Posted by Felipe May 18, 2016 6:57:03 PM
PaidUp Terms of Service
ACCEPTANCE OF TERMS
IMPORTANT — READ CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILIZING PAIDUP SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
These Terms of Service are a legal agreement between You and PaidUp, Inc. (“PaidUp”), a Delaware Corporation, for use of PaidUp service. “Organization” refers to owners and any person employed by a company requesting PaidUp Service. “User” refers to any individual who enters into an independent agreement with an Organization. “You” refers to any individual who creates an account on the Service, either “Organization” or “User”, or, if the Service is being used on behalf of an Organization by an individual authorized to agree to such terms on behalf of such Organization, then “You” refers to such Organization. If You are accessing the Service on behalf of an Organization, You represent and warrant that You have the authority to agree to these Terms of Service on its behalf. If You do not agree with the terms of this Agreement, do not use the Service.
PaidUp reserves the right to update and change the Agreement from time to time without notice or acceptance by You. The Agreement will also be applicable to the use of the Service on a trial basis. By using the Service, You signify your irrevocable acceptance of this Agreement. The website and any downloadable software associated with the Service are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
DESCRIPTION OF SERVICES
The Service includes, and is limited to, online registration and other services for designated Organization(s) to, among other things, enable Users entering into a contract with Organization, to register for Organization and pay associated fees through PaidUp’s website (the “Website”) and Organization to accept such payments.
PaidUp Registration Services
We provide Organization and User with software and a service to process User’s online credit and debit card payments. Organization runs its business, services its customers, protect its customers’ data, report & pay taxes, and observe all laws, rules, and regulations. The Service helps Organization accept and process credit card, debit card and other types of card payments (collectively “Cards”) from Users who want to pay Organization for products or services. PaidUp’s card processing service supports US-issued card and most non-US issued cards with a Visa, MasterCard, Discover, JCB, or American Express logo (collectively “the Card Networks”) including credit, debit, or pre-paid.
PaidUp is not a bank or a money services business (“MSB”) and PaidUp does not offer banking or MSB services as defined by the United States Department of Treasury. In addition, PaidUp does not assume any liability for the products or services purchased using our Service. You will be required to register with PaidUp to use the Service.
Subject to the terms of this Agreement, PaidUp will:
- Make the Services available to Users and Organization via the website;
- Comply, and ensure that our employees, directors, officers, and agents comply, with this Agreement and Applicable Law. For purposes of this Agreement, “Applicable Law” means any law, rule, regulation, ordinance, code, or order to which a party may be subject or under which a party may exercise rights;
- Provide Users with transaction receipts as required by Applicable Law;
- Maintain accurate and complete records relating to the Services during the term of this Agreement and for one year thereafter or such other period of time as required by Applicable Law;
- Provide reasonable support to Organization and Users to help resolve issues relating to the Services; and
- Provide periodic reports to Organization regarding the Services.
Subject to the terms of this Agreement, Organization will:
- Accept Users’ payments using the Services in accordance with this Agreement and PaidUp’s standard operating instructions and requirements for the Services (the “Specifications”), which may be modified from time to time by PaidUp at its sole discretion upon notice to Organization;
- Comply, and ensure that its employees, directors, officers, and agents comply, with this Agreement and Applicable Law;
- Not impose any additional restrictions or fees on Users’ use of the Services;
- Assign an employee who is responsible for receiving notices from PaidUp and overseeing proper use of the Services;
- Train (or permit PaidUp to train) Organization’s employees on the Services in accordance with the Specifications, this Agreement, and Applicable Law;
- Maintain accurate and complete records relating to each Organization and the Services during the term of this Agreement and for one year thereafter or such other period of time as required by Applicable Law;
- Provide immediate written notice to PaidUp upon cessation or suspension of Organization’s business operations or intent to do so; provided, however, that this notice requirement will not affect Organization’s obligations to comply with this Agreement and Applicable Law;
- Promptly refer all inquiries and complaints from Users concerning the Services, and provide any written documentation related to such complaints, to PaidUp and cooperate with PaidUp to resolve Users’ inquiries and complaints to the extent necessary;
- Provide reasonable customer service to Users with respect to the Organizations;
- Enter into the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Processing Agreement”), with Stripe, PaidUp’s designated third-party processor (“Processor”), which may change from time to time upon notice to Organization;
- Execute all contracts, agreements, and documents and take all actions as may be reasonably necessary in order to carry out the intent of this Agreement;
- Require all Users to register for Organization and pay associated registration fees through the Website during the term of this Agreement; and
- Not, directly or indirectly, pursue or enter into an agreement or other type of business relationship with another third party during the term of this Agreement for the provision of services substantially similar to the Services provided hereunder.
