Introduction
The following discloses the Terms of Use (herein referred to as the "Agreement") for the use of this Platform (herein referred to as the "platform"", the "Service", "us", and "we") by you (herein referred to as "user", "client", "member" or "you"). By using the Platform in any way, you agree to be bound by these Terms of Use, whether or not you are registered as a member to the Service. We may modify this Agreement from time to time. Notification of changes in this Agreement will be posted on the Website or sent via electronic mail, as we may determine, in our sole discretion. If you object to anything in this Agreement, do not use the Platform or the Service. Your continued use of the FlexPay Platform will constitute a binding acceptance by you of this Agreement, and any subsequent modifications. Your online acceptance of this Agreement will have the same legal effect as if you were providing a handwritten signature of acceptance. In case of conflict, the terms agreed upon in the Service Agreement originally signed between the Tungsten FlexPay Inc. and the client will always take precedence.
This agreement was last updated on: March 23, 2017.
FlexPay Service
You are granted a nonexclusive right during the Term (as defined by the FlexPay Service Agreement) to use the Service (the "Service") subject to the terms, conditions and restrictions set forth in this Agreement and any other restrictions stipulated to you by us in writing.
You agree to pay for the Service in accordance with our service fees, as further set forth.
FlexPay keeps a protected copy of the credit card numbers of your users. This billing data belongs to you (and your customers) and by utilizing the Service, you grant FlexPay a license to use this data for the purposes of fulfilling our Service obligations to you and FlexPay shall otherwise use commercially reasonable efforts to keep such information confidential and secure in accordance with general industry standards. FlexPay has and will continue to be PCI compliant and agrees to comply with all applicable state and federal laws and regulations (including those relating to privacy and data security), with regards to its use, access and storage of billing data on your behalf.
Following any termination or expiration of this Agreement or your FlexPay account, FlexPay will retain a copy of your billing data for a period of thirty (30) days. You acknowledge and agree that (i) you are solely responsible for exporting a copy of your billing data prior to any such termination or expiration, and (ii) if you require access to such data following any such termination or expiration, you may be required to pay professional service fees to FlexPay to retrieve such data.
Proprietorship and Data
The Service is the property of FlexPay, and is protected by intellectual property laws. FlexPay and its licensors retain any and all rights, title and interest in and to the Service (including, without limitation, all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof. Customer's right to use the Service is limited to the rights expressly granted in this Agreement and the applicable Order Form(s). All rights not expressly granted to Customer are reserved and retained by FlexPay and its licencors.
Ownership of Customer Data. As between Customer and FlexPay, (a) all Customer Data is the property of Customer, and (b) Customer retains any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works thereof.
Use of Service
Customer is responsible for all activity occurring under Customer's User accounts, and must comply with all applicable laws and regulations in connection with using the Service. Customer also must (a) notify FlexPay promptly upon becoming aware of any unauthorized use of any Customer password or account (or any other breach of security of the Service), and (b) notify FlexPay promptly upon becoming aware of, and stop, any unauthorized copying, distribution or other misuse of any aspect of the Service.
Customer must not, without FlexPay 's prior written consent, cause or permit the: (a) use, copying, modification, rental, lease, sublease, sub license, transfer or other commercial exploitation of, or other third party access to, any element of the Service, except to the extent expressly permitted by this Agreement (Customer may allow its own customers to access the functionality or output of the Service, via interfaces, portal applications and the like, solely for Customer's internal business purposes in accordance with the applicable Order Form); (b) creation of any modifications or derivative works of the Service; (c) reverse engineering of the Service; (d) gaining of unauthorized access to the Service or its related systems or networks (for example, by impersonation of another user of the Service or provision of false identity information); (e) interference with or disruption of the integrity or performance of the Service or the data contained therein (for example, via unauthorized benchmark testing or penetration testing); (f) sending, storing or use of any Customer Data in connection with the Service for which Customer lacks sufficient ownership or other rights; (g) sending of spam or otherwise duplicative or unsolicited messages in violation of applicable law; (h) sending or storing of infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material in connection with the Service (including, without limitation, any material harmful to children or in violation of third party privacy rights); or (i) sending or storing of any material containing any viruses, worms, Trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Service.
