General Terms of ServiceLast updated July 26, 2022
Welcome to the TAKU Canada Ltd. (“TAKU”) web site located at takulabs.io (“Site”). TAKU provides this Site as a service to our customers. The following terms and conditions govern the sale and usage of products & services offered by TAKU. By submitting your order to us and using our products or services, you are indicating acceptance to be bound by these Terms and Conditions. These terms and conditions may be changed without prior notice at the sole discretion of TAKU.
TABLE OF CONTENTS
1. GENERAL TERMS OF SERVICE
Last Updated: May 1, 2023
PLEASE BE AWARE THAT YOU ARE AGREEING TO ACCEPT AND BE BOUND BY THESE GENERAL TERMS (WHICH INCLUDE A LIMITATION ON OUR LIABILITY AT SECTION 9) WHEN YOU EXECUTE AN ORDER FORM OR ACCESS AND/OR USE ANY OF THE SERVICES.
We may update and amend these General Terms from time to time without notice to you, as stated under the General Provisions, Amendment section at the end of this document.
By placing an Order for certain Services and/or accessing or using certain Services, you also agree to the additional specific terms that apply to the particular Services you use (“Specific Terms”). Specific Terms include, without limitation:
- On Premise Installed Software Terms of Service
- Hardware Terms of Service
These General Terms, your Order and the Specific Terms related to the Services you use (collectively, the “Agreement”) form your legal contract with us (including, where applicable, Quilt, LLC) for such Services. Please read these General Terms and the applicable Specific Terms carefully so that you understand the legal commitments you are making.
By placing an Order, accessing or using any of the Services through any means or otherwise accepting the Agreement, you expressly acknowledge and agree that (i) you have reviewed, understand, accept and agree to be legal bound by all parts of the Agreement; (ii) you represent and warrant that you have the capacity and authority to agree to the Agreement; and (iii) if you are using our Services or otherwise accepting the Agreement on behalf of a business, that you represent and warrant that you have the authority to make purchase decisions on behalf of, act for, and bind the business and that such business accepts and agrees to be bound by the Agreement.
IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS IN THE AGREEMENT, YOU SHOULD NOT SUBSCRIBE TO OR USE OUR SERVICES.
The meanings of all defined terms in these General Terms including, without limitation, the meanings for “you” and “us” shall apply in all the additional documents comprising the Agreement unless otherwise noted therein. Where not defined in the text, capitalized terms have the following meanings. Wherever the singular term is used, it shall include the plural and vice versa:
“Order(s)” means a quote, invoice or proposal, and any amendments thereto, evidencing the Services being purchased by you and the applicable Fees. Each such Order is incorporated herein by reference.
“PSP Platform” means a point of sale, e-commerce, and back office management software product and payment processing products platform made available by or through us for use by you.
“Services” means our online software services offered through our websites (the “Websites”), the PSP Platform, any mobile applications we may offer (the “Apps”) or cloud based solutions and any other services or products (including, without limitation, the provisioning of hardware; our implementation, installation and integration services; hosted/SaaS software services; professional services; on premise installed software; and Payment Services) provided or offered by us to you. For licensed software, please see our Software Terms of Service of policy above, which inherits these General Terms and Conditions unless otherwise documented.
“Site” means any Website or any App.
“Software Services Provider” means TAKU Canada Ltd. which provides or offers Services under the brand TAKU.
“Users” means you and your employees, representatives, consultants, contractors, or agents who you authorize to use the Services on your behalf.
“Your Content” means any intellectual property, data (including, without limitation, Your Data) or communications including, without limitation, any pictures, product ratings, reviews and feedback that are uploaded or provided by you or your Users via the Services or otherwise to us or any of our Sites.
“Your Data” means any electronic data or information submitted or provided by you or your Users through the use of the Services, including any data relating to your customers but excluding Analytical Data.
2. Purchased Services
Subject to the terms and conditions of these General Terms, any applicable Specific Terms, and the payment of all applicable Fees (as defined in Section 6), we shall provide you with the Services set forth on your Order. Your use of any additional Services will constitute your acceptance of the Specific Terms applicable to such Services.
Services Availability and Support
Where applicable, but specifically excluding on premise installed software, we will (i) use commercially reasonable efforts to make the Services available 24/7 (24 hours a day, 7 days a week) during your agreed to term, except for: scheduled maintenance excluding emergency maintenance, availability or performance issues caused by factors outside of our reasonable control including from your or third party software, equipment or service related issues including but not limited to Internet connectivity, any actions or inactions of your users or any third parties, or from a Force Majeure Event (as defined below), (ii) provide you basic support during normal business hours for the Services and hardware at no additional charge, and/or upgraded support if purchased separately, and (ii) respond to inquiries sent to our support email address.
3. Grant of Access and Use; Ownership of Intellectual Property
Access Eligibility; Monitoring
The Services are for commercial use only. Individual consumers are not eligible to obtain the Services. We reserve the right to monitor all network traffic to our Sites and with respect to use of the Services, and anyone accessing and of the Sites or Services consents to such monitoring. We reserve the right to block intrusions, unauthorized attempts to upload or change information, and actions which will cause damage to any of the Sites or Services.
Limited License to Use
In your use of the Services, you are hereby granted a non-exclusive, non-transferable, non-sublicensable, revocable, limited right to access and use the Services and all of our proprietary technology and documentation (including, without limitation, software, user interfaces, algorithms, and other tangible or intangible technical material and specifications describing the features, functionality or operation of the Services) made available by us in providing the Services to you (collectively, the “Licensed Program”) during the period for which you have paid to access the Services, unless your access has been sooner terminated by us pursuant to the Agreement.
Your Responsibility for Your and Your Users’ Use of the Services
You are responsible for all use of the Services by you and your Users. You will be liable for any breach of the Agreement by you or any of your Users.
Without limiting any other part of the Agreement, you shall not, and shall not permit any other party to, directly or indirectly: (i) copy, modify, duplicate, reproduce or create any work that is based on any portion of our Services and/or Licensed Program including, but not limited to, modification, revision, enhancement, expansion, compression, translation, compilation, collection, or any other form in which such preexisting works may be recast, adapted, or transformed (“Derivative Works”) from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of our Services and/or Licensed Program in any form or media or by any means, (ii) use the Services or Licensed Program for any purposes other than your own internal business purposes, (iii) disclose, rent, lease, lend, sell, license, sublicense, assign, transfer, or otherwise make available the Services or the Licensed Program to any third party, (iv) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive, access or reconstruct or discover any source code, software component or underlying ideas used in or comprising the Services or Licensed Program, in whole or in part, (v) remove any disclaimer, copyright, trademark, proprietary rights, or other notice on or in the Services or the Licensed Program, (vi) permit any third party, other than your Users with appropriate access authority, to access or use the Services or Licensed Program without our consent, (vii) introduce or permit to be introduced into the Services or Licensed Program any virus, worm, Trojan horse, or other software routine, program, or mechanism that permits unauthorized access into, disables, partially or wholly erases, or otherwise adversely affects the Services or the systems on which the Services are hosted, (viii) interfere with or disrupt servers or networks connected to the Services, or circumvent any security mechanism used by us, our Sites, servers, or networks connected to the Services, (ix) access, or assist others in the access of, any part of the Services or the Licensed Program to build a product or service which competes with the Services, or (x) use the Services or Licensed Program in any manner or for any purpose that infringes, misappropriates, or otherwise violates any of our or any other party’s intellectual property rights, or that violates any applicable law. You will use reasonable efforts to prevent any unauthorized access to, or use of, our Services and Licensed Program and in the event of any such unauthorized access or use, you will promptly notify us.
Except as expressly described in the applicable Specific Terms, any upgrades and other modifications we may create to improve the performance of the Services (“Updates”) may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. Additionally, Updates that may need to be installed by you may be required to use the Services and you agree to install any Updates provided to you. If you fail to install any Updates provided by us, access to the Services may not function.
Title to Intellectual Property
You agree all right, title and interest in all intellectual property rights, including patent, unpatented inventions, copyright, trademark, trade secret, proprietary information source code, algorithms, concepts, techniques, methods, processes and technology used in or comprising the Services and the Licensed Program and any intellectual property created in the course of implementing and providing the Services or the Licensed Programs, whether by you or us, alone or jointly (collectively, the “Intellectual Property”) are owned by, and are vested in, us (or our applicable licensors/suppliers). You hereby assign to us any and all rights, interest, or title you may have in or to any of the Intellectual Property without any compensation to you or any other party. Additionally, notwithstanding any provision herein to the contrary, you agree we are free to use all suggestions, enhancement requests, feedback, recommendations, or other similar information provided by you or your Users (collectively, “Feedback”) as we see fit without any obligation to you or your Users and you hereby irrevocably assign to us all right, title and interest in and to such Feedback. Other than as expressly set forth in the Agreement, no license or other rights in the Intellectual Property are granted to you and all such rights are hereby expressly reserved by us. The Intellectual Property does not include any of Your Data.
4. Your Obligations
You shall (i) provide us with all necessary cooperation in relation to the Services and the Agreement, (ii) provide us with all necessary access to such information as may be required by us to provide the Services, (iii) comply with all applicable laws and regulations with respect to your activities under the Agreement, (iv) use the Services in any acceptable use policy we may publish on our Sites and carry out your other responsibilities in the Agreement in a timely and efficient manner, (v) ensure that your network and systems comply with the relevant specifications provided by us from time to time, and (vi) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet
Account Access Credentials
You are required to maintain and use secure usernames and passwords created by you and your authorized Users for the access and use of the Services. You are responsible for determining and assigning Users who will have authority to access and use the Services and for maintaining the confidentiality of all usernames, passwords and related information connected with your Account (collectively, “Access Credentials”). You shall ensure that Access Credentials cannot be accessed or used by unauthorized third parties, and you shall not permit anyone other than an authorized User to use Access Credential associated with such User. You are solely responsible for all activity that occurs within your Account, and for keeping your Access Credentials secure. We shall have no liability for any loss or damage arising from your failure to comply with these requirements. You shall be liable for losses or damage incurred by us where you and/or your Users intentionally or negligently reveal a username or password to a third party or where a username or password otherwise become known to an unauthorized party. You shall notify us immediately if you learn of any unauthorized use of any Access Credentials or your Account and we may disable such access or use.
5. Content and Data
Your Content and Your Data
You retain all right, title, and interest in and to Your Content and Your Data, subject to the rights granted to us in the Agreement. You are solely responsible for the accuracy, quality, integrity, reliability, appropriateness, legality and right to use Your Content and Your Data submitted to us through the Services, the Sites or otherwise as well as the consequences, ramifications, and results of sharing Your Content and Your Data with us. We are not under any obligation to review Your Content or Your Data and shall not be liable or responsible for the content, accuracy, or appropriateness of, or the right to use, Your Content or Your Data to perform the Services. You grant to us a worldwide, non-exclusive, royalty free, transferable, sub-licensable, perpetual, irrevocable right and license to access and use Your Content and Your Data (i) to provide the Services to you including, without limitation, to carry out direct marketing on your behalf if available through the Services, (ii) to use, publicly display, perform, distribute, modify, prepare Derivative Works of, adapt, abridge, publish, exploit and promote Your Content throughout the world in any way and in any commercial or non-commercial medium or form without compensation, (iii) to share it with our affiliates and service providers for the purpose of providing the Services, (iv) to contact you for marketing purposes, or (v) as required by applicable law or by proper legal, governmental or regulatory authority. To the extent you or your Users provide any intellectual property to us, you represent and warrant (i) you are the creator and owner of the intellectual property or you possess the necessary permissions, licenses, consents and releases to share such intellectual property with us, and (ii) the intellectual property does not infringe, violate or misappropriate the rights of any third party including copyright, trademark, patent, trade secret, privacy right or any other intellectual property or proprietary right. You represent and warrant that Your Content and Your Data (i) does not and will not slander, defame, or libel any other person, (ii) does not contain any viruses, adware, spyware, worms, or other malicious code, and (iii) is free of any digital rights management, including any software designed to limit the number of times it may be copied or used. To the extent you or your Users provide individually identifiable information about any person in connection with the use of the Services, you are responsible for and warrant that you will obtain the necessary rights and consents under applicable law to disclose to us, and allow us to collect, use, retain, and disclose information that you provide to us which we are enabled to collect, including information using cookies or other similar means. You acknowledge that SMS message content is transmitted unencrypted and that eavesdropping of mobile phone communications, including SMS delivery, by third parties is possible. In the event of any loss or damage to Your Content or Your Data, your sole and exclusive remedy will be for us to use reasonable commercial efforts to restore the lost or damaged content or data from the latest back-up of such content or data maintained by us. We will not be responsible for any loss, corruption, destruction, alteration or disclosure of Your Content or Your Data caused by us or any third party.
Analytical Content and Data
Notwithstanding any provision herein to the contrary, we shall own all rights in transactional, aggregated, and statistical content and data derived from the operation of the Services, including, without limitation, the number of records, the number of, content of and types of transactions, configurations, and reports processed using the Services, as well as the performance results of the Services (collectively, “Analytical Data”). Nothing in the Agreement shall be construed as prohibiting us from collecting, utilizing, transferring, or sharing Analytical Data for any purpose.
