SAAS TERMS OF SERVICE
The following SAAS TERMS OF SERVICE (“Terms of Service”), are entered into by and between Merchant’s PACT, LLC, a Kentucky limited liability company (“MPACT”), and one or more customers of MPACT who desire to use MPACT SAAS solutions (“Customer”, and together with MPACT, the “Parties”). The Parties acknowledge and agree that they have read and understand these Terms of Service and are legally bound by them.
Customer desires to access certain web software application and/or cloud solutions provided by MPACT related to accountholder payments, including but not limited to MPACT Hub, and other applications and solutions as may be provided by MPACT (collectively, the “Application”).
THEREFORE, the Parties agree:
- License.
(a) Grant of License. Subject to Customer’s compliance with these Terms of Service, MPACT grants Customer the non-exclusive, nontransferable, non-assignable, and limited right to remotely access and use, and allow Customer’s authorized employees (“Users”) to remotely access and use on Customer’s behalf, the Application solely for Customer’s internal business purposes in accordance with these Terms of Service. The provision of the Application and all other services of MPACT under these Terms of Service are defined the “Services” herein. In addition to these Terms of Service, MPACT and Customer may (but shall not be required to) enter into one or more written agreements more particularly governing the Services and fees payable to MPACT for the Services (the “SAAS Agreements”).
(b) Restrictions. Customer understands that MPACT may limit the number of Users who have access to or use of the software. Customer agrees that it will only allow permitted Users, agreed in advance by MPACT, to use the Application. Customer shall be responsible for adding and removing authorized Users to the Application, and managing permissions of Users. Customer shall immediately remove any User that leaves Customer’s employment or otherwise upon MPACT’s request. Customer agrees that it may be charged per User, based on its agreement with MPACT. Customer shall not allow password sharing or the sharing of accounts between Users. MPACT shall retain sole and exclusive ownership of the Application for the duration of these Terms of Service and perpetually thereafter. Customer shall not lease, license, sell, sublicense or otherwise transfer its access to or use of the Application. The Application may only be accessed or used by Customer and Users for the benefit of Customer. In addition, Customer shall not modify, create derivative works of, or attempt to decipher, decompile, disassemble or reverse engineer the Application.
- Use of Application; Customer Obligations.
(a) Scope of Services. These Terms of Service together with any SAAS Agreements (if applicable), will apply to Customer’s use of the Application and all Services made available to Customer. MPACT may add, remove or amend Services in its discretion provided as part of the Application. To the extent MPACT adds or amends Services, MPACT may elect to charge Customer for such additional Services upon written notice and consistent with MPACT’s practices with other customers. The Application, Services, and the branding, features and functionality of the Application are subject to periodic change from time to time by MPACT. All Services shall be provided by MPACT in its discretion. Customer further understands and agrees that MPACT team members may be able to access the Application; however, Customer shall not be charged for access provided to MPACT users.
(b) Technical Support. If Customer has questions about use of the Application, MPACT will provide an email address for questions, issues, and feedback. To the extent Customer requests significant support, training, or services, MPACT reserves the right to invoice Customer hourly, which Customer shall pay upon demand.
(c) Customer Contract Manager. Customer shall cooperate with MPACT in all matters relating to the Services and appoint a Customer employee to serve as the primary contact with respect to the Application and Services (the “Customer Contract Manager”). The Customer Contract Manager shall be reasonably available to answer questions and provide information to MPACT. MPACT shall have no responsibility If MPACT’s Services or its performance of its obligations under these Terms of Service are prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees.
(d) Technical Requirements. Customer must have required equipment, software, and Internet access to be able to use the Application. Acquiring, installing, maintaining and operating equipment and Internet access is solely Customer’s responsibility. MPACT neither represents nor warrants that the Application will be accessible through all web browser releases.
