Terms of Service
Last Modified: May 18, 2021
1. Order Form. Services will be ordered by Customer pursuant to executed order forms (each, an “Order Form”). Each Order Form will include the specific services being ordered (the “Service”) and the associated fees and any additional terms as applicable. Each additional Order Form will be numbered sequentially (e.g. Order Form 1, 2, 3, etc.) and upon execution by both parties will be deemed an addendum hereto and will be subject to the terms and conditions herein.
2.1. Rights for Use. Subject to timely payment of all applicable fees, Company hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-transferrable (except as expressly permitted hereunder), limited right to access and use the Service subject to the terms and conditions herein.
2.2. Restrictions on Use. In accessing or using the Service, Customer will not: (a) resell, lease, encumber, sublicense, distribute, publish, transmit, transfer, assign or provide such access or use to any third party in any medium whatsoever; (b) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Service; (c) apply systems to extract or modify information in the Service using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (d) knowingly input or post through or to the Service any content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others, (e) input or transmit through or to the Service any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Service or grant unauthorized access thereto; (f) use or access the Service for purposes of monitoring the availability, performance or functionality of the Service or for any other benchmarking or competitive purposes; or (g) cause, assist, allow or permit any third party (including an end-user) to do any of the foregoing; (h) use the Service to compete with Company in any way; or (I) permit any third party to use or access the Service other than Customer’s direct employees or contractors who are acting on its behalf.
2.3. Accounts. Access to or use of certain portions and features of the Service may require Customer to create an account (“Account”). Customer states that all information provided by it is current, accurate, complete, and not misleading. Customer further states that it will maintain and update all information provided by it to ensure accuracy on a prompt, timely basis. Customer is entirely responsible for maintaining the confidentiality and security of its Account(s), including Customer’s password. Accounts are not transferrable. Customer agrees to promptly notify Company if Customer becomes aware or suspects any unauthorized use of its Accounts, including any unauthorized access or attempted access. Customer is responsible for all activities that occur under its Account(s). Further, Customer is the primary account holder and is responsible for all charges made by additional users added to its Accounts. A user license is required for each person utilizing Customer’s Account, or other data generated through the use of the Service. Any sharing of such data to reduce the number of licenses required or sharing Account information in any way is strictly prohibited.
2.4. Account Verification. To apply, a Customer provides information, including email address and a self-selected password, in order to create an Account or they complete a hardcopy application. Company asks Customer for additional information, such as street address, telephone number, tax identification number (such as Social Security Number), and date of birth to verify Customer’s identity. Customer agrees to provide supplemental documentation upon request (including but not limited to articles of incorporation, passports, driver’s license or a business license).Customer authorizes Company, directly or through third parties, to make inquiries or verify that this information is accurate (for example, through social media or third-party databases).
2.5. Maintenance. Customer agrees that Company may install software updates, error corrections, and software upgrades to the Service as Company deems necessary from time to time. All such updates, error corrections and upgrades will be considered part of the Service for purposes of this Agreement.
2.6. Applicable Laws. Customer’s access to and use of the Service is subject to all applicable international, federal, state and local laws and regulations. Customer may not use the Service or any information data or Customer Content in violation of or to violate any law, rule or regulation. Ensuring Customer’s use of the Service is compliant with applicable laws is the responsibility of Customer.
2.7. Suspension of Service. Company has the right to immediately suspend the Service (a) in order to prevent damage to or degradation of the Service or unauthorized or non-compliant use or (b) for operational reasons such as repair, maintenance, or improvement or because of any emergency, or (c) if, following notice from Company, Customer has failed to pay any amounts due and owing. In the case of (a) or (b) Company will give Customer prior notice if reasonable and will ensure that the Service is restored as soon as possible after the event given rise to suspension has been resolved to Company’s reasonable satisfaction.
2.8. Exclusivity. During the Term, Customer agrees to exclusively use Company for Customer’s gym management solutions or services or elements thereof (including member payment services) for all of Customer’s locations including gyms, workout facilities, or related businesses that the current or future owners of Customer directly or indirectly owns any equity in, manages or controls. Customer shall notify Company of any new Customer location(s) and the Company shall issue additional Order Form(s) adding the Services provided in previous Order Forms to include the new Customer location(s).