If Customer processes any credit card information using the Service, Customer will: (a) comply with its responsibilities under the Payment Card Industry Data Security Standard (“PCI DSS"); (b) implement and maintain commercially reasonable security measures to protect all cardholder data in Customer's possession or control; and (c) not take any action in connection with using the Service that may place FlexPay in non-compliance with the PCI DSS (for example, storing any cardholder data in any custom fields of the Service).
Limitation of Liability
In no event shall FlexPay , its parents, subsidiaries, affiliates and their respective members, managers, directors, officers, employees, stockholders, or agents be liable for any damages, including but not limited to direct, compensatory, indirect, incidental, consequential, special, exemplary, or punitive damages (including, without limitation, damages for loss of profits, business interruption, loss of information) arising out of or relating to (i) your inability to use the materials, content, services or accounts; (ii) your misuse of the materials, content, services or accounts; (iii) nonperformance or a failure of the services caused by acts or omissions of another service provider, (iv) equipment or software failure or modification; (v) telecommunications or computer equipment failures, or (vi) acts of god, or other causes beyond our reasonable control. The foregoing shall apply even if FlexPay has been advised of the possibility of such damages. FlexPay also makes no representations or warranties that your access to and use of the site, materials, content, services and accounts (1) will be uninterrupted or error free; (2) is free of viruses, unauthorized code, or other harmful components; (3) is secure; or (4) will meet your satisfaction. You are responsible for taking all precautions you believe necessary or advisable to protect you against any claim, damage, loss or hazard that may arise by virtue of your use of the site, materials, content, services, and account.
In no event, shall FlexPay, its parents, subsidiaries, affiliates and their respective members, managers, directors, officers, employees, stockholders, agents and any underlying carrier be liable for injuries to persons or property arising from use of the services, or any equipment used in connection with the services.
If, notwithstanding the other terms of this agreement, FlexPay should have any liability to you or any third party for any loss, harm or damage, you and FlexPay agree that in no event shall liability of FlexPay to you for any reason exceed our service charges during the affected period giving rise to such liability.
You and FlexPay agree that this section of the agreement, “limitation of liability", is an agreed allocation of risk between you and FlexPay. You acknowledge that, absent your agreement to this limitation of liability, FlexPay would not provide the site, materials, content, services, or accounts to you.
Single Instance License
You may utilize one copy (one “instance") of the materials (the “Materials") and/or Content found on this Site for use with the Services and/or Accounts. This is a license, not a transfer of title, and is subject to the following restrictions: unless you receive prior written consent from FlexPay and unless you receive any required regulatory approvals, you may not: (a) modify the Materials, Content, Services or Accounts or use them for any commercial purpose or any public display, performance, sale or rental; (b) decompile, reverse engineer, or disassemble software, Materials, Content, Services or Accounts; (c) remove any copyright or other proprietary notices from the Materials, Content, Services or Accounts; (d) unless otherwise provided herein, transfer or resell the Materials, Content, Services or your Account to another person. You agree to prevent any unauthorized copying of the Materials, Content, Services and Accounts.
FlexPay Implementation and Payment Terms
You agree to use the Service only through your website or software application that you own and control (the "Site") and we reserve approval authority as to the implementation and use of the Service on the Site. We may suspend or rate limit the Service in the event we find any implementation issues with the Site. Such suspension or limitation shall remain in effect until you correct any issues specified by FlexPay and a suspension or rate limitation shall not relieve you of your payment obligations under the Agreement.
You agree to provide us with current, complete and accurate registration information as prompted by the Service registration process and to maintain and properly update such information ("Registration Data"). If you are using the Service to conduct credit card transactions through the FlexPay Payment Gateway, you shall set up and maintain an account that is capable of receiving funds through a merchant bank account ("Merchant Bank Account"). You authorize us to confirm that the Merchant Bank Account is and remains in good standing with a financial institution as long as you are using the Service. You authorize us to obtain credit reports or other background inquiries from time to time to assess your eligibility to continue use of the Service. You further agree that, in providing such Registration Data, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Data via the Service, or otherwise advise us promptly in writing of any such changes or updates. You further consent and authorize us to verify your Registration Data as required for your use of and access to the Service. Once you subscribe to the Service, you shall receive a unique user ID and password in connection with your account (collectively referred to herein as "IDs"). You agree that you will not allow another person to use your IDs to access and use the Service under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your IDs and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to do so. We are not liable for any harm caused by or related to the theft of your IDs, your disclosure of your IDs, or your authorization to allow another person to access and use the Service using your IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed.
