MASTER MERCHANT SERVICE AGREEMENT
Last updated: June 13, 2023
THIS MASTER MERCHANT SERVICE AGREEMENT (this “Agreement”), effective upon the date you (“Merchant” or “your”) submitted Pockyt (“us”, “we” or “our”) Merchant Application and continues until you or Pockyt terminates it. Pockyt and Merchant may be referred to herein collectively as the “Parties” or individually as a “Party.” Capitalized terms used in this Agreement have the meanings set forth in Appendix A or as defined in the body of this Agreement.
WHEREAS, Pockyt has developed Pockyt Payments Platform which enables merchants to accept certain payment methods that are frequently used by consumers;
WHEREAS, Merchant is a vendor of products and services and wishes to access and use Pockyt Payments Platform and services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
a) Services. During the Subscription Term, Pockyt will provide the Merchant with access to the Pockyt Payments Platform and related Services under the terms and conditions of this Agreement and Order Form. Specifically, Pockyt will:
(i) provide Merchant with relevant software and documentation, including technical guides and API specifications, in a timely manner to enable Merchant to access and interface with the selected payment methods.
(ii) enable Merchant to accept payments for eventual Settlement from the Payment Network through the Services.
(iii) provide Merchant with access to the Merchant Portal, where the Merchant may obtain information about Settlement, Transactions, Refunds, Fees, and other aspects of Pockyt’s services.
b) Use Restrictions. Merchant will not and will not permit any third party to (and will ensure that the Authorized Users do not) at any time directly or indirectly: (i) allow anyone other than Authorized Users to access and use Pockyt Payments Platform, or any Documentation; (ii) use the Services in any manner beyond the scope of rights expressly granted in this Agreement; (iii) modify, copy or create derivative works of the Services or Documentation, in whole or in part; (iv) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (v) frame, mirror, sell, resell, rent or lease use of the Services to any party, or otherwise allow any third party to use the Services for any purpose other than for the benefit of Merchant in accordance with this Agreement; (vi) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other proprietary right of any third party, or that violates any Applicable Law; (vii) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (viii) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by Pockyt for use expressly for such purposes; (ix) use Pockyt Payments Platform or Services for any illegal purpose or to introduce, post, or upload to Pockyt Payments Platform any Prohibited Content or Harmful Code; or (x) use the Services, Documentation or any other Pockyt Confidential Information to develop, commercialize, license or sell any product, service or technology that directly competes with the Services.
c) Prohibited Business. Merchant may not use the Services for business activities listed on https://info.Pockyt.io/knowledge, which are listed as part of this written agreement, and any other products or services that are otherwise restricted by a Payment Network.
d) Third-Party Services. Certain features and functionalities within the Services may allow Merchant and its Authorized Users to interface or interact with, access, and/or use compatible third-party services, products, technology, and content (collectively, “Third-Party Services”) through the Services. Pockyt does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors, or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto.
e) Pockyt IP and Reservation of Rights. All right, title, and interest in and to (i) Pockyt Payments Platform and Services, (ii) the Aggregate Data, (iii) all modifications, improvements, adaptations, enhancements, or translations made to any of the foregoing, and (iv) Pockyt IP and all proprietary rights therein, will be and remain the sole and exclusive property of Pockyt and our licensors. Merchant agrees that the only rights it has with respect to Pockyt Payments Platform are the limited access and use rights expressly granted in this Agreement and each Order Form. No rights are granted to Merchant hereunder (whether by implication, estoppel, exhaustion, or otherwise) other than as expressly set forth in this Agreement or an Order Form.
2. ORDER FORMS.
Each Order Form will set forth: (a) the payment methods that are included in the Services (the “Payment Methods”); (b) the fees that Merchant will pay Pockyt for the Services; (c) any other mutually agreed terms that are specific to such Order Form. Each Order Form is deemed incorporated into and made a part of, this Agreement. To the extent, that any provision set forth in an Order Form conflicts with any provision set forth elsewhere in this Agreement, the provision set forth elsewhere in this Agreement will control unless the Order Form expressly provides that such provision is being superseded for the purposes of such Order Form. The initial Order Form agreed to by the Parties is attached to this Agreement as Appendix B.
