Gateway Services Agreement
This Gateway Services Agreement (“Agreement”) is entered into as of the Effective Date by and between 360 Payment Solutions LLC d/b/a 360 Payments, a California corporation with an address at 197 E Hamilton Ave. Ste. 102, Campbell, CA 95008 (“Velox”) and the entity indicated on the registration or application form (whether hardcopy or electronic) submitted for use of the Services (“Company”).
This Agreement will be binding upon Company upon the earliest of: (i) Company or any person acting or purporting to act on behalf of Company accepting the terms of this Agreement by clicking “I Accept”, checking a box indicating acceptance, or otherwise affirmatively accepting the terms of this Agreement; (ii) Company’s integration with, registration with, or submission of any transaction to Velox; or (iii) Company’s use or attempted use of any Service (“Effective Date”). If Company does not agree to any terms and conditions contained herein, Company must not accept this Agreement and must not use the Services.
The person or entity entering into this Agreement on behalf of Company represents that: (a) he, she, or it has the authority to bind Company to this Agreement; and (b) all information provided to Velox in connection with the execution of this Agreement (including without limitation on any written or electronic registration or application form) is true, complete, and not misleading in all respects.
1. Services. Subject to and in accordance with the terms and conditions of this Agreement, including payment of all applicable fees, Velox grants to Company a limited, non-exclusive, non-transferable, non-sublicenseable right to access and use certain payment gateway services (“Services”), including related technology such as websites, mobile applications, software, platforms, application programming interfaces, and other online tools, all in accordance with the applicable specifications and documentation provided by or available from Velox or its designated vendors from time-to-time. Company agrees to purchase the Services or any similar payment services exclusively from Velox for the term of this Agreement. The Services may be provided to Company directly or through any third party service provider (“TPSP”), which may include, without limitation, any: software provider with which the Services have been integrated, payment processor, hardware provider, or other third party which may capture, hold, host, access, store, or transmit any transaction, payment, or personally identifiable data or information. If the Services or any portion thereof are provided through a TPSP, Velox may require Company to agree to the terms and conditions provided by such TPSP.
2. Add-On Services. Those Services which constitute functions, filters, screens, tools, and other solutions, including but not limited to software and hardware which filter and block transactions based on IP address, limit the velocity of transactions, verify the customers address, reduce chargebacks, verify the card security code, identify and prevent duplicate transactions, identify or rank transactions based on riskiness, filter transactions based on dollar amount, filter transactions based on card issuer, identify and screen cards which are likely to be stolen or unauthorized, protect, encrypt, and/or truncate sensitive, confidential, or personally identifiable information, tokenize payment information, or any other software or hardware which offers functionality or features supplemental to the routing of transaction information (collectively “Add-On Services”) may be made available to Company by Velox from time-to-time in its sole discretion. The use of certain Add-On Services may require Company’s execution of a separate agreement related to such Add-On Service. Company will be solely responsible for its use of each Add-On Service and each transaction regardless of any data, analysis, or other information generated or not generated by any Add-On Service. Company will be solely responsible for configuring the applicable settings for and monitoring of the Add-On Services it elects to use and will take all appropriate and necessary steps to guard against any fraudulent activity. Company understands that use of the Add-On Services may result in the decline of legitimate transactions, the approval of fraudulent or illegitimate transactions, or otherwise interfere with the normal payment processes and procedures in place and Company assumes all liability associated with the foregoing.
3. Trademark License.
a. Velox. Solely in connection with Company’s authorized use of the Services and during the term of this Agreement, Velox grants Company the right to use and display (for example, on Company’s website or printed marketing material) Velox’s name and logo (the “Velox Marks”), subject to the limitations of Section 6(b) below and any guidelines or policies issued by Velox. Each use of Velox Marks by Company must receive Velox’s prior written approval, which shall be provided or withheld by Velox in Velox’s sole discretion.
b. Company. Company grants to Velox a non-exclusive, royalty free, perpetual license to use, reproduce, publish, perform, and display Company’s name, logo, and other identifying marks in connection with the use, display, publication, and performance of the Services on Company’s behalf and in any promotional and marketing materials, whether oral, electronic, or printed, including but not limited to press releases, advertisements, newsletters, mailings, and customer lists.
4. Information. In connection with Company’s application or registration for the Services, Company will provide to Velox detailed information, in the form and manner required by Velox, regarding Company’s ownership, name, tax identification number, product mix, sales locations, sales methods, hardware, software, third party service providers, employees, transaction dollar volume, and other information requested by Velox. During the term of this Agreement and for two (2) years thereafter, Company will promptly deliver to Velox any information requested by Velox regarding Company, its employees, contractors, or any transaction. Company will maintain detailed records of all transactions, transaction information, and use of the Services. Company will immediately notify Velox, in writing, of any change in the information previously provided to Velox, including without limitation any change in the ownership of Company (whether partial or whole), any change to the bank account used by Company, or any change in Company’s operations, goods, services, marketing methods, or sales methods. Company will notify Velox in writing within two (2) business days if Company: receives any inquiry or request from, or becomes subject to an investigation or audit by, a governmental agency or regulatory body; incurs any material adverse effect; or has a material adverse change in its financial position (whether immediate or over the passage of time). Company is solely responsible for complying with all applicable laws, card brand rules, and other requirements regarding the collection, retention, storage, safeguarding, and reporting of all data and information regarding Company, each of its customers, and each transaction. Velox will have no obligation to obtain, manage, store, report, or otherwise provide any copies of any information to Company or any third party, including but not limited to any access logs, transaction details, or other records.