Additional Terms of Services
In addition to the other terms and conditions set forth in this Agreement, You acknowledge and agree to the following:
- All payments received by Users and other third-party payors on Organization’s behalf through the Services are non-refundable, except as otherwise approved by PaidUp, in its sole discretion, or required by Applicable Law;
- PaidUp is not a banking institution and does not provide banking services;
- PaidUp is not a party to the payment transactions performed using the Services;
- PaidUp does not hold or transmit any funds belonging to Users or Organization and is not liable for delays in delivery of User payments due to the actions or inactions any Processor or other third party. Payment processing services for the Services are provided by Processor and are subject to the Processing Agreement. By agreeing to this Agreement or accessing or using the Services, You agree to be bound by and comply with the Processing Agreement, as it may be modified by Processor from time to time as provided therein;
- PaidUp is not responsible, and has no liability for, the athletic or other services purchased with the Services;
- PaidUp is not responsible for any overcharges, chargebacks, reversals, or other payment disputes relating to payment transactions facilitated by the Services. PaidUp will use commercially reasonable efforts to assist You in disputing and resolving any chargebacks or reversals;
- PaidUp is not liable for any payments that the Services do not complete because: (a) an User’s payment account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit or overdraft protection of User’s payment account; (b) an User has not provided PaidUp with correct payment account information; or (c) an User’s payment account has expired;
- You acknowledge that PaidUp may, without prior notice, modify the Services at any time by adding or removing features and functionality; and
- You may email firstname.lastname@example.org or call 1-888-419-8479 for basic functionality support for the Services. PaidUp does not guarantee that all errors or issues with the Services will be resolved.
ELECTRONIC SIGNATURE CONSENT
Electronic Signature Agreement
Consent to Electronic Delivery
You specifically agree to receive and/or obtain “Electronic Communications” from PaidUp. The term “Electronic Communications” includes, but is not limited to, any and all current and future notices and/or disclosures that various federal and/or state laws or regulations require that PaidUp provides to you, as well as such other documents, statements, data, records and any other communications regarding your relationship to PaidUp. You acknowledge that, for your records, you are able to retain PaidUp’s Electronic Communications by printing and/or downloading and saving this Agreement and any other agreements and Electronic Communications, documents, or records that you agree to using your E-Signature. You accept Electronic Communications provided via your account with PaidUp as reasonable and proper notice, for the purpose of any and all laws, rules, and regulations, and agree that such electronic form fully satisfies any requirement that such communications be provided to you in writing or in a form that you may keep.
Paper Version of Electronic Communications
You may request a paper version of an Electronic Communication. You acknowledge that PaidUp reserves the right to charge you a reasonable fee for the production and mailing of paper versions of Electronic Communications. To request a paper copy of an Electronic Communication contact us at email@example.com.
Revocation of Electronic Delivery
You have the right to withdraw your consent to receive/obtain communications via your account with PaidUp at any time. You acknowledge that PaidUp reserves the right to restrict or terminate your access to your account with PaidUp if you withdraw your consent to receive Electronic Communications. If you wish to withdraw your consent, contact us at firstname.lastname@example.org.
BILLING AND PAYMENT TERMS
PaidUp Registration Funding
These are the terms that apply to Organization:
Additional groupings of features may be added to the Service and made available to Organization as a paid upgrade (“Paid Plan”). If You choose to subscribe to a Paid Plan, You shall pay fees (described below) to PaidUp. The Agreement will also be applicable to the use of the Service on a trial basis.
PaidUp will deduct our fees during User’s registration payment and this is the only payment mechanism PaidUp will accept for payment of a monthly subscription fee (“Subscription Fee”) for a Paid Plan. All currency references are in U.S. dollars. Paid Plans can be paid as a monthly Subscription Fee. PaidUp may change prices at any time without prior notice, but will endeavor to provide reasonable advance notice via the PaidUp website and/or electronic mail.