6. Fees and Payment Method
In consideration of the Services provided, you shall pay us those fees itemized on any Order for the Services and all applicable excise, sales, use, or other taxes, fees, or charges applicable to the Services (the “Fees”), all of which are non-refundable, as follows:
- Subscription Fees. Fees for subscription Services are payable in advance on a recurring annual, semi-annual, monthly, or other basis as set forth in the applicable Order. No refund shall be issued for partial use or non-use of the subscription Services. However, if you cancel a subscription Service, you will continue to have access to that subscription Service for the remainder of the fully paid subscription period.
- Hardware Fees. Fees for hardware are payable in advance and in full prior to access to the Services for which the hardware is needed.
- Fees for Professional Services. Fees for implementation and installation Services are payable in advance unless otherwise indicated on the applicable Order Form. Fees for other professional services shall be payable as set forth in an applicable statement of work or separate Order.
- Payment Services Fees. Fees for Payment Services are set forth in the applicable Order.
- On Premise Installed Software Fees. Fees for on premise installed software are set forth in the applicable Order.
- Other Fees. Any additional Fees or other charges as indicated on the applicable Order.
Except as may be set forth in your Order or any Specific Terms applicable to you, we reserve the right to change and/or add Fees by providing advance written notice in a commercially reasonable timeframe to you via email, through your Account or via invoice. Where advance payment is required for certain Services, we have no obligation to provide such Services if we have not received the required advance payment. We may suspend your access to some or all of the Services during any period in which Fees remain past due and/or terminate the Agreement or Specific Terms thereof in accordance with Section 7. For clarity, the Agreement will continue to be applicable during any period of suspension, and Fees will continue to accrue during any suspension. Suspended Services may be restored at our sole discretion upon payment in full of past due amounts and applicable reconnection and any other applicable fees.
Our Services are conditioned on you providing us with a current, valid credit card either directly or by registering or linking 1 or more credit cards to your Account (collectively, the “Payment Method”) and providing other customary billing information for the payment of our Fees and any other amounts you may owe us under the Agreement. Customary information may include: your address, name on the account, account type, routing number, account number, email address, phone number, and other account information associated with your Payment Method. You agree and authorize us and any third party acting on our behalf including, without limitation, our third party payment processor to debit or charge your Payment Method for Fees and other amounts you owe to us, and/or to collect our Fees and other amounts you owe to us in any manner set forth herein, in an applicable Order, or in applicable Specific Terms. Regardless of the Payment Method provided, we reserve the right to also collect Fees and other amounts you owe to us by deduction from your transaction proceeds. You agree to execute any additional documentation as may be required from time to time for us to charge your cards on the conditions described in these General Terms and/or any applicable Order or Specific Terms. Our third party payment processor may charge additional fees for processing your Fees payment or for the processing of any other payment you owe to us. We reserve the right, and you hereby authorize us, to include such additional charges in your Fees or other payments owed. Be aware your Payment Method may be subject to additional terms, conditions and fees imposed on you by your applicable payment service provider. You are solely responsible for compliance with all such terms and conditions and liable for all such fees. We reserve the right to pursue all other legal and equitable remedies available to us to collect Fees and other amounts owed to us by you.
Subscription Services will automatically renew as set forth in Section 6 at our then current prevailing rates without notice and are payable in accordance with this Section 6, unless a notice of non-renewal is sent pursuant to Section 7. Payment Services will renew as set forth in the Payment Terms.
Past Due Payments
Past due payments will bear interest at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is lower, and will be payable from the due date thereof until paid in full. You will be liable for all collection costs and expenses, including reasonable attorneys’ fees, incurred by us to collect Fees.
7. Term and Termination
Term and Termination of Agreement
The Agreement shall remain in effect until all the Services under any applicable Orders have expired or are terminated. A subscription Service shall be for the term set forth in an applicable Order and will automatically renew without notice for successive terms equal in duration to the term in such Order except that a party may terminate such Services by providing at least 30 days written notice prior to the end of the then current term for such Services unless otherwise indicated on the applicable Order. Termination of subscription Services for non-renewal shall be effective upon the expiration of the then current term for such Services. The term for non-subscription Services shall be as set forth in the applicable Order or as may be set forth in any applicable Specific Terms referenced in the Order.
Termination of Access to Services
In addition to any termination rights set forth above and except with respect to the Payment Services, your right to access the other Services may be terminated earlier in whole or in part without liability to the terminating party as follows: (i) by us upon 15 days written notice for your failure to timely pay any Fees, (ii) by either party upon 30 days written notice in the event the other party materially breaches the Agreement and such breach is not cured within said 30 day period, or (iii) by either party immediately with written notice upon the institution of any insolvency, bankruptcy or similar proceeding by or against the other party including an assignment for the benefit of creditors, the appointment of a receiver over assets, an attachment of assets lasting more than 30 days, or the other party ceases to conduct its business operations in the ordinary course of business. When your rights to all Services have been terminated, the Agreement will also be deemed terminated. We may suspend your access to the Services in whole or in part at any time following breach of the Agreement by you prior to termination.
Effect of Termination, Data Portability and Deletion
Upon termination of the Agreement for any reason, your right to access the Services, and our obligations, immediately cease except with respect to provisions that survive termination. Termination of the Agreement or any Specific Terms shall not relieve you of your obligation to pay all Fees owing under any applicable Order or any other part of the Agreement for any period prior to the effective date of termination. If your right to any of the Services is terminated by us due to your failure to time pay Fees or any other uncured material breach by you (as described in (i) and (ii) in the Termination of Access to Services paragraph above), you will pay us any unpaid Fees covering the remainder of the contract period as indicated on the applicable Order, except as otherwise stated in any applicable Specific Terms. Upon request by you in writing to us as provided in the Notice section below within 5 calendar days of termination or expiration of the Agreement, we will make Your Data (except any data related to the Payment Services) available to you as part of the Services upon payment of our then applicable rates. After such 5 calendar day period, we will have no obligation to maintain or provide Your Data and may thereafter delete or destroy all copies of Your Data in our systems, unless legally prohibited. All provisions that by their nature should survive termination or expiration of the Agreement in order to achieve their purposes, including, without limitation, the parties’ rights and obligations under Sections 4 (with respect to your responsibility for your and your Users’ use of the Services, use restrictions, and title to Intellectual Property), 5, 6, 7 (with respect to the effect of termination, data portability and deletion), 8, 9, 10, 11, 12, 13, 14 and 15, as well as the definitions in these General Terms shall survive termination and remain binding on and for the benefit of the parties.
8. Warranty Disclaimers
For purposes of Sections 8 and 9 herein and for purposes of any disclaimers and limitation of liability in any Specific Terms entered into by you, references to “we” or “our” shall include our processors, suppliers and licensors and our and each of their respective affiliates, subsidiaries, owners, directors, employees and representatives.
WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES PROVIDED HEREUNDER INCLUDING, WITHOUT LIMITATION, THE PAYMENT SERVICES AND HARDWARE YOU PURCHASE FROM US. YOU ACKNOWLEDGE THAT OUR SOLE OBLIGATION IS TO PROVIDE THE SERVICES IN ACCORDANCE WITH SECTION 3. THE SERVICES ARE PROVIDED AND ACCEPTED BY YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES, COVENANTS AND CONDITIONS OF ANY KIND WHATSOEVER. ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THE ABSENCE OF HIDDEN OR LATENT DEFECTS, TITLE OR NON-INFRINGEMENT ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE ARE ALSO SPECIFICALLY EXCLUDED AND DISCLAIMED. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, WILL BE ERROR FREE, SECURE OR WITHOUT DEFECT, WILL BE ACCURATE, RELIABLE OR CORRECT, WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, WILL BE VIRUS FREE OR FREE OF OTHER HARMFUL COMPONENTS, OR THAT ALL FAILURES OF THE SERVICES WILL BE CORRECTED. WE DO NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICES. IN PARTICULAR, THE OPERATION OF THE SERVICES MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. WE DISCLAIM ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, WE DISCLAIM ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF ANY OF OUR SITES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE OR TELECOMMUNICATIONS PROVIDERS, AND FOR ANY OTHER SIMILAR REASON.
Third Party Products and Services Disclaimers
WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING ANY PROPRIETARY SOFTWARE, HARDWARE OR OTHER PRODUCTS OR SERVICES OF A THIRD PARTY PURCHASED OR USED BY YOU IN CONNECTION WITH THE SERVICES, INCLUDING ANY SPECIFIC SERVICES, AND WE EXPRESSLY DISCLAIM ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THE ABSENCE OF HIDDEN OR LATENT DEFECTS, TITLE OR NON-INFRINGEMENT WITH RESPECT TO THIRD PARTY PRODUCTS AND SERVICES. YOUR PURCHASE AND/OR USE OF ALL SUCH THIRD PARTY SOFTWARE, HARDWARE AND OTHER PRODUCTS AND SERVICES, REGARDLESS OF WHETHER FACILITATED OR PROVIDED BY OR THROUGH US, IS ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES OR INDEMNIFICATION OF ANY KIND FROM US.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE SHALL NOT BE LIABLE TO YOU, ANY USERS, CUSTOMERS (AS DEFINED IN THE PAYMENT SERVICES TERMS) OR ANY OTHER THIRD PARTIES FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF BUSINESS, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OR CORRUPTION OF YOUR DATA, YOUR CONTENT, OR ANY OTHER DATA, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL OR REPUTATION, INJURY, DEATH OR ANY AND ALL OTHER SIMILAR DAMAGES OR LOSS WHETHER IN CONTRACT, TORT, PRODUCT LIABILITY, OR OTHERWISE IN CONNECTION WITH OR ARISING OUT OF THE AGREEMENT OR THE USE OF, UNAVAILABILITY OF OR INABILITY TO USE ANY OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY PAYMENT SERVICES AND HARDWARE YOU PURCHASE FROM US), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR AGGREGATE LIABILITY UNDER THE AGREEMENT (INCLUDING IN RELATION TO THE SEPARATE SPECIFIC TERMS) TO YOU OR A THIRD PARTY, FROM ANY CAUSE OF ACTION WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE LESSER OF (i) $5,000 OR (ii) THE AMOUNTS PAID TO US BY YOU FOR THE SERVICES HEREUNDER IN THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO THE LIABILITY. THIS IS YOUR SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE AGREEMENT BY US. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY LOSS, DAMAGE OR INJURY RESULTING FROM HACKING OR OTHER UNAUTHORIZED ACCESS TO YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN, ANY PAYMENT DETAILS, PAYMENT CARDS, SETTLEMENT ACCOUNTS OR OTHER BANK ACCOUNT INFORMATION OBTAINED BY US IN RELATION TO YOUR USE OF THE SERVICES. IF YOU ARE A CALIFORNIA RESIDENT, YOU EXPRESSLY WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
10. Third Party Hardware and Other Third Party Products and Services
With the exception of hardware you purchase from us, all third party products and services used or purchased by you in connection with any of the Services are made available solely subject to the terms and warranty provided by the manufacturer. The manufacturer is solely responsible for all service and support of its services and products, and you will be required to contact the manufacturer directly for any warranty concerns, service and support. Terms related to any products or services you purchase from us are set forth in these General Terms or any applicable Specific Terms including, without limitation, our Hardware Terms of Service. We do not guaranty that hardware you purchase from any third party will work with the Services except where such third party and the specific hardware is recommended by us. Any discounts, rebates or special programs with respect to hardware, if offered by us at our sole discretion, shall be set forth on the Order. We have no obligation to offer any such special programs.
You agree to indemnify, defend and hold us, our parent, subsidiaries, affiliates, officers, managers, directors, shareholders, members, employees, agents and representatives harmless from any and all claims, damages, losses, judgments, penalties and expenses including, without limitation, collection and attorneys’ fees, arising out of or in connection with (i) any misrepresentation by you, (ii) your or your employees’, agents’, representatives’ or Users’ (collectively, “Your Representatives”) use or misuse of the Services or negligence or willful misconduct, (iii) Your Representatives’ acts or omissions in connection with the Services, your business operations, or your products or services, (iv) your or Your Representatives’ violation of the rights of any third party including, without limitation, intellectual property rights or privacy rights, (v) any actual or alleged breach of your representations, warranties or obligations set forth in these General Terms or any appliable Specific Terms, (vi) your violation of any applicable law, rule or regulation, (vii) any claim by your customers in connection with the Services, your business operations or your products or services, and (viii) any third party’s access to your Account or the Services using your Account Credentials.
