Last Modified: February 16, 2019
All of these terms and related privacy policies can be found at https://bodaty.com/privacy-policy.html.
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BODATY LLC, AN ILLINOIS LLC (“COMPANY”).
By accessing or using the website located at https://www.bodaty.com or http://www.gananam.com (jointly referred to as “Website”) in any way , downloading, installing, or using the Company’s mobile application, (“Samyata Store” or “Application”) or any other software supplied by the Company (collectively, with the Application, the “Software”), accessing or using any information, services, features, or resources available or enabled via the Website or Software (each, a “Service” and collectively, the “Services”), clicking on a button or signing into the app with your phone number or login or password or taking similar action to signify your affirmative acceptance of this Agreement, or completing the Samyata Store account registration process, you hereby represent that: (1) you have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time at https://bodaty.com/privacy-policy.html or through the Services; (2) you are of legal age in the jurisdiction in which you reside to form a binding contract with Company; and (3) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any company, organization, or other legal entity you have named as the user during the Samyata Store account registration process and to bind that company, organization, or entity to the Agreement. The terms “you,” “user,” and “users” refer to all individuals and other persons who access or use the Website, Software, Application, and/or Services, including, without limitation, any companies, organizations, or other legal entities that register accounts or otherwise access or use the Services through their respective employees, agents, or representatives. Except as otherwise provided herein, if you do not agree to be bound by the Agreement, you may not access or use the Website, the Services, the Application, or the Software.
The “Bodaty Terms of Service” applies to your use of Bodaty's products and services. Your use of Samyata Store is therefore subject to the Bodaty Terms of Service. Since Samyata Store uses deyaPay (the payments service and accounts system offered by Bodaty), your use of Samyata Store is also subject to the terms relevant to deyaPay and deyaPay Account Services which are “Bodaty deyaPay Payments Terms of Service” and “Bodaty deyaPay Account Terms of Service”, respectively. In addition, the following notice describes our terms that are specific to Samyata Store. All of these terms and related privacy policies can be found at https://bodaty.com/privacy-policy.html .
The Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Website, Software, or Services at any time, effective upon posting of an updated version of this Agreement on the Website or Software. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
The Company administers a service through which consumers can purchase goods for delivery or pick-up from participating Merchants through the Company mobile application (the “App”, “Samyata”) as may be approved by Company (collectively the “Program”). Company also administers a service through which the merchants offer goods for sale on Samyata, maintain their inventories for such purpose, and fulfil other responsibilities related to this through a mobile application and website and web application (“Samyata Store”) as may be approved by Company. By executing this Agreement, you agree to participate in the Program and Samyata Store by advertising your participation in such, and accepting payments from App users as described herein.
1.1 Services. During the term of this Agreement, Company and/or its designee shall provide to Merchant authorization, processing, settlement (if applicable) and other services (the “Services”) related to the [Card and ACH] payments permitted by Company and initiated by customers seeking to purchase goods from Merchant through the App under the terms and conditions hereof (“Transactions”). The term "Card" means any valid, unexpired [Visa, Mastercard, etc.] card stored by a Cardholder in the Company App. Cardholders (the “Users” or “Cardholders”) are defined as those persons possessing a Card, and Users are governed by the User Terms and Conditions located at https://bodaty.com/privacy-policy.html. All participating Merchants will be listed on the Company’s website and/or App. Merchants may also be listed in Gift Card advertising. Company reserves the right to suspend or discontinue the use of, or Services to, any Card under this Agreement. Company does not represent or warrant that the Services will be provided uninterrupted or error-free and hereby disclaims any representations and warranties not expressly set forth in the Merchant Agreement, including any implied warranties.
1.2 Merchant Information.Promptly following the execution and delivery of this Agreement, and from time to time upon request by Company, Merchant shall provide to Company the following information: (i) current legal name; (ii) notice and contact information (including corporate address, primary contact name, phone number and email address); (iii) tax identification number; and (iv) all Merchant Locations. In addition, Company may ask to review any state licenses, license applications, documentation evidencing the Merchant’s legal ability to operate its business pursuant to state law, and any other legal compliance-related documentation. Merchant agrees to promptly provide this information and documentation upon Company’s request.