Organization agrees that in the event PaidUp is unable to collect the fees owed to PaidUp from User, PaidUp may take any other steps it deems necessary to collect such fees from Organization and that Organization will be responsible for all costs and expenses incurred by PaidUp in connection with such collection activity, including collection fees, court costs and attorneys’ fees.
These are the terms that apply to Users:
Users must provide current, complete and accurate Billing Data. Users must promptly update all Billing Data to keep their account current, complete and accurate (such as a change in billing address, credit card number or credit card expiration date) and Users must promptly notify PaidUp if their Payment Method is changed (for example, for loss or theft) or if User becomes aware of a potential breach of security, such as the unauthorized disclosure or use of their name or password. If User fails to provide any of the foregoing information, User agrees that PaidUp may continue charging User for Organization registration under their Billing Data unless User has terminated their Paid Plan as set forth herein.
User will be charged using the credit card that they provide as part of the Billing Data and will be automatically and immediately billed on the schedule set forth by Organization and presented to User during the registration process. User agrees that PaidUp may charge to their credit card all amounts due and owing for their account on the schedule set forth by Organization. PaidUp will contact User via electronic mail to alert them upon each charge.
User will enter into the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Processing Agreement”), with Stripe, PaidUp’s designated third-party processor (“Processor”), which may change from time to time upon notice to Users.
PAYOUT AND TRANSACTION HISTORY
Payout and Settlement
PaidUp will pay out funds settling from the Processor to Organization’s designated bank settlement account (“Bank Account”) it provided when establishing its account in the amounts actually received (less our Fees, as defined below) for card transactions submitted to our Service. The payouts will be made to this Bank Account. This Bank Account must be located at bank branch in the United States and held in the name of the business. Organization is responsible for the accuracy and correctness of information regarding its Bank Account. Funds for any given transaction will not be transferred to Organization’s Bank Account until the transaction is deemed complete. Transactions will be deemed complete when PaidUp has received funds settling from the Processor. The actual timing of the transfers to Organization’s Bank Account of the settling funds will be subject to the Payout Schedule (as defined below).
PaidUp Registration Payout
Payout schedule refers to the time it takes for PaidUp to initiate a transfer to Organization’s designated Bank Account of settlement funds arising from card transactions processed through the Service (“Payout Schedule”). Once Organization’s Bank Account information has been reviewed, PaidUp will initiate transfer of settlement funds (net of Fees, Chargebacks, and other funds owed to us for any reason) in accordance with the Payout Schedule Organization selected during registration. The settlement funds should normally be credited to Organization’s Bank Account within 1-2 days of us initiating the payout. We are not responsible for any action taken by the institution holding Organization’s Bank Account that may result in some or all of the funds not being credited to Organization’s Bank Account or not being made available to Organization. Organization can contact PaidUp to inquire about changing the timing of its Payout Schedule. Upon submitting a request, Organization will be informed of the process and requirements for PaidUp to review Organization’s Payout Schedule.
PaidUp reserves the right to change the Payout Schedule or suspend payouts to Organization’s Bank Account should we determine it is necessary due to pending disputes, excessive or anticipated excessive Chargebacks or refunds, or other suspicious activity associated with Organization’s use of the Service, or if required by law or court order.
After each payout of card settlement funds to Organization’s Bank Account, PaidUp will update information in Organization’s account to reflect settlement. Information regarding User’s card transactions processed and settled with the Services (“Transaction History”) will be available to You when you login to our website using your account. PaidUp provides a minimum of one year of Transaction History on our website. Except as required by law, You are solely responsible for compiling and retaining permanent records of all transactions and other data associated with Your account, Your Transaction History and Your use of the Service. PaidUp is not responsible for maintaining Transaction History or other records in a manner consistent with your record retention obligations.
TERM AND TERMINATION
The Agreement is effective upon the date You agree to it (by electronically indicating acceptance) and continues so long as you use the Service or until terminated by You, or PaidUp.
Upon termination and closing of Your PaidUp Account, we will immediately discontinue Your access to the Service. You agree to complete all pending transactions and stop accepting new transactions through the Service. You will not be refunded the remainder of any Fees that you have paid for the Service if your access to or use of the Service is terminated or suspended. Any funds will be paid out to Organization subject to the terms of its Payout Schedule.