FlexPay will submit your customers' payment information to the applicable payment gateway and will charge you a fee based on the dollar amount of the transactions processed by the Service. Monthly charges for the Service will be at the rates set forth by Service Agreement.
FlexPay is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by you or your customers that are deceptive, fraudulent or otherwise invalid ("Fraudulent Actions"). By using the Service, you hereby release FlexPay from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify FlexPay of any Fraudulent Actions which may affect the Service. FlexPay reserves the right, in its sole discretion, to terminate your account if you engage in, or permit any other user or customer to engage in, Fraudulent Actions.
Amendments and Warranties
We shall ensure that at all points of time the standard of the Service remains high and maintains its the continuity. However, the internet medium is not an inherently stable medium and errors, omissions, interruptions of service and delays may occur at any time. We are not liable for any liability arising from any such errors, omissions, interruptions or delays or any ongoing obligation or responsibility to offer this Service (or any particular part of it). We may also vary the specification of the services from time to time without notice.
The information, materials, services and products included with the Service may include inaccuracies or typographical errors. We may make changes or improvements to the Service at any time. We do not warrant that the Service will operate error-free or that our web sites and its server are free of viruses or other harmful mechanisms. If use of the Service results in the need for servicing or replacing equipment or data, by any user, we will not be responsible for those costs. Our Services are provided on an “as is" basis without any warranties of any kind. To the fullest extent permitted by law, we disclaim all warranties, including without prejudice to the foregoing, any in respect of merchantability, infringement of third party rights, fitness for particular purpose, or about the accuracy, reliability completeness or timeliness of the contents, services, software, text, graphics and links.
FlexPay reserves the right to modify, suspend, or discontinue the Service at any time for any reason with a notice period of 90 days.
Governing Law/Jurisdiction
These terms and the use of the Site shall be governed by, and construed in accordance with, the laws of the province of Quebec without regard to the principles of conflicts of law. Jurisdiction and venue for any action, whether arbitration or otherwise shall be solely and exclusively in Quebec, Province of Canada and by entering this Site, you agree to in personam jurisdiction.
Secured Site Access
Access to and use of password protected and/or secure areas of the Site is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the Site may be subject to civil or criminal penalties.
Force Majeure
Company shall not be liable for any losses arising out of the delay or interruption of its performance of obligations due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions by a third party, infiltration or disruption of the Services by a third party, or other catastrophes or occurrences that are beyond Company's reasonable control.
Intellectual Property Rights
Our Service contains content and technology that are our exclusive intellectual property, which is protected by copyright, patent, trade secret and other laws. Use of our Service does not convey to you any right of ownership. As our customer, you are granted a non-exclusive right to use our Service. The FlexPay name and logo are trademarks of FlexPay, and no license or right is granted to you to use them.
Confidentiality
As used in this Agreement, “Confidential Information” means information and materials provided by the disclosing Party (“Discloser”) to the Party receiving such information or materials (“Recipient”) that (a) are identified as confidential at the time of disclosure, or (b) a reasonable person in the relevant industries should understand to be confidential based on the nature of the information and materials and all other relevant factors. For the avoidance of doubt, Customer’s Confidential Information includes, without limitation, the Customer Data and Customer’s non-public business plans, and FlexPay ’s Confidential Information includes, without limitation, all pricing terms offered to Customer under any Order Form, FlexPay ’s non-public business plans, all non-public aspects of the FlexPay Technology, and the results of any evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Recipient must not use any of Discloser’s Confidential Information for any purpose other than carrying out Recipient’s obligations or exercising its rights under this Agreement (the “Purpose”). For the avoidance of doubt, use of Confidential Information in an aggregated and anonymized manner that does not include personally identifiable information and/or personal information is not prohibited.