1.3 Merchant Locations CoveredThe term “Merchant Locations” shall mean the stores owned, operated, franchised, licensed or leased, in whole or in part, by Merchant, or Internet website and at which customers (the “Customers”) may purchase products from Merchant. The term “Merchant Locations” shall include: (i) Merchant Locations open to the public at commencement of the Term; (ii) Merchant Locations which are newly constructed or acquired by Merchant and opened to the public during the Term; and (iii) Merchant Locations of any subsidiary or commonly owned and controlled affiliate of Merchant. If Merchant sells or otherwise ceases to operate a Merchant Location, such location will no longer be considered a Merchant Location. Merchant shall promptly notify Company of any new or discontinued Merchant Locations.
1.4 Marketing Materials.Merchant shall conspicuously and continuously display Company’s signs, emblems, deals, logos and insignias (“Company Marks”) at Merchant Locations and on Merchant’s website, as applicable, and as reasonably directed by Company and utilizing pre-approved Company Marks in accordance with any stipulations, guidelines or restrictions specified by Company. The Company Marks shall be used to notify Customers that Cards may be used at Merchant Locations. Merchant shall not use Company Marks in any other manner without the prior written consent of Company in each instance. Company will provide Merchant with materials bearing the Company Marks for display at the point of purchase. The display of Company Marks shall be at Merchant’s expense. Company may revoke this license as to Company Marks at any time and Merchant shall immediately thereafter discontinue the display and any other use thereof and will return to Company or destroy, such materials immediately, including at termination of this Agreement. Merchant acknowledges that Company owns the copyright and trademarks in all Company Marks as applicable and to the extent that the Merchant would, but for this paragraph, own such copyrights, you hereby assign all such copyright to Company. While Company will use its best efforts to ensure the accuracy of all information used, Company shall not be held responsible for any error or omission relating to Merchant.
1.5 Agent of Payee.Merchant designates Company as an agent accepting payment on the Merchant’s behalf for the merchant’s sale of goods or services. Pursuant to this Agreement, payment to Company constitutes payment to the Merchant.
2.1 Merchant Application.Merchants must apply to participate in the Program through a merchant signed by Merchant, which is incorporated into this Agreement. Merchant represents that all information provided in the Application is true and correct, and if any change occurs that would render any information incorrect, misleading, or incomplete, Merchant agrees to promptly update this information. Further, Merchant agrees to notify Company of any change of address or ownership at least 3 days prior to any change.
2.2 Authorization.[WOULD NEED TO EXPLAIN AUTHORIZATION OF TRANSACTION PROCESS].
2.3 Acceptance of Cards by Merchant; Policies and Procedures.Merchant shall accept and honor Cards tendered by Customers for use at Merchant Locations when such Cards are presented. Merchant shall not process through Company any Transaction that Company does not authorize. Merchant will not discriminate as to price, service or other conditions of sale with respect to any attempted Transaction. You will not present for processing any Transaction not originated as a result of a transaction directly between you and the Cardholder. You will not request additional identification, or information, from a Cardholder unless such is necessary in order to complete the Card Transaction, to verify the age of the Cardholder for the purchase of age restricted goods, or as otherwise required by law. All disputes between you and any Cardholder relating to any Transaction will be settled between you and the Cardholder. Company bears no responsibility for such transactions. Company shall have no obligation to settle such Transaction or to remit funds to Merchant in relation thereto in the event that Merchant (i) completes a Transaction through use of a Card without following the authorization and processing policies and procedures as may be implemented by Company from time to time (the “Policies and Procedures”), or (ii) fails to comply with the other terms of the Merchant Agreement or the Policies and Procedures related to Transaction processing and authorization. Each of Company and Merchant, at its own expense, shall reasonably cooperate to timely conform its operations to the Policies and Procedures and any modifications thereto, as determined by Company in its sole discretion.
Fees payable by Merchant under the Merchant Agreement are set forth in Attachment A, which is incorporated by reference, and shall be effectuated through deductions from the Aggregate Transaction Amount in the Settlement of Merchant’s account (as such terms are defined and addressed in Section __ below) or, in the event that the Aggregate Transaction Amount is less than fees or Chargebacks (defined in Section __ below), Merchant shall pay any fees or amounts due to Company either in the next Settlement Amount or upon receipt of, and based on the terms of, an invoice therefor. Company may add new or change fees and payment or settlement terms pursuant to Section __. Merchant is responsible for and will pay any taxes on the services provided under this Agreement.
Obligations under Sections 4.1 through 4.4 shall apply commencing on the first date Customers conduct Funded Transactions at Merchant Locations.