Termination does not relieve You of Your obligations as defined in this Agreement and PaidUp may elect to continue to hold any funds deemed necessary pending resolution of any other terms or obligations defined in this Agreement, including but not limited to Chargebacks, Fees, Refunds, or other investigations or proceedings.
Upon termination You agree (i) immediately cease your use of the Service, (ii) discontinue use of any PaidUp or other trademarks licensed under this Agreement, and (iii) immediately remove any PaidUp references and logos from Organization’s site. In addition, upon termination You understand and agree that (iv) the license granted under this Agreement shall end, (v) we reserve the right (but have no obligation) to delete all of Your information and account data stored on our servers, (vi) we will not be liable to You for compensation, reimbursement, or damages in connection with Your use of the Service, or any termination or suspension of the Service or deletion of Your information or account data, and (vii) You are still liable to us for any Chargebacks, Fees, Refunds, or other amounts incurred by you or through your use of the Service prior to termination.
It is Organization’s responsibility to determine what, if any, taxes apply to the sale of Organization’s products and services and/or the payments Organization receives in connection with its use of the Service (“Taxes”). It is solely Organization’s responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. PaidUp is not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Organization acknowledges that we may make certain reports to tax authorities regarding transactions that we process and merchants to which we provide card payment services.
PaidUp may retain its affiliates or other third-party service providers to perform certain of its obligations and duties under this Agreement; provided, that while PaidUp does not guarantee the adherence of its affiliates and third-party service providers to the terms of this Agreement, PaidUp will be liable for the acts and omissions of its affiliates and third-party service providers in their performance of PaidUp’s obligations and duties hereunder.
PaidUp will comply with all Applicable Law in connection with its collection, use, storage, and disclosure of Your and transaction information received or obtained in connection with the Services. You agree to provide PaidUp accurate and complete information about You and Your business as required to provide the Services or as otherwise required by the Processing Agreement, and You authorize PaidUp to share such information and transaction information with Processor as it relates to Your use of the payment processing services provided by Processor. In addition, You hereby authorize PaidUp to connect to Your account with Processor and collect, process, store, and use certain data made available by Processor. PaidUp will use information obtained from Processor solely to provide services to You and will not sell or disclose it to any third party without Your consent.
MARKETING AND PUBLICITY
Organization hereby grants PaidUp a non-exclusive, non-transferable, limited, and revocable license to use Organization’s name, logos, trademarks, service marks, and graphics in general listings of users of the Services, including, without limitation, on the Website and in other published materials, and as reasonably necessary to provide the Services under this Agreement.
PaidUp hereby grants Organization a non-exclusive, non-transferable, limited, and revocable license to use Your name, logos, trademarks, service marks, and graphics on its website and other marketing materials solely to provide information about the Services to Users.
Except as otherwise expressly permitted under this Agreement, neither party may use, copy, or modify any of the other party’s name, logos, trademarks, service marks, and graphics without such other party’s prior written approval. Each party acknowledges that the other party’s name, logos, trademarks, service marks, and graphics are and will remain the exclusive property of such other party.
INTELLECTUAL PROPERTY RIGHTS
PaidUp is, and will remain, the owner of: (a) the Website; (b) any software, technology, or tools used by PaidUp to market or provide the Services (including the Specifications); and (c) all patents, copyrights, trademarks, service marks, trade secrets, and other proprietary intellectual property, whether registered, unregistered, known or unknown, associated with the Website or the Services (the items referred to in clauses (a) – (c), including any improvements, enhancements, modifications, and derivative works made thereto and therefrom, collectively, “PaidUp Intellectual Property”).
Except as expressly provided in this Agreement, no right, title, or interest in or to PaidUp Intellectual Property will be transferred to You hereunder, and You may not rent, lease, lend, sell, redistribute, or sublicense any PaidUp Intellectual Property to any third party. You will take such actions as PaidUp may reasonably request to demonstrate PaidUp’s ownership of PaidUp Intellectual Property. You will not, and will not authorize any third party to, copy, modify, make derivatives of, disassemble, decompile, or otherwise attempt to discover any portion of the source code, object code, or trade secrets of PaidUp Intellectual Property and will not remove, obscure, or alter any notice of any copyright, trademark, patent, or other proprietary right related to PaidUp Intellectual Property. You, from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information to PaidUp (collectively, “Feedback”). PaidUp may in connection with any of its products or services freely use, copy, disclose, license, distribute, and exploit any Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise.