5. Payment Terms
a. Fees. Velox’s provision of the Services is subject to the payment of all fees charged to Company or to the applicable TPSP. If a TPSP has entered into an arrangement with Velox to pay the fees on Company’s behalf, Company is solely responsible for ensuring such TPSP timely makes all payments due to Velox and understands that TPSP’s failure to do so will result in: the suspension or termination of Company’s access or use of the Services; and Company being liable for any failure by such TPSP to pay the amounts due. If Company is paying the fees directly to Velox, the fees for each Service will be set forth in the payment schedule attached hereto or otherwise provided or accessible to Company after log-in through Velox’s web portal. The pricing structure is as follows: Velox Retail – $10 per month per device / $0.06 per transaction; Velox Ecomm – $10 per month / $0.06 per transaction; Velox One – $10 per month per device. The pricing for Add-On Services may be set forth in this same payment schedule or in separate pricing schedules made available to Company after login through Velox’s online portal or upon request from Velox. If a TPSP is paying the fees due to Velox for Company’s activity, Velox will have no obligation to make such fee schedules available to Company and Company will obtain the applicable fee schedules from such TPSP. Each month, on or around the first business day of the month, Velox will invoice Company or the TPSP, as appropriate, for fees incurred during the previous month. Velox may invoice Company or TPSP more frequently if the accrued fee balance exceeds fifty dollars ($50). All fees associated with each Service are earned as of the date the Service is performed or attempted and shall not be reimbursed. Company will promptly review all fees and other amounts invoiced and will file a written objection to any error, omission, inaccuracy, or other billing mistake within thirty (30) days of the issuance of the related invoice. Company waives its right to dispute or otherwise contest any amount billed if it does not object to such amount within the thirty (30) day period following the issuance of the related invoice.
b. Payment Authorization. If Company is paying Velox the fees directly, Company will pay invoices via Automated Clearing House (“ACH”) transactions. Company authorizes Velox to initiate ACH credits and debits to and from Company’s depository bank accounts and/or credit cards for all amounts due pursuant to this Agreement, including but not limited to the fees incurred for the Services. Company will maintain such depository account at a financial institution which accepts ACH transactions and is acceptable to Velox, and will at all times ensure that sufficient funds are in such account to pay all amounts due. This authorization shall remain in full force and effect until Velox has collected all fees due and owing under this Agreement. Entries initiated to or from Company’s depository accounts will be in accordance with the rules of NACHA or any other applicable regulatory body or agency. Company agrees to promptly (and in any event within fifteen (15) days of any change) update Velox as to any changes to Company’s depository account information or credit card information. Company will complete, execute, and return to Velox those ACH authorization forms Velox requests in connection with this Agreement. Company will not, and will not cause its financial institution to, issue a stop-payment, reject any ACH transaction initiated by Velox, or otherwise cancel, block, charge back, or return any ACH transaction or other transaction initiated by Velox pursuant to this Agreement.
c. Delinquencies. Failure to pay any amount when due, which due date shall be the date the ACH transaction is attempted (or such other due date set forth on the applicable invoice), will result in late fees, service charges, and other fees and penalties as set forth in the applicable fee schedule, all of which will be immediately due and payable. All past due amounts will accrue, and Company will be responsible for paying, interest at a rate of two percent (2%) per month or the highest rate allowable by law (whichever is less), compounded daily until paid, in addition to any late fees, service charges, or other fees and penalties. In the event that a check is returned or an ACH debit to the account identified by Company to Velox is rejected for any reason, a $25.00 (USD) fee will be imposed. No endorsement or statement on any payment instrument or correspondence accompanying any payment or elsewhere will be construed as an accord or satisfaction. Any payments received from Company or its TPSP will first be applied to outstanding interest, then to any late fees and penalties, and last to those other fees and amounts due. Without limiting any other remedies available to Velox, Velox may immediately and without notice suspend or terminate access to the Services for any delinquent or overdue payments. All amounts due must be paid in full and may not be set off or otherwise reduced in any manner without Velox’s prior written consent. Company agrees to pay all costs and expenses, including without limitation attorney’s fees, court costs, or collections agency costs, incurred by or on behalf of Velox in connection with the collection of any unpaid amounts.
6. Updates. Velox may release new or modified versions of its Services from time-to-time without notice to Company, as determined by Velox in its sole discretion. These updates and releases may include, without limitation, additional features, removal of existing features, functionality modifications, security updates, modifications necessary to cause the Services to comply with applicable laws and rules, modifications to the API and integration methods, changes to the user interface, content enhancements, and/or other modifications. If Company uses the API or developer frameworks provided by Velox and an updated version of these has been released, Company shall promptly, but in all cases within two (2) months, update to the latest version of the API or developer framework. If Company is using a TPSP, Company is solely responsible for ensuring that such TPSP promptly, but in all cases within two (2) months, updates to the latest version of the API or developer framework. Velox will have no liability for any losses, damages, Service failures, settlement issues, improper data routing, improper transaction approval, improper transaction rejection, or other errors or failures resulting from the failure of Company or TPSP to update its hardware, software, procedures, or other operations in accordance with the latest version of the API or developer framework, and Company assumes all such risk and liability.