3. Data Licenses.
3.1. Customer Content. As between Company and Customer, all title and intellectual property rights in and to all electronic data or information submitted to and stored in the Service that is owned by Customer (“Customer Content”) is owned by Customer. Customer acknowledges and agrees that in connection with the provision of the Services, Company may store and maintain Customer Content for a period of time consistent with Company’s standard business processes for the Service. Following expiration or termination of the Agreement or a Customer account, if applicable, Company may deactivate the applicable Customer account(s) and delete any data therein. Customer grants Company the right to host, use, process, display and transmit Customer Content to provide the Services pursuant to and in accordance with this Agreement and the applicable Order Form. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content, and for obtaining all rights related to Customer Content required by Company to perform the Services.
3.2. Aggregated Data. Customer agrees that, subject to Company’s confidentiality obligations in this Agreement, Company may (a) capture data regarding the use of the Service by Customer and its end users, (b) collect metrics and data included in the Company Content, and (c) aggregate and analyze any metrics and data collected pursuant to subsections (a) and/or (b) of this sentence (collectively, the “Aggregated Data”). Customer agrees that Company may use, reproduce, distribute and prepare derivative works from the Company Content, solely as incorporated into Aggregated Data, provided that under no circumstances will Company use the Aggregated Data in a way that identifies Customer or its users as the source of the data.
4. Data Security. Company adheres to Payment Card Industry Data Security Standards (“PCI DSS”). Company protects and secures cardholder data in its possession according to its responsibility under PCI DSS. Customer agrees, during the Term (as defined below), to comply with PCI DSS, undergo a yearly self-assessment and submit a yearly “Attestation of Compliance” or complete other certification processes and procedures as required by PCI DSS. Customer understands that the Service default security settings are configured in a PCI DSS compliant manner, and that Customer is wholly responsible for ensuring that any changes Customer makes to these security settings will not result in Customer being out of PCI DSS compliance. Further, to the extent applicable to Customer or the information disclosed to Customer by Company, Customer agrees that Customer will comply with all other applicable state, federal, and international laws, regulations, standards and guidance, relating to information security, including without limitation, Mass. 201 CMR § 17.00 et. seq. Customer acknowledges and agrees that any information Customer enters into the Service, including but not limited to customer contact information and financial account information, may be utilized by Company for the sole purpose of providing the Service to Customer. Customer represents and warrants that Customer has all rights to provide any such data to Company and to grant Company the foregoing rights. Customer has the right, during the Term, to use any system export feature to retrieve data from the Service, but Customer understands that this export function does not include the ability to export full credit card account numbers or bank account numbers. Should Customer request export of this financial account information, Customer acknowledges and agrees that Company may provide this service at an additional fee but is under no obligation to do so. Customer acknowledges that using the system delete function to remove any data related to Customer’s customer (such as deleting a customer record or deleting a credit card or bank account from a customer record), or to remove any personal data about Customer’s company or its authorized users (such as deleting a staff profile), only restricts viewing that data from any system interface and prevents utilizing that data for any system function. It does not permanently delete the data from Company’s systems. To have any personal data permanently deleted from Company’s systems, Customer must make an official request in writing, to the address provided below or by emailing [email protected], that includes the specific information that Customer would like permanently deleted from Company’s systems. Note that Company will require Customer to verify its identity prior to executing any request to permanently delete data.
5. Third Party Services. Except as expressly permitted in this Agreement or as otherwise agreed by Company in writing, Customer is prohibited from linking to the Service, framing all or any portion of the Service, and extracting any data from the Service by any means other than a system export or data sharing feature. Company reserves the right to disable any unauthorized links or frames. Company will not be responsible and expressly disclaims any liability for any third-party services that Customer may use or connect to through the Service. If Customer activates any APIs or links to enable data sharing through the Service, Customer thereby authorizes Company to send and receive Customer Content with any such activated third party service and represents and warrants to Company that Customer has all appropriate right and title to grant such authorization.