3. MERCHANT OBLIGATIONS.
a) Merchant covenants and agrees it shall only accept payments through the Services for bona fide sales of goods and services.
b) Merchant hereby authorizes Pockyt to request identity-verifying information about Merchant including a consumer report that contains Merchant’s name and address and authorizes Pockyt to periodically obtain additional reports.
c) Merchant hereby authorizes and permits Pockyt to share information about Merchant and Merchant’s application (including whether Merchant is approved or declined) with Pockyt’s partner bank or other financial institution, and governmental regulatory authority.
d) Merchant shall provide additional information as Pockyt may reasonably request for the purposes of meeting onboarding, periodic review requirements, Pockyt’s internal audit, as well as government or regulatory entity requests.
e) Merchant will maintain the confidentiality of any login names or passwords used to access Merchant Portal and will be responsible for any use or misuse of Merchant Portal by Merchant’s employees or agents. Upon becoming aware that Merchant’s login name or password has become compromised, Merchant will promptly provide notice to Pockyt and will remain liable for any unauthorized use of Merchant Portal until such notice has been received by Pockyt.
4. FEES AND PAYMENT.
a) Fees. In consideration for the Services, Merchant shall be responsible for paying Pockyt the non-refundable fees set forth in the Order Form in accordance with the terms therein (“Fees”) without offset or deduction. Pockyt reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Subscription Term or any renewal thereof, upon sixty (30) days’ prior notice to Merchant.
b) Payments. Except as otherwise provided in an Order Form, payments due to Pockyt under this Agreement shall be automatically deducted in the calculation of Settlement remitted to Merchant. All payments are non-refundable and neither Party will have the right to set off, discount, or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If at the time of any calculation of Settlement during the Subscription Term, Settlement amounts from Transactions during such period are insufficient to cover Fees owed, Pockyt shall deduct such Fees or the shortfall via ACH debits to Merchant’s Bank Account made in accordance with the ACH Authorization Agreement in Section 4(c). In the event Pockyt is not able to receive its payment when due via deduction as set forth above, Pockyt will invoice Merchant for such balance, and collect outstanding amounts not paid within thirty (30) days of receipt of such invoice shall be subject to late charges which shall accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Pockyt may suspend Services until all payments are made in full. Merchant will reimburse Pockyt for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
c) ACH Authorization. Merchant hereby (i) authorizes Pockyt to initiate debit and credit entries to Merchant’s Bank Account designated in the Order Form via the Automated Clearing House (ACH) network, for the purpose of collecting all amounts due and payable to Pockyt, as well as to pay all Settlement amounts due and payable to Merchant; (ii) certifies that it maintains the Merchant’s Bank Account at the Merchant’s Bank and all information that it has provided with respect to the Merchant’s Bank Account is accurate and complete. Both Pockyt and the Merchant agree that this ACH Authorization constitutes a full and complete authorization to debit or credit Merchant’s Bank Account, and Merchant agrees not to dispute any debits or credits with the Merchant’s Bank provided the transaction(s) correspond to the terms indicated in the Agreement and this authorization.
d) Taxes. Merchant is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Merchant to Pockyt hereunder, other than any taxes imposed on Pockyt’s income. Without limiting the foregoing, in the event that Merchant is required to deduct any taxes from the amounts payable to Pockyt hereunder, Merchant will pay an additional amount, so that Pockyt receives the amounts due to it hereunder in full, as if there were no deduction.
a) Settlement. Within 2 business days (which, for the purpose of this section, excludes weekends and the applicable Payment Networks’ local country bank holidays and US federal bank holidays) following the completion of a Transaction, Pockyt shall directly initiate remittance of the Settlement funds for such Transaction to Merchant’s Bank Account. All Settlement and any Refunds will be in U.S. dollars.
b) Withhold. Pockyt may decide not to pay the Settlement for any Transaction in violation of the terms and conditions of this Agreement or any other agreement between Merchant and Pockyt, or that it is fraudulent or illegal. Pockyt, in its sole reasonable discretion, may reject, block, or decline to pay the Settlement for any Transaction that does not comply with Applicable Law and may take all such actions necessary for this purpose. If Pockyt suspects that the Services have been used for an unauthorized, fraudulent, or illegal purpose, Merchant hereby gives Pockyt express authorization to share, in accordance with Applicable Law, information about Merchant and any of Merchant’s transactions with appropriate law enforcement or regulatory authorities and, as deemed necessary by Pockyt, any Payment Network or Pockyt’s financial institution partners.
c) Refunds. If a Merchant makes a Refund to the Consumer prior to Merchant receiving the Settlement for the Transaction to which the Refund relates, then such Transaction will be deemed cancelled, and Pockyt will not be required to pay any Settlement to Merchant for such Transaction. If a Merchant makes a Refund to the Consumer following Merchant’s receipt of the Settlement relating to the Transaction to which such Refunds relate, then:
(i) Pockyt shall pay such Refund to the Consumer on behalf of Merchant (provided that Pockyt, in its reasonable discretion, may require Merchant to pay such amount to Pockyt prior to Pockyt initiating the Refund to the Consumer).
