Merchant Terms & Conditions
SKIPIFY MERCHANT TERMS & CONDITIONS
PLEASE READ THESE MERCHANT PARTNER TERMS AND CONDITIONS (THE “TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY SKIPIFY, INC. (“SKIPIFY”). BY SIGNING UP FOR SERVICES VIA SKIPIFY’S STANDARD ONLINE PROCESS (THE “ORDER”), OR BY IN ANY WAY MAKING USE OF SKIPIFY SERVICES WITHOUT AN ORDER, YOU (“PARTNER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH THE ORDER, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
1. SKIPIFY SERVICES AND SUPPORT
1.1 Provision of Services. Subject to the terms and conditions of this Agreement, Skipify will use commercially reasonable efforts to provide Partner with access to the service(s) described in the Order (“Service(s)”). The Services are subject to modification from time to time at Skipify’s discretion, provided that Skipify must give at least thirty (30) days advance written notice which may materially affect Partner (e.g. require any implementation work by Partner). In the event of any conflict between these Terms and the Order, these Terms shall control.
1.2 Availability. Skipify will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Skipify shall provide the Services with no less than 99.9% uptime per calendar month.
1.3 Maintenance. Notwithstanding the foregoing section 1.2, Skipify reserves the right to make the Services unavailable for maintenance: (a) when agreed upon in writing by the parties; (b) with at least 48 hours advance notice between the hours of 12am - 4am pacific; and (c) in the event of an emergency potentially affecting the security of the Services with immediate notice to Partner.
1.4 Support. Subject to the terms hereof, Skipify will provide live customer support to Partner for the Services: (a) with a response time for any and all inquiries of 4 hours or less during Skipify Support Hours (9am - 4pm pacific time Monday through Friday, excluding holidays); and (b) outside of Skipify Support Hours, with a response time of 1 business day or less.
1.5 Legal Compliance. Skipify shall comply with all applicable laws and regulations while providing the Services and performing its obligations under this Agreement, including but not limited to laws concerning the use of personal data such as CCPA.
1.6 Security. Skipify shall provide commercially reasonable security for all Services. This includes but is not limited to being compliant with PCI-DSS. Partner may request annual evidence of compliance with PCI-DSS in the form of Skipify’s then-current Attestation of Compliance (“AOC”).
2. PARTNER RESTRICTIONS AND OBLIGATIONS
2.1 Restrictions. Partner will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; (iv) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable card network agreements, laws, regulations, and rights (including but not limited to those related to privacy and data protection); (v) circumvent any payment obligations under this Agreement, including without limitation encouraging consumers to use alternate payment methods or not treating Skipify equally with other third-party payment methods offered by Partner; (vi) resell or offer integration with the Services to any third party; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Services; (viii) attempts, in any manner, to obtain the password, account, or other security information from any other user; (ix) violates the security of any computer network, or cracks any passwords or security encryption codes or bypass any measures Skipify may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); or (x) runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure). In addition, Partner will comply at all times with Skipify’s then-current Acceptable Use Policy. Without limiting Skipify’s rights and remedies under this Agreement, Partner acknowledges and agrees that a violation of this Section 2.1 will constitute a material breach and will constitute grounds for Skipify’s termination of Partner’s right to use or access the Services.
2.2 Partner Responsibilities. Partner will provide Skipify with all support and take all other actions as reasonably requested by Skipify in connection with this Agreement. Partner will also cooperate with Skipify in establishing a password or other procedures for verifying that only designated employees of Partner have access to any administrative functions of the Services. Partner is responsible for all activities that occur in accounts of persons authorized by Partner to access and to use the Service (“Authorized User”), including, but not limited to, compliance with this Agreement, and for all uses of such accounts with or without Partner’s knowledge or consent. Partner shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all information or data submitted to Skipify by Partner or its
Authorized Users in connection with the Service (“Partner Materials”) and Partner hereby represents and warrants that they have and retain all right, title and interest (including, without limitation, sole ownership of) all Partner Materials distributed through the Services and the intellectual property rights with respect to the Partner Materials; (ii) maintain the security of Partner account, passwords (including but not limited to administrative and user passwords) and files; (iii) prevent unauthorized access to, or use of, the Service, and notify Skipify promptly of any such unauthorized access or use; and (iv) have sole responsibility for any aspect of the products or services sold by Partner, and any disputes related thereto. Skipify is not responsible for determining the requirements of laws applicable to Partner’s business or whether the Service meets the requirements of such laws, including those laws relating to the Service that Partner acquires under this Agreement.
2.3 Third Party Services. Skipify is not responsible for any application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), which may be used alongside or in addition to the Services, but not provided by Skipify; for example, the Partner’s payment service provider(s). Skipify does not make any representations or warranties with respect to Third Party Services or any third party providers.