4.1 Settlement.Company shall cause the aggregate amount of authorized Transactions processed at Merchant Locations on any Transaction date (the “Aggregate Transaction Amount”), less any applicable fee (the “Settlement Amount”) or Chargebacks (defined in Section __), to be timely remitted to Merchant, in accordance with the Merchant Agreement, and this Section 4, and the Policies and Procedures (the “Settlement”). Settlement shall occur by Automated Clearing House (“ACH”) direct deposit to Merchant’s bank account (or in such other manner as may be mutually agreed upon in writing by the Parties); provided that Settlement shall occur by ACH withdrawal from Merchant’s bank account if fees, Chargebacks (defined in Section 4.4) or other adjustments exceed the Aggregate Transaction Amount. If ACH deposit is unavailable or impractical for any reason, Company will make reasonable efforts to remit the Settlement Amount via a commercially reasonable alternative. Company will seek to use the lowest cost alternative available. Company may charge a fee to cover all costs and expenses, and thereby reduce the Settlement Amount thereof, including a fee for Company’s time and effort associated with remitting the Settlement Amount through the alternative method. The Settlement Amount shall be calculated and Settlement shall be consummated as set forth in the Merchant Agreement, subject to adjustments permitted under Sections 4.1, 4.2, 4.3 and 4.4 hereof.
4.2 Payment of Settlement and Fees.Company or its designee will make Settlement payments to Merchant on a weekly basis or on a schedule or other basis agreed to by Company and the Merchant by ACH, to the bank account information on file for Merchant (“Merchant Account”). The Settlement payment will include all authorized Transactions settled by that Merchant in the payment cycle prior to the payment date, net of fees for all Transactions and Services, discounts (if applicable) and other amounts due. Unless otherwise agreed to by Company and the Merchant, payment cycles will end at midnight United States Central Standard Time on Tuesdays, with Settlement made to the Merchant on Friday. For example, payment made on a Friday will include all authorized Transactions submitted by Merchant from Wednesday of the prior week to the Tuesday before the payment date, net of fees for all Transactions and Services, discounts (if applicable) and other amounts due. Company reserves the right to change the payment schedule based on increased volume of transactions or unforeseeable complications. Merchant authorizes Company to debit via ACH the Merchant Account for any amounts owed under this Agreement. You will provide Company with five (5) business days advance notice of any change to the Merchant Account.
4.3 Settlement Disputes by Merchant.If Merchant disputes the accuracy of a Settlement Amount, it shall provide written notice thereof to Company within thirty (30) days of Merchant’s receipt of such Settlement Amount. In such event, the Parties shall cooperate in good faith and with due diligence to resolve the dispute. In the event the Parties are unable to resolve the dispute, the dispute shall be finally resolved by arbitration pursuant to Sections 14 below. Upon resolution of such dispute, reconciliation shall be made within ten (10) Business Days by the Parties (and the next payable Settlement Amount shall be properly debited/credited, as the case may be). In the event that notice of a Merchant dispute regarding the accuracy of any Settlement Amount is not timely received by Company, as set forth herein, Merchant shall be deemed to have waived its right to dispute the same and Company shall have no liability in regard thereto. A “Business Day” shall be any day other than a Saturday, Sunday, or U.S. federal holiday.
4.4 Transaction Disputes by Customer; Chargebacks.In the event a Customer disputes the accuracy of an authorized Transaction (whether due to mistake, third party fraud, or any other reason) or disputes the accuracy of its initial purchase of a Gift Card, Company and Merchant shall cooperate in good faith with Customer to resolve such dispute. Company shall have sole and final discretion to determine the resolution to such dispute. If Company determines that a chargeback to Merchant (a “Chargeback”) of the amount of the disputed authorized Transaction is warranted, Company shall reconcile the Transaction pursuant to Section 4.5 below. If Company determines that additional funds are due to Merchant, Company shall make reconciliation in the next payable Settlement Amount.
4.5 Settlement Adjustment Events.Notwithstanding the fact that a Transaction was properly authorized by Company and processed by Merchant, in the event that any of the following occurs, Company shall be entitled to offset the applicable amount against the next payable Settlement Amount (or be reimbursed by Merchant therefor, at Company’s request):
i. A documented mistake in a Transaction amount charged to the Customer’s account found outside the scope of a Chargeback;
ii. A determination that a Chargeback is warranted under Section 4.4 above; or
iii. Fraudulent or willful misconduct on the part of Merchant in processing a Transaction (as confirmed by commercially reasonable investigatory measures employed or approved by Company) which results in the failure or refusal of a Customer to make payment to Company.