(ii) Pockyt may deduct the amount of such Refund from the next payment(s) of Settlement payable by it to Merchant until the full amount of such Refund has been recovered by Pockyt.
(iii) if such Refund has not been completely recovered by Pockyt within thirty (30) days following the date that such Refund occurred, then Pockyt may issue an invoice (the “Refund Invoice”) to Merchant, and Merchant shall pay such invoice within 10 business days following its receipt of such invoice.
(iv) if Merchant does not pay the Refund Invoice, then Pockyt may collect such Refund recovery via ACH debits made in accordance with the Authorization Agreement.
d) Disputed Payments. All disputes relating to the accuracy or applicability of a charge or credit or other claim under the Agreement will be communicated to each Party’s Finance Department for initial reconciliation and resolution. Pockyt may withhold any amounts disputed within good faith and shall pay all undisputed amounts on the invoice pending resolution of the dispute. Unpaid or uncredited amounts withheld in dispute will not be considered the basis for a monetary default.
e) Transaction Declines. Merchant acknowledges that a Payment Network has the right to decline a Transaction for any reason including suspected fraud. Pockyt is not liable to Merchant for any Transactions, including payment of any Settlement, which are declined.
6. CONFIDENTIAL INFORMATION.
a) The Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and the Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Pockyt may use and modify Confidential Information of Merchant in de-identified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
b) Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date firstdisclosed to theReceiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
c) If Confidential Information is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, the Receiving Party shall (a) give Disclosing Party, to the extent possible, prompt, and reasonable advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and (b) limit the disclosure to the minimum amount that is legally required to be disclosed.
d) The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors, or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
7. SUPPORT AND HOSTING.
a) During the applicable Subscription Term, Pockyt will provide Merchant with reasonable technical support with respect to its use of the Services, in accordance with Pockyt’s current support policies. Merchant acknowledges and agrees that its use of the Services is subject to its compliance with any software and other technical requirements as may be reasonably specified by Pockyt from time to time.
b) During the applicable Subscription Term, Pockyt will be responsible for hosting the Pockyt Payments Platform, and will use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control. Pockyt notify Merchant of any outage of Pockyt Payments Platform and will use commercially reasonable efforts to promptly remediate such outage.
8. AGENT AUTHORIZATION.
a) In connection with the Services, Merchant hereby authorizes Pockyt, and Pockyt hereby agrees to act, as Merchant’s agent for the purposes of holding, receiving, and transmitting funds to Merchant on Merchant’s behalf. Each of Pockyt and Merchant hereby agrees to and acknowledges the following:
(i) Pockyt is subject to the control of Merchant. Pockyt shall comply in all respects with instructions originated by Merchant. Pockyt takes complete financial responsibility for the transmission of funds from the moment a Transaction is initiated (even if it is not completed) until Merchant receives the Settlement.
(ii) There will be no risk of loss to the Consumer or Merchant initiating the Transaction if Pockyt fails to remit the Settlement to Merchant.
(iii) Receipt of Settlement by Pockyt will be deemed receipt of Settlement by Merchant. The Consumer’s payment to Pockyt satisfies the Consumer’s obligation to Merchant. Merchant will provide the purchased products or services upon Pockyt’s receipt of payment from Consumer.
(iv) Pockyt will not provide “money transmission” services or equivalent activity (as defined under Applicable Law) outside the scope of activity permitted under this Agreement, except to the extent that Pockyt is licensed to do so or is operating as an agent for a third party.
(v) Pockyt acts as Merchant’s agent for the purposes of holding, receiving, and transmitting funds to Merchant on Merchant’s behalf.
(vi) Consumers doing business with Pockyt are aware that Pockyt is acting on behalf of Merchant. “Powered by Pockyt” will be displayed on the stickers promoting the digital wallets that Merchant accepts for in-store payments, and our standard Merchant Agreement is published on our website.