6. Payment Processing Services. Customer acknowledges that Company contracts with various third parties, such as banks and payment processors, to facilitate such payment processing. Customer hereby agrees and acknowledges that by accepting the terms hereof, Customer hereby accepts and agrees to be bound by the terms of the Sub-Merchant Agreement (the “Sub-Merchant Agreement”) by and between Customer and the third party processors. Customer agrees that Company and its agents may apply systems to read and extract information on Customer’s website(s) using technology or methods such as those commonly referred to as “web crawling,” “web scraping,” “data scraping,” or “screen scraping” for the purpose of evaluating compliance with terms and conditions of the Sub-Merchant Agreement.
7. Intellectual Property.
7.1. Proprietary Rights. Company’s intellectual property, including without limitation the Service, its trademarks and copyrights and excluding any Company Content contained therein, and any modification thereof, are and will remain the exclusive property of Company and its licensors. No licenses or rights are granted to Customer except for the limited rights expressly granted in this Agreement.
7.2. Feedback. Customer agrees that advice, feedback, criticism, or comments provided to Company related to the Service are given to Company and may be used by Company freely and without restriction and will not enable Customer to claim any interest, ownership or royalty in Company’s intellectual property.
8. Settlement and Payment.
8.1. Remittance by Company. Funds received by Company in respect of payments by Customer’s members to Customer that are processed through the Service (“User Payments”) will be remitted to Customer (net of amounts Company is authorized to deduct or withhold, as described below) pursuant to the remittance schedule selected by Customer. Such remittance schedule may be selected from the options provided by Company, with options ranging from daily to monthly remittances.
8.2. Payment of Fees. Certain rates and fees are set forth in the applicable Order Form (“Fees”). Funds collected from Customer’s members will be deposited in an account designated by Company (the “Designated Account”). Fees owed by Customer to Company will be automatically debited from the Designated Account. If funds in the Designated Account are insufficient to pay the Fees then due, Company will charge such remaining Fees owned from the bank account or other electronic payment method for which Customer has provided applicable account information and Customer hereby authorizes Company to perform all such debits. In the event amounts deducted or withheld from the Designated Account or attempts to debit from the bank account or other electronic methods provided by Customer are insufficient to pay all Fees and other amounts Customer owes to Company hereunder, Customer agrees to pay such amounts on demand, and to pay all attorneys’ fees and costs and expenses of collection Company incurs in collecting amounts Customer owes. Company, upon notice to Customer, will have the right to change Fees, which right will include without limitation the right to charge a Fee for new features or functions of the Service or for features or functions that have previously been offered at no charge, or to change the rates listed below if the actual monthly processing volume is significantly higher or lower than the anticipated volume specified in the Order Form. Unless otherwise noted in the Order Form, all Fees are payable in Canadian Dollars, and non-refundable.
8.3. Other Fees. Customer agrees to pay to Company on demand (i) any and all service or processing fees, taxes, or other charges associated with payment transactions processed through the Service, as specified in the Order Form in effect from time to time, (ii) any adjustments, fees, penalties, or costs incurred by Company as a result of any dispute related to a User Payment (as defined below) or to any payment transaction alleged to have processed through the Service; and (iii) any fees or charges imposed by third parties (including to Associations and Acquirers as defined in the Sub-Merchant Agreement) related to disputed, returned, or cancelled transactions or User Payments. Customer authorizes and directs Company to deduct the amounts Customer owes under this paragraph from User Payments, and Customer understands that User Payments Company remits to Customer will be net of these amounts.