Following expiration or termination of the Merchant Agreement, Company shall bill Merchant, and Merchant shall pay Company within ten (10) Business Days for all amounts due in respect to Section 4.5(i)-(iii) above.
4.6 Transaction Reporting.Company will provide Merchant with online access to monthly statements with transaction information. Merchant shall examine all monthly statements and notify Company in writing of any alleged errors within fifteen (15) days of receipt. The notice must include: (i) Merchant name and account number; (ii) dollar amount and description of the asserted error; and (iii) an explanation of why the error exists and the cause of it, if known. If Company is not so notified, Merchant agrees that the statement shall be accepted by Merchant as correct. Merchant will accept Company's records as conclusive proof of the status of its account with Company.
4.7 Reserve Account. At any time, Company, at its option, may establish a reserve account to secure the performance of Merchant's obligations under this Agreement ("Reserve Account"). The Reserve Account may be funded, at Company’s sole discretion, through the withholding from the Settlement Account, the amount (“Reserve Amount”) set forth in Attachment A. Merchant hereby grants Company a security interest in the Reserve Account and authorizes Company to make such withdrawals at such times and in such amounts as it may deem necessary hereunder. Merchant hereby agrees that Company may deduct from this Reserve Account any amount owed to it in accordance with this Agreement. Funds held in the Reserve Account may be (a) held for 90 days from the Settlement date in which the funds would have otherwise settled into the Merchant’s account; and (b) held for 180 days beyond termination of this Agreement in the event of termination. Merchant will not receive any interest on funds being held in a Reserve Account and Merchant has no right to access the funds held in the Reserve Account or otherwise transfer, pledge or use these funds for its own purpose.
Merchant shall be responsible for maintaining security for its own systems, servers, and communications links as necessary to: (i) protect the security and integrity of Company's systems and servers on which Card Transaction information is stored; and (ii) protect against unauthorized access to or use of Company's systems and servers on which Card Transaction information is stored. Merchant shall maintain adequate records for at least ten (10) business days including backups using paper records or electronic media where transactions are being transmitted to Company, and from which reconstruction of lost or damaged items or data can be made. Merchant assumes all responsibility and liability for any loss or damage resulting from failure to maintain such records. The responsibility and expense for transportation of Cards and transmission of data between Company and Merchant, and the risk of loss for, data and media transmitted between Company and Merchant, shall be borne by Merchant. Data lost by Company following receipt shall either be restored by Company from its backup media or shall be reprocessed from your backup media at no additional charge to Merchant.
6.1 Company will provide the Card Program and related advertising and marketing services on the basis of information furnished by Merchant. Company shall be entitled to rely upon any such data, information or instructions as provided by you. If any error results from incorrect input supplied by Merchant, Merchant shall be responsible for discovering and reporting such error and supplying the data necessary to correct such error to Company for processing at the earliest possible time. Company shall be relying on your instructions and directions in administering any marketing efforts on Merchant’s behalf or any Merchant participation in the Card Program, and shall not be responsible for any liability arising from Company's proper performance in accordance with Merchant’s instructions.
6.2 All sales slips are subject to audit and final checking by Company, and may be adjusted for inaccuracies.
7.1 Initial Term. The initial term (“Term”) of this Agreement shall be for one (1) year commencing on the Effective Date. The term of this Agreement shall automatically renew for successive two (2) year terms unless either Company or Merchant provides written notice of non-renewal to the other at least thirty (30) days in advance of the end of the then-current term.
7.2 Termination or Suspension. Company may suspend or terminate the Card Program and take such other steps as it deems necessary: (i) if You fail to observe any provision of this Agreement; (ii) Company's agreement with its service provider terminates; (iii) upon the commencement of bankruptcy, receivership, insolvency or similar action or proceeding initiated by or against You, or You are insolvent; or (iv) if You damage the goodwill of Company.
7.3 Termination Assistance.Upon termination of this Agreement, You will immediately cease accepting Cards. Following such termination, Company shall provide You, at your expense, all necessary assistance to facilitate the orderly transition of the stored value services to You or its designee ("Termination Assistance"). Before providing any Termination Assistance, Company will deliver to You a good faith estimate of all transition charges including charges for custom programming services. Further, for one-hundred-and-eighty (180) days following termination of this Agreement, You will maintain the Merchant Account with sufficient funds to cover all trailing activity.