9. PAYMENT NETWORKS.
a) As of the effective date of an applicable Order Form, Pockyt will have executed all agreements with the applicable Payment Networks with respect to the Payment Methods provided under such Order Form. If Pockyt learns that a Payment Method may no longer be made available under this Agreement, Pockyt will promptly advise Merchant that such Payment Method may not be used by Merchant to accept payments (and such Payment Method will no longer be made available to Merchant through the Service). If such discontinued Payment Method is the only Payment Method that was made available under the Order Form, Pockyt will use commercially reasonable efforts to identify a replacement payment method and, if such replacement payment method is acceptable to Merchant, the Parties will enter an amendment to the Order Form with respect to such replacement payment method. Merchant acknowledges and agrees Pockyt shall have no liability or responsibility for the unavailability of any Payment Method or Merchant’s inability to use the Service due to a Payment Method’s unavailability.
10. MERCHANT MATERIALS AND DATA.
a) Pockyt acknowledges that, as between Merchant and Pockyt and except as set forth in Section 10(b), Merchant owns and retains all right, title, and interest in and to all Merchant Materials.
b) Merchant hereby grants Pockyt a non-exclusive, worldwide, royalty-free, transferable (solely to the extent permitted under Section 18(f)), sublicensable (to Pockyt’s third party service providers) right and license to use, host, reproduce, display, perform, modify the Merchant Materials solely for the purpose of hosting, operating, and providing the Services.
c) We may create Aggregate Data in order to gain useful statistical analysis, industry intelligence and benchmark industry trends. Aggregate Data does not identify Merchant or any individual. You hereby agree that we have the irrevocable right to collect, reproduce, execute, use, store, archive, modify, enhance, perform, display, distribute, sell, rent, vend, license, or otherwise exploit Aggregate Data for any lawful purpose at all times during and after the term of this Agreement; provided, however, that such usage does not identify (expressly or by inference) you, your affiliates, your Authorized Users, or any natural person.
e) The Parties will use commercially reasonable efforts and take no less than industry standard precautions to store, collect, transmit, handle and receive all data received from the other Party in connection with this Agreement, and will cooperate with one another in good faith with respect to any issue, inquiry or incident involving the security of such data to the extent necessary to comply with Applicable Laws including, without limitation, all applicable data protection and privacy laws.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS.
a) Mutual. Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
c) By Pockyt. Pockyt represents and warrants the following: (i) the execution and performance of this Agreement will not violate or breach any other agreement or instrument that Pockyt is bound by or to which any of Pockyt’s assets are subject; (ii) the Services comply with all applicable laws, regulations, court orders, and government agency rulings; (iii) no authorization, consent, approval, permit, or filing with any government or public body, lender, lessor, or other third parties, including any Payment Network, is required for Pockyt to execute, deliver, and perform this Agreement; (iv) the Services will perform under the specifications set forth in the applicable Order or documentation, and Pockyt will use commercially reasonable efforts to promptly correct any reported errors; (v) Pockyt will not transmit any malware to the Merchant or the Merchant’s customers.
a) Indemnification by Pockyt. Subject to Section 12(b), Pockyt will indemnify, defend and hold Merchant and its Representatives (collectively, the “Merchant Indemnitees”) harmless from and against any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by any of the Merchant Indemnitees in connection with: (A) any demand, action, claim, or proceeding by a third-party (each, a “Claim”) alleging that the use of the Services in accordance with this Agreement, infringes or misappropriates any United States patents, copyrights, or trade secrets, (B) any action or failure to act by Pockyt in material breach of the terms and conditions set forth in this Agreement, or (C) any negligence or willful misconduct by Pockyt.
b) Exclusions. Pockyt’s obligations under Section 12(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Merchant’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Merchant Materials; (iii) Merchant’s failure to use any reasonable enhancements, modifications, or updates to the Services that have been provided by Pockyt; with adequate lead time for Notice and testing (iv) modifications to the Services by anyone other than Pockyt; or (v) combinations of the Services with software, data or materials not provided by Pockyt, unless Pockyt had previously approved such combination.
c) IP Remedies. If Pockyt reasonably believes the Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Pockyt may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Merchant to continue use the Services. If Pockyt determines that neither alternative is commercially practicable, Pockyt may terminate this Agreement and/or the applicable Order Form, in its entirety or with respect to the affected component, by providing written notice to Merchant, in which case Pockyt shall bear the cost of safely removing any hardware and software provided by Pockyt. The rights and remedies set forth in this Section 12 will constitute Merchant’s sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the Services.