12. Mutual Confidentiality
Each party shall have access to information that is confidential to the other party (“Confidential Information”) including but not limited to with respect to us, the Services and Licensed Program, and any other information which is not otherwise readily available in the public domain and specifically including our Intellectual Property. The parties agree (i) not to make each other’s Confidential Information available to any third party except on a need to know basis in order to perform its obligations under the Agreement and then, only after the recipient has executed an agreement that protects such Confidential Information with confidentiality provisions at least as restrictive as those contained in the Agreement, (ii) not to use, publish, duplicate, exploit or dispose of each other’s Confidential Information without the other party’s prior written consent except to perform the duties under this Agreement, (iii) to hold each other’s Confidential Information in confidence during the term of the Agreement and thereafter, (iv) to protect the other’s Confidential Information using the same standard of care as it uses to protect its own confidential information, but in no event less than a commercially reasonable standard of care, and (v) no adequate remedy at law exists for breach of this Section and any such breach would cause irreparable harm to the non-breaching party who shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it has at law or otherwise. Either party may make such disclosures as may be necessary by reason of legal, accounting, or regulatory requirements beyond either party’s reasonable control provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. Confidential Information shall not include information that (i) is in the public domain through no act or omission of the other party, (ii) was in the other party’s lawful possession prior to the disclosure without breach of any obligation of confidentiality, (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure, (iv) is independently developed by the other party without any reference to or reliance on the other party’s Confidential Information or (v) is Aggregated Data.
All notices to us shall be deemed to have been duly given if in writing and either: mailed by certified mail, return receipt requested or by overnight delivery by a reputable, national overnight delivery service, to our current principal place of business, or sent by email to us with electronic confirmation of delivery, at:
By mail: 180 John Street, Suite 616
Canada, M5T 1X5
By email: email@example.com
All notices required to be given to you by us shall be in writing and sent to your primary e-mail address on file with us and shall be deemed to duly given upon electronic confirmation of delivery or may be posted to your Account. You are responsible to provide us with any changes to your e-mail address.
14. Force Majeure Event
If our performance of any obligation under the Agreement is prevented, restricted or interfered with by causes including failure or malfunction of your equipment, disruptions of Internet protocol (“IP”) service through intermediate carriers other than us, acts of God, explosions, vandalism, cable cut, storms, fires, floods or other catastrophes, pandemics, power failure, national emergencies, insurrections, riots, wars, strike, lockouts, boycotts, work stoppages or other labor difficulties, or any law, order, regulation or other actions of any governmental authority, agency, instrumentality, or of any civil or military authority (each a “Force Majeure Event”), then we shall be excused from such performance on a day-to-day basis during such restriction or interference.
15. General Provisions
Identity Authentication. You authorize us to make any inquiries necessary to verify your identity should we choose to do so. This may include asking you for additional information, obtaining your tax identification number, verifying your email address, ordering a credit report, and/or verifying your information through third party databases or other sources.
Entire Agreement. The Agreement and any other document made a part of the Agreement represents the entire agreement between you and us with respect to the Services and its terms supersede all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Services or any other subject matter covered by the Agreement. In the event of any conflict between the terms of the Agreement and the terms of any other materials related to the Services, the terms of the Agreement shall prevail. Nothing in the Agreement, express or implied, is intended to confer upon any party other than the parties hereto (and their respective successors, legal representatives and permitted assigns) any rights, remedies, liabilities, or obligations under or by reason of the Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) the applicable Order, (ii) the applicable Specific Terms, and then (iii) the General Terms.
Assignment. The Agreement may not be assigned by you without our prior written consent which may be withheld at our sole discretion. The Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, legal representatives and permitted assigns.
Amendment. Except as set forth in these General Terms or any applicable Specific Terms, we reserve the right, in our sole discretion, to modify or change the Services and/or the Agreement or any part thereof at any time without prior notice to you. We may amend these General Terms or any Specific Terms by posting a revised version on the Website, which will be effective as of the time of posting. You are responsible for reviewing the General Terms and any applicable Specific Terms on a regular basis. Your access to and use of any of the Services following the posting of an amendment constitutes your consent to such amendments.
No Waiver. No waiver of any provision in the Agreement will constitute a further or continuing waiver of such provision or any other term. The failure of either party to enforce any provision of the Agreement shall not constitute the waiver of such provision.
Severability. The provisions of the Agreement are severable, and any provision determined to be void or unenforceable shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of the Agreement and such invalid provision shall be replaced with an enforceable provision which achieves to the greatest extent possible the parties’ original intent.
Remedies. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue other remedies available at law or in equity.
Governing Law and Venue. The Agreement and dispute resolution for all claims and controversies arising out of the Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to conflicts of law principles. Resolution of all Disputes (as defined below) is limited to the exclusive jurisdiction and venue of the provincial and federal courts located within Toronto, Canada. Each party hereby consents to personal jurisdiction in Toronto, Canada and waives any objections with respect to such jurisdiction and venue.
Dispute Resolution by Negotiation in Advance of Suit. The parties shall attempt in good faith to resolve any dispute arising out of or relating to the Agreement or any breach of the Agreement (“Dispute”) promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of the Agreement. Any party may give the other party written notice of any Dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (i) your name and Account number, (ii) a detailed statement of each party’s position and a summary of arguments supporting that position, (iii) the specific relief sought, including the amount of money or other relief demanded and a calculation for such demand(s), and (iv) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 60 days after delivery of the notice, the executives of both parties shall meet virtually at a mutually acceptable time. Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above (“First Meeting“). Such closure shall not preclude continuing or later negotiations, if desired and agreed to by both parties. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in any proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. At no time prior to the First Meeting shall either side initiate litigation related to the Agreement except to pursue injunctive relief that is authorized by law. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of this Section for advance negotiations. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified above for advance negotiations are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.
Time Limitation to Initiate a Dispute. You must initiate a formal action regarding a Dispute in the Province of Ontario or federal courts located within Toronto, Canada within 1 year after the cause of action arises
Jury Trial and Class Action Waiver. YOU AND WE EACH WAIVE OUR RESPECTIVE RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THE AGREEMENT OR THE SUBJECT MATTER OF ANY PART THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE AGREEMENT INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. FURTHER, YOU AGREE THAT ALL DISPUTES WILL BE RESOLVED ON AN INDIVIDUAL BASIS AND NOT A CONSOLIDATED, CLASSWIDE OR REPRESENTATIVE BASIS. YOU HEREBY WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY DISPUTE ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. YOU WARRANT AND REPRESENT THAT YOU HAVE REVIEWED THE WAIVERS IN THIS SECTION WITH YOUR LEGAL COUNSEL, AND THAT YOU KNOWINGLY AND VOLUNTARILY WAIVE YOUR JURY TRIAL RIGHTS AND ANY RIGHT TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY DISPUTE ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
Publicity. You hereby authorize and permit us to use your name in our promotional materials naming you as a user of our Services.
Independent Contractor. We are an independent contractor. The Agreement does not make either party the agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. The Services provided hereunder are not a “work for hire” and we reserve all of our rights with respect to the Services and Intellectual Property.
Headings. The headings in these General Terms and any Specific Terms are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
Electronic Signing and Communications. You agree that our agreements (including, without limitation, the Agreement), notices and communications may be delivered to you electronically, meaning they may be delivered by electronic means including, without limitation, email, posts to our Sites, or messages to your Account or mobile device per our E-Sign Consent. You will need a computer (or mobile device) web browser and printer to access and print such electronic communications. Any electronic communication will be considered received by you when we post it to our Sites or electronically transmit it to you by any other electronic means. Any communication sent to you by regular mail will be considered received by you 3 calendar days after being sent. If you withdraw your consent to receive electronic communications from us, we reserve the right to prohibit your access to the Services and the Sites.
English Language. It is the express will of the parties that the Agreement and all related documents, including notices and other communications, be drawn up in the English language only. This confirmation shall be deemed to apply to all forms, documents, terms and agreements that comprise the Agreement, regardless of whether it is expressly repeated therein. Il est de la volonté expresse des parties que le Contrat et tous les documents connexes, y compris les avis et autres communications, soient rédigés en anglais seulement. Cette confirmation est réputée s’appliquer à tous les formulaires, documents, conditions et accords qui composent le Contrat, qu’ils y soient ou non expressément répétés.
2. ON PREMISE INSTALLED SOFTWARE TERMS OF SERVICE
Last Updated: May 1, 2023
TAKU (“we”, “us”, or “our”) may offer the use of our Software Solutions (as defined below) for a Merchant to utilize on their premises pursuant to the Software License Grant described herein. Your access to, and use of, any of our Software Solutions is governed by these On Premise Installed Software Terms of Service (the “Software Agreement”). Where “you”, “your”, or “Merchant” is used herein, it means an individual or business that accesses or uses the Software Solutions. Undefined capitalized terms have the meaning given to them in the General Terms. These On Premise Installed Software Terms of Service are part of and are incorporated into your Agreement with us as more specifically described in the General Terms.
It is your responsibility to carefully read and fully understand this Software Agreement. Your acceptance of this Software Agreement is effective on the earlier of the date you agree to it by electronically indicating acceptance and/or the date you first access or use of the Software Solutions. Upon acceptance, you confirm you have also read, understood, accepted and agree to be bound by and comply with the General Terms and all applicable terms therein. Any individual accessing or using the Software Solutions on behalf of a business represents and warrants that they have the authority to bind the business to this Software Agreement.
The meanings of all defined terms in the General Terms including, without limitation, the meanings for “you” and “us” shall apply in this Software Agreement unless otherwise noted therein. Where not defined in the text, capitalized terms have the following meanings. Wherever the singular term is used, it shall include the plural and vice versa:
“License Key” means a code data string or registration code we provide to Merchant as part of the Software Solution to ensure the Software Solution is utilized as defined in the Order.
“Renewal” means an extension of the License and this Software Agreement for a period of time as defined in the Order.
“Software Solutions” means an object code version of our point of sale software solution and all related software which is installed on a computer(s) at the direction of Merchant, the Documentation and all updates, new versions, enhancements, and corrections to our software received by Merchant under this Software Agreement including any Renewals.
“Version” means the version or uniquely numbered identifier of the Software Solution purchased as defined in the Order.
2. Software License Grant
Subject to Merchant’s timely payment of the Fees as set forth in the General Terms and the Order, if applicable, and subject to the limitations set forth therein, we either directly or by and through one of our affiliates, hereby grant Merchant a non-transferable, non-exclusive, non-sublicensable, revocable license under the Licensed Program described in the General terms to allow access to and use of our Software Solutions (“License”), as more particularly described below and in the applicable Order. Merchant may not give away, rent, lease or otherwise sell, sublicense, distribute or transfer the License granted under this Software Agreement and the General Terms without our prior written consent. Merchant agrees to use the Software Solutions solely in connection with the specific business purposes described in the applicable Order. Merchant agrees that all Software Solutions furnished by us, including all Updates, are and at all times will remain our sole property.
2.2 Licensed Utilization
Merchant must utilize the Software Solutions in compliance with, and according to, the purposes described in the Order including, but not limited to, the number of locations and installations of the Software Solutions, the number of Users who will be provided access to the Software Solutions, and the business described. In some instances, we may require License Keys be generated to secure the application for proper Merchant use.
As more specifically described in the General Terms, Merchant may not reverse engineer or decompile the Software Solutions, or any part thereof, nor allow, permit or assist any third party to do any of the foregoing. Except as expressly authorized in this Software Agreement, Merchant may not modify, adapt or prepare any derivative works from the Software Solutions, or any part thereof, nor allow, permit or assist any third party to do any of the foregoing. Merchant agrees not to modify or tamper with the License Key or attempt to manipulate the number of licenses counted by the License Key. In using the Software Solutions, Merchant agrees to comply with all applicable laws and regulations. Merchant acknowledges that the Software Solutions are not designed to be used in circumstances in which errors or inaccuracies in the content, functionality, services, data or information provided by the Software Solutions or the failure of the Software Solutions, could lead to death, personal injury, or severe physical or environmental damage.
Merchant may not use any software, systems or solutions not provided by us to access the Software Solution components, including but not limited to the database of the Software Solution, with anything other than the Software Solution itself nor allow, permit or assist any third party to do any of the foregoing. Merchant understands that by doing so, the Merchant may risk corruption of the Software Solution which may or may not be repairable. Additionally, Merchant acknowledges that doing so constitutes a breach of this Software Agreement.
2.4 User Accounts
For auditing, security and licensing purposes, only the identified individual associated with a particular User account can and should access the Software Solutions, or the data therein, by using that account. User accounts may not be shared among individuals, or used to provide access to the Software Solutions to individuals who are not associated with a User account. Merchant is responsible for ensuring that any User complies with this Software Agreement and for any violations of this Software Agreement or misuse of the Software Solutions by its Users.
2.5 Usage Audit
If we have commercially reasonable evidence to suggest that Merchant is using our Software Solutions in violation of this Software Agreement, we may, upon reasonable notice and during regular business hours, inspect the computers and records of Merchant that are relevant to the particular concern we have, and which are reasonably necessary to verify Merchant’s compliance with this Software Agreement (“Usage Audit”).
To the extent reasonably practicable, we will first attempt to verify Merchant’s compliance remotely through the inspection of log files or access to other files, documents, or data, prior to conducting a Usage Audit by visiting Merchant’s facilities. Merchant shall comply with all reasonable requests made during a Usage Audit, including by making its personnel available to answer questions and providing copies of the relevant records, provided that we use commercially reasonable efforts to not interrupt Merchant’s authorized use of the Software Solutions or the Merchant’s normal business operations. We agree to comply with any generally applicable regulations and procedures governing access to Merchant’s facility where the information we seek in connection with a Usage Audit is kept, subject to Merchant providing us advance notice of the same, in writing, and provided that any conflict between such regulations and procedures and the terms of this Software Agreement shall be settled in favor of this Software Agreement. If a Usage Audit results in a finding that Merchant has breached this Software Agreement or that Merchant’s use of the Software Solutions exceeds Order specifications, Merchant shall pay our actual cost to perform the Usage Audit, in addition to any applicable License Fees.