8.4. Withholding. Customer further agrees that Company may withhold the following amounts from User Payments, and Customer understands that User Payments Company remits to Customer will be net of these amounts: (i) the amount of any User Payment that is subject to dispute or reasonably anticipated to be subject to dispute as determined in Company’s sole discretion (such as in the case of credit card charge backs) and any related adjustments, fees, penalties, or costs Company incurs or reasonably anticipates Company will incur as a result of the dispute; (ii) any third-party fees or charges Company incurs or reasonably anticipates Company will incur as a result of a disputed, returned, or cancelled User Payments, including any imposed on Company by Acquirers (as defined in the Sub-Merchant Agreement); (iii) any taxes or other amounts as required by law; and (iv) any other amounts Customer owes to Company under this Agreement, including any amounts that Company reasonably believes are or may be owed to Company as a result of any breach by Customer of this Agreement or the Sub-Merchant Agreement or pursuant to Customer’s indemnification obligations under this Agreement. Customer authorizes Company to use the funds so withheld to satisfy Customer’s obligations in respect of any matters described in this paragraph. To the extent the funds so withheld exceed the amount(s) actually required to satisfy Customer’s obligations, the remaining funds will be treated as User Payments received by Company during the calendar month in which Company determines (in Company’s sole and reasonable discretion) that Customer’s obligations have been satisfied, and remitted to Customer in accordance with this Section.
8.5. Assistance. In the event Customer is notified by Company or otherwise that any cardholder, bank account holder, or other person disputes or asserts any claim related to any payment transaction processed or alleged to have been processed through the Service, or the amount thereof, Customer will provide all such assistance as Company may request in connection with the investigation of such claim or dispute, including providing to Company such information or documentation regarding such transaction as Company may request. In the event it is determined that any refund or other payment is owed to a cardholder, bank account holder, user, or other person in connection with such a claim or dispute, Customer agrees that Customer is solely responsible for issuing any resulting refund and/or payment, and Customer will provide Company with such evidence as Company may require that Customer has issued the refund or payment.
8.6. Accuracy of Information. To ensure proper remittance of User Payments, Customer is solely responsible for providing and maintaining accurate contact and payment information associated with Customer’s account, which may include without limitation applicable tax information. If Company believes that Company is obligated to obtain tax information and Customer does not provide this information to Company after Company has requested it, Company may refuse to remit User Payments to Customer until Customer provides this information or otherwise satisfies Company that Customer is not a person or entity from whom Company is required to obtain tax information. Customer agrees to pay all applicable taxes or charges imposed by any government entity in connection with Customer’s participation in the Service.
8.7. Disputes. If Customer believes that Company has failed to remit User Payments owed to Customer, Customer must notify Company in writing within sixty (60) days of the date of such remittance or from the date when Customer purports such remittance would have been due, specifying in reasonable detail the amounts Customer believes are owed. Customer’s failure to so notify Company shall result in Customer’s waiver of any claim relating to such disputed remittance. Amounts owed to Customer shall be calculated solely based on records maintained by Company, which shall be presumed correct absent manifest error. Customer shall have no audit rights hereunder.
8.8. Reserve. At any time, Company reserves the right to hold a cash reserve in the Designated Account (the “Reserve”), to secure the performance of Customer’s payment obligations under this Agreement, the amount of such Reserve is at the sole discretion of Company. Company may require a Reserve for any reason, including high number and/or amount of chargebacks or indications of performance problems related to Customer’s use of the Service. The Reserve may be raised, reduced or removed at any time by Company, in its sole discretion. If Customer does not have sufficient funds in its Designated Account to cover the required Reserve, Company may fund the Reserve from any funding source associated with Customer’s Account, or from any other Account under Customer’s control or any funding source associated with such other Account.
8.9. Taxes. Company Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes for which Customer is responsible under this Section. Company may invoice taxes to Customer and Customer will pay such taxes, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
9. Term and Termination.
9.1. Term. This Agreement will be effective as of the stated date in an initial Order Form (“Effective Date”) and remain in effect until (a) all executed Order Forms have expired or been terminated or (b) terminated by either party as permitted by this Agreement (the “Initial Term”). Unless otherwise stated in the Order Form the Initial Term will be on a month-to-month basis, thereafter, the Order Form will automatically renew for successive periods equal to one month, unless cancelled by either party in accordance with this Agreement (the “Renewal Term” and together with the “Initial Term”, the “Term”).