d) Indemnification by Merchant. Subject to Section 12(e), Merchant will indemnify, defend and hold Pockyt and its Representatives (collectively, the “Pockyt Indemnitees”) harmless from and against all Losses in connection with any Claim: (i) arising from any Merchant Materials, including, without limitation (A) any Claim that the Merchant Materials infringes, misappropriates or otherwise violates any third party’s intellectual property rights or privacy or other rights and (B) any Claim that the use, provision, transmission, display or storage of Merchant Materials violates any Applicable Law, rule or regulation; (ii) arising from or relating to any products or services of Merchant; (iii) arising from or relating to the use of the Services by Merchant, or any Authorized User in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the restrictions in Section 1(b), Section 1(C); and (iv) asserted by any Consumer, (C) any action or failure to act by Merchant in material breach of the terms and conditions set forth in this Agreement, or (D) any negligence or willful misconduct by Merchant.
e) Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided; however, that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
13. WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, POCKYT PAYMENTS PLATFORM AND ITS COMPONENTS, AND ANY DOCUMENTATION, ARE PROVIDED ON AN “AS IS” BASIS, AND POCKYT MAKES NO WARRANTIES OR REPRESENTATIONS TO MERCHANT, ITS AUTHORIZED USERS, OR TO ANY OTHER PARTY REGARDING ANY OF THE FOREGOING, OTHER THAN THAT THE SAME SHALL AT ALL TIMES BE SUITABLE FOR THEIR INTENDED PURPOSES, AS SET FORTH HEREIN AND IN THE APPLICABLE ORDER FORM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, POCKYT HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, BUT SPECIFICALLY EXCLUDING WARRANTIES AND REPRESENTATIONS REGARDING FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, POCKYT HEREBY DISCLAIMS ANY WARRANTY THAT POCKYT PAYMENTS PLATFORM OR THE SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED. TO THE EXTENT POCKYT MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
14. LIMITATIONS OF LIABILITY.
a) Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) GROSS NEGLIGENCE, FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) EITHER PARTY’S INDEMNITY AND DEFENSE OBLIGATIONS UNDER SECTION 12, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, POCKYT PAYMENTS PLATFORM OR THE PROVISION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
b) Total Liability. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) GROSS NEGLIGENCE, FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) EITHER PARTY’S INDEMNITY AND DEFENSE OBLIGATIONS UNDER SECTION 12, IN NO EVENT WILL POCKYT’S MAXIMUM, CUMULATIVE LIABILITY TO MERCHANT AND THE AUTHORIZED USERS FOR CLAIMS RELATING TO EACH INDIVIDUAL ORDER AND ARISING IN CONNECTION WITH THIS AGREEMENT, POCKYT PAYMENTS PLATFORM OR THE PROVISION OF THE SERVICES EXCEED THE FEES ACTUALLY PAID BY MERCHANT TO POCKYT PURSUANT TO SUCH ORDER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT POCKYT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT FOR MERCHANT’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL MERCHANT’S AGGREGATE LIABILITY TO POCKYT FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER) (COLLECTIVELY, “DAMAGES”), AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE FEES PAID BY MERCHANT TO POCKYT UNDER THE APPLICABLE ORDER. THESE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES.
c) Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 14 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN POCKYT AND MERCHANT, AND WILL SURVIVE AND APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
15. TERM AND TERMINATION.
a) Subscription Term. The initial term of this Agreement shall be three (3) years begins on the Effective Date.
b) At the end of the initial Subscription Term, this Agreement shall automatically renew for successive one (1) year terms unless a Party provides written notice to the other Party of its intent not to renew at least thirty (30) days prior to the expiration of the end of the initial Subscription Term.
c) After the initial Subsription Term a Party may terminate this Agreement at any time without cause upon providing the other with thirty (30) days prior written notice.