You acknowledge that the success and timeliness of the Software Solutions implementation process shall require your active participation and the collaboration of your staff. You agree to act reasonably and cooperate fully with us to achieve the completion of the Software Solutions implementation.
You agree to appoint a project manager who will work closely with us to facilitate the successful completion of the implementation process and who shall be responsible for supervising your staff and their cooperation with and participation in such process.
Merchant acknowledges that the Software Solutions furnished by us constitute valuable, proprietary information and trade secrets, the disclosure or misuse of which would cause us irreparable harm. Accordingly, Merchant agrees to maintain such Software Solutions in confidence, using at least the same degree of care as Merchant uses to safeguard its own confidential information, but in no event less than reasonable care. Merchant further agrees that it will promptly inform us of any known or suspected unauthorized use or misuse of such Software Solutions, whether by Merchant or by any third party, and will cooperate with us in investigating and halting such unauthorized use or misuse.
5. Software Solutions Terms and Termination
As identified in this Software Agreement, all terms and conditions from the General Terms apply to our Software Solutions as part of the Software Agreement. In addition to the termination provisions in the General Term, we may immediately suspend or terminate your use of the Software Solutions at any time without notice if you or any User misuses any aspect of the Software Solutions or breaches any of your obligations in this Software Agreement unrelated to the payment of Fees (which is addressed in the General Terms). Further, the following terms apply:
5.1 Additional Effect of Termination
The Software Agreement shall remain in effect until all of the Software Solutions under any applicable Orders have expired or are terminated, including but not limited to the initial Software Solutions purchase or subsequent Renewals. Expiration or termination of this Software Agreement shall simultaneously terminate Merchant’s rights to access the Software Solutions and our obligations with respect thereto. Within thirty (30) days after such expiration or termination, Merchant shall: (i) furnish us with written notice certifying that the original and all copies, including partial copies, of the Software Solutions furnished by us under this Software Agreement or made by Merchant as permitted by this Software Agreement, have either been returned to us or destroyed and no copies or portions thereof remain in the possession of Merchant, its employees or agents; and (ii) make prompt payment in full to us for all amounts then due.
6. Maintenance Services
Subject to the terms and conditions of this Software Agreement, and Merchant’s timely payment of applicable Fees, we agree to use commercially reasonable efforts to perform, or have provided, during the contract period specified on the Order, the following technical assistance with respect to the Software Solutions (collectively, “Maintenance Services”):
6.1 Merchant Support
We will make technical assistance available to Merchant through the means documented on your Order, as specified in the General Terms.
6.2 Update(s) to Software Solutions
At our discretion, we may provide Merchant with “Update(s)” to Software Solutions, which may include improvements, features or fixes. These Updates are only available to the Merchant for the Version purchased, and only while this Software Agreement is active (not terminated). Newer versions are not considered Updates to the Software Solutions. As part of an Update, we will also provide instructions and/or Documentation that we consider reasonably necessary to assist in the use of an Update. Merchant will install all Updates within a reasonable period of time after receiving our notification of their availability. However, you agree to and will implement any fix or correction designated as “critical” by us within ten (10) days of notification of its availability.
6.3 Version Support
Merchant acknowledges that we are only obligated to provide Maintenance Services for the current version of the Software Solution, though we may, at our discretion, provide Maintenance Services for Merchant’s Version if the Software Agreement with the Merchant has not terminated. Independent of this, we have no obligation to provide Update(s) to the Software Solutions for anything other than the latest version of the Software Solution and its most recent Update. We shall also maintain the last prior version of the Software Solutions until the earlier of six (6) months from the release of each new version release, or termination of this Software Agreement.
3. HARDWARE TERMS OF SERVICE
Last Updated: May 1, 2023
These Hardware Terms of Service apply to hardware you purchase from TAKU (“Hardware”) and are part of and are incorporated into your Agreement with us as more specifically described in the General Terms. TAKU may also be referred to herein as “we”, “us”, or “our”. Undefined capitalized terms have the meaning given to them in the General Terms.
Even though we make commercially reasonable efforts to maintain adequate stock of all Hardware units, from time to time we may be unable to fulfill your Hardware order due to supply shortages or other reasons. Also, there may be occasions when we confirm your order but subsequently determine we are unable to supply your Hardware. Therefore, we reserve the right at any time and in our sole discretion to limit or change quantities available for purchase and/or to cancel your order. If we cancel your order, we will fully refund any associated purchase price you have paid.
We will ship Hardware using a carrier of our choice. Your Order will show the Hardware price and applicable shipping fees for which you will be responsible. Please allow 1-2 business days for processing your order before it is ready for shipment. We will make commercially reasonable efforts to facilitate the timely delivery of your order. Even though we try to meet your shipment and delivery dates, in the event of low Hardware inventory or other fulfillment issues, we may be unable to do so. These and other events beyond our control can also affect the delivery of the Hardware. Therefore, we are not liable for late shipment or delivery or any loss, damage, or penalty you incur from any delay in shipment or delivery. Title to the Hardware and risk of loss passes to you when the Hardware is delivered to you.
If you are not fully satisfied with your Hardware purchase, you may return your Hardware within 30 days of receipt so long as (i) the Hardware is in its original condition and repacked in its original packaging; (ii) you enclose the original packing slip; and (iii) you return all Hardware plus all accessories, cables, cords, chargers, parts and documentation that were included with the original purchase (collectively, the “Hardware Support Materials”) in their original condition. Provided you have met all of the conditions specified in this paragraph, we will refund your purchase price in full, excluding the shipping fees. Only Hardware purchased directly from us can be returned to us.
4. End User Customers
We sell and ship Hardware only to our customers located in Canada and the United States for their own use. You may not purchase Hardware for resale, and we reserve the right to refuse or cancel your order if we believe you are not our customer or you are reselling the Hardware or using it other than in connection with our Services.
5. Limited Warranty
We provide a limited warranty against defective materials and faulty workmanship in purchased Hardware for a period of 6 months from the original order date. During this warranty period, we will replace such defective Hardware at no cost to you, provided (i) you return the defective Hardware to us at the address we give you when you initiate a warranty-based return; (ii) the Hardware and all Hardware Support Materials are repacked in their original packaging; and (iii) you return the Hardware and Hardware Support Materials to us within 14 days of receiving your replacement Hardware. You will be asked to provide a payment card number to us when you initiate a warranty-based return. In the event you fail to return your defective Hardware in accordance with the process and in time frame specified above, we will charge the full price of the replacement Hardware and any Hardware Support Materials to either your Account (if there is a balance) or the card you provided when you initiated your warranty-based return, at our discretion. This limited warranty is only available to you as the original purchaser of the Hardware. Any sale or transfer of the Hardware voids the warranty coverage. To initiate a warranty-based return, contact TAKU Support.
This limited warranty and our return policy do not apply to Hardware that has been subject to abuse, accident, alteration, fire, repair, tampering, misuse, acts of God (including, without limitation, earthquake, flood, hurricane, lightning, or tornado) or other external causes. This limited warranty does not apply to any consumable parts including but not limited to batteries, any software or any hardware you purchase from a third party. If you purchase hardware from a third party for use with our Services, please see the Third Party Hardware section in our General Terms.
Except for the limited warranty and return policy described above, the Warranty Disclaimers and Limitation of Liability at Sections 8 and 9 of the General Terms shall apply to your purchase of any Hardware.
Effective Date: May 1, 2023
We collect information from the following categories of individuals who may visit our Websites or use our Services:
- Visitors to the Websites and Apps, who can browse without providing personal information.
- Registered Users of the Services, who are representatives of businesses that have registered with us and our employees, representatives, consultants, contractors, or agents who are authorized to use the Services on behalf of those registered businesses.
- Customers of our Users.
It is your decision to use the Services, and, as such, any provision of this personal information is completely voluntary. At your choice, and when you interact with the Services and become a User, we may ask you to provide your:
- Identifiers such as your name;
- Contact information such as your email address, physical address, phone number(s);
- Financial information such as your credit card number, financial account number;
- Employment information such as employer, job title, and evidence of authorization that you are a User of our Services. If you apply for a job with us, we may also collect your employment history, education information, and other employment-related information necessary to process your job application.
We collect and process limited information on Customers of our Users. Specifically, we may collect and store Customer name, email address, and birthdate. We do not collect, process, or store credit card or other point of sale financial data from Users’ Customers.
We also collect from Visitors, Users, and Users’ Customers certain Internet and other electronic network activity information such as browsing history on the Services, the length of time spent on certain pages, the website Uniform Resource Locator (“URL”) from the website visited before this Website, which URL next visited, device type, browser type, Internet service provider, date/time of visit information, operating system, and Internet Protocol (“IP”) address.
We may collect personal information from individuals in offline contexts. We will append data collected offline with data collected through the Websites and Services.
Cookies and Other Tracking Technologies
Cookies are small files that are sent to and stored in your computer by the websites you visit. Cookies are stored in your browser’s file directory. Cookies may be stored only for the time you are in a given site or they may remain stored in your browser for a defined period of time beyond your current session. Cookies work in combination with content within the website itself, to capture and remember information. To learn more about these technologies and how they work, please see www.allaboutcookies.org.
You can choose to have your computer warn you each time a cookie is being sent, or you can choose to turn off all cookies. You can review the options available to manage cookies in your browser. One option is to disable, or turn-off, all cookies. If you turn cookies off, you may not be able to browse the Websites. If you disable certain kinds of cookies, some aspects of our Websites may not function properly or as well.
We will use the information collected in the following ways. Specifically, we will use your:
Identifiers and contact information to:
- provide you with the Services;
- respond to your requests;
- communicate with you; and
- provide you with offers and promotions that we feel may be of interest.
Financial information to:
- process payment for the Services; and
- process refunds or chargebacks as needed; and
Employment information to:
- Confirm that you are an authorized User of our Services; and/or
- Process your request for information about our available careers, or process your job application.
We will use the Internet and other electronic network activity information that we collect to:
- conduct statistical analysis of the Websites;
- troubleshoot service issues or interruptions;
- update and improve the Websites;
- understand the demographics of our Visitors, Users, and Users’ Customers, and their browsing habits; and
- serve you with promotional messages and advertisements, both while you are on the Websites and after you leave our Websites and continue to browse online.
We may share all categories of personal information identified above to the following entities and/or for the following reasons:
- Law Enforcement. Occasionally we may be required by law enforcement or judicial authorities to provide personal information. We will disclose personal information upon receipt of a court order, subpoena, warrant, or other legal process to the extent necessary to meet legal, national security, public interest, or law enforcement obligations. We fully cooperate with law enforcement agencies in identifying those who use our Services for illegal activities. We reserve the right to report to law enforcement agencies any activities that we in good faith believe to be unlawful.
We may also share Internet and other electronic network activity information with select third parties, such as our advertisers, for purposes of serving you with customized promotions. If you would like to learn more about the sharing of non-personal information for purposes of providing customized advertisements or promotions, please visit http://www.aboutads.info/consumers/.
Links to Third Party Sites
The Services are not intended for children. We do not knowingly collect information from children under the age of 18. If we discover that we have information from a child, we will delete it immediately. If you believe that a child under the age of 18 may have provided his or her information to us, please contact us using the contact information below.
Do Not Track
We do not track personal information about your online activities over time and across third-party Web sites or online services, and do not allow third parties to conduct such activity, and therefore we do not respond to Web browser “do not track” signals.
Legal Basis for Processing
The applicable legal bases for processing personal data include:
- Consent. For some data processing, we may ask you for your consent to collect and process data. If you provide us with your consent, you may later withdraw your consent by contacting us.
- Compliance with legal obligations or performance of contractual requirements. Some data processing may be required to comply with relevant law or regulations or to fulfill our obligations under a contract with you.
- Our legitimate interest. We may process your personal data based on our legitimate business interests.
Cross-Border Transfer of Data
We are located in Canada. If you are not a resident of Canada, your country’s laws governing data collection and use may differ from those in Canada; in particular, Canada may not provide the same level of protections as those in your own country. By using the Websites or providing your personal information to us, you are transferring your information to Canada, and you agree to the transfer, retention, and processing of such data in Canada. We transfer personal information into Canada when we have your affirmative consent, pursuant to our legitimate business needs, or under approved standard contractual clauses or codes of conduct. If you do not agree with such transfer, retention and processing in Canada, please do not use the Services.
Your Privacy Rights
Depending on your state or country of residence, you may have the following rights.
Right of Access. You have the right to access your personal information maintained by us. Upon receipt of a verifiable request to access personal information, we will disclose and deliver, free of charge, the personal information requested.
Right of Deletion. You have the right to request that we delete any personal information about you which we have collected from you. Upon receipt of a verifiable request for deletion, we will delete your personal information from our records and direct any service providers to delete your personal information from our records, within 45 days.