7. Data Usage and Compliance
a. Transaction Data. Company authorizes Velox to act on behalf of Company and to accept and transmit transaction data and other information as necessary for Velox to deliver the Services and fulfill its obligations under this Agreement. Velox will collect, retain, use, process, and transfer information and data from Company and Company’s customers, including but not limited to non-public, personally identifiable data, financial data, transaction data, payment information, payment history, and other cardholder data, in accordance with this Agreement and Velox’s then-current privacy policy made available on Velox’s website. Company agrees that: (i) Company is solely responsible for verifying the accuracy and completeness of all transactions and associated data submitted to Velox, and for verifying that all corresponding funds associated with each transaction are accurately processed; (ii) Velox shall not be liable for any transactions, including without limitation those that are unauthorized, improperly processed or approved, wrongfully declined, or otherwise; and (iii) Velox shall not be liable for any third party access to any transaction data, Company’s bank accounts, or Company’s customers’ personal, payment, or transaction data, including without limitation illegal or fraudulent access.
b. Compliance. Company shall comply with, and will ensure that all of its vendors, terminals, software, third party service providers, and systems comply with, all applicable and then-current: legal obligations, including without limitation all laws and regulations regarding data protection, anti-bribery, and anti-money laundering; card brand rules, requirements, procedures, and guidelines; security standards, processes, and procedures issued by the PCI Security Standards Council LLC, including without limitation the Payment Card Industry Data Security Standard and the Payment Application Data Security Standard (accessible at https://www.pcisecuritystandards.org/); and all Velox security protocols, policies, notices, and safeguards, as they may be updated from time to time. Without limiting the foregoing, in order to comply with PCI PIN security requirements, Company shall implement, document and follow PCI security requirements designed to prevent PIN entry devices (PEDs) from being manipulated, exchanged or used in an unintended way. Company will only use appropriately qualified and registered professionals to integrate, install, and/or configure Company’s hardware, software, the Services, any other aspect of Company’s payment ecosystem in accordance with the applicable card brand rules. Velox will under no circumstances be held liable for any damages resulting from Company’s (or Company’s employees, contractors, agents, third party service providers, or vendors) noncompliance with any of the above, and Company will defend, hold harmless, and indemnify Velox against all Losses (defined below) resulting from such noncompliance by Company or its employees, contractors, TPSPs, or agents.
c. Prohibited Activities. Company will not: (i) engage in, license, sell, display, advertise, deliver, or promote, any adult, sexually oriented, or obscene products or services (including without limitation child pornography) or harmful content such as viruses, bots, or other software or products that are designed or intended to damage, disrupt, infiltrate, interfere with, or otherwise breach any system, program, data, software, or hardware; (ii) infringe on the patents, copyrights, trademarks, trade secrets, or other intellectual property rights of any third party; (iii) discriminate against any individual or group of individuals falling within a protected class; or (iv) violate any applicable law or card brand rule, including but not limited to the illegal import or export any data, product, or service, engaging in unfair, deceptive, or abusive acts or practices, or violating any consumer protection laws.
d. Service Restrictions. Company will not use the Services: (i) in a harmful, abusive, obscene, deceptive, fraudulent, illegal, tortious, infringing, threatening, or unethical manner; (ii) in connection with the sale, transfer, or other transaction involving illegal product or service, including but not limited to illegal gambling, telecommunication, or prohibited substances; or (iii) in connection with the sale or distribution of any product, media, or substance which Company is not appropriately licensed or authorized to sell or distribute. Company’s use of the Services shall be restricted to Company and Company shall not use the Services on behalf of any third party. Any attempt by Company to use the Services on behalf of a third party may result in additional fees, charges, fines, or assessments.
8. Confidentiality
a. Confidential Information Received by Company. Company acknowledges that it may receive or otherwise access from Velox, TPSPs, or their employees, representatives, and/or vendors certain confidential information, including but not limited to: this Agreement; all non-public know-how; technical information; business information; information relating to the pricing, finances, systems, methods, techniques, programs, technology, devices, and operations of Velox, the Services, third-party processors, vendors, banks, and/or credit card associations and brands; and/or any other information which is marked confidential or should, by its nature, be reasonably considered confidential. Company agrees: (i) not to disclose any such confidential information to any person or entity (other than to those employees and suppliers of Company who need access to such information to fulfill Company’s obligations hereunder and who are legally bound to keep such information confidential); and (ii) not to use such confidential information for any purpose other than to exercise its rights or fulfill its obligations under this Agreement. Company also agrees that it will fully comply with any and all applicable confidentiality and security laws, regulations, rules, and requirements issued by governmental agencies or relevant industry authorities (e.g., credit card associations or banks). Upon request by Velox or upon any termination or expiration of this Agreement, Company will return to Velox or securely destroy all materials, in any medium, that contain, embody, reflect, or reference any of Velox’s confidential Information, including without limitation any copies, reproductions, or derivative works thereof.