d) In addition, either Party may terminate this Agreement: (i) upon thirty (30) days’ prior written notice to the other Party if the other Party commits a material breach of this Agreement, and the breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other Party (a) is unable to pay its debts as they mature or admits in writing its inability to pay its debts as they mature, (b) makes a general assignment for the benefit of creditors, (c) files a voluntary petition for bankruptcy or has filed against it an involuntary petition for bankruptcy, (d) applies for the appointment of a receiver or trustee for substantially all of its assets or permits the assignment of any such receiver or trustee who is not discharged within a period of thirty (30) days after such appointment, or (e) otherwise ceases to actively conduct its business. We may also terminate this Agreement upon written notice to you under the limited circumstances set forth in Section 12(c).
e) Survival. Section 1(b) (“Use Restrictions”), Section 1(c) (“Prohibited Business”), Section 1(d) (“Third-Party Services”), Section 1(e) (“Pockyt IP and Reservation of Rights”), Section 3 (“Merchant Obligations”), Section 4 (“Fees and Payment”) (until you have paid all Fees and applicable taxes), Section 6 (“Confidential Information”), Section 12(“Indemnification”), Section 13 (“Warranty Disclaimer”), Section 14 (“Limitations of Liability”), this Section 15(e) (“Survival”), Section 15(f) (“Effect of Termination”) and Section 18 (“General”) shall survive the termination of this Agreement.
f) Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 1(a) will terminate; and (ii) the Receiving Party will return or destroy, at the Disclosing Party’s sole option, all Confidential Information in its possession or control, including permanent removal of such Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in the Receiving Party’s possession or under the Receiving Party’s control, and at the Disclosing Party’s request, certify in writing to the Disclosing Party that the Confidential Information has been destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Merchant’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination or entitle Merchant to any refund unless otherwise set forth herein.
a) Merchant hereby grants Pockyt a limited, non-exclusive, royalty-free, transferable (solely to the extent permitted under Section 18(f)) license to use and display Merchant Marks during the Subscription Term in connection with (i) the hosting, operation, and maintenance of the Services; and (ii) Pockyt’s marketing and promotional efforts for its products and services, including by publicly naming Merchant as a customer of Pockyt and in case studies. All goodwill and improved reputation generated by Pockyt’s use of the Merchant Marks inures to the exclusive benefit of Merchant. Pockyt will use the Merchant Marks in the form stipulated by Merchant and will conform to and observe such standards as Merchant prescribes from time to time in connection with the license granted hereunder (“Marketing Guidelines”). Pockyt may in its sole discretion and subject to any Marketing Guidelines by Merchant at the execution of this Agreement, issue marketing material, press releases, or other publicity regarding this Agreement or the contents hereof.
a) Merchant agrees that Pockyt may include Merchant’s name and logo in Pockyt’s published Merchant list. In addition, Merchant agrees to work with Pockyt on a joint press release for distribution upon signature of this Agreement, a press release for distribution upon Merchant processing digital payments through Pockyt Payments platform, and a case study for distribution as soon as practicable and after Merchant has gone live and has been processing digital payments through the Platform, all subject to obtaining Merchant’s written consent as to content prior to any distribution by Pockyt, and such consent not to be unreasonably withheld or delayed.
a) Entire Agreement. This Agreement, including its exhibits and any Order Forms, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications, and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
b) Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth below or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 18(b). Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) one (1) business days after having been received by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce-back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.
If to Pockyt: Pockyt
28 Liberty Street, 6th Floor
New York, NY 10005
Attention: Legal & Compliance Department
If to Merchant: [NAME AND EMAIL PROVIDED IN THE APPLIACTION]
c) Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
d) Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
e) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York County, New York, and the Parties irrevocably consent to the personal jurisdiction of such courts and hereby irrevocably waive any objection to the laying of venue in such courts.
f) Assignment. Neither Party may assign or transfer this Agreement, without the other Party’s prior written consent; provided, however, that notwithstanding the foregoing, either Party may assign or transfer this Agreement (i) to any of its Affiliates or (ii) to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by asset sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns. Any attempt to assign or transfer this Agreement in violation of this Section will be void.
g) Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Merchant, Section 1(b), Section 1 (c) would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under the law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
h) Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
i) Subcontracting. Pockyt may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Pockyt remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors with which Merchant has entered into a contract separate from this Agreement, including any hosting (e.g., AWS) or payment vendors (e.g., PayPal), Pockyt will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors but will be liable for the acts or omissions of such third-party vendors.
j) Export Regulation. Merchant will comply with all applicable federal laws, regulations, and rules that prohibit or restrict the export or re-export of the Services or software, or any Merchant Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval. Both Parties agree that Services shall be provided in Canada to an extent available.