Recipient also must not disclose to any third party any Confidential Information, other than to Recipient’s Affiliates, contractors and consultants who (a) need to know such information in order to fulfill the Purpose, and (b) are bound by confidentiality obligations substantially similar to Recipient’s under this Agreement (each Party is fully responsible for its respective Affiliates’, contractors’ and consultants’ compliance with this Agreement). Recipient must treat all Discloser Confidential Information with the same degree of care Recipient gives to its own Confidential Information, but not less than reasonable care. Further, neither Party may disclose publicly the existence or nature of any negotiations, discussions or consultations in progress between the Parties without the prior written consent of the other Party. Recipient and its Affiliates, contractors and consultants who receive Confidential Information hereunder must: (i) not use any such Confidential Information to compete with Discloser or in any other way except as reasonably necessary for the Purpose; (ii) not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects received from Discloser under this Agreement that embody Confidential Information; (iii) promptly notify Discloser of any unauthorized use or disclosure of its Confidential Information of which Recipient becomes aware; and (iv) reasonably assist Discloser in remedying any such unauthorized use or disclosure.
Recipient’s obligations under this section will not apply to any Discloser Confidential Information that Recipient can prove: (a) is or becomes part of in the public domain through no fault of Recipient; (b) is rightfully in Recipient’s possession free of any confidentiality obligation; (c) was independently developed by Recipient without use of any Discloser Confidential Information; or (d) is communicated by Discloser to an unaffiliated third party free of any confidentiality obligation. A disclosure by Recipient of any Confidential Information (i) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (ii) as otherwise required by law, or (iii) necessary to establish the rights of either Party under this Agreement will not be a breach of this Agreement if, to the extent legally permitted, Recipient gives Discloser prompt notice and reasonable cooperation so Discloser may seek to prevent or limit such disclosure.
As between Discloser and Recipient, all Discloser Confidential Information is the property of Discloser, and no license or other rights are granted or implied hereby. All materials provided to Recipient by Discloser, whether or not they contain or disclose Confidential Information, are Discloser’s property. Promptly after any request by Discloser, Recipient will (a) destroy or return to Discloser all Confidential Information and materials in Recipient’s possession or control, and (b) upon written request by Discloser, confirm such return/destruction in writing; provided, however, that the Recipient may retain electronic copies of any computer records or electronic files containing any Discloser Confidential Information that have been created pursuant to Recipient’s standard, commercially reasonable archiving and backup practices, as long as Recipient continues to comply with this Agreement with respect to such electronic backup copies for so long as such Confidential Information is retained.
Exchange of Confidential Information under this Agreement is subject to all applicable export laws and regulations. Except to the extent permitted by a separate agreement, the Parties will not disclose any information requiring an authorization to be exported.
Recipient’s obligations with respect to Discloser’s Confidential Information under this section will remain in effect for the term of this Agreement and for three (3) years after any expiration or termination of this Agreement.
PCI Compliance
We will maintain PCI DSS compliance against the current version of PCI DSS published on the PCI Security Standards Council website. Within the limitations set forth elsewhere in this Agreement, we shall be responsible for the security of cardholder data that we possess, including functions relating to storage, processing, and transmission of the cardholder data. We will immediately notify you if we learn that we are no longer PCI DSS compliant and will notify you of steps being taken to remedy the non-compliance status. In no event, shall FlexPay’s notification be later than fourteen (14) calendar days after We learn We are no longer PCI DSS compliant.
Service Downtimes
FlexPay continuously upgrades the relevant hardware and software components associated to deliver a highly secure service to the Users. In the event of such modifications, FlexPay will plan for scheduled downtimes of its services and notify Users accordingly. The notifications will be through emails and dashboard URL.
Service Upgrades and Support
FlexPay services may include certain third party components and support services. Users shall adhere to the terms and conditions of such third-party providers, where clearly indicated, in addition to the terms of service of FlexPay. FlexPay liability is limited to the data stored in its own servers and does not extend coverage to the third-party components and services.
Miscellaneous
If any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect.
You hereby consent to FlexPay publicizing the existence (but not the terms) of the relationship contemplated hereunder as a part of promotional and marketing activities from time to time by FlexPay.
This Agreement constitutes the entire agreement between FlexPay and you with respect to your use of the FlexPay Site, Materials, Content, Services, and your Account, and it supersedes all prior or contemporaneous communications and proposals, whether oral or written, between FlexPay and you with respect thereto.
The failure of FlexPay to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.