b. Confidential Information Received by Velox. Velox acknowledges that Company will be providing Velox with, and Velox will otherwise receive, certain confidential information of Company and its customers, including without limitation the methods, techniques, programs, devices, and operations of Company and the names, addresses, phone numbers, e-mail addresses, payment data, identification numbers, and purchase descriptions of Company and its customers. Velox may disclose such confidential information: (i) to Company’s banks, Company affiliates, TPSPs, card associations, payment networks, Velox’s vendors, or other third parties in connection with the performance of the Services or any portion thereof; (ii) if the information is or becomes publically available; (iii) if the information is lawfully disclosed to Velox by a third party not under an obligation of confidentiality; (iv) to comply with applicable laws, regulations, rules, or policies; (v) in response to a subpoena, interrogatory, a request from law enforcement or other government agencies or a court order; (vi) in an aggregated form which cannot be used to readily identify Company or its customers; (vii) with third parties that provide support services to Velox; (viii) if the information has been independently developed by Velox; or (ix) in accordance with Velox’s then-current privacy policy, which may be accessed through Velox’s website. Velox may use any such confidential information: (x) to provide the Services; (y) for internal monitoring and testing purposes; or (z) in accordance with Velox’s then-current privacy policy, which may be accessed through Velox’s website. Use of such confidential information by those third parties to which such information is disclosed shall be in accordance with the privacy policies adopted by such third parties from time-to-time and Velox shall have no obligation or liability with respect to any use or disclosure of confidential information by any third party.
c. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, the parties understand that an individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (i) is made (x) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (y) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
d. Passwords. Company is solely responsible for, and will adopt all security measures necessary to prevent the unauthorized access or use of, all user names, passwords, or any other credentials issued to or used by Company in connection with: the Services; transaction processing; or Velox’s online portal. Velox shall be entitled to rely on information it receives using the credentials issued to Company, through its online portal, from an e-mail address associated with Company, or which is otherwise purported to be transmitted by or on behalf of Company. The credentials (including but not limited to any identification number for Customer) shall be owned solely by Velox, and Velox may disable or revoke the credentials issued to Company and/or any TPSP at any time in its sole discretion without notice to Company or its TPSP.
e. Data Management. Company, and not Velox, is solely responsible for the security of all payment information, transaction data, confidential information, and personally identifiable information. Velox will not be responsible for the security and safety of data and any unauthorized access or use of such data, including without limitation while such data is held, hosted, stored, accessible through, or transmitted through Company’s, TPSP’s, or any third party’s systems and servers. Company agrees to provide notice to its customers that discloses (and include in Company’s privacy policy) how and why transaction data, payment data, and other personally identifiable data is collected and used in accordance with applicable law, including the uses governed by this Agreement. Company agrees not to use, disclose, sell, or disseminate any card, cardholder, or other transaction information obtained in connection with a transaction except for purposes of completing or settlement of the transaction, or to resolve chargebacks, retrievals, or similar issues involving the transaction, unless otherwise required by a court order, governmental agency request or subpoena, or applicable law. Company represents and warrants that it has adopted all security measures and taken all precautions necessary to ensure that all transaction data, cardholder data, and personally identifiable data are adequately protected and that Company’s and its vendor’s and third party service provider’s (including without limitation any TPSP’s) electronic systems (including without limitation all hardware and software used) are secure from access, breach, intrusion, or compromise by any unauthorized person or entity. Prior to discarding any hardware, data, or records, Company will render any confidential, personally identifiable, payment, or other sensitive data unreadable and comply with any applicable laws regarding data destruction. Velox will have no obligation with regard to, and Company assumes all risk associated with, the transport of data, including without limitation any delays, interruptions, vulnerabilities, losses, or other issues. Velox will have no liability with regard to, and Company assumes all risk associated with the unauthorized interception or modification of data or the access, compromise, or use of data by third parties. In the event that Company’s or any TPSP’s systems are breached or an unauthorized person has gained access to such systems, Company’s credentials, or any confidential, personal, or transaction data, Company shall promptly: (i) notify Velox in writing and by e-mail of such occurrence; (ii) notify any affected parties as required under any applicable laws or industry guidelines; (iii) take all actions and precautions necessary to prevent any continuous or additional breach; and (iv) commence all remedial efforts and other actions required under the applicable laws, regulations, or card brand rules.
f. Investigations and Audit. In connection with Company’s application or registration for the Services, Company authorizes Velox to investigate and obtain various consumer reports regarding Company and its owners, executives, employees, and agents from third parties, including but not limited to consumer reports, credit reports, and personal background checks. At any time during the term of this Agreement and for two (2) years after termination of this Agreement, Company authorizes Velox to, directly or through a third party, audit the books, records, operations, and performance of Company. In connection with such audit, Velox may make copies of such books, records, and findings, provided that such information may only be used or disclosed in accordance with the confidentiality obligations applicable for Velox in this Agreement or as necessary or appropriate for Velox to enforce its rights under this Agreement.