k) U.S. Government End Users. The Services, software, and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.
l) Relationship of the Parties. The relationship between the Parties is that of independent contractors. Except as expressly provided in Section 8 of this Agreement, nothing in this Agreement will be construed to establish any partnership, joint venture, or an agency relationship between the Parties, and neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
m) No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any third party other than the Parties and their respective successors and assigns.
n) Affiliates. Parties’ affiliates and the Indemnified Parties shall be third-party beneficiaries for all purposes under this Agreement including any Order Forms. All claims by the affiliates shall be made and brought by the Parties on behalf of the affiliates unless otherwise required by law.
o) Counterparts. This Agreement may be executed in counterparts, and by electronic (.pdf) transmission thereof, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
p) Captions and Headings. The captions and headings used in this Agreement are used for convenience only and are not to be given any legal effect.
APPENDIX A – DEFINITIONS
“ACH” means Automated Clearing House, a network that coordinates electronic payments.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Aggregate Data” means any data that is derived or aggregated in de-identified form from (i) any Merchant Materials; or (ii) Merchant’s and/or an Authorized User’s use of the Services, including, without limitation, any usage data or trends with respect to the Services.
“Applicable Law” means all applicable laws, statutes, ordinances, rules, and regulations of any governmental authority in any jurisdiction in which Transactions may occur, as any of the foregoing may be amended and in effect from time to time, including without limitation: (i) the Bank Secrecy Act; (ii) the USA PATRIOT Act; (iii) trade and economic sanctions programs administered or enforced by the United States Department of Treasury’s Office of Foreign Assets Control; and (iv) statutes, rules, regulations and record-keeping requirements concerning anti-money laundering or money transmission. Applicable Law shall also include all consumer protection laws and all other laws related to the Services.
“API” means Pockyt’s application programming interface.
“Authorized User” means: (i) your affiliates, employees, contractors, and agents whom you authorize to access and use the Services; and (ii) any Consumer from which you accept payment through the use of the Services; provided, however, that any contractors’ or agents’ access to and use of Pockyt Payments Platform will be limited to their provision of services to you. You are responsible for the acts and omissions of any Authorized Users and any other person who accesses and uses Pockyt Payments Platform using any Authorized User’s sign-in names, passwords, or unique identifiers.
“Confidential Information” means: (i) with respect to Pockyt, Pockyt Payments Platform and any and all object code source code relating thereto; the Aggregate Data; the Documentation; and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data including, without limitation, methods, processes, procedures, systems, know-how, algorithms, applications, ideas, techniques, user interface design, technical data, models, applications, and other intellectual property related to the Services; (ii) with respect to you, the Merchant Materials and any other non-public information or material regarding your legal or business affairs, financing, properties, or data; and (iii) with respect to each Party, (a) the terms and conditions of this Agreement and all Order Forms, in all cases, whether disclosed orally or in tangible or electronic form; (b) all information communicated by the Disclosing Party (as defined below) that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure; (c) all information identified as confidential to which Receiving Party has access in connection with an Order Form, whether before or after the Effective Date; and (d) (1) all trade secrets, (2) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, and (3) information relating to business plans, sales or marketing methods, lists or requirements. Notwithstanding any other provisions of this Agreement, Confidential Information also includes any and all information provided by Merchant to Pockyt prior to the Effective Date (and/or the effective date of any Order) relating to the subject matter of this Agreement and all Orders. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented, or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
“Consumer” means a customer of Merchant who makes a payment that is accepted through the use of the Services.
“Documentation” means any user guides, training materials, specifications, minimum system configuration requirements, compatible device, and hardware list, and other similar materials in hard copy or electronic form if and as provided by Pockyt to Merchant (including any revised versions thereof) relating to Pockyt Payments Platform or the Services, which may be updated from time to time upon notice to Merchant.
“Fees” shall have the meaning set forth in Section 4.
“Harmful Code” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would (i) cause Pockyt Payments Platform to cease functioning; (ii) in any way damage or corrupt data, storage media, programs, equipment, or communications; or (iii) otherwise interfere with the operations of Pockyt Payments Platform, including, without limitation, Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices.
“Merchant Marks” means the Merchant’s name, trade names, trademarks, service marks, trade dress, and logos.