Right to Object to Processing. Under certain circumstances, you may have the right to request certain restrictions of our processing your Personal Information. Put another way, you may have the right to withdraw previously-provided consent, or to ask that we not use your personal information for certain purposes.
We will comply with your request to delete personal information unless it is necessary for us to maintain your personal information in order to:
- Complete a transaction, provide requested-for Services, and/or perform a contract between you and us;
- Detect security incidents;
- Comply with a legal obligation;
- Enable our internal uses that are aligned with your expectations and your relationship with us.
Submission of Requests for Information. Please submit requests to firstname.lastname@example.org.
Verification. After you submit a request, we will promptly take steps to determine whether your request is a verifiable request. We will take reasonable steps to verify your identity.
As noted below, we do not knowingly collect information from or about children. We do not sell information of minors under 18 years of age.
Authorized Agent. You have the right to designate an authorized agent to submit an access or deletion request on your behalf. If you use an authorized agent to submit such a request, we will require that you:
- Provide the authorized agent written permission to act on your behalf; and
- Verify your own identity with us before we can honor the request.
No Sale of Personal Information. We do not sell personal information.
No Discrimination. We will not discriminate against an individual because that individual exercised the rights described here.
We understand the importance of information security and will take reasonable measures to protect the security and confidentiality of your information. Please understand that no measures can guarantee 100% security.
You are responsible for the security of your log-on information and the log-in information of all of your Users. Please do not share your log-on password with anyone. If you believe your log-on password has been compromised, please contact us immediately.
180 John Street, Suite 616
Canada, M5T 1X5
5. PAYMENTS SERVICES TERMS
Last Updated: May 1, 2023
Payment Services Provider (“PSP”, “we”, “us”, or “our”) offers merchant payment processing services and we may, from time to time, make other payment-related services available to merchants via our PSP Platform (collectively, the “Payment Services”). Your access to and use of any of the Payment Services is governed by these Payment Services Terms. Where “you”, “your”, or “Merchant” is used herein, it means an individual or business that accesses or uses the Payment Services. Undefined capitalized terms have the meaning given to them in the General Terms. These Payment Services Terms are part of and are incorporated into your Agreement as more specifically described in the General Terms.
It is your responsibility to carefully read and fully understand these Payment Services Terms. You accept and these Payment Services Terms are effective on the earlier of the date you agree to them by electronically indicating acceptance and/or you first access or use the Payment Services. Upon acceptance, you confirm you have also read, understood, accepted and agree to be bound by and comply with the General Terms, the Processor Ts&Cs and the Card Brand Rules. PSP is entering into these Payment Services Terms on behalf of and as an agent of Acquirer. Any individual accessing or using the Payment Services on behalf of a business represents and warrants that they have the authority to bind the business to these Payment Services Terms.
Following your acceptance of these Payment Services Terms and Processor Ts&Cs and any necessary approvals, Merchant will be granted the right to access and use the Payment Services solely for business purposes to process Transactions on behalf of Cardholders wishing to purchase Merchant Products and Services (“Customers”). Further, by accepting these Payment Services Terms you authorize PSP to (i) submit Transactions on your behalf to Processor; and (ii) access and use all data and information related to your use of the Payment Services.
The following definitions apply to these Payment Services Terms where capitalized terms are not otherwise defined in the text or the General Terms.
“Acquirer” means a financial institution that is authorized by a Card Brand to enable the use of a Payment Method by accepting Transactions from Merchant on behalf of the Card Brands, routing these to the Card Brands or Issuers and collecting and settling the resulting funds.
“Authorization” means approval by, or on behalf of, the Issuer to validate a Transaction. An Authorization indicates only the availability of the Cardholder’s credit limit or funds at the time the Authorization is requested.
“Business Day” means a day on which banks are open for business in the applicable territory other than a Saturday, Sunday or holiday.
“Capture” means the confirmation by Merchant to Acquirer that a Transaction for which it received an Authorization is to be executed and the account of the Customer is to actually be charged for the Transaction.
“Card” means any form of credit card or debit card which may be used by a Cardholder to carry out a Transaction on such Cardholder’s Card account.
“Card Brand” means Visa, Mastercard or comparable parties providing Cards and/or regulating the relevant Payment Method.
“Card Brand Rules” means the collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Card Brands, as may be amended or supplemented over time, with which Merchant must comply when using the relevant Payment Method.
“Cardholder” means any person who is issued a Card and possesses and uses a Card and, where required on the Card, whose signature appears on the Card as an authorized user.
“Chargeback” means a Transaction which is successfully charged back on request of the Customer or the Issuer pursuant to the relevant Card Brand Rules, resulting in a cancellation of a Transaction for which the Merchant has been paid or was due to be paid. If a Chargeback occurs on a Transaction for which the Merchant already received Settlement of the related funds, this results in the unconditional obligation for Merchant to immediately return the Settled funds to Processor, to enable Processor to return such funds to the Card Brand or Acquirer.
“Financial Services” means services other than Payment Services that PSP may offer to Merchant from time to time including, without limitation, capital lending, prepaid card issuance, bank accounts or other banking services, and insurance.
“Fine” means any fine, uplifted service fee or other additional payment as imposed by the Card Brands, Acquirers and/or regulatory agencies on Merchant, PSP, and/or Processor, as a result of situations such as, but not limited to, breach of Card Brand Rules by Merchant or caused by Merchant, excessive fraud levels, or excessive Chargeback levels.
“Fraud Control Tool” means a tool set which assigns a fraud score to Transactions indicating the likelihood of the Transaction being fraudulent and enables PSP and/or its Partners (on behalf of Merchant) to automatically reject or suspend the Transaction based on threshold values set on behalf of Merchant.
“Interchange System” means the computer hardware and software operated by and on behalf of the Card Brands for the routing, processing, and settlement of Transactions.
“Issuer” means an institution that issues Payment Methods to the Cardholder and whose name appears on the Card or bank account statement as the Issuer or who enters into a contractual relationship with the Cardholder with respect to the Payment Method.
“Merchant Products and Services” means the products and/or services which Merchant is selling and for which Transactions are processed.
“Partner” means Processors, Acquirers and other entities providing products and/or services to PSP with respect to the Payment Services.
“Payment Details” means the information that makes up a Transaction message which needs to be submitted to enable the processing of the Transaction and to perform fraud checks, including details regarding the Card (such as Card number, security code, expiration date, PIN), the Customer (such as name, zip code), relevant authentication details and the payment amount.
“Payment Method” means the method of enabling payments by Customers to Merchant such as Cards, online and offline bank transfers and direct debits offered by the Card Brands.
“Payment Services Provider” means Quilt, LLC.
“Payment Services Terms” means all provisions, terms and conditions set forth herein and in any schedules, exhibits, and appendices attached hereto, all of which are incorporated herein by reference, as they may be amended from time to time.
“Processor” means the entity or entities identified as the Processor in your Processor Ts&Cs.
“Processor Ts&Cs” means the applicable Processor’s terms and conditions related to the Payment Services.
“Refund” means a partial or full reversal of a particular Transaction on the initiative or request of Merchant, whereby Transaction funds are reimbursed to the Customer.
“Security Standards” means all rules, regulations, standards or guidelines adopted or required by us, our Partners, the Card Brands, or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Payment Details, including but not limited to the Payment Card Industry Data Security Standards (“PCI DSS”), the Payment Card Industry’s Payment Application Data Security Standard, Visa’s Cardholder Information Security Program, Discover’s Information Security & Compliance Program, American Express’s Data Security Operating Policy, MasterCard’s Site Data Protection Program, Visa’s Payment Application Best Practices, MasterCard’s Terminal Security program, and the Payment Card Industry PIN Entry Device Standard, in each case as they may be amended from time to time.
“Settlement” means the payment of amounts owed to Merchant with respect to settlements received by Processor from Acquirer or Card Brands for Transactions validly processed for Merchant, minus amounts for Refunds, Chargebacks, Fees and other amounts PSP may deduct or cause to be deducted including, without limitation, any Reserve amount. “Settle” and “Settled” shall have the corresponding meanings.
“Settlement Account” means the bank account identified by Merchant during the application process or thereafter as the account into which Settlement payments are to be deposited.
“Software” means the collective set of programs and data developed and/or operated by PSP or its Partners as needed to provide the PSP Platform and Payment Services to Merchants.
“Taxes” means any value added taxes, goods and services tax, sales tax, turnover and other taxes or levies including penalties, interests, surcharges due on any product or service of Merchant (including but not limited to any Transactions and/or Merchant Products and Services) and all costs or damages related to such Taxes.
“Transaction” means an Authorization request of a Customer (and Capture if applicable) for a payment from the Customer to Merchant submitted by Merchant via the PSP Platform for a particular purchase of Merchant Products and Services.
2. Merchant Registration and KYC Check
Merchant agrees to comply and will adopt adequate technical and procedural measures to ensure compliance at all times with applicable laws and regulations, the Card Brand Rules, Security Standards, Processor Ts&Cs, and applicable requirements of our Partners, as such laws, rules, standards and requirements may be modified from time to time, and such other procedures as PSP and/or its Partners may from time to time require relating to the Payment Services. In the event of an inconsistency between any provision in these Payment Services Terms and the Card Brand Rules, the Card Brand Rules will govern. In the event of any inconsistency between these Payment Services Terms and the General Terms, these Payment Services Terms will govern.
Each Card Brand has the right to enforce any provision of the applicable Card Brand Rules and to prohibit Merchant from engaging in any conduct the Card Brand deems could injure or create a risk of injury to the Card Brand, including injury to reputation, or that could adversely affect the integrity of the Interchange System or the Card Brand’s confidential information (as defined in the Card Brand Rules). Merchant shall not take any action that would interfere with this right.
Merchant is responsible for regularly reviewing the current Card Brand Rules and relevant changes to laws applicable to its Merchant Products and Services and business practices to ensure its compliance therewith. Where Merchant finds the Card Brand Rules (including Fine possibility) to be unacceptable, Merchant is free to stop using the relevant Payment Method. In the event Merchant ceases using a Payment Method, the Card Brand Rules, these Payment Services Terms, and the Processor Ts&Cs remain applicable to previously processed Transactions related to such Payment Method. Regardless of whether PSP or its Partners make extracts and summaries of the Card Brand Rules available to Merchant, the entirety of the then current applicable Card Brand Rules as issued by the relevant Card Brand are fully binding on Merchant.
4. Bona Fide Transactions
Merchant shall not submit any Transaction that is not a bona fide Transaction. A “bona fide” Transaction is one that (i) is between Merchant and its Customer; (ii) is for the sale of Merchant Products and Services that Merchant sells itself (or a Refund for such a sale); (iii) is submitted on behalf of Merchant (and not on behalf of any third party); (iv) is legal, authorized by the Customer, non-fraudulent or otherwise damaging to the Card Brand(s); and (v) to the Merchant’s knowledge, is enforceable, collectible, and in full compliance with these Payment Services Terms, applicable law, and the Card Brand Rules. Merchant may not resell the Payment Services to third parties. Merchant will not use the Payment Services to handle, process, or transmit funds for any third party. Merchant shall only use the Payment Services in the pursuit of its trade, business, craft or profession.
At the time Merchant accepts a Card for any Transaction, the Merchant Products and Services shall have been provided or shipped or the services actually rendered to the Customer, except as specifically stated otherwise in Merchant’s Order Form or otherwise approved in writing by PSP in advance.
Merchant will clearly and conspicuously inform the Customer of Merchant’s identity at all points of interaction. Merchant shall use the Payment Services only for the purposes as agreed herein and shall not perform or allow to be performed any action detrimental to the security or performance of the Payment Services without PSP’s prior written consent.
Merchant is required to obtain an Authorization in accordance with these Payment Services Terms for each Transaction conducted through the Payment Services. PSP reserves the right to refuse to process any Transaction and/or Payment Details presented by Merchant unless it includes a proper Authorization.
6. Existing Debt
Merchant shall not submit a Transaction for any purpose other than a current Transaction. Transactions shall not represent the collection of a dishonored check or the collection, transfer, or refinancing of any existing or prior debt or obligation. Merchant shall not attempt to recharge a Customer for an item that has been the subject of a Chargeback by the Customer, even with the Customer’s consent.
7. Cash Advances
Merchant shall not disburse or advance any cash (i) to a Customer (except as authorized by the Card Brand Rules); or (ii) to itself or any of its employees, agents, or other representatives in connection with a Transaction.
8. Transaction Thresholds; Surcharges; Split Transactions
Except as expressly permitted by law, Merchant shall not (i) set a dollar amount above or below which Merchant refuses to honor Cards; or (ii) impose or require Customer to pay any fee or charge (including, without limitation, any surcharge, finance charge, or any of the fees payable by Merchant) in connection with or as a condition of the use or acceptance of a Card, except in conjunction with a program offered by PSP.
9. Equal Treatment for Card Brands
Merchant shall not engage in any practice that unfavorably discriminates against or provides unequal treatment of any Card Brand relative to any other Card Brand, unless expressly permitted by the Card Brand Rules.
10. Installment Plans
Merchant shall not accept Cards in connection with installment plans unless such installment plans are in full compliance with the Card Brand Rules.