9. Intellectual Property
a. Ownership. As between Velox and Company, all right, title, and interest in and to the Services are owned exclusively by Velox (or its licensors and suppliers), including without limitation all intellectual property rights of any kind in the Services and all related software, hardware, source code, technology, trademarks, trade names, trade dress, logos, patents, copyrights, trade secrets, domain names, any any derivatives of any of the foregoing (collectively, “IP Rights”). All IP Rights granted hereunder are licensed, not sold. Company agrees that it shall (i) not use the IP Rights in any manner other than as expressly permitted under this Agreement; (ii) not do anything to contest or impair the IP Rights, (iii) not modify, sell, lease, timeshare, transfer, distribute, create derivative works of, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code or any trade secrets of the Services, the IP Rights, or any portion thereof; and (iv) immediately notify Velox if it becomes aware of any unauthorized use of the IP Rights. The parties agree that all improvements, enhancements, modifications, or derivative works made from the Services or the IP Rights (by any party) shall be the exclusive property of Velox.
b. Trademarks. Company shall comply with all standards, restrictions, and instructions furnished by Velox from time to time with respect to the Velox Marks. All right, title, and interest in and to the Velox Marks belong to Velox, and all usage and goodwill of the Velox Marks shall inure to the benefit of Velox. Company shall not use, register, or attempt to register any trademarks or domain names that are confusingly similar to the Velox Marks or Velox’s domain names, nor use the Velox Marks in any manner that would indicate that Company has any rights thereto other than as a licensee. Company will not take any action that is inconsistent with Velox’s ownership of the Velox Marks. Company will not use the Velox Marks in a way which expresses or implies that Velox endorses Company, TPSP, or any of their products or services. Company’s rights to use or display the Velox Marks, in whole or in part, may be revoked by Velox at any time in its sole discretion and will be deemed immediately revoked upon termination of this Agreement. Company’s use of Velox’s name, logo, or any other Velox Mark must include a statement of ownership identifying Velox’s ownership of such mark.
c. Third Party Marks. To the extent any third party’s name, logo, trademarks, copyrights, or other intellectual property rights (“Third Party Marks”) appear on or in the Services or any material related thereto, all ownership, rights, interest and title in and to such Third Party Marks, and all use, derivatives, and modifications thereof accrue to the benefit of and shall belong solely to the applicable third party. Third Party Marks used or included in the Services are pursuant to a license agreement between Velox and the applicable third party and shall constitute part of the Services for the purposes of this Agreement. Notwithstanding the foregoing, Company will have no right to use, modify, display, or reproduce any Third Party Marks without Velox’s prior written consent. Company will not do anything to contest or impair the Third Party Marks and will immediately notify Velox if it becomes aware of any unauthorized display or use of the Third Party Marks. To the extent Velox authorizes Company to use or display any Third Party Mark, such authorization shall: constitute a limited, non-exclusive, non-sublicenseable, non-transferable, revocable license which may be revoked by Company or the applicable third party rights holder at any time; be subject to the terms and conditions of Velox’s license to the Third Party Marks from the applicable third party; and not constitute the transfer or grant of any ownership, interest, or title in or to the Third Party Marks to Company. Any license to use the Third Party Marks in accordance with this Section shall be deemed revoked upon the termination of this Agreement.
10. Company’s Representations and Warranties. Company represents, warrants, and covenants that:
a. it is engaged in a lawful business that includes the sale of products and/or services, and is duly licensed to conduct such business under the laws of all relevant jurisdictions;
b. all statements made by Company or on Company’s behalf in connection with this Agreement, its registration, its application, or related documents are true, accurate, complete, and not misleading in all material respects;
c. this Agreement constitutes a legal, valid and binding obligation, enforceable against Company in accordance with its terms;
d. it has all necessary right, power, and ability to execute this Agreement and to perform its obligations therein, and no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement;
e. the performance of its obligations under this Agreement will not violate any law or breach any other agreement to which it is bound;
f. if Company elects to use any Add-On Service, such use will be fully compliant with all applicable local, state, and federal laws, rules, and regulations, and will be in accordance with all terms and conditions associated with such Add-On Service;
g. it will be wholly responsible for credits, returns, chargebacks, disputes, fees, fines, and assessments submitted by Company’s customers, Company’s bank, any TPSP, any card brand or network, or Company’s customers’ bank, and that Velox will have no liability for the foregoing whatsoever;
h. for each item or transaction for which the Services are used or which is presented to Velox, Company has truthfully delivered merchandise or completed a service to the customer, as the case may be; and
i. it will not be involved in any harmful, obscene, or abusive activity over Velox’s network, systems, or the internet, including but not limited to: spamming, mass unsolicited emailing, distribution of mass emailing programs, cross-posting messages to large number of Usenet groups, posting obscene or inflammatory messages, threatening other users, mail bombing, running packet sniffers or port scanners, or spamming Velox’s support staff or otherwise preventing them from performing their duties.
