant is obligated to pay all of the Fees identified on the form the merchant completed and agreed to when signing up for an account, for the duration of the applicable Term. Upon the non-renewal or termination of use of the Services by the Merchant for any reason, Merchant’s right to use and access the recurring Services and all licenses granted hereunder will immediately terminate, and Merchant shall immediately cease all access to the terminated recurring Services.
Upon the non-renewal or termination of this Agreement for any reason, all sections of this Agreement which by their nature should survive non-renewal or termination will survive, including, but not limited to: Section 7 (Intellectual Property), Section 10 (Fees), Section 14 (Termination), Section 15 (Limitation of Liability), Section 17 (Confidentiality), and Section 18 (General).
16.1 Limitation Of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES. IN ALL CASES, THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
UNDER NO CIRCUMSTANCES WILL THE COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF THE COMPANY IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) $500.
16.2 The Services may be controlled and operated from facilities in the United States
The Company makes no representations that the Services are appropriate or available for use other than in Canada. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable Canadian and local laws and regulations, including but not limited to export and import regulations. The Merchant represents that it is not a person or entity described or designated under the provisions of any Canadian anti-terrorism or sanctions legislation (including under the Criminal Code (Canada), the Special Economic Measures Act (Canada) or the United Nations Act (Canada), or any associated regulations thereof) (a “Listed Person”). You may not use the Services if you are or become a Listed Person. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in Canada.
17.1 Representations And Warranties
Merchant represents and warrants to the Company that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement; and (ii) the individual authorizing the entering into of this Agreement on behalf of Merchant has all necessary authority to bind Merchant to the terms of the Agreement.
Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has, or may in the future, disclose certain Confidential Information under this Agreement or in connection with the Services. All such Confidential Information shall remain the exclusive and confidential property of the Disclosing Party. Except as otherwise provided within this Agreement, Receiving Party shall not disclose, use or misappropriate Confidential Information of the Disclosing Party, and shall protect such Confidential Information by using the same degree of care as Receiving Party uses to protect its own confidential or proprietary information of a like nature, but not less than a reasonable degree of care. Receiving Party shall limit the use of and access to Disclosing Party’s Confidential Information to Receiving Party’s employees, contractors or authorized representatives who need to know such Confidential Information and who have entered into binding obligations of confidentiality substantially similar to the obligations set forth herein. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information pursuant to appropriate statutory or regulatory authority or court order, provided Disclosing Party is given prompt written notice of such requirement prior to such disclosure. Upon written request of Disclosing Party at any time, Receiving Party shall turn over to Disclosing Party all Confidential Information of Disclosing Party, all documents or media containing the Confidential Information and any and all copies or extracts thereof, or destroy the Confidential Information and any and all extracts thereof (provided, however, that the Company may retain certain Confidential Information for regulatory purposes or in back-up files, provided that the Company’s confidentiality obligations hereunder continue to apply). For the purposes of this Agreement, “Confidential Information” shall mean such information which has been marked “trade secret,” “confidential” or “proprietary,” or with words of similar import, and that which the Receiving Party should have considered under the circumstances of its disclosure to be trade secret, confidential or proprietary. Without limiting the foregoing, and for the avoidance of doubt, the Company’s Confidential Information includes, all trade secrets, software, source code, object code, specifications, documentation, business plans, merchant lists and merchant-related information, financial information, auditors reports, proposals, Customer Data, Application Usage Data, results from testing or benchmarking the Services, product roadmap, data and other information of the Company and its licensors relating to or embodied in the Services. Information will not be considered Confidential Information to the extent that: (i) it is or becomes a matter of public knowledge through no fault of Receiving Party; (ii) it was in the Receiving Party’s possession or known by it prior to receipt from Disclosing Party; (iii) it was rightfully disclosed to Receiving Party by a third-party without restriction; or (iv) it is independently developed by Receiving Party without use of such Confidential Information.
19.1 Entire Agreement
This Agreement is the complete and exclusive statement of the mutual understanding of the Parties with respect to its subject matter and supersedes and overrides all prior agreements.
19.2 Updates to Agreement
The Company may update or modify this Agreement from time-to-time, including any referenced policies and other documents. In the event that the Company makes material changes to the terms of this Agreement, the Company will post the updated Agreement on its website (which will be effective immediately upon posting unless otherwise stated) and may provide Merchant with notice as appropriate under the circumstances (by, for example, sending Merchant notice via email or through the Services). Upon such notice, Merchant’s and its Authorized Users’ continued use of the Services constitute Merchant’s acceptance of such changes.
The failure of either Party to insist upon strict compliance with any term of this Agreement shall not be construed as a waiver with regard to any subsequent failure to comply with such term or provision.
Unless otherwise provided for herein, if any provision(s) of this Agreement are determined to be invalid or unenforceable under applicable law, then such provision(s) will be changed and interpreted to accomplish the objectives of such provision(s) to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
The Company may, without notice or consent from Merchant, assign, transfer or convey this Agreement, whether by direct assignment, change of control, operation of law or other transaction, to any third-party, successor in interest, related party or affiliate of the Company (each an “Assignee”), and that such Assignee may rely upon Merchant’s representations and enforce Merchant’s obligations under this Agreement. In contrast, this Agreement is personal to Merchant, and Merchant may not assign its rights or obligations under this Agreement to anyone without the prior written consent of the Company.
19.6 Relationship of the Parties
The Parties hereto expressly understand and agree that each Party is an independent contractor in the performance of each and every part of the Agreement, and that no joint venture, partnership, employment or agency relationship exists between the Company and Merchant as a result of this Agreement.
19.7 Force Majeure
Neither Party shall be in default of its obligations under this Agreement, or liable for any delay or failure to perform relating to such obligations (including, but not limited to, disruptions or outages in the Services), to the extent that performance of such obligations result from causes outside the reasonable control of such Party, including, without limitation, internet outages or interruptions, strikes, labor disputes, rebellions, revolutions, embargoes, earthquakes, fires, floods, wars, terrorism, riots, government sanctions, acts of God, acts of civil or military authorities and acts or omission of carriers or suppliers (each a “Force Majeure Event”). In the event of a Force Majeure Event, the non-performing Party shall use best efforts to re-commence its obligations under this Agreement as soon as possible.
Any notice or other communication required or permitted under this Agreement shall be in writing and deemed to have been given: (i) upon receipt by personal delivery, delivery by overnight courier with signature acknowledgment of receipt or delivery by certified mail; (ii) the second business day after mailing via first class mail; or (iii) immediately if sent by email or through a notification delivered via the Services. Unless otherwise provided for herein, all notices to the Company shall be directed via email to email@example.com. All notices to Merchant shall be directed to the physical address(es) and/or email address(es) provided within this Agreement. Either Party may designate, by notice to the other, substitute addresses or email addresses, and thereafter, notices are to be directed to such substitute addresses or email addresses.
19.9 Electronic Signatures. Original signatures transmitted and received via electronic transmission are true and valid signatures and shall bind the Parties to the same extent as an original signature.
19.10 Governing Law
These Terms and any dispute arising out of or related to them or the Service will be governed in all respects by the laws of the Province of British Columbia as they apply to agreements entered into and to be performed entirely within British Columbia between British Columbia residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against the Company must be resolved exclusively by a court located in Vancouver, British Columbia. You agree to submit to the personal jurisdiction of the courts located within Vancouver, British Columbia for the purpose of litigating all such claims or disputes.
The headings used in this Agreement are for reference only and do not define, limit or otherwise affect the meaning of any provision hereof.
Contact information for the Company’s Privacy Officer:
555 Burrard Street
Two Bentall Centre, Suite 1755