“Merchant Materials” means all information, data, content, and other materials, in any form or medium, that are submitted, posted, transmitted, or otherwise provided to Pockyt by or on behalf of Merchant through the Services or to Pockyt in connection with Merchant’s use of the Services, but excluding, for clarity, any other information, data, content or materials owned or controlled by Pockyt and made available through or in connection with the Services.
“Merchant Portal” means merchant portal located at www.Pockyt.io or such other internet address as Pockyt may provide to Merchant from time to time.
“Merchant’s Bank” means the bank where Merchant’s Bank Account is located.
“Merchant’s Bank Account” means Merchant’s bank account specified in Order Form or such other bank account that Merchant directs Pockyt to deposit Settlement into pursuant to a written notice given by Merchant to Pockyt, and which is maintained primarily for commercial and not for personal, family, or household purposes.
“In-person Transaction” means (i) an in-store transaction with a QR Code, a Terminal, or other point-of-sale device (including those integrated with Pockyt’s technology); and (ii) a transaction using other means as the Parties may agree upon from time to time in writing.
“Online Transactions” means (i) a transaction on an E-commerce website or mobile application, including those accessible by a desktop browser, or mobile browsers, (ii) a transaction using Pockyt Payments Platform, and (iii) a transaction using other online means as the Parties may agree upon from time to time in writing.
“Payment App” means a Payment Method’s software application for use on a Consumer’s portable device.
“Payment Networks” means the third-party provider of a Payment Method.
“Payment Method(s)” shall have the meaning set forth in the Order Form.
“Payment Network Rules” means the rules and operating guidelines of any payment network through which payments are transferred and processed, including the rules of the National Automated Clearing House Association for automated clearinghouse transfers.
“Prohibited Business” means any type of business for which Services may not be used, as set forth in the Agreement or as otherwise notified by Pockyt to Merchant from time to time.
“Prohibited Content” means content that: (i) is illegal under Applicable Law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; or (vii) is otherwise objectionable to us in our sole, but reasonable, discretion.
“QR Code” means the machine-readable optical label that Pockyt provides to Merchant in order to allow Merchant to accept payment for goods and services by Consumers from a Payment Method.
“Refund” means the amount of a refund made by Merchant to a Consumer on account of a previously completed Transaction with such Consumer, without any deduction for any fees charged by the Payment Networks or Fees charged by Pockyt.
“Representatives” means with respect to a Party, its Affiliates, and its and their respective officers, directors, members, managers, partners, employees, contractors, and agents.
“Services” means (a) all services that Pockyt provides to Merchant (including, but not limited to, access to the Pockyt Payments Platform) to enable acceptance of the Payment Methods and (b) any related implementation, training, and/or other services, if any, to be provided by Pockyt to Merchant; in each case, as set forth in this Agreement and the applicable Order Form.
“Settlement” means, with respect to a Transaction, an amount equal to (a) the settlement amount received by Pockyt from a Payment Network on account of such Transaction, minus (b) the following amounts: (i) fees charged by the Payment Network with respect to such Transaction, (ii) the Fees payable to Pockyt with respect to such Transaction and (iii) any deductions for Refunds not previously processed.
“Subscription Term” means the term for which you are subscribing to the Services as set forth in the applicable Order Form, as such term may be terminated early in accordance with the terminations provisions set forth in this Agreement.
“Terminals” means a device provided by Pockyt to Merchant capable of accessing a machine-readable medium and being able to scan a bar code, QR code, or other machine-readable format generated in a Payment App on a Merchant’s portable device.
“Transaction” means an Online Transaction or In-Person Transaction whereby a Consumer uses a Payment Method to purchase goods and/or services from Merchant and pays for such goods and/or services in U.S. dollars or any other currency that is expressly provided for in the applicable Order Form.
“Pockyt IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes, and methods used to provide or deliver the Services or any Services, and Documentation, all improvements, modifications, or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
“Pockyt Marks” means Pockyt’s name, trade names, trademarks, service marks, trade dress, and logos.
“Pockyt Payments Platform” means the technical and financial services provided by Pockyt to Merchant to allow for the electronic transfer of funds using one or more of the applicable Payment Methods.
“Pockyt Website” means Pockyt’s website located at www.Pockyt.io or such other website as specified by Pockyt to the Merchant.
“Withhold” means a percentage of the total processing volume for the merchant held by Pockyt as security in case of a chargeback or other risk factors arising from using the Pockyt Payments Platform and related services under the terms and conditions of this Agreement and Order Form.