11. Velox’s Representations and Warranties
a. Disclaimer. Velox makes no representation or warranty of any kind, express, implied, or arising by statute, operation of law, usage of dealing, or course of dealing, related to the Services. Velox expressly disclaims any and all representations, warranties, and conditions relating to the Services, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, performance, functionality, security, availability, performance, revenue, non-infringement, or that the Services will meet Company’s needs, requirements, specifications, or expectations. The Services are provided solely on an “as is” and “as available” basis. Company understands and agrees that the Services may not be available, uninterrupted, secure, accurate, complete, error free, or compatible with certain hardware or software platforms. Velox does not warrant or guarantee access to its website or the Services, and Velox shall have no liability for any down time of the Services or related systems. Company may not rely on any representation or warranty regarding Velox or the Services from any third party. Velox does not represent or warrant that any data, including without limitation confidential information or personally identifiable information, will be transported without unauthorized interception or modification, or that such data will not be accessed or compromised by any third parties. Velox makes no representation or warranty with regard to any transaction, including but not limited to the legitimacy of any such transaction. Velox makes no representation or warranty, express or implied, regarding any software, hardware, Services, or other services provided by any TPSP or other third party, even if such third party is recommended or chosen by Velox, and except as otherwise provided in this Agreement, Company will look solely to such third parties with regard to warranties, maintenance, or other support.
b. Add-On Services. All Add-On Services are Services and the disclaimer of representations, warranties, and guarantees set forth above applies to each Add-On Service. Use of such Services is at Company’s sole risk and Company understands that the Add-On Services will not prevent: unauthorized or fraudulent transactions from occurring; authorized or legitimate transactions from being blocked; chargebacks; or any other losses, damages, or harms. Company will remain responsible for all transactions, regardless of whether such transactions are monitored by an Add-On Service. Company’s sole remedy with respect to any Losses arising out of an Add-On Service will be to discontinue use of such Add-On Service. The disclaimers regarding the Add-On Services in this Section are in addition to, and not in lieu of, the disclaimers for the Services generally, and all such disclaimers for the Services generally also apply to the Add-On Services.
12. Limitation of Liability.
a. Damages. Velox will not be liable for any indirect, incidental, special, exemplary, or consequential damages, including but not limited to lost data, lost profits, anticipated profits, lost business, injury to reputation, or cost of substitute goods or services, however arising, even if it has been advised of the possibility of such damages. Velox will have no liability for fraud, duplicate charges, chargebacks, or any transactions created, caused, or submitted by Company or Company’s customers, nor can Velox refund processing charges to Company. As between Velox and Company, it shall be Company that is solely liable for and bears all risk associated with its sale of products and services and each transaction associated with its merchant identification number, including but not limited to any credit transactions. Company assumes all risk and liability associated with improperly processed, improperly routed, illegal, or fraudulent transactions, chargebacks, refunds, unauthorized access to the Services using Company’s credentials or identification markers, and all conclusions drawn from the data generated in connection with any transaction.
b. Limitation. Notwithstanding anything to the contrary in this Agreement, Velox’s total aggregate liability for claims, causes of action, fees, fines, assessments, penalties, errors, damages, harms, costs, expenses, or other losses (collectively “Losses”) under this Agreement, regardless of the form of action, whether in contract, tort (including without limitation for negligence), or otherwise, shall in no event exceed the lesser of (i) the amount paid by Company (or paid by TPSP on behalf of Company) to Velox for the Services during the previous three (3) month period, measured as of the date the claim arose; or (ii) one thousand dollars ($1000). Velox will have no liability for any damage, harm, loss, expense, or other amount which was directly or indirectly caused by or the result of, whether in whole or in part, the action or inaction of Company, a TPSP, or any third party, including but not limited to: any malfunctioning equipment, software, or integration; the incompatibility of or modification of any product or Service used by Company or any third party service provider in connection with the Services; or the security of any information or data accessible from, transmitted through, hosted on, or stored on Company’s or any third party’s servers.
c. Third Parties. No TPSP or other third party will be liable to Company in connection with the Services provided under this Agreement unless Company has entered into a written agreement with such TPSP or other third party setting forth the TPSP’s or third party’s liability and which has been executed by both Company and such third party.
d. Company Actions. Velox is not obligated to correct any errors and will not have any liability for any losses, however occurring, which are created or result from, in whole or in part, (i) the acts, omissions, negligence, or willful misconduct of Company, including without limitation any unauthorized modification or use of the Services; (ii) any failure or defect of Company’s, TPSP’s, or any third party’s equipment, software, facilities, applications, or internet connectivity; (iii) Company’s use of the Services other than in accordance with Velox’s documentation; (iv) Company’s or any of its customer’s or third party service provider’s improper use, installation, or mistakes in connection with the Services; or (v) any event outside of Velox’s control.
13. Indemnification. Company agrees to indemnify, defend, and hold Velox harmless from any and all claims, causes of action, demands, judicial and administrative proceedings, fees, fines, penalties, assessments, errors, liabilities, damages, costs, expenses, and other Losses, including without limitation court costs, expert witness fees, and attorney’s fees, relating to or arising out of Company’s use of or access to the Services, or this Agreement, including without limitation those arising from: (a) any breach or alleged breach of this Agreement; (b) any negligence, fraud, dishonesty or willful misconduct by Company, TPSP, or either of their employees, agents, or customers; (c) the reliability, accuracy, or legitimacy of transaction data; (d) the response code to transactions received by Velox from the processor, issuing bank, or other applicable third party; (e) the breach of Company’s or TPSP’s computer systems or the unauthorized access or use of any confidential information, payment instrument information, personally identifiable information, or Company’s account; (f) any transaction submitted to Company and improperly rejected or accepted by a processor, the applicable card brand, an issuing bank, or any other third party; (g) any actual or alleged infringement of any third party’s intellectual property rights (including without limitation the Service’s actual or alleged infringement of a third party’s intellectual property rights due to combination of the Services with any products, processes, services, or materials not supplied by Velox or any modification of the Services by Company, a TPSP, or other third party), (h) any of Company’s customers; or (i) violation or alleged violation of any applicable law, rule, regulation, policy, or requirement of any card brand or payment network.