Merchant will make an electronic or paper receipt available to Customers by giving Customers the option to receive a receipt. However, a receipt must be provided if you have a return, refund or exchange policy or you require a receipt for a return or refund.
12. Fees, Funding Model and Fees Payment
Merchant agrees to pay PSP the fees, charges and other amounts itemized on the Order for the Payment Services and all applicable excise, sales, use, or other taxes, fees, or charges applicable to the Payment Services, as they may be modified from time to time by PSP in its sole discretion as set forth herein (collectively, “Fees”). Merchant hereby authorizes PSP to cause all Fees owed by Merchant to PSP to be withheld from Merchant’s Settlements and to cause such withheld sums to be immediately paid directly to PSP (“Net Funding Model”). Any process other than the Net Funding Model must be agreed to by us and you in writing.
In the event Settlements are insufficient to pay Fees due from Merchant to PSP, PSP may deduct, or cause its Partners to deduct, unpaid amounts from the Reserve and, additionally, Merchant hereby authorizes PSP to collect Fees and other amounts due to PSP using any of the methods described in Section 6 of the General Terms including, without limitation, to debit any unpaid amounts from Merchant’s Settlement Account. If such debits and other actions are insufficient to satisfy any amounts owed by Merchant to PSP, then Merchant shall pay all outstanding amounts due to PSP within 3 Business Days of PSP’s issuance of an invoice to Merchant for the amounts due.
We reserve the right to change and/or add Fees with reasonable advance notice to Merchant via the PSP Platform, your Account, or email. Your continued use of the Payment Services following the effective date of the change or addition constitutes your agreement to the change in Fees. Fees are not refundable.
13. Card Brand Logos
Merchant is authorized to use the Card Brand logos or marks (“Marks”) only on Merchant’s promotional materials and website to indicate that Card Brand Cards are accepted as funding sources for Transactions. PSP may require any changes to Merchant’s website or otherwise that PSP deems necessary or appropriate with regard to Merchant’s use of the Marks.
Merchant acknowledges and agrees that the Card Brands are the sole and exclusive owners of their Marks and Merchant will not contest the ownership of the Marks for any reason. The Card Brands may at any time, immediately and without advance notice, prohibit Merchant from using any of the Marks for any reason. Merchant’s use or display of any Mark will terminate effective with the termination of these Payment Services Terms or upon notification by a Card Brand to discontinue such use or display, whichever is earlier.
14. Payment Terminals
Merchants using payment terminals to process point of sale (“POS”) Transactions must:
- Use payment terminals provided by PSP, and such use shall comply with all documentation and training provided to Merchant;
- Ensure that the payment terminal is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner;
- Make no alteration to the payment terminal and not remove any component(s) from the payment terminal without the prior written consent of PSP;
- Permit PSP or its duly authorized representative to inspect the payment terminal at all reasonable times, subject to reasonable notice and during reasonable working hours at the relevant location;
- Not, without the prior written consent of PSP, allow any third party to use the payment terminal or submit POS Transactions via the payment terminal on behalf of a third party. The payment terminal may only be used by Merchant to submit POS Transactions to PSP in its own name and for the business it registered for when entering into the Agreement;
- Comply with PCI DSS security requirements imposed by the Card Brands in handling and using payment terminals and on PSP’s request fill out Self-Assessment Questionnaires (“SAQs”) prescribed by the Card Brands under applicable PCI DSS regulations to confirm such compliance;
- Follow the Card Brand Rules in operating the payment terminals to submit POS Transactions; and
- Not use the payment terminals for any purposes following termination of these Payment Services Terms.
15. Payment Method Support
Merchant understands and agrees that supported Payment Methods offered as part of the Payment Services may change from time to time. When this occurs we may, via the PSP Platform or otherwise, block you from further use of a Payment Method or impose additional restrictions or conditions on its continued use.
16. Fraud Control
Screening Transactions for possible fraud will be offered by PSP as an additional product with applicable fees. Nevertheless, such screening does not guarantee the prevention of fraudulent Transactions, nor does it guarantee against possible Chargebacks or Fines. Regardless of the use of the Fraud Control Tool, Merchant bears the risk that Transactions may be fraudulent. In addition to possible rejection of a Transaction by the Fraud Control Tool, PSP reserves the right to cancel Transactions we reasonably suspect to be fraudulent or involving other criminal activities, even if the Fraud Control Tool failed to block the Transaction.
Validly processed Transactions will be settled into the Settlement Account, subject to Fees and other amounts being withheld as described in these Payment Services Terms. PSP is the creditor with respect to any such withheld amounts.
Merchant is responsible for providing PSP with Merchant’s Settlement instructions during the on-boarding process, and thereafter for any changes, via the PSP Platform or other written communication with PSP. PSP has no obligation to, and will not, review Merchant’s Settlement instructions for accuracy or completeness. Merchant hereby represents and warrants that such instructions are accurate, complete, and current, and PSP is authorized to rely on such instructions. Merchant’s Settlement instructions will be binding on Merchant, and Merchant hereby authorizes PSP to deliver Merchant’s Settlement instructions to Partners as necessary to facilitate Settlement.
PSP reserves the right to withhold, or cause its Partners to withhold, Settlement of Transactions if they are Captured but suspected to be fraudulent, related to illegal activities, are subject to refund, or are likely to become subject to a Chargeback until satisfactory completion of investigation by PSP, its Partners, Card Brands, or a third party nominated by any of these parties. Merchant will give its full cooperation to any such investigation. No interest will be due on such held amounts.
18. Settlement Delay and Reserve
Merchant agrees that PSP may, or may cause its Partners to, at any time temporarily suspend or delay payment of Settlements and withhold from Settlements a designated amount (a “Reserve”) to secure the performance of Merchant’s obligations under these Payment Services Terms. PSP may require a Reserve for any reason related to your use of the Payment Services. The Reserve will be in an amount as reasonably determined by PSP, in its sole discretion, to cover potential losses to PSP related to your use of the Payment Services. The Reserve may be increased, reduced or removed at any time by PSP, in its sole discretion, based on factors including, but not limited to, Chargeback levels, Transaction levels, Fees, payment history, a credit review, the amount of any arbitration award or court judgment against you in PSP’s favor, or otherwise as PSP may determine or require.
At any time PSP determines, in its sole discretion, that you do not have sufficient funds in your Reserve, you authorize PSP (i) to fund, or cause its Partners to fund, the Reserve from your Settlements; (ii) to debit, or cause its Partners to debit, amounts needed for the Reserve from your Settlement Account and/or any other bank account provided to PSP as part of the application process or thereafter; and/or (iii) to fund, or cause its Partners to fund, the Reserve from any other funding source associated with your use of the Payment Services as more fully described in Section 6 of the General Terms.
Merchant grants PSP a security interest in and lien on any and all funds held in any Reserve, and also authorizes PSP to make, or cause its Partners to make, any withdrawals or debits from the Reserve or any bank account provided to PSP as part of the application process or thereafter, without prior notice to Merchant, to collect amounts that you owe us. Merchant agrees to execute any additional documentation required for us to perfect our security interest in any funds in the Reserve. This security interest survives for as long as there are funds in your Reserve.
19. Prohibited Products and Services List
Merchant may use the Payment Services only for payment of those Merchant Products and Services which Merchant agreed with PSP will be offered through the PSP Platform. Merchant shall not use the Payment Services for the payment of Merchant Products and Services (i) which violate any Card Brand Rule, (ii) which are identified in PSP’s Prohibited and Restricted Industries, Products and Services List, (except for products or services in the “restricted” category where an express waiver is agreed to by PSP), or (iii) where it is illegal to offer or provide the Merchant Products or Services to or from the relevant country, state or other local jurisdictions. This list may be updated in PSP’s discretion and/or where needed to ensure legal compliance, compliance to Card Brand Rules or Partner requirements, to prevent high levels of Chargebacks and/or to reduce exposure to potentially fraudulent or illegal transactions. Merchant is responsible for periodically reviewing PSP’s Prohibited and Restricted Industries, Products and Services List. Any change therein will be effective as of the date posted to our Website. Where a published change affects a significant portion of the Merchant Products and Services, Merchant may terminate the Payment Services Terms by giving written notice to PSP.
Merchant shall be fully liable for all Fines levied against PSP and/or any of its Partners as a direct or indirect result of Merchant’s acts or omissions and/or use of the Payment Services including, without limitation (i) any violation of applicable laws or regulations or the Card Brand Rules by Merchant; (ii) Transactions processed or presented for processing by Merchant; and (iii) any other acts or omissions of Merchant, its employees, agents, or representatives. PSP may recoup, or cause its Partners to recoup on PSP’s behalf, the amount of any Fines or penalties listed in the Fees schedule or assessed by a third party from your Settlements, any Reserve, or any other proceeds due to you or by pursuing any Payment Method described in Section 6 of the General Terms which includes, without limitation, debiting such unpaid amounts from Merchant’s Settlement Account. We are also entitled to pursue all other legal and equitable remedies available to us to collect amounts owed to PSP by you. Where PSP becomes aware of and/or receives any notice of a potential exposure to a Fine related to any Merchant behavior, Merchant will on first request provide all reasonable co-operation to help investigate the relevant circumstances and remedy the violation, notwithstanding all other rights and remedies of PSP in such situation per these Payment Services Terms.
21. Chargebacks and Chargeback Liability
The amount of a Transaction may be charged back to Merchant if: (i) it is disputed by a Customer; (ii) it is reversed for any reason; (iii) it was not authorized or PSP has any reason to believe it was not authorized; or (iv) it is unlawful, suspicious, or in violation of the terms of these Payment Services Terms, the Card Brand Rules or Partner requirements. Merchant has full liability for the amount of any and all Chargebacks (and may have conditional liability for such Chargebacks prior to their final adjudication pursuant to the Card Brand Rules), regardless of whether the Chargeback complies with the Card Brand Rules. Merchant shall take all reasonable steps to ensure that Merchant Products and Services are actually delivered in accordance with applicable laws and orders placed by the Customer and shall take all other reasonable actions to resolve disputes with Customers and avoid any Chargebacks. Should a Chargeback dispute occur, Merchant shall promptly comply with all requests for information from PSP.
PSP may recoup, or cause its Partners to recoup on PSP’s behalf, the amount of any Chargeback and associated Fees, Fines, or penalties from your Settlements, Settlement Account, any Reserve, or any other proceeds due to you or by pursuing any other Payment Method described in these Payment Services Terms or in Section 6 of the General Terms. We are also entitled to pursue all other legal and equitable remedies available to us to collect Chargeback amounts and associated Fees, Fines, or penalties owed to PSP by Merchant. If Merchant has pending Chargebacks, PSP may delay, or cause its Partners to delay, Settlements. Further, if we reasonably believe that a Chargeback is likely with respect to any Transaction, PSP may withhold, or cause its Partner to withhold, the amount of the potential Chargeback from payments otherwise due to you until such time as: (i) a Chargeback is assessed due to a Customer complaint, in which case we will retain the funds if PSP is required to cover the Chargeback; (ii) the period of time under applicable law or regulation by which your Customer may dispute that the Transaction has expired; or (iii) we determine that a Chargeback on the Transaction will not occur. If PSP is unable to recover funds related to a Chargeback for which you are liable, you agree to pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including legal fees, incurred by us for the collection of all amounts unpaid by you whether for Chargebacks, Fees, Fines, penalties or any other amounts due by Merchant to PSP under these Payment Services Terms.
If PSP determines, in its sole and exclusive discretion, that Merchant is or is at risk of incurring an excessive amount of Chargebacks, related fees, Fines, penalties or other losses, PSP may establish, or cause its Partners to establish, controls or conditions governing Merchant’s use of the Payment Services, including without limitation, by: (i) assessing Merchant additional fees; (ii) creating or increasing the Reserve in an amount reasonably determined by PSP to cover anticipated Fines, penalties, unpaid Fees, Chargebacks, and other losses; (iii) delaying Transaction Settlement payments; and (iv) terminating or suspending Merchant’s access to the Payment Services.
Merchant shall assist, at its expense, in the investigation of any and all Chargebacks or other actual or potential Transaction disputes and shall timely provide such information to PSP as PSP may request. To that end, you permit us to share information about a Chargeback with the Customer, the Customer’s financial institution, your financial institution, and others as necessary in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release corresponding Reserve funds to you less any related amounts due to PSP. You acknowledge that your failure to assist us in a timely manner when investigating a Transaction, including providing necessary documentation within 5 days of our initial request, or sooner if required by PSP, may result in an irreversible Chargeback. PSP reserves the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes. Merchant may not transfer or attempt to transfer its financial liability by asking or requiring a Customer to waive their dispute right.
22. Authorization to Instruct Processor
In each of the instances in these Payment Services Terms where PSP has the right to cause certain events to occur or actions to be taken, Merchant expressly agrees PSP has the authority to take the steps necessary to exercise such right including, without limitation, instructing Processor to cause such events to occur or take such actions on PSP’s behalf.