REPRESENTATIONS AND WARRANTIES
In addition to the other representations and warranties set forth in this Agreement, each party represents and warrants to the other party that it: (a) is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation; (b) is qualified to do business and is in good standing in each jurisdiction in which it operates; and (c) has the requisite right, power, and authority to enter into this Agreement and perform its obligations hereunder.
You will indemnify, defend, and hold harmless PaidUp, its affiliates, and its and their respective employees, directors, officers, and agents from any and all claims, lawsuits, investigations, penalties, damages, losses, or expenses (including, but not limited to, reasonable attorneys’ fees) relating to any claim by a third party (each, a “Claim”) arising, in whole or in part, out of or relating to: (a) any breach by You of any terms of this Agreement or the Processing Agreement; (b) Your use of the Services in a manner or for a purpose not specifically described in this Agreement or the Specifications; (c) any products and services provided by You; (d) gross negligence, fraud, or willful misconduct of You, its affiliates, or its or their respective employees, directors, officers, or agents; and (e) any infringement or misappropriation of any patent, registered trademark, copyright, trade secret, or other intellectual property caused by You, its affiliates, or its or their respective employees, directors, officers, or agents.
PaidUp will indemnify, defend, and hold harmless You, its affiliates, and its and their respective employees, officers, directors, and agents from and against all Claims alleging that the use of the Services infringe or misappropriate an effective U.S. patent, a U.S. registered trademark, a U.S. copyright, or a trade secret. If the Services become (or are likely to become) the subject of a third-party infringement Claim, PaidUp may, at its expense and option replace or modify the Services so that they become non-infringing or immediately terminate this Agreement.
For any claim under this Section 13, (a) the indemnified party will provide indemnifying party with prompt written notice of any Claim; (b) the indemnifying party will have the right and authority to control and direct the investigation, defense, and settlement of any Claim; (c) the indemnifying party will have no liability for any settlement or agreement entered into by the indemnified party with respect to any Claim without the indemnifying party’s prior written consent; and (d) the indemnified party will provide such cooperation and assistance as may be reasonably requested by the indemnifying party in connection with the investigation, defense, or settlement of any Claim.
Each Party acknowledges and agrees that, in connection with this Agreement, it may receive and/or have access to confidential and proprietary information and materials, in electronic, oral, or written form, belonging to the other Party that are not generally disclosed to or known by the public (“Confidential Information”), including, but not limited to, financial data, business and strategic plans, product development, trade secrets, technical development, and identification of partners, customers, and suppliers; provided, however, that “Confidential Information” will not include information that (a) is or becomes generally available to the public other than as a result of disclosure by the receiving Party, (b) was in the receiving Party’s possession without confidentiality restrictions prior to its receipt of, or access to, the other Party’s Confidential Information; provided that the receiving Party did not know, or have any reason to believe that the source of such information was subject to an obligation not to disclose such information; (c) becomes available to the receiving Party on a non-confidential basis from a third party; provided that the receiving Party did not know, or have any reason to believe that such third-party source was subject to an obligation not to disclose such information; (d) is independently developed by the receiving Party without use of or reference to the other Party’s Confidential Information; (e) is approved in writing for release or disclosure without restriction by the other Party; or (f) is required by Applicable Law or court order to be disclosed by the receiving Party; provided that the receiving Party gives the other Party prompt written notice of such requirement prior to such disclosure and cooperates with the other Party’s efforts to contest or limit the scope of such Applicable Law or court order.
Each Party will use the other Party’s Confidential Information solely for the purposes contemplated by, and pursuant to the terms of, this Agreement and will not disclose the other Party’s Confidential Information, except to its employees, representatives, and agents with a “need to know” such information in accordance with, and solely for the purpose of performing such Party’s obligations under, this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO CLIENT STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND THE COMPANY HEREBY DISCLAIMS ANY AND ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS, OR SUITABILITY FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY THAT (A) THE SERVICES WILL MEET CLIENT’S REQUIREMENTS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (D) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICES IS ASSUMED BY CLIENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COMPANY OR ITS REPRESENTATIVES WILL CREATE ANY WARRANTY.