(e) Use of Application. Customer shall not, and shall not permit others, in using the Application to: (i) publish, ship, distribute or disseminate material or information that encourages conduct that could constitute a criminal offense or give rise to civil liability; (ii) engage in any conduct that could constitute a criminal offense or give rise to civil liability for MPACT; (iii) transmit or upload any material through the Application containing viruses, trojan horses, worms, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing MPACT’s, or any other person’s or entity’s, network, computer system, or other equipment; (iv) interfere with or disrupt the Application, networks, or servers connected to the MPACT systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted in connection with the Application; (v) attempt to gain unauthorized access to the Application, other MPACT customers’ computer systems, or networks using the Application through any means; or (vi) interfere with another party’s use of the Application. MPACT has no obligation to monitor Customer’s use of the Application. However, MPACT reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to verify compliance with these Terms of Service or cooperate with any applicable Law. Customer shall be responsible for all acts and omissions of its Users as if such acts or omissions were its own. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
(f) Compliance. Customer will use the Application only in accordance with the manuals and other written materials provided to Customer or made available on MPACT’s website or otherwise, as amended or modified by MPACT from time to time, and for the purposes set forth by MPACT; and Customer will comply with all applicable laws, regulations, statutes, and rules, including but not limited to those of the ACH networks, and the payment networks, and the Payment Card Industry Data Security Standard (collectively, Laws), in connection with use of the Application and Services. Customer shall not to use or allow the use of the Application for illegal purposes or for the transmission of material that is unlawful, defamatory, invasive of another’s privacy, abusive, threatening, or obscene, or that infringes the rights of others. Customer is solely responsible for any and all improper use of the Application that occurs as a direct or indirect result of any act or omission of Customer and any User. Customer will notify MPACT immediately of any unauthorized use of the Application or any other breach of security that is known or suspected by Customer.
(g) Rules and Regulations. From time to time, MPACT may impose reasonable new or additional rules or regulations regarding access to and use of the Application upon written notice to Customer, which Customer shall comply with at all times.
- Security.
(a) Protection. Customer will set up and maintain systems that ensure the access codes and log-in credentials are distributed only to authorized Users. Customer will cause authorized Users to, set up and comply with information security policies and procedures to protect access to the Application, that are no less rigorous than then-current applicable industry standards, including those established by applicable Laws and MPACT’s policies (as may be provided to you from time to time). If, in accessing any Application, Customer receives any confidential information of any third party, including any transaction-related information of any third party other than Customer, or any personal financial information of any consumer, Customer will notify MPACT immediately, and will not use, copy, or disclose such information to any third party. MPACT may immediately suspend Customer’s or a User’s access to the Application if MPACT in its sole discretion, has reason to believe that there has been any unauthorized access or use of the Application or other MPACT Services.
(b) Access. Customer is responsible for the safety, security, and administrative safeguards of its own systems; and any access (unauthorized or otherwise) to such systems, the Application, or MPACT’s systems through Customer’s integration with the Application, or receipt of the Services. Customer will immediately notify MPACT of any unauthorized access or use of the Application and take necessary steps to prevent further unauthorized access or use. Customer will promptly reimburse MPACT for any fines, fees, assessments, penalties, costs, liabilities or other obligations imposed by a governmental authority, regulator, payment network, or applicable law due to a breach of these Terms of Service or applicable Law.
(c) Security Certificates. The Services may include issuing to Customer or Users a security certificate to enable secure and encrypted communications. Customer acknowledges that those security certificates are provided by third party certificate authorities, and MPACT is not responsible for any errors or omissions of those third parties. Customer will reasonably cooperate with MPACT as required related to the issuance and maintenance of security certificates.
- Termination; Survival. The Term of these Terms of Service begins upon Customer’s first access to or use of the Services, and terminate upon the earlier of (i) when provided in the applicable SAAS Agreement (if applicable), or (ii) as provided below. MPACT may terminate Customer’s use of the Application and Services at any time in its reasonable discretion. Upon termination or expiration of these Terms of Service for any reason, all rights, licenses, and access to Application granted by MPACT to Customer under these Terms of Service will immediately cease. Within 60 days after termination or expiration of these Terms of Service, each Party shall return or destroy the confidential information of the other Party, except MPACT may retain such information as is necessary to fulfill its ongoing merchant processing and consulting obligations to Customer and its merchants. Upon termination, Customer shall permanently remove all the access codes and other user-login credentials, as applicable, from its respective networks, systems, workstations, and any other device, or other medium where codes or user-login credentials may be used or accessed by using then-current industry-best practices. Unless expressly stated otherwise herein, the covenants and obligations of each Party will survive the termination or expiration of these Terms of Service.
- Disclaimer of Warranty; Limitation of Liability.
(A) NO WARRANTY. MPACT DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS TO CUSTOMER REGARDING THE APPLICATION OR THE SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY MPACT. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES FUNCTIONALITY WILL MEET CUSTOMER’S REQUIREMENTS.