7.4 Early TerminationYou acknowledge that Company shall suffer a material adverse impact on its business if the Card Program is terminated prior to the expiration of the then-current Term, and that the resulting damages may not be susceptible of precise determination. You acknowledge that the Termination Fee as set out in the attached Schedule “A” is a reasonable approximation of such damages and shall be deemed to be liquidated damages and not a penalty
Merchant hereby represents, warrants and covenants to Company that: (i) Merchant is a duly organized, validly existing organization and is in, and shall continue to be in, good standing in each jurisdiction in which it is located and where it is necessary to perform under this Agreement; (ii) Merchant has full legal right, power and authority to execute, deliver and perform under this Agreement; (iii) each person executing, delivering or performing under this Agreement on Merchant’s behalf has the authority and legal capacity to do so (including, without limitation, the authority and legal capacity to bind Merchant with respect to the terms hereof); (iv) upon execution of this Agreement, the terms and conditions of this Agreement are and shall continue to be binding upon Merchant and enforceable in accordance with the terms hereof, and Merchant is and shall continue to be legally obligated to participate in the programs or arrangements prescribed in this Agreement (including, without limitation, acceptance of Cards in accordance with the terms of this Agreement); (v) Merchant’s obligations under this Agreement, and this Agreement itself, do not and shall not violate the terms of any agreement between Merchant and a third party; (vi) Merchant’s actions related to, and in performance of, this Agreement comply and shall continue to comply with all applicable laws; and (vii) Merchant’s performance under this Agreement does not and shall not violate the intellectual property rights of any third party. The foregoing representations and warranties shall be deemed to be continuing representations and warranties, and such representations and warranties shall be true and correct in all respects as of the Effective Date and shall remain true and correct at all times during the term of this Agreement. Merchant shall defend, indemnify, and hold harmless Company, its parents, subsidiaries, affiliates, members, and each of their employees, owners, officers and agents from and against all claims, causes of action, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, and any investigation, action or proceeding brought by any Federal or State regulator in the United States (collectively, the “Claims”), arising out of, or due, directly or indirectly, to (i) any breach, inaccuracy or nonfulfillment of any representation, warranty or covenant made by Merchant in this Agreement; (ii) any breach or nonfulfillment of any other obligation of Merchant under this Agreement; and/or (iii) any negligent act or omission of Merchant in connection with Merchant’s performance under this Agreement, except with respect to each of (i) – (iii) above to the extent such Claim is caused by the negligence or willful misconduct of Company.
Merchant will comply with all rules and instructions provided to you by Company. Merchant is responsible for ensuring that it complies with all applicable U.S. state and federal laws and regulations. You will redeem Cards only for goods or services provided by you, and will not redeem Cards for cash or negotiable instruments, including without limitation travelers cheques, pre-paid credit cards, and “near cash” equivalents as determined by Company in its sole discretion.
During the term of this Agreement you will not participate in any program similar to the Card Program.
11.1 Merchant Indemnity.Merchant shall defend, indemnify and hold harmless Company, its parents, subsidiaries, affiliates, members, and each of their employees, owners, officers and agents from and against all Claims arising out of, or due, directly or indirectly, to (i) payments Company makes to Merchant based on incorrect, fraudulent or unauthorized Transactions; (ii) any breach of any obligation of Merchant under the Merchant Agreement; (iii) the quality, specifications, lawfulness, or other attributes of any products sold to Customer by Merchant through use of a Card or otherwise; (iv) any unauthorized access to or any use, theft, modification or loss of personally identifiable information (“PII”) or Transaction data in the possession or control of Merchant; and/or (v) any negligent act or omission of Merchant in connection with Merchant’s performance under the Merchant Agreement, except with respect to each of (i) – (v) above to the extent such Claim is caused by the negligence or willful misconduct of Company.
11.2 Company Indemnity.Company shall defend, indemnify and hold Merchant harmless from and against any Claims arising out of or due, directly or indirectly, to (i) any breach of any obligation of Company under the Merchant Agreement, (ii) any unauthorized access to or any use, theft, modification or loss of PII or Transaction data in the possession or control of Company, and/or (iii) any negligent act or omission of Company in connection with Company’s performance under the Merchant Agreement, except with respect to each of (i) – (iii) above to the extent such Claim is caused by the negligence or willful misconduct of the Merchant.