2.4 Case Study. Skipify may use Partner’s name, logos (subject to section 5.3), and aggregated data to create a case study for purposes of marketing, sales, and advertising of Skipify products and services. Such case studies may be published publicly and may be used by both Partner and Skipify. No personal data identifying individual consumers will be made public as part of a case study. Partner will be able to review the final case study prior to any publication.
2.5 Sanctions. Compliance with any applicable sanctions is the responsibility of Partner. Skipify reserves the right to decline and/or report on any transaction it in good faith believes may violate United States sanctions as published by the Office of Foreign Asset Control (OFAC).
2.6 High Risk Transactions. Skipify may review transactions made by consumers and take appropriate action such as to refuse, suspend, or cancel any such transaction determined to be high risk in Skipify’s sole discretion. In the event Skipify suspends a transaction, Skipify will attempt to notify Partner to delay delivering the goods or service that is the subject of such transaction until such risk is resolved.
3. FEES
3.1 Payment Terms. Partner will pay to Skipify the fees set forth in the Order. Fees which are per “Transaction” mean any attempted or initiated transaction. To the extent applicable, Partner will pay Skipify for additional services, such as integration fees or other consulting fees as set forth in the Order or as mutually agreed to by the parties.
3.2 Updated Prices. Prices for Services will not increase during the first year of the Initial Term unless agreed to in writing between both parties. Subsequently, Skipify may adjust prices only at most once every twelve (12) months during the Initial Term by providing at least 90 (ninety) days advance write notice. During a Renewal Term, Skipify may adjust prices by providing at least ninety (90) days advance written notice of a price increase, with such updated prices taking effect beginning on the first day of the next Renewal Term.
3.3 Late Payment. If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable. In the event of any late payment by Partner to Skipify, Skipify may, at its option, terminate or suspend the provision of the Service to Partner, following which Partner will have ten (10) days to cure such deficiency prior to any such termination or suspension becoming effective. In the event of any such suspension and/or termination of the Service, Partner shall remain responsible for the payment of any and all fees to Skipify during the applicable Initial Term and/or Renewal Term. Skipify shall have no liability or responsibility for any termination or suspension pursuant to this Section 3.3. Any fees not paid when due to Skipify shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is lower.
4. TAXES
4.1 Unless otherwise stated, Skipify does not calculate or collect any direct or indirect local, state, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value added, use, or withholding taxes (collectively, "Taxes") as part of the Services. You are responsible for determining any and all Taxes required to be assessed, incurred, collected, paid, or withheld for your use of the Services. You also are responsible and liable for: (i) determining whether Taxes apply to your sale of any goods or services, payments received, and any other transactions arising from or out of your use of the Services; and (ii) calculating, collecting, reporting, or remitting any Taxes to the appropriate tax and revenue authorities. Skipify specifically disclaims any liability for collection and remittance of such Taxes.
5. INTELLECTUAL PROPERTY
5.1 Skipify Intellectual Property. Skipify shall own the Service, the Software and all documents, manuals, tools, user interfaces developments, processes, formulae, data, inventions, trademarks, trade secrets, copyrights, patents and all other intellectual property rights used, provided, created, owned, licensed, developed, authored or invented by Skipify (including its employees and contractors), as well as enhancements, modifications and/or derivative works to the foregoing (collectively, “Skipify Materials”). Nothing in this Agreement shall grant to or confer upon Partner expressly or by implication any rights to such Skipify Materials. This Agreement is not a sale and does not convey to Partner any rights of ownership in or related to the Service or Software, or any intellectual property rights.
5.2 Skipify Trademarks. During the Term of this Agreement, Partner may display the Skipify name, logos, and trademarks as they are provided within the Skipify products, to identify the partnership with Skipify, and for no other purposes.
5.3 Partner Intellectual Property. During the Term of this Agreement, Skipify may use and display all Partner Materials as provided within the Skipify products: (a) as necessary to provide the Services; (b) to improve upon or enhance the Services; and (c) in the creation of aggregated and anonymized datasets which do not identify any individual person or Partner.
5.4 Partner Trademarks. During the Term of this Agreement, Skipify will have the right to use, market, and display the name, trademarks, and logos of Partner and the product materials, photos, and marketing information provided by Partner to Skipify in order to identify
Partner as a customer of the Services, and for no other purposes.
5.5 Feedback. If Partner provides any suggestions, ideas, enhancement request, recommendations or feedback (“Feedback”) to Skipify relating to the Services or Software, Partner hereby assigns to Skipify all right, title, and interest in and to such Feedback, and Skipify is free to use such Feedback without payment or restriction.