14. Term and Termination
a. Term. This Agreement is effective as of the Effective Date, shall continue for a period of two (2) years after the Effective Date, and shall thereafter automatically renew for successive one (1) year terms, unless either party notifies the other party of its intent not to renew at least sixty (60) days before the end of the initial term or any renewal term, or unless this Agreement is otherwise terminated in accordance with this Section.
b. Termination and Suspension. Company may terminate this Agreement upon written notice if Velox fails to observe any material obligation and such failure is not cured within thirty (30) days of Velox’s receipt of written notice of such breach from Company. Velox may immediately suspend or terminate this Agreement or one or more of the Services without notice if: (i) Company breaches any provision of this Agreement; (ii) Velox, in its sole discretion, has reason to believe Company is damaging to or may damage Velox’s reputation, or would subject Velox to additional regulatory scrutiny; (iii) Velox’s vendors require termination of this Agreement or are unwilling to provide any portion of the Services to Company for any reason; (iv) Velox believes Company’s activity or operations may harm Velox, any customer or vendor of Velox, or any third party; (v) Velox is instructed to terminate its relationship with Company or Company’s TPSP by its sponsor bank or a card brand; (vi) Company’s or Velox’s relationship or contract with Company’s processor, service provider, or other TPSP terminates; or (vii) changes in law, regulation, or card brand rule makes it impossible or commercially unreasonable for Velox to continue to provide the Services, in Velox’s sole discretion. If Company was registered for the Services by a TPSP or the Services are paid for by a TPSP, Company authorizes such TPSP to terminate this Agreement on Company’s behalf in accordance with the termination rights set forth herein.
c. Conversion. If Company was registered for the Services by a TPSP or its fees for the Services are paid to Velox by a TPSP, termination of the agreement between Company and such TPSP shall not constitute a termination of this Agreement. This Agreement shall continue until terminated in accordance with its terms and Company will be billed for the Services directly by Velox at the greater of the rates at which Company was paying to the applicable TPSP or Velox’s then-current minimum rates.
d. Effect of Termination. Upon termination or expiration of this Agreement, Company shall immediately cease using the Services, the Velox Marks, and all other material of Velox. Termination or expiration of this Agreement shall not relieve Company from any liability or obligation to Velox incurred prior to the effective date of termination, including but not limited to: all fees and other accrued payment obligations; or any liability or obligation which arises after termination of this Agreement but relates to or arises out of Company’s transactions or obligations prior to termination of this Agreement. Sections 3(b), 4-13, 14(d), and 15 shall survive termination or expiration of this Agreement for any reason.
15. General
a. Governing Law and Venue; Attorneys’ Fees. This Agreement shall be governed and construed in accordance with the laws of the state of California, without giving effect to any choice or conflict of law provision or rule. The parties agree that any controversy and all matters of dispute arising under this Agreement or relating to the subject matter thereof shall be resolved in the state or federal courts located in Santa Clara County, California. Such state and federal courts shall have exclusive jurisdiction over any dispute concerning this Agreement, and the parties hereby submit to the personal jurisdiction of such courts. COMPANY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY, TO THE EXTENT PERMITTED BY LAW, IN ANY ACTION, PROCEEDING OR LITIGATION BETWEEN VELOX AND COMPANY OR OTHERWISE RELATED TO THIS AGREEMENT, THE SERVICES, OR ANY TRANSACTION. COMPANY IRREVOCABLY WAIVES ITS RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION, INCLUDING BUT NOT LIMITED TO A CLASS ARBITRATION, ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING AGAINST VELOX OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, OR ANY TRANSACTION.
b. Remedies. If any action is brought against Velox in connection with or related to this Agreement, including but not limited to for the breach of, or to enforce or interpret, any of the provisions of this Agreement, if Velox is the prevailing party it shall be entitled to recover from Company all of its costs and fees, including but not limited to attorney’s fees, court costs, and expert witness costs. Each party acknowledges that any breach of the confidentiality provisions of this Agreement would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore the other party will be entitled to seek injunctive relief to enforce this Agreement and such obligations without the need to prove harm and without having to post any bond.
c. Entire Agreement. This Agreement, including all schedules and attachments which are incorporated by reference, sets forth the entire understanding of the parties relating to its subject matter, and all other understandings, written or oral, are superseded. This Agreement is not binding upon Velox until Company’s registration materials have been approved by Velox, as evidenced by Velox’s provision of the Services to Company. Notwithstanding any other provision in this Agreement Velox may update or amend the terms of this Agreement, including any related schedules, exhibits, or pricing upon fifteen (15) days’ written notice (or such shorter time as may be required by law or the card brand rules), including without limitation in response to changes in applicable law, regulation, or card brand rules. This Agreement will also be deemed to include all policies, procedures, and requirements published by Velox from time-to-time and Company will adhere to all such policies, procedures, and requirements. Except as otherwise provided in this Agreement, this Agreement may not be amended except in a writing executed by all parties.