11.3 Indemnification Administration.The indemnified Party shall provide prompt written notice to the indemnifying Party upon discovery of any Claims. Upon the indemnified Party providing such notice, the indemnifying Party shall perform its obligations hereunder and have the right to exercise control over all aspects of the Claims, including selection of legal counsel; provided that the indemnifying Party shall not admit to liability on behalf of the indemnified Party or agree to any settlement terms without the indemnified Party’s prior written consent, which shall not be unreasonably withheld. The indemnifying Party shall not be responsible for fees or costs incurred by the indemnified Party prior to being provided written notice of its indemnification obligations under this Section 11.
12.1 Confidential Information.The Parties acknowledge that, in order to effectuate the Merchant Agreement, each Party may share confidential and/or proprietary information related to such Party’s business, that is not generally known or readily ascertainable by third parties at the time of disclosure and that the disclosing Party desires to protect against unrestricted disclosure or competitive use, including business records, financial information, operations and technical information, marketing or sales information, designs and specifications, data models, ideas, inventions, research, know-how, processes, algorithms, formulas, agreements with third parties, and any associated data, compilations, and analyses of the foregoing, regardless of its form or embodiment or the manner in which the disclosure is made, whether tangible or intangible (written, oral, electronic, magnetic or otherwise) (the “Confidential Information”). The "Discloser" is the Party disclosing and the "Recipient" is the Party receiving the Confidential Information.
12.2 Exclusions.“Confidential Information” will not include information (i) that is publicly available at the time of disclosure, (ii) which becomes publicly known other than as a result of disclosure by Recipient, (iii) that is already in Recipient’s possession or known to it at the time of disclosure (as evidenced in documentation), through no wrongdoing of Recipient, (iv) which is rightfully obtained by Recipient from third parties (as evidenced in documentation), or (v) that is or was independently developed by Recipient without the use of the other Party’s Confidential Information (and such independent development is documented in a contemporaneous writing).
12.3 Obligation of Confidentiality.Recipient shall keep in strict confidence all Confidential Information of Discloser and not disclose or use such Confidential Information except (i) in connection with the performance of such Recipient’s obligations under the Merchant Agreement, (ii) for the exercise of Recipient’s rights under the Merchant Agreement, (iii) in connection with Recipient’s relationship with a Customer, in which event Recipient shall use or disclose only such Confidential Information as pertains to such Customer; and (iv) as otherwise required by law or expressly permitted under the Merchant Agreement. Recipient shall use at least the same degree of care as it uses with respect to its own Confidential Information (and in no event less than reasonable care) to protect the same from unauthorized use or disclosure. Each Party shall inform its employees, contractors and agents as to the confidential and proprietary nature of the Confidential Information to which they may be exposed and take necessary actions to cause such employees and agents to abide by the terms hereof.
12.4 Permitted Disclosure.Notwithstanding the foregoing, each Party may disclose the other Party’s Confidential Information to the extent required by order or direction of a court, government agency or other governmental body of competent jurisdiction in the matter (with respect to which Recipient shall, to the extent legally permitted to do so, promptly provide written notice to Discloser to allow Discloser to seek a protective order or other appropriate remedy or restriction on disclosure). In the event that such protective order or other remedy is not obtained, or Discloser waives compliance with the provisions of this Section 8, Recipient shall only furnish that portion of Confidential Information for which Discloser has expressly waived compliance or that Recipient is legally required to disclose.
12.5 Duration of Duty.Recipient's duty to protect Confidential Information hereunder shall be for the Term and extend to three (3) years after the expiration or termination of the Merchant Agreement, except to the extent the same no longer qualifies as "Confidential Information" hereunder.
12.6 No License or Warranty. All Confidential Information remains the property of the Discloser and no license or other transfer of any intellectual property right is granted or implied by the Merchant Agreement or any related disclosure. Each Party acknowledges that all Confidential Information disclosed under the Merchant Agreement is delivered "as is" and Discloser makes no representation or warranty with respect to the accuracy or completeness thereof or its suitability for any particular purpose.
12.7 RemediesThe Parties agree that unauthorized use or disclosure of Confidential Information in violation of the Merchant Agreement will cause Discloser irreparable injury for which it would have no adequate remedy at law. If it reasonably appears that a Party has disclosed (or has threatened to disclose) Confidential Information of the other in violation hereof, the owner of such Confidential Information shall be entitled to seek immediate equitable relief, including injunction and specific performance (without evidence of damages or a showing of insufficiency of monetary damages and without posting a bond) to restrain the other from disclosing (in whole or in part) the Confidential Information, in addition to any other remedy available at law or in equity.