LIMITATIONS OF LIABILITY
IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR ITS OR THEIR EMPLOYEES, OFFICERS, DIRECTORS, OR AGENTS BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, INCLUDING DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, SAVINGS, PROPERTY, PROFITS, BUSINESS, CONTRACTS, REVENUE, ANTICIPATED SAVINGS, DATA, OR GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY’S AGGREGATE LIABILITY TO CLIENT FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION WILL AT ALL TIMES BE LIMITED TO THE TOTAL AMOUNT OF SERVICE FEES PAID BY CLIENT TO THE COMPANY IN CONNECTION WITH THE SERVICES DURING THE SIX-MONTH PERIOD PRIOR TO WHEN THE CLAIM WAS BROUGHT.
IN ADDITION TO AND WITHOUT LIMITING ANY OF THE FOREGOING, CLIENT ACKNOWLEDGES AND AGREES THAT THE COMPANY IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF PROCESSOR, AND CLIENT RELEASES THE COMPANY (AND ITS EMPLOYEES AND AGENTS) FROM ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE BETWEEN CLIENT AND AN USER OR PROCESSOR.
IN ADDITION TO AND WITHOUT LIMITING ANY OF THE FOREGOING, THE COMPANY WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT ARISING OUT OF ANY CONDITION OR EVENT BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, ACTS OF TERRORISM, LABOR CONDITIONS, POWER FAILURES, OR INTERNET DISTURBANCES.
You understand and agree that the disclaimers, exclusions, and limitations in this Section are essential elements of this Agreement and that they represent a reasonable allocation of risk.
AMENDMENTS TO THIS AGREEMENT
PaidUp reserves the right to amend any and all terms of this Agreement from time to time upon 15 days’ prior written notice to You of any such amendment. Your use of the Services after any such amendment constitutes its unconditional agreement to follow and be bound by this Agreement, as amended. If You do not agree to or cannot comply with any term of this Agreement, You must not use the Services and must notify PaidUp that You are terminating this Agreement in accordance with Term and Termination section.
Governing Law – Venue
The validity, interpretation, construction, and performance of this Agreement will be governed by the laws of the State of Texas, without giving effect to the principles of conflict of laws and without reference to rules of arbitration or statutory arbitration. Any dispute or claim arising out of or in connection with this Agreement will be finally settled by binding arbitration in Austin, Texas, in accordance with the Commercial Rules of Arbitration of the American Arbitration Association by one arbitrator appointed in accordance with such Commercial Rules of Arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the Parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief or to compel arbitration in accordance with this section, without breach of this arbitration provision.
The Parties are independent contractors. Nothing in this Agreement will be construed to create any joint venture, partnership, franchise, or agency relationship between the Parties. Neither Party has the authority, without the other Party’s prior written approval, to bind or commit the other Party in any way.
You may not assign or transfer its rights or obligations under this Agreement, whether by merger, operation of law, or otherwise, without PaidUp’s prior written consent. For the avoidance doubt, PaidUp may assign, sell, or transfer (whether by merger, operation of law, or otherwise) this Agreement or any or all of its rights and/or obligations under this Agreement.
Any notice required or permitted to be given under this Agreement must be in writing and delivered to the applicable Party’s address, facsimile number, or email address set forth on the cover page to this Agreement and will be deemed effectively given: (a) upon delivery when personally delivered against receipt therefor; (b) upon delivery when sent by certified mail, postage prepaid, and return receipt requested; (c) upon transmission when transmitted by facsimile or other electronic transmission (unless the transmitting party receives a delivery failure notice); or (d) upon delivery when sent by a nationally recognized overnight service with delivery confirmation.
No Waiver – Severability
The failure of a Party to insist upon or to enforce strict performance of any provision of this Agreement, or to exercise any right or remedy under this Agreement, will not be interpreted or construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision, right, or remedy in that or any other instance. If any provision of this Agreement is judged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement, together with the specifications, constitutes the entire agreement between the Parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.