d. Notices. All notices, requests, demands and other communications to be delivered hereunder, unless specified otherwise herein, shall be in writing and shall be delivered by nationally recognized overnight carrier, registered or certified mail, postage prepaid, to the following addresses: if to Velox: Attn: Legal, 90 Railway Ave., Campbell, CA 95008; and if to Company: to the address provided by Company in its application or otherwise to Velox, including any email addresses, to which electronic notification may be sent by Velox, or by posting such notice in the message/inbox section of Velox’s online portal which may be accessed by Company after Company’s login. Each party may update its respective address with written notice. Company must promptly provide Velox with any change of address. Notices sent by mail will be deemed delivered upon receipt and notices sent by e-mail or through posting in the Velox online portal will be deemed delivered upon sending or posting.
e. Assignment. Company may not transfer, assign, or delegate this Agreement or any of its rights or obligations, whether by operation of law or otherwise (including in connection with any merger, sale of assets, or change of control), without the prior written consent of Velox, and any unauthorized attempted assignment will be null and void. Velox may transfer, assign, or delegate this Agreement, or any rights or obligations related thereto, to any third party in its sole discretion. Subject to the foregoing, this Agreement will inure to the benefit of and will be binding upon the parties and their respective permitted successors and assigns.
f. Waiver; Force Majeure. No failure or delay on the part of any party in exercising any right under this Agreement will operate as a waiver of that right, nor will any single or partial exercise of any right preclude any further exercise of that right. No waiver will be valid unless provided in writing and signed by the party waiving its rights hereunder. Notwithstanding any other provision in this Agreement, Velox will not be liable to Company for any failure or delay in its performance of this Agreement if such failure or delay arises out of causes beyond the control of Velox, including but not limited to acts of god, terrorism, riots, fire, floods, accidents, strikes, shortages, communication outages, communication interception, and the actions of any issuing bank, card network, payment processor, or TPSP.
g. Relationship of the Parties. The parties to this Agreement are independent contractors and will not be considered agents, servants, joint venturers, or partners of one another. Neither party has the authority to bind the other party except as explicitly set forth in this Agreement, and neither party shall make any representation or warranty otherwise. Velox will have no responsibility for any fee or expense incurred by Company in connection with its operations, performance this Agreement, or use of the Services. This Agreement is intended solely for the benefit of Velox and Company, and will not be deemed to be for the benefit of any third party. Company is not a third party beneficiary of any agreement between Velox and any TPSP or other third party.
h. Severability. If any provision of this Agreement is deemed illegal, invalid, or unenforceable, the invalidity of such provision will not affect any of the remaining provisions, and this Agreement will be construed as if the illegal, invalid, or unenforceable provision is not contained. This Agreement will be deemed modified only to the extent necessary to render enforceable the remaining provisions.
i. Tax and Fees. Company shall pay all taxes related to this Agreement and the Services provided hereunder and will reimburse Velox for any taxes paid by Velox in connection with this Agreement or any of the Services. Company shall hold Velox harmless for any tax paid by Velox on behalf of or due to the actions of Company. Company authorizes Velox to report Company’s transaction activity, transaction volume, and other processing metrics available to Velox to any governmental agency, including but not limited to the Internal Revenue Service. Velox shall have the right to increase fees as necessary to offset any direct or indirect increase to Velox in the costs of providing the Services hereunder; including, but not limited to increases due to changes in rules, regulations, operating procedures of Velox, or any additional requirements imposed by any federal or state governmental agency or regulatory authority, or due to any increase in communication costs or shipping costs.
j. Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. Each party acknowledges and agrees that the language chosen in this Agreement represents the mutual intent of the parties, thus no rule of strict construction will be applied against either party.
k. Counterparts. This Agreement may be executed and delivered in one or more counterparts, electronic or otherwise, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. The signatures to this Agreement may be evidenced by electronic signatures, .pdf copies, or facsimile copies, and any such electronic signature or copy shall be sufficient to evidence the signature of such party as if it were an original signature.
l. Electronic Business, Signature, and Notice. Company consents to do business electronically, which means that Company agrees that all Velox agreements and Policies, including amendments thereto and documents referenced therein, as well as any notices, instructions, or any other communications regarding transactions and Company’s agreements with Velox may be presented, delivered, stored, retrieved, and transmitted electronically. Company must provide Velox notice of any change in its electronic mailing address. Company’s electronic signature, including without limitation clicking “Agree”, “Accept”, or an action of similar meaning or significance, shall be the legal equivalent of Company’s manual signature. The person signing on behalf of Company (including without limitation clicking “Agree”, “Accept”, or an action of similar meaning or significance) represents and warrants to Velox that his, her, or its actions are authorized by Company and that such person has all required power and authority to bind Company to this Agreement. Such individual or entity also agrees that the electronic signatures that he/she/it provides online will be binding upon him/her/it and Company, and will not be construed by a court of law to have any less effect than a standard ink or paper signature. Company acknowledges that: Company is able to print a complete and legible copy of this Agreement; Company was capable of opening, reading, printing, downloading and/or saving this Agreement prior to acceptance of this Agreement; and Company had reasonable opportunity to consult with appropriate professionals prior to electronically signing this Agreement.