6. TERM AND TERMINATION
6.1 Term and Automatic Renewal. Subject to earlier termination as provided below, the Agreement lasts for the Term set forth in the Order, including any automatic renewals, as specified in the associated Order.
6.2 Termination. Either party may terminate this Agreement with written thirty (30) days notice to the other party: (i) in the event of a material breach of the Agreement to the extent such breach remains uncured for more than thirty (30) days following receipt of a written notice of such material breach; (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (iii) an excessive rate of transactions declined or flagged as high risk pursuant to sections 1.7 and 1.8 of this Agreement.
6.3 Effect of Termination. Upon the termination of this Agreement for any reason, Partner shall pay Skipify the fees for any Services provided prior to the effective date of such termination, and Skipify will have no obligation to provide the Services beyond such effective date of termination.
6.4 Survival. Sections 2.1, 3, 5, 6.3, 6.4, 7, 8, 9, 10 and 12 will survive any termination of this Agreement.
7. DISCLAIMER OF WARRANTIES. SKIPIFY IS PROVIDING THE SERVICES “AS IS” WITHOUT REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND, AND PARTNER’S OR ANY THIRD PARTY’S USE OF THE SERVICES IS AT ITS OWN RISK. TO THE GREATEST EXTENT PERMITTED BY LAW, SKIPIFY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, NON-INFRINGEMENT, TITLE, PARTNER ABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. SKIPIFY DOES NOT WARRANT THAT THE SERVICE IS SECURE, ERROR FREE OR UNINTERRUPTED.
8. CONFIDENTIALITY
8.1 Confidential Information. As used herein, "Confidential Information" means all business, financial and technological information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), including business and marketing plans, technology and technical information, know how, processes, algorithms, customer lists, product designs, transaction information, personal information and financial information. The Service is deemed the Confidential Information of Skipify. The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (ii) to give access to such Confidential
Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own Confidential Information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. Confidential Information disclosed in connection with this Agreement shall be held confidential for five (5) years from the effective date of termination or expiration of the Agreement.
8.2 Exceptions. Confidential Information does not include information which (and only to the extent that) the Receiving Party can establish through documentary evidence that such information: (i) was rightfully received without restrictions from third parties who owe no obligations of confidentiality to the Disclosing Party with respect to such information; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without use or reliance on any Confidential Information; or (iv) was already publicly known at the time of disclosure or subsequently becomes publicly known through no breach by the Receiving Party of its obligations under this Agreement.
8.3 Legally Required Disclosures. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
8.4 Non-confidential Information. Partner acknowledges that Skipify does not wish to receive any Confidential Information from Partner that is not necessary for Skipify to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Skipify may reasonably presume that any unrelated information received from Partner is not confidential or Confidential Information. In any event, Skipify may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes.
8.5 Permitted Disclosure. Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
9. LIMITATION OF LIABILITY. OTHER THAN THE INDEMNITIES DESCRIBED IN SECTION 10, IN NO EVENT WILL A SKIPIFY BE LIABLE TO PARTNER OR ANY THIRD PARTY FOR ANY: (I) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT; OR (II) LOST PROFITS, LOST REVENUE, BUSINESS LOSSES, REDUCTION IN SHARE PRICE, LOSS OF BUSINESS, LOSS OF GOODWILL, REPUTATIONAL HARM, OR ANTICIPATED SAVINGS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. UNDER NO CIRCUMSTANCES WILL A PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS OF ANY OR ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE LESSER OF: (X) USD $10,000 OR (Y) THE FEES PAID AND/OR PAYABLE BY PARTNER TO SKIPIFY IN THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE LIMITATIONS SET FORTH IN THIS AGREEMENT WILL APPLY EVEN IF ANY LIMITED REMEDY IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
10. INDEMNITY; DISPUTES.
10.1 Indemnity. Each party (the “Indemnitor”) shall defend the other party from and against any claim, demand, or action brought by a third party against such indemnified party (and its respective officers, directors, and employees) (the “Indemnitee”), and indemnify and hold the Indemnitee harmless from any damages, liabilities, losses, costs, and expenses payable to third parties, including reasonable attorneys’ and experts’ fees, to the extent arising from or relating to (a) any allegation that the Service (in the case of Skipify as indemnitor) or the Partner Materials (in the case of Partner as indemnitor) infringes any patent, copyright, or trade secret of a third party and; (b) a party’s violation or alleged violation of an applicable law, rule, regulation to which such party is subject. Each indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (x) prompt written notice of any claim; (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement.