Merchant shall not add any Taxes to Transactions unless applicable law expressly allows or requires Merchant to impose such Taxes. If any Taxes are allowed, such amounts shall be included in the Transaction and shall not be collected separately. Merchant has the exclusive responsibility to calculate, charge, collect and remit state and other Taxes applicable to Merchant Products and Services sales. Merchant shall (i) apply all reasonable efforts to ensure that none of PSP or its Partners can be held liable for any Taxes, costs or damages related to such Taxes; (ii) promptly inform PSP of any such liability; and (iii) provide PSP with all relevant information and documentation in that respect.
PSP or it Partners may have tax reporting responsibilities in connection with the Payment Services such as an Internal Revenue Service Form 1099-K or with Canada Revenue Agency. Therefore, upon request, Merchant shall provide PSP with the appropriate taxpayer information. PSP may, in accordance with applicable law and from time to time during the term of these Payment Services Terms, request Merchant to recertify its taxpayer information hereunder. Merchant shall be responsible for any penalties accruing based on the actions or inactions of Merchant despite reasonable requests and/or notices from PSP and/or its Partners.
24. Security Interest and Right of Setoff
To the extent permitted by applicable law, you grant us a security interest in, as well as setoff rights against, and assign, convey, deliver, pledge and transfer to us, as security for repayment of any obligations due by Merchant to PSP under these Payment Services Terms, all of your right, title, and interest in and to all of your Settlement Proceeds, any other amounts due to Merchant, and the Reserve.
Without prejudice to any right to setoff which we may be entitled to as a matter of law, PSP shall have the right, and you authorize PSP, without presentation, demand, protest, notice of dishonor, or other notice of any kind, all of which are expressly waived by you, to take any of the following actions or to cause such actions to be taken on its behalf: (i) setoff any amounts or other liabilities owed to PSP by Merchant under or in connection with these Payment Services Terms (regardless of whether such obligation is contingent, matured, or unmatured) against any amounts due to Merchant from Processor, now or at any time in the future; or (ii) administratively freeze or direct any third party holding Settlements or the Reserve to freeze all such accounts to allow PSP to protect its security interest, collection, charge and setoff rights as provided for in this Section.
25. Use of Payment Details
Merchant shall not copy, capture or intercept Payment Details that are provided by the Customer for payments to be processed via the Payment Services. This rule is strictly enforced by the Card Brands, and violation of the rule will result in high Fines being assessed. Additionally, Merchant shall not request or use any Payment Details for any purpose except to process payment for Merchant Products and Services or to provide a Refund for Merchant Products and Services previously sold, unless required by the Card Brand Rules. Merchant agrees that (i) it will not use Payment Details for any purpose that it knows or should know to be fraudulent or in violation of any Card Brand Rules; (ii) it will not sell, purchase, provide or exchange in any manner or disclose Payment Details to anyone other than PSP, its Partners, or any Card Brand, or in response to a government request; and (iii) it will be compliant with the Security Standards, including PCI DSS, and will cooperate in a forensic investigation if so required. If PSP has reason to believe Merchant is copying, capturing, intercepting or misusing Payment Details, PSP has the right to suspend Merchant’s access to the PSP Platform and/or to suspend, or cause its Partners to suspend, the processing of Transactions and Settlement.
26. Responsibility for Merchant Products and Services and Customer Service
Merchant is solely responsible for its Merchant Products and Services and all related customer service issues including pricing, order fulfillment, order cancellation by Merchant or the Customer, returns, Refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with Merchant personnel, policies or processes. Merchant shall post its customer service telephone number on its website. Merchant is responsible for all actions of its employees, agents and representatives with respect to customer service and otherwise.
Merchant represents and warrants that it has all necessary licenses, permits and authorizations from the local, state, federal or other government agencies as necessary to sell any products or services for which it processes payment transactions through PSP. Further, Merchant represents and warrants that it performs all customer verifications including, without limitation, any applicable age verifications and other procedures required by the laws, rules and regulations which govern Merchant’s business and the sale of Merchant Products and Services. Merchant also agrees that it will submit any and all relevant licenses, permits and authorizations for review by the PSP within 5 business days of PSP’s request. PSP’s acceptance of Merchant should not be interpreted as advice or an opinion from PSP as to the legality of Merchant Products and Services and/or of Merchant’s intended use of the Payment Services with respect to such products and services.
27. Customer Refunds and Returns
Merchant’s refund policies must be the same for all Payment Methods. Merchant agrees to process returns and provide Refunds and adjustments for Merchant Products and Services in accordance with these Payment Services Terms and the Card Brand Rules. The Card Brand Rules require that Merchant will: (i) maintain a fair return, cancellation or adjustment policy; (ii) clearly disclose Merchant return or cancellation policy to Customers at the time of purchase; (iii) not give cash refunds to a Customer in connection with a Transaction, unless required by law; and (iv) not accept cash or any other item of value for preparing a Transaction refund. If Merchant limits refund or exchange terms, proper disclosure would include wording that is prominently displayed such as “NO REFUND, EXCHANGE ONLY” and includes any special terms. Be aware that limiting your refund or exchange terms will not eliminate your exposure to a Chargeback and may not eliminate your liability for a Refund under consumer protection laws. Additionally, Card Brand Rules frequently allow the Customer to still dispute these items.
Merchant represents and warrants that any Transaction to credit a Customer’s Card represents a Refund for a prior Transaction using the same Card. Merchant shall not submit any Refund Transaction: (i) that does not correlate to an original sales Transaction from the Customer; (ii) that exceeds the amount of the original sales Transaction, unless the excess represents the exact amount required to reimburse the Customer for shipping charges paid by the Customer to return merchandise; (iii) for returned Merchant Products and Services that were acquired in a cash purchase from Merchant; (iv) that would cause an overdraft; or (v) more than 3 days following either: (a) a regulatory requirement granting a Customer’s right to a Refund; or (b) a non-disputed Customer request. Merchant shall not accept any payment from a Customer as consideration for issuing a Refund.
28. Processor Ts&Cs
Where your Processor is Adyen, upon acceptance of the Payment Services Terms, you confirm you have also read, understood, accepted and agree to be bound by Adyen for Platforms Terms and Conditions.
If merchant was provided with Adyen payment terminal(s) then (i) return it to Adyen within 5 Business Days of termination, or (ii) destroy all payment terminals itself (at its own cost) within 3 Business Days of termination in accordance with the applicable rules and regulations, including those imposed by Card Brands, Security Standards, and the Payment Terminal manufacturer. If Merchant elects to destroy the payment terminals itself, Merchant shall deliver a signed certificate to PSP confirming proper destruction of all payment terminals used in conjunction with the Payment Services within 2 Business Days following such destruction.
29. Audit Rights
With prior notice and during Merchant’s normal business hours, PSP’s duly authorized representatives may visit Merchant’s business premises and examine Merchant’s books and records that pertain to Merchant’s Transactions and/or Merchant’s compliance with these Payment Services Terms.
Merchant will comply with the personal data protection laws for the Merchant’s country of origin (and any applicable state or provincial jurisdiction) and of those countries in which the Merchant offers its Merchant Products and Services from time to time, in particular when processing and sending personal data in the context of using the Payment Services and submitting Transactions. Merchant shall implement appropriate measures to protect personal data against misuse.
31. Notice Requirements for Change in Merchant Business
In addition to any other notice obligations set forth herein, Merchant shall provide PSP at least 30 days’ prior written notice of its intent to change its trade name, its Merchant Products and Services, or the manner in which it accepts Payment Methods. If PSP determines such a change is material to its relationship with Merchant, PSP may refuse to process Transactions submitted subsequent to the change or terminate this Agreement on notice to Merchant. Merchant will also provide PSP with prompt (no more than 1 Business Day) written notice (i) of any adverse change in Merchant’s financial condition; (ii) of any planned or anticipated liquidation or substantial change in the basic nature of Merchant’s business; (iii) of any transfer or sale of a substantial part (25% or more in value) of Merchant’s total assets; (iv) if Merchant is the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding; or (v) of any change in the control or ownership (25% or more of the ownership interests ) of Merchant or Merchant’s parent (unless Merchant or Merchant’s parent is a corporation whose shares are listed on a national securities exchange or on the over-the-counter market). Merchant will also notify PSP of any warrant of attachment, judgment, writ, execution or levy against any substantial part (25% or more in value) of Merchant’s total assets not later than 1 Business Day after Merchant becomes aware of any such warrant of attachment, judgment, writ, execution or levy.
These Payment Services Terms are effective on the earlier of the date Merchant agrees to them by electronically indicating acceptance or the date Merchant first accesses or uses the Payment Services and, unless otherwise agreed in writing, continue for an indefinite period until terminated pursuant to the provisions herein.
Either party may terminate these Payment Services Terms by giving at least 2 months’ written notice to the other party. Such notices may be given via the PSP Platform or otherwise in writing including by email. Notwithstanding the foregoing or any other term herein to the contrary, any termination of the Processor Ts&Cs or the Agreement Merchant has entered into with PSP for the use of the PSP Platform shall operate to concurrently and automatically terminate these Payment Services Terms. Further, these Payment Services Terms shall automatically and immediately terminate if PSP’s or PSP’s parent company’s registration with the Card Brands is terminated, Acquirer ceases to be an Acquirer for any reason, or Acquirer fails to have a valid license with the applicable Card Brands to use any Mark accepted by Merchant.
In addition to the termination rights set forth above of elsewhere herein, PSP may terminate these Payment Services Terms, cause Transaction processing to cease, stop Settlement of Transactions for Merchant, and/or suspend Merchant’s access to and use of the Payment Services immediately, in part or in whole if:
- PSP reasonably suspects that the provision of Merchant Products and Services for which the Payment Services are provided violates legislation in the country where such Merchant Products and Services are offered from or to;
- Merchant has materially changed the type of Merchant Products and Services it offers without obtaining PSP’s prior written permission to use the Payment Services for such new or changed Merchant Products and Services;
- Merchant fails in any material respect in performance or observance of any term, covenant, condition, or agreement contained in these Payment Services Terms, including, without limitation, the funding or establishing of any Reserve which PSP may require;
- irregular Transactions by Merchant, excessive Chargebacks, or any other circumstances, in PSP’s discretion, that increase PSP’s exposure for Chargebacks or otherwise present an unreasonable anticipated financial, reputational, or legal risk to PSP or its Partners;
- Merchant is deemed to be engaged in fraudulent or otherwise wrongful activity by PSP at its discretion;
- a case or other proceeding is commenced by or against Merchant in any court of competent jurisdiction seeking relief under the bankruptcy code or under any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up, or adjustment of debts, the appointment of a trustee, receiver, custodian, liquidator, or the like of or for Merchant, or of or for all or any substantial part of the assets, domestic or foreign, of Merchant, and such case or proceeding shall continue undismissed or unstayed for a period of 60 consecutive days, or an order granting the relief requested in such case or proceeding against Merchant (including, without limitation, an order for relief under the bankruptcy code) shall be entered;
- Any Partner or any Card Brand directs PSP to stop or suspend providing Payment Services to Merchant or it is no longer willing to accept Merchant’s Transactions;
- PSP reasonably suspects that Merchant is or is likely to become insolvent and/or unable to timely provide a material part of the Merchant Products and Services;
- Merchant or any person owning or controlling Merchant’s business is listed in 1 or more databases of terminated or high risk Merchants maintained by the Card Brands;
- Merchant engages in conduct that creates or could tend to create harm or loss to the goodwill of PSP, its Partners or any Card Brand or which otherwise may impose undue risk of harm to PSP, any of its Partners or any Card Brand;
- the Agreement Merchant has entered into with PSP for the use of the PSP Platform has been terminated or has otherwise expired and/or an event permitting a termination by PSP under such Agreement occurs; or
- the relationship between PSP and one or more of its Partners used for serving Merchant terminates.
34. WARRANTY DISCLAIMERS
FOR CLARITY, THE WARRANTY DISCLAIMERS IN SECTION 8 OF THE GENERAL TERMS SHALL APPLY TO THE PAYMENT SERVICES.
35. LIMITATION OF LIABILITY
Without limiting the Limitation of Liability provisions at Section 9 of the General Terms, all of which apply to the Payment Services, the following clarifications and limitations shall also apply to the Payment Services. PSP shall only be liable for its own acts or omissions and not for any acts or omissions of third parties. This exclusion expressly applies to acts or omissions of Card Brands and Partners and for events or activities originating outside the systems of PSP (such as internet disturbances or malfunctions in third party systems), except in case such events were caused by the intentional wrongdoing or gross negligence of PSP.
By way of example and not as a limitation, PSP shall not be liable for, and Merchant expressly releases PSP from, all liability, damages, costs, losses and expenses arising directly or indirectly from:
Any change in the supported Payment Methods;
Any Partner’s failure to perform any its obligations under related Processor Ts&Cs including, without limitation, its failure to timely and accurately deliver Settlement proceeds to Merchant;
PSP’s or any Partner’s failure, either through the Fraud Control Tool or independently, to identify and block fraudulent Transactions or Transactions involving other criminal activities; and
Late or non-performance, insolvency or bankruptcy of any Partner or Card Brand due to which Merchant receives late Settlement, partial Settlement, or no Settlement at all for processed Transactions or Merchant incurs other harm.