13.1 Default“Default,” whether used as a verb or a noun, shall mean (i) the failure by a Party to perform any material term contained in the Merchant Agreement, (ii) an assignment by a Party to its creditors or a failure or inability to pay its debts as they mature, or (iii) the filing by or against a Party of a petition in bankruptcy, reorganization or other similar debt or receivership proceeding.
13.2 Notice of Default; Remedies.Except with respect to a default relating to a violation of state law, for which no notice or cure period shall apply, if a Party defaults in its performance under the Merchant Agreement and fails to cure such default within twenty (20) days after receipt of written demand from the non-defaulting Party, then the non-defaulting Party may (i) waive the default; (ii) seek equitable relief under Section 9.5 below, including specific performance or emergency judicial relief; and/or (iii) terminate the Merchant Agreement upon written notice to the defaulting Party (provided, however, that in no event shall Merchant have any right to terminate the Merchant Agreement pursuant to this clause (iii)). The Party may thereafter pursue, at its election, any available remedies in equity or at law, including damages, subject to the limitations and procedure prescribed in the Merchant Agreement, including Sections 9.3 through 9.6.
13.3 Nature of Remedies; Limitation of Liability.All remedies under the Merchant Agreement shall be deemed cumulative and not exclusive. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, WHETHER IN AN ACTION OF CONTRACT OR TORT, FOR ANY LOST PROFITS, LOSS OF USE, LOST BUSINESS OPPORTUNITIES, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH SERVICES PROVIDED UNDER THE MERCHANT AGREEMENT, EACH OF WHICH IS HEREBY PRECLUDED AND WAIVED BY AGREEMENT OF THE PARTIES, EVEN IF THE OTHER PARTY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT SUCH DAMAGES ARISE OUT OF THE WILLFUL MISCONDUCT OF THE OTHER PARTY. The total cumulative liability of Company in the aggregate for damages arising from any breach of this Agreement or for any other claims under this Agreement shall not exceed an amount equal to the lesser of fees retained by Company attributable to this Agreement over the previous four (4) month period, measured from the date the liability is incurred. You agree the previous sentence is a necessary allocation of risk and is an integral part of the inducement to Company to perform the services under this Agreement.
13.4 Third Party Beneficiaries.Each supplier, service provider or subcontractor retained or engaged by Company in connection with the Services (collectively, the “Service Provider”) is hereby expressly made a third party beneficiary of and to all rights and remedies of Company hereunder.
13.5 SurvivalAccrued settlement, reporting and payment obligations, together with the provisions of Sections 4.5, and 7 – 12 shall survive the expiration or termination of the Merchant Agreement.
14.1 ArbitrationCompany and Merchant agree to resolve all claims and disputes of every kind between them or their respective owners, partners, shareholders, affiliates (including parents, subsidiaries, and other related entities), predecessors, successors, or assigns only through binding individual arbitration before the Canadian Arbitration Association (“CAA”). This Arbitration Agreement is to be broadly interpreted. It includes: (i) claims or disputes relating to any aspect of the relationship between Company and Merchant including claims or disputes relating to this Agreement, the equipment, the software, any Company product or service, and any agreement to which Merchant and Company are parties (even if the claim or dispute does not involve the Agreement), whether based in contract, tort, statute, fraud, misrepresentation, omission, or any other theory; (ii) claims or disputes that arose before this Agreement or any other agreement became effective (including claims or disputes relating to advertising); (iii) claims or disputes that are subject of purported class action litigation on the date this Agreement becomes effective but Merchant is not a member of a certified class on that date; and (iv) claims or disputes that arise after the termination of this Agreement but relate to it or to the equipment or software.
14.2 Class Action Waiver.Merchant and Company waive their rights to sue before a judge or jury and to participate in a class action, class-wide arbitration, private attorney general action, or any other proceeding in which a party acts in a representative capacity. Instead, any claim or dispute will be resolved on an individual basis by a neutral arbitrator, as stated in Section 14.1, whose decision (called an “Award”) will be final unless an appeal is otherwise allowable pursuant to the applicable law. The arbitrator may not join or consolidate proceedings together without the consent of all parties to all proceedings.