9.2. Termination. Either party may terminate this Agreement by providing 30 days’ written notice. Either party may terminate this Agreement immediately for a breach by the other party of any of its material terms, if the breaching party has failed to cure such breach (if curable) within 30 days of receipt of written notice from the non-breaching party describing the breach. Either party may terminate this Agreement without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property. Customer may terminate immediately upon notice to Company any time within 90 days after receiving notice from Company regarding any fee increase or the introduction of a new fee related to credit card processing or related services. Company may terminate this Agreement immediately without notice if Customer uses Service to promote any product, service or activity that is in violation with the Sub-Merchant Agreement. Customer shall send notice of termination of this Agreement to [email protected]
9.3. Effects of Termination. Upon the expiration or termination of this Agreement for any reason, (a) Customer will immediately cease using the Service, (b) upon request, each party will return or destroy all Confidential Information of the other party in accordance with PCI DSS requirements for secure destruction of cardholder data, provided, that each party may retain one copy of the Confidential information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure and security obligations in this Agreement) and (c) any unpaid, undisputed amounts due through termination will become immediately due and payable.
9.4. Survival. Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Customer’s payment obligations under this Agreement.
9.5. Prohibited Activities. Customer shall not accept payments or use the Service in any of the following categories/businesses or engage in any of the activities (as such list may be updated from time to time) listed on Exhibit A hereto. If Company determines that Customer has received funds resulting from fraud or a prohibited activity, those funds may be held, voided, or returned. In addition, if Company reasonably suspect that Customer’s Account has been used for an unauthorized, illegal, or criminal purpose, Customer gives Company express authorization to share information about Customer, Customer’s Account, Customer’s access to the Service, and any of Customer’s transactions with law enforcement, including but not limited to Acquirer and Associations (as such terms are defined in the Sub-Merchant Agreement) and the Financial Consumer Agency of Canada.
10. Confidential Information.
10.1. Confidential Information. “Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement. The Service, all features and functions thereof and related pricing and product plans will be the Confidential Information of Company.
10.2. Non-Disclosure. Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.
10.3. Exclusions. The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.
11. Disclaimers. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT COMPANY WILL CORRECT ALL ERRORS OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATIONS OR SECURITY OF THE SERVICE THAT ARISE FROM CUSTOMER CONTENT OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. COMPANY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation of Liability. IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO COMPANY IN THE 3 MONTH(S) PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.
13. Indemnification. Customer agrees to defend and indemnify Company and its affiliates from and against any legal action, demand, suit, or proceeding brought against Company or its affiliates by a third party arising out of or related to the Customer Content or Customer’s use of the Service.
14. Publicity. Customer hereby consents to Company identifying Customer as a customer by name and logo in Company’s promotional materials, subject to Customer’s right to revoke such consent in writing at any time. Upon such revocation, Company will have 30 days to process Customer’s request.
15. Assignment. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Company. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.
16. Notices. Any notice required under this Agreement will be provided to the other party in writing. If Customer wishes to provide notice to Company, Customer will send notice via email to: [email protected] Company will send notices to one or more contact(s) on file for Customer. Notices from Company, other than for a breach of this Agreement may be provided within the Service.
17. Attorney’s Fees. In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.
18. Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
19. No Third Party Beneficiaries. This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
20. Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.
21. Force Majeure. Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.
22. Limitation of Claims. No legal proceedings, regardless of form, arising under or relating to this Agreement may be brought by Customer more than six months after it first has actual knowledge of the facts giving rise to the cause of action.
23. Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in all respects in accordance with the laws of the state of Colorado, without regard to its conflicts of laws principles. Each party hereby consents to the exclusive venue and jurisdiction of the federal courts of Colorado. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
24. Severability, Waiver and Amendment. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.
25. Counterparts, Entire Agreement and Order of Precedence. Any Order Form may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement, together with any Order Form(s) states the entire agreement of the parties regarding the subject matter of this Agreement, and supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. If an ambiguity or conflict exists among the documents the order of precedence will be: (a) the terms and conditions of an Order Form; and (b) the terms and conditions of this Agreement. Any preprinted terms on any purchase order are hereby expressly rejected by Company and will be of no force or effect.