10.2 Limitations. The foregoing obligations of Skipify and Partner under section 10.1 above do not apply with respect to the Service and the Partner Materials to the extent that they are: (i) made in whole or in part in accordance to the Indemnitees’ specifications, (ii) modified after delivery by the Indemnitees, (iii) combined with other products, processes or materials not provided by the Indemnitor, (iv) where the Indemnitee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) the Indemnitees’ use of the Service or Partner Materials is not strictly in accordance with this Agreement.
10.3 Third Party Disputes. In the event of a dispute between Partner and a third party, including but not limited to consumers who purchase products or services from Partner, Partner agrees that such disputes are solely between Partner and such third party and that Skipify has no obligation to engage in such disputes. Partner will indemnify, defend, and hold harmless Skipify from any losses, costs and expenses in connection with such a dispute.
11. FORCE MAJEURE. Neither party will be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond its reasonable control, including, acts of God, acts of civil or military authority or Governmental Authorities, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes or other labor problems (other than those involving such party’s own employees), computer, telecommunications, Internet service provider or hosting facility failures or delays, and power blackouts affecting facilities (individually and collectively, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the party whose performance is affected will give written notice to the other party describing the affected performance, and the parties will promptly confer, in good faith, to agree upon equitable, reasonable action to minimize the impact of such condition on both parties, including implementing any relevant disaster recovery services and plans. The parties agree that the party whose performance is affected will use commercially reasonable efforts to minimize the delay caused by the Force Majeure Events and recommence the affected performance. If the delay caused by the Force Majeure Event lasts for a period of more than thirty (30) consecutive days, either party may terminate this Agreement as of the date specified in a written notice to the other party.
12. MISCELLANEOUS.
12.1 Arbitration. Any dispute, difference, controversy or claim arising out of or relating to this Agreement will be settled by binding arbitration before a single arbitrator in San Francisco, California in the English language, in accordance with the Streamlined Arbitration Rules and Procedures of JAMS then in effect Judgment on any resulting award may be entered into by any court of competent jurisdiction. Notwithstanding the foregoing, either party may seek injunctive or equitable relief from any court of competent jurisdiction.
12.2 Governing Law. In all respects this Agreement will be governed by the substantive laws of the State of Delaware without regard to conflict of law principles.
12.3 Assignment. Neither party may assign this Agreement, or any part of this Agreement, without the prior written consent of the other, except that this Agreement may be assigned without such consent by either party to an entity acquiring all or substantially all of such party’s business or assets to which this Agreement relates.
12.4 Amendment and Waiver. No supplement, modification, amendment or waiver of this Agreement will be binding unless made and executed in writing by the parties. No waiver of any provision of this Agreement, nor of any rights or obligations of any party, will be effective unless in writing and signed by the party waiving compliance, and such waiver will be effective only in the specific instance, and for the specific purpose, stated in such writing. No waiver of breach or default of any provision of this Agreement will be deemed a waiver of any other provision, or of any subsequent breach or default of the same provision, of this Agreement. No failure to exercise, or delay in exercising, any right or remedy will constitute a waiver of such right or remedy. Except as otherwise expressly provided in this Agreement, all remedies provided for in this Agreement will be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
12.5 Severability. If any one or more of the provisions contained in this Agreement is for any reason held to be unenforceable in any respect under law, (a) such unenforceability will not affect any other provision of this Agreement, (b) such provision(s) will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (c) each remaining term or provision will continue in full force and effect, and will be valid and enforceable to the fullest extent permitted by law.
12.6 Notices. All notices, requests, demands and other communications required hereunder shall be in writing and shall be deemed to have been duly given (a) on the date of delivery if delivered personally to the party to whom notice is to be given, (b) on the day of transmission if sent via transmission by electronic mail to the email address given below, or (c) on the third (3rd) business day after delivery to a certified mail service with return receipt requested, to the party as follows:
If to Skipify: Skipify, Inc.
345 California St, Suite 600
San Francisco, California 94104
Attn: Legal & Compliance
Email: [email protected]
12.7 No Third Party Beneficiaries. Except as expressly stated herein, no person or entity other than the parties is or will be entitled to bring any action to enforce any provision of this Agreement against any of the parties, and this Agreement is solely for the benefit of, and shall be enforceable only by, the parties or their respective permitted successors and assigns.
12.8 Entire Agreement. This Agreement, including its exhibits, schedules, and attachments, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties pertaining to the subject matter hereof.
12.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together constitute one and the same agreement. A facsimile copy of this Agreement, including the signature pages, will be deemed an original.
12.10 Headings. The headings in this Agreement are for convenience only, and neither such headings nor the placement of any particular provision under any particular heading will affect any provision.
12.11 Independent Contractor. The parties are independent business entities, bound to each other only as provided for herein. Neither party has authority to bind, act on behalf of, or represent the other party. This Agreement does not create a legal partnership or any other agency between the parties.