14.3 Notice of Arbitration.Before seeking arbitration, Company or Merchant must first send to the other, by certified mail return receipt requested or a courier service that requires a signature upon delivery, a written Notice of Dispute (“Notice”). A Notice to Company must be addressed to: [INSERT]. A Notice to Merchant must be addressed to its address in Company’s records. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. If Company and Merchant do not reach an agreement to resolve the claim or dispute within thirty (30) days after the Notice is received, Merchant or Company may commence an arbitration.
14.4 Rules for Arbitration.
14.4.1 The arbitrator may award the same relief as a court could but may award declaratory or injunctive relief only to the individual party and only to the extent necessary to provide relief for that party’s individual claim. Any court with jurisdiction may enforce the arbitrator’s award.
14.4.2 If the class action waiver in Section 14.2 is found to be illegal or unenforceable as to all or any part of a claim or dispute, then the Arbitration Agreement is null and void as to that part, which shall proceed in court with the rest proceeding in individual arbitration. If any other provision of the Arbitration Agreement is found to be illegal or unenforceable, that provision shall be severed and the rest will continue to apply in individual arbitration.
14.4.3 Notwithstanding any provision to the contrary, if Company makes any future change to the Arbitration Agreement (other than address changes) during the Initial Term or a Renewal Term, Merchant may reject that change by sending Company written notice within thirty (30) days of receiving notice of the change to the address in Section 14.3. The version of the Arbitration Agreement in force just before the rejected change will govern.
The Agreement will be deemed to be a contract made under the laws of [INSERT] and will be construed in accordance with the laws of [INSERT] without regard to principles of conflicts of law. The exclusive forum and venue for the adjudication of any rights, claims or disputes arising out of or in connection with this Agreement shall be the courts of [INSERT].
Neither party will be liable to the other for any failure or delay in its performance of this Agreement in accordance with its terms if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party.
Company may change the terms of this Agreement, Attachment A, and Attachment B, as well as effect new terms, from time to time in its sole discretion (each a “Change”). Company will give notice to Merchant of a Change in writing, or through its Website or App. Merchant’s use of the Services, including the Website, App, redemption of any Gift Card or Transactions, or failure to object to a Change by written notice to Company after ten (10) days from the date notice of such Change was given constitutes acknowledgment and acceptance of the Change, as of the actual effective date of such Change.
Any written notice required under this Agreement must be given in writing to the proper address set forth below and shall be deemed duly given or made (i) on the day following notice being directed to the receiving party by, either (a) nationally recognized overnight courier service, or (b) solely for notice to Merchant, email; or (ii) five (5) days after it is sent by registered or certified mail, return receipt requested, postage prepaid. A Party may amend its designated notice address by giving written notice of such amendment to the other party pursuant to the terms of this Section 18 or as otherwise allowed by Company.
18.1 Written notice shall be provided to Merchant at the attention of the primary contact as set forth on the Merchant Application or the email address as set forth on the Merchant Application, or such other notice address or email address as Merchant may designate in writing from time to time.
18.2 Written notice shall be provided to Company as follows:
Except with respect to the acceptance and processing of Transactions, if the terms of the Merchant Agreement require performance of any act or the expiration of any time period on a non-Business Day, the performance of such act or expiration of such time period shall be the next Business Day. The terms of the Merchant Agreement shall not be construed in favor of or against either Party, but shall be construed as if the Parties jointly prepared the Merchant Agreement because both Parties are sophisticated business parties who had sufficient opportunity to consult with legal counsel prior to entering into, and agreeing to, the Merchant Agreement. If any provision of the Merchant Agreement is held to be void or unenforceable, such provision will be deemed modified so as to conform as nearly as possible to the void or unenforceable provision while still remaining valid and enforceable, and the remaining terms of the Merchant Agreement shall not be affected. The word “including” wherever used in the Merchant Agreement shall be deemed to be followed by the words “without limitation.” The Merchant Agreement may be executed electronically and may be transmitted by facsimile, email or in original. The Merchant Agreement may be executed in any number of counterparts, each of which (assuming no modification or alteration) will constitute an original, and all of which, when taken together, will constitute one and the same instrument. Except as otherwise provided herein, the rights of Merchant may be assigned, in whole or in part, only upon the prior written consent of Company. Company may assign the Merchant Agreement, in whole or in part, provided that the assignee assumes all obligations of Company under the Merchant Agreement. The Merchant Agreement embodies the entire understanding between the Parties with respect to the subject matter thereof and shall be binding upon and inure to the Parties, their respective successors and assigns.