(C) EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, IN NO EVENT WILL MPACT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(D) LIABILITY CAP. IN NO EVENT WILL MPACT’S LIABILITY ARISING OUT OF OR RELATED TO THE APPLICATION OR THE SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND INCLUDING ATTORNEY FEES, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO MPACT FOR THE SERVICES AND APPLICATION DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Confidentiality; Reservation of Rights. Customer acknowledges that the Application, its code, product documentation, and other Services are the “Confidential Information” of MPACT. Customer agrees: (a) not to disclose or otherwise make available Confidential Information to any third party without the prior written consent of MPACT; (b) to use the Confidential Information only for the purposes of performing its obligations or as otherwise authorized under these Terms of Service; and (c) to promptly notify MPACT in the event it becomes aware of any loss or disclosure of any of the Confidential Information. Customer agrees that MPACT may enforce this provision with any remedy available at law or in equity, including but not limited to injunctive relief. All right, title, and interest in and to the Application and all service marks, trademarks, trade names, logos, and any modifications to the foregoing (“Marks”) of MPACT, together with all suggestions, contributions, enhancements, improvements, additions, modifications, or derivative works thereto and copies thereof, will remain in possession of MPACT. Customer acknowledges that the Application in source code, object code and any other form remains Confidential Information of MPACT and that the Application in any form is not licensed to Customer by these Terms of Service or any Schedule and will not be provided by MPACT. No right or implied license or right of any kind is granted to Customer regarding the Services, including any right to use, reproduce, market, sell, translate, distribute, transfer, adopt, disassemble, decompile, reverse engineer, or possess the Application, the documentation thereof, or other technical material, or any portions thereof
- Electronic Notices. Customer acknowledges, agrees, and consents that MPACT may provide notice to Customer by e-mail, by in-Application notifications, or other electronic communications (“Electronic Communication”). Any notice to Customer sent by Electronic Communication will be deemed to have been given to Customer when sent to a user within the Application or to an email contact address that Customer has provided to MPACT or which Customer has used to contact MPACT. If MPACT becomes aware that any notice sent by Electronic Communication was not received, MPACT will use reasonable efforts resend such communication, but such efforts shall not eliminate the effectiveness of the original notice. Customer may amend its email contact information for Electronic Communications at any time by providing thirty (30) days’ advance written notice to MPACT of such change.
- Governing Law. Customer’s use of the Services and the Application and all other matters falling under these Terms of Service shall be governed in accordance with the laws of the Commonwealth of Kentucky, United States of America, without regard to conflict of laws provisions.
- Successors and Assigns; Assignability. Customer’s use of the Application, the Services, and these Terms of Service, and any associated SAAS Agreements, shall be binding upon and shall inure to the benefit of the parties and their successors and permitted assigns; however, no assignment of these Terms of Service or any SAAS Agreements or of any right or obligation hereunder shall be made by either party without the prior written consent of the other party, except that MPACT may assign these Terms of Service and any SAAS Agreements to a subsidiary or affiliate of MPACT, or to any successor by merger or other successor-in-interest, for purposes of fulfilling its obligations herein.
- No Partnership; Third Party Beneficiaries. These Terms of Service, and Customer’s use of the Application and the Services, only creates an independent relationship of two contracting parties. No terms and conditions contained herein creates a partnership, joint venture, agency relationship between the parties hereto. These Terms of Service and the SAAS Agreements (if applicable) are for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any right or remedy of any nature.
- Entire Agreement. These Terms of Service, together with all SAAS Agreements (if applicable) and Exhibits attached thereto (if applicable), constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior oral and written agreements between the Parties with respect to the subject matter hereof. These Terms of Service and the SAAS Agreements may only be amended, supplemented or modified only pursuant to a written instrument making specific reference to the applicable agreement signed by both of the parties hereto; provided, however that MPACT may amend these Terms of Service or the SAAS Agreements in its discretion as set forth herein. In the event that any provision of these Terms of Service or the SAAS Agreements shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, so long as the remaining provisions do not fundamentally alter the relations between the parties. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
- MPACT MAY AMEND TERMS OF SERVICE. MPACT MAY AMEND THESE TERMS OF SERVICE FROM TIME TO TIME IN ITS REASONABLE DISCRETION, UPON WRITTEN NOTICE TO CUSTOMER, PROVIDED AN EMPLOYEE OR REPRESENTATIVE OF CUSTOMER AGREES TO (ELECTRONICALLY OR OTHERWISE) THE AMENDED TERMS OF SERVICE.