If any claims for damages, costs and expenses are asserted against Merchant by third parties alleging that these third parties are the owner of any rights regarding the Software and/or systems of PSP, PSP shall indemnify Merchant without delay from these third party claims, including Merchant’s reasonable costs of its legal defense, and offer Merchant the necessary assistance in its legal defense.
In addition to Merchant’s indemnification obligations at Section 11 and elsewhere in the General Terms, Merchant shall indemnify and hold PSP, our parent, subsidiaries, affiliates, officers, managers, directors, shareholders, members, employees, agents and representatives harmless from and against all claims, losses, liabilities, damages, penalties, judgments, Taxes, and expenses (including, without limitation, collection and attorneys’ fees) arising out of or in connection with: (i) breach of any warranty, covenant or agreement or any misrepresentation by Merchant under these Payment Services Terms or the Processor Ts&Cs; (ii) violation of any applicable laws and/or the Card Brand Rules applying to Merchant and/or the Payment Methods used by Merchant; (iii) Merchant’s, or its employees’, agents’, or representatives’ negligence or willful misconduct; (iv) Merchant’s, or its employees’, agents’, or representatives’ acts or omissions in connection with Transactions, Customer disputes, Customer service related issues, Merchant’s business or operations, or otherwise arising from Merchant’s provision of Merchant Products and Services to Customers; (v) Merchant’s use of the Payment Services; or (vi) any third party indemnifications PSP is obligated to make, or liabilities or other obligations PSP may incur, as a result of Merchant’s acts or omissions (including, without limitation, indemnifications of or liabilities to, any Partner or Card Brand or Issuer). For clarity, Merchant’s indemnification obligations expressly include, but are not limited to, claims by Card Brands or Partners for payments of Fines and any other sums withheld from amounts otherwise due to PSP as a result of Merchant’s acts, omissions, liabilities and obligations.
37. General Provisions
Acceptance of Processor Ts&Cs. Your use of the Payment Services is conditioned on you being approved by Processor and shall be subject to you agreeing to the Processor Ts&Cs.
Section Headings. The section headings are for convenience only and do not define, limit, or describe the scope or intent of these Payment Services Terms.
Assignment. PSP is entitled to, at any time, assign, novate or otherwise transfer the Payment Services Terms to a third party, without the prior consent of Merchant. Merchant shall not assign or transfer its rights or delegate its responsibilities under these Payment Services Terms without PSP’s prior written consent. Failure to obtain our consent may result in a termination of these Payment Services Terms. Any permitted assignee or successor entity must provide such additional information and execute such additional documentation or take any further actions as PSP may request in order to ensure continued processing of Transactions in accordance with these Payment Services Terms.
Null Provisions. In the event any provision in these Payment Services Terms is determined to be invalid or unenforceable under any law, rule, or regulation, including any Card Brand Rule, such determination will not affect the validity or enforceability of any other provision of these Payment Services Terms. The parties shall take all steps to eliminate the provision declared invalid or unenforceable and to replace the same with a provision approaching, insofar as possible, the economic objective of the eliminated provision.
Amendment. Except as otherwise set forth herein, PSP may revise these Payment Services Terms from time to time by posting a revised version on our Website. Revisions will be effective as of the date posted. You are responsible for reviewing the Payment Services Terms on a regular basis. Your continued use of the Payment Services after the posting of a revised version of the Payment Services Terms constitutes your acceptance of such revisions.
Notices. Written notice to the other party may be delivered by the methods set forth in Section 13 of the General Terms.
Force Majeure. Merchant is not excused from its obligations and liabilities for Chargebacks, Refunds, or unfulfilled purchases or Merchant Products and Services due to failure or malfunction of your equipment, disruptions of Internet protocol (“IP”) service through intermediate carriers other than us, any acts of God, explosions, vandalism, cable cut, storms, fires, floods or other catastrophes, pandemics, power failure, national emergencies, insurrections, riots, wars, strike, lockouts, boycotts, work stoppages or other labor difficulties, or any law, order, regulation or other actions of any governmental authority, agency, instrumentality, or of any civil or military authority.
Survival. In addition to the General Terms provisions that survive termination, those provisions herein which, by their nature, are intended to survive termination of these Payment Terms of Service (including, without limitation, Fees payment obligations, Taxes obligations, Reserve provisions, Chargeback liability and collection rights, setoff rights, responsibility for Merchant Products and Services and Customer service, indemnification obligations and limitations of liability) shall survive any such termination.
Contact Information for PSP. Questions and concerns can be addressed to PSP at:
180 John Street, Suite 616
Canada, M5T 1X5
6. PROHIBITED AND RESTRICTED BUSINESSES
Last Updated: May 1, 2023
Use of Payment Service Provider’s services for any dealings, engagement, or sale of goods/services linked directly or indirectly with jurisdictions Payment Service Provider has deemed high risk, such as Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, Russian Federation, and Luhansk Regions, is prohibited.
Illegal products and services
- Illegal drugs, substances designed to mimic illegal drugs, and equipment designed for making or using drugs
- Fake references and other services or products that foster deception
- Telecommunications manipulation equipment including jamming devices
- Any business or organization that a. engages in, encourages, promotes or celebrates unlawful violence or physical harm to persons or property, or b. engages in, encourages, promotes or celebrates unlawful violence toward any group based on race, religion, disability, gender, sexual orientation, national origin, or any other immutable characteristic
- Any other products or services that are in violation of law in the jurisdictions where your business is located or targeted to
- Decryption and descrambler products and services, devices designed to block, jam or interfere with cellular and personal communications
Products and services that infringe intellectual property rights
- Sales or distribution of music, movies, software, or any other licensed materials without appropriate authorization
- Counterfeit products, replicas or designed infringements of them including products designed to circumvent IP
- Unauthorized sale of brand name or designer products or services
- Any other products or services that directly infringe or facilitate infringement upon the trademark, patent, copyright, trade secrets, proprietary or privacy rights of any third party
- Essay mills, paper mills where the intent is to falsely submit documents as their own work
Products and services that are unfair, predatory, or deceptive
- Pyramid selling, chain letters or other financial scams
- ‘Get rich quick’ schemes including: investment opportunities or other services that promise high rewards to mislead consumers; schemes that claim to offer high rewards for very little effort or up front work; sites that promise fast and easy money; businesses that make outrageous claims, use deceptive testimonials, use high-pressure upselling, and/or use fake testimonials; (with or without a written contract) offering unrealistic incentives/rewards as an inducement to purchase products or services but do not respond to any queries after the purchase
- No value added services including sale or resale of a service without added benefit to the buyer and resale of government offerings without authorization or added value
- Sales of online traffic or engagement
- Negative response marketing and telemarketing
- Predatory mortgage consulting, lending, credit repair and counseling services
- Predatory investment opportunities with no or low money down
- Remote technical support; mugshot publication or pay-to-remove sites; essay mills; chain letters; door-to-door sales
- Any other businesses that Payment Service Provider considers unfair, deceptive, or predatory towards consumers
- Business models that use ransom or extortion like practices
- Data Pass
Adult content and services
- Pornography and other mature audience content (including literature, imagery and other media) depicting nudity or explicit sexual acts
- Adult services including prostitution, escorts, pay-per view, sexual massages, and adult live chat features
- Adult video stores
- Adult novelty stores
- Gentleman’s clubs, topless bars, and strip clubs
Certain legal services
- Law firms collecting funds for purposes other than legal service fee payment
- Bankruptcy attorneys
- Bail bonds
Firearms, explosives and dangerous materials
- Guns, gunpowders, ammunitions, weapons, fireworks and other explosives
- Peptides, research chemicals, and other toxic, flammable and radioactive materials
- Games of chance including gambling, internet gambling, sweepstakes and contests, fantasy sports leagues with for a monetary or material prize
- Sports forecasting or odds making with a monetary or material prize
- Bidding fee auctions
- Cannabis products
- Cannabis dispensaries and related businesses
- Products containing any amount of CBD/THC
- Bearer share entities
- Binary options
- Independent or unlicensed financial advisors
- Payday loans, unsecured loans and loans originating from non FDIC insured banks
- Shell banks
- Animals and wildlife products classified as endangered or protected
- Certain social media business (e.g. click farms)
- Hazardous materials, including but not limited to:
- Hydrofluoric acid
- Products containing cyanide
- Prohibited ozone-depleting substances (ODS)
- Nitric acid
- Peptides, research chemicals
- Bacteria cultures or other products containing E-coli or Escherichia coli
- Human body parts or bodily fluids (excluding hair and teeth)
- Intravenous therapy (e.g .IV drip bar, vitamin infusions, hang over cures)
- Mail order spouse or international match-making services
- Pawn shops
- Vape or e-cigarette products
Misuse of Payment Service Provider’s products
- Use of Payment Service Provider’s products with false, manipulated, inaccurate, or misleading information regarding your identity, business entity, the nature of business, and any other information requested by Payment Service Provider (you must inform us immediately of any changes to your personal and business information)
- Use of Payment Service Provider’s products to facilitate transactions on behalf of another undisclosed merchant or for products/services that were not disclosed in the merchant’s Payment Service Provider’s account application
- Use of Payment Service Provider principally as a virtual terminal (e.g., submitting card transactions by manually inputting card information)
- Processing where there is no bona fide good or service sold, or donation accepted; card testing
- Evasion of card network chargeback monitoring programs
- Cross-border acquiring where the business address of the merchant is outside of the jurisdiction of the acquiring Payment Service Provider’s entity unless permitted under the card network rules
- Sharing cardholder information with another merchant for payment cross-sell products or services
- Use of Payment Service Provider’s intellectual property without prior written consent from Payment Service Provider; use of the Payment Service Provider’s name or logo including use of Payment Service Provider’s trade or service marks inconsistent with the Payment Service Provider’s Marks Usage Agreement, or in a manner that otherwise harms Payment Service Provider or the Payment Service Provider’s brand; any action that implies an untrue endorsement by or affiliation with Payment Service Provider
7. E-SIGN CONSENT
Last Updated: April 30, 2023
TAKU and Quilt, LLC (“we”, “us”, or “our”) may need to provide you with certain communications, notices, agreements, billing statements, or disclosures in writing (“Communications”) regarding our Services. Where “you”, “your”, or “Merchant” is used herein, it means an individual or business that accesses or uses our Solutions.
Your agreement to this E-sign Consent confirms your ability and consent to receive Communications electronically from us, our affiliates, and our third-party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with you (“Consent”). If you choose not to agree to this Consent or withdraw your consent, you may be restricted from using the Services.
Undefined capitalized terms have the meaning given to them in the General Terms. This Consent is part of and incorporated into your Agreement with us as more specifically described in the General Terms.
1. Electronic Delivery of Communications and Use of Electronic Signatures
Under this Consent, we may provide all Communications electronically by email, by text message, or by making them accessible via our websites or applications. Communications include, but are not limited to, (1) agreements and policies required to use the Services (including but not limited to: this Consent, our General Terms of Service, Software Terms of Service, Hardware Terms of Service, Website and Data Privacy Notice, Payment Services Terms, and Prohibited and Restricted Business), (2) payment authorizations and transaction receipts or confirmations, (3) account statements and history, (4) and all federal and state tax statements and documents. We may also use electronic signatures and obtain them from you.
2. Hardware and Software Requirements
In order to access, view, sign and retain electronic Communications that we provides to you, you must have:
- An up-to-date device (e.g., computer, tablet, or mobile phone) which has Internet access;
- A current, compatible web browser, including the current or immediately preceding version of Chrome, Internet Explorer, Firefox, Safari or Edge;
- A valid email account;
- An operating system on your device capable of receiving, accessing and displaying Communications in electronic form via text-formatted email or gaining access our website using a supported browser, including any necessary software (e.g., Adobe) to read PDF documents; and
- If you wish to store or print any Communications, a device capable of storing and printing Communications.
If you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add our email accounts to your email address book.
3. Paper Delivery of Communications
You have the right to receive Communications in paper form. To request a paper copy of any Communication at no charge, please write to us by mail at the address shown via the contact link on this website, including “Attn: Customer Support – Legal” as part of the address. This request must be received within 180 days of the date of the Disclosure, specifying in detail the Communication you would like to receive. For the avoidance of doubt, requesting a paper copy of any Communication, in and of itself, will not be treated as withdrawal of consent to receive electronic Communications.
4. Withdrawal of Consent to Electronic Communications
You may withdraw your consent to receive electronic Communications at any time, contacting us via methods shown via the contact link on this website. However, withdrawal of your consent to receive electronic Communications may result in termination of your access to Services. Any withdrawal of your consent will be effective after a commercially reasonable period of time for processing your request, and we will confirm your withdrawal of consent and its effective date in writing (either electronically or in paper form).
5. Updating Your Email Address
You can change your email address by contacting us via methods shown via the contact link on this website. You may also be able to change your email address yourself through the Services themselves.
6. U.S. Federal Law
If you are located in the U.S., you acknowledge and agree that the Services are subject to the federal Electronic Signatures in Global and National Commerce Act (“E-SIGN Act“), and that you intend that the E-SIGN Act will apply to validate your ability to engage electronically in transactions related to the Services.