PayFacs shall not solicit or sign agreements with merchants or submerchants (i) in any of the following categories/businesses, or (ii) engaging in any of the following activities as may be updated by Worldpay in its sole discretion from time to time as they are Prohibited by Worldpay and/or the Card Brand rules:
· Any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more Card Brands
· Any Merchant selling goods or services that represent a violation of any law, statute or regulation
· Any Merchant operating outside the United States
· Any Merchant or submerchant submitting sales for payment that resulted from another commercial entity providing goods or services to the cardholder, including those businesses that may otherwise qualify themselves as a Payment Facilitator
· Any Merchant selling products that infringe on the intellectual property rights of others, including counterfeit goods or any product or service that infringes on the copyright, trademark or trade secrets of any third party, such as many Cyberlockers
· Any Merchant accepting a card as payment for a dishonored check or for an item deemed uncollectible by another merchant
· Any Merchant that accepts a card at a scrip-dispensing terminal
· Adult entertainment and/or adult content websites including Electronic Commerce adult content (videotext) merchants that may include MCCs 5967, 7273 and 7841
· Airlines including Charter Airlines
· Bidding Fee Auctions including Penny Auctions
· Brand or Reputational damaging, potential or otherwise, activities including Child Pornography, Escort Services, Mail Order Brides, Occult
· Collection Agencies
· Commodity Trading or Security Trading
· Credit Counseling or Credit Repair Services
· Credit Protection or Identity Theft Protection Services
· Cruise Lines
· Cryptocurrencies (Bitcoin, Ethereum, etc.)
· Currency Exchanges or Dealers
· Debt Elimination, Debt Reduction or Debt Consulting Services
· Digital Wallet or Prepaid Companies
· Direct Marketing: Continuity or Subscription services or merchants including MCC 5968 and 5969
· Direct Marketing-Travel Related Arrangement Services including MCC 5962
· Direct Marketing-Inbound Telemarketing including videotext services and MCC 5967
· Discount Buying Memberships/Clubs
· Discount Medical or Dental plans including Discount Insurance
· Discount Coupon Merchants or Online Sites
· Distressed Property Sales and/or Marketing
· Drug Paraphernalia
· CNP Tobacco, e-Cigarettes and “Vape” supplies and accessories
· Firearms and weapons including Ammunition, Silencers, Components and Suppressors
· Gambling Activities and Establishments including MCC 7995, lotteries, internet gaming, daily fantasy sports, contests, sweepstakes, “special incentives,” or offering of prizes as an inducement to purchase goods or services
· High interest rate non-bank consumer lending with an APR >30% including, but not limited to, payday lending and title loans
· Infomercial merchants
· Internet/Mail Order Pharmacies
· Investment or “get rich quick” merchants, businesses or programs and inclusive of Brokers and Dealers
· Loan payments conducted on a Visa-branded credit card
· Marijuana dispensaries and related products or services that contain CBDs or provide access to CBDs
· Money Transfer, Wire Transfers, Money Orders, Transmitters, and Check Cashing including merchants required to be registered as Money Service Business
· Multi-Level Marketing Businesses
· “Negative option” marketing, renewal, or continuity subscription practices; marketing activities involving low-dollar trails, “pay only for shipping,” and/or “free trial” periods after which a credit card is charged periodically and/or a significantly larger amount
· Outbound Telemarketers and Telecom merchants within MCCs 4814, 4816, and 5966
· Pawn Shops
· Payment Facilitators
· Prepaid Phone Cards
· Prepaid Phone Services
· Pseudo Pharmaceuticals
· Psychics and “occult” businesses
· Quasi-Cash or Stored Value
· Real Estate Flipping
· Rebate-Based Businesses
· Sale of Mobile Minutes
· Selling or Sales of Social Media Activity
· Sports Forecasting or Odds Making
· Substances designed to mimic illegal drugs
· Timeshares, including resale’s and related marketing
· Transacting Virtual Currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world
· Tribal Entities (ie: American Indian Tribes)
· Up-Selling Merchants