Last Updated: July 8, 2015
THIS MERCHANT SERVICES AGREEMENT (THE "AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND SERICAPAY, INC.PLEASE READ IT CAREFULLY.BY APPLYING FOR THE SERVICES THROUGH OUR ONLINE APPLICATION PROCESS OR OTHERWISE, CLICKING THE "AGREE TO TERMS" BUTTON AT THE END OF THIS AGREEMENT OR BY USING THE SERVICES DEFINED BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY (AND THAT YOUR COMPANY WILL BE BOUND BY) ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL DOCUMENTS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, CLICK THE "DECLINE" BUTTON AT THE END OF THIS AGREEMENT AND DO NOT USE THE SERVICES.
1.1 Introduction. In this Merchant Service Agreement ("Agreement"), "Merchant", "you" and "your" refer to each customer (" Merchant ") and its designated agents, including your administrative contact, and "SericaPay", "we", "us" and "our" refer collectively to Digital Tangible Inc. & SericaPay, Inc., 660 4 th Street, #214, San Francisco, CA 94107 ("SericaPay"). This Agreement explains our obligations to you, and your obligations to us in relation to the service(s) you purchase. By purchasing the service(s) you agree to establish an account with us for such services. When you use your account or permit someone else to use your account to purchase or otherwise acquire access to additional SericaPay service(s) or to modify or cancel your service(s) (even if we were not notified of such authorization), this Agreement as amended covers any such service or actions. Additionally, you agree that the administrative contact for any services provided to you is your agent with full authority to act on your behalf with respect to such services, as permitted by the Services and related documentation, including (but not limited to) the authority to terminate, transfer (where transfer is permitted by the Agreement), or modify such services, or purchase additional services. Any acceptance of your application(s) or requests for our services and the performance of our services will be deemed to occur at our offices in San Francisco.
1.2 Various Services. Sections 1 through 12 apply to any and all Services that you purchase under the Agreement.
2.1 " Services " shall mean the SericaPay services used by Merchant and any add-on services specifically described in this Agreement. Current descriptions of the SericaPay services can be found at the URL: https://sericapay.com/merchants.html
2.2 [" Software " shall mean the object code version of SericaPay's client Software Development Kit (" SDK "), HTML code, application programming interfaces (APIs), related documentation and other client software or code which SericaPay provides to Merchant, including updates, to enable SericaPay to provide the Services to Merchant. Unless otherwise specified, Software shall not include any source code.
[2.3 " Manager Web Site " means SericaPay's online account administration tools for merchants for the Services.]
2.6 " Transaction " shall mean information related to the purchase of goods and services from Merchant by a SericaPay customer.
3.1 General Service Requirements. Merchant shall be solely responsible for:
A. Establishing, hosting and maintenance of its Web site(s) and its connection to the Internet (the " Merchant Web Site(s) "), fulfilling all orders for products and services sold by Merchant to its customers on the Merchant Web Site(s) or otherwise, including without limitation transmitting Merchant's registration information and Transaction data to SericaPay servers or via the SericaPay Manager Web Site and ensuring that any data stored or transmitted by Merchant in conjunction with the Services and for enrollment for the Services is accurate, complete and in the form as requested by SericaPay, is securely collected and is not corrupted due to Merchant's systems. Merchant is also responsible for reviewing the Transactions in its account on a regular basis and notifying SericaPay promptly of suspected unauthorized activity through its account;
B. Keeping its login name and password confidential. Merchant shall notify SericaPay immediately upon learning of any unauthorized use of its user name or password. Merchant shall be solely responsible for (i) updating its passwords for access to the Services periodically, and (ii) creating passwords that are reasonably "strong" under the circumstances, both in accordance with SericaPay's requirements. A "strong" password is at least eight characters long, does not contain all or part of the Merchant’s account name, and contains at least three of the four following categories of characters: uppercase characters, lowercase characters, base 10 digits, and symbols found on the keyboard (such as !, @, #). Strong passwords should be generated in such a way that knowledge of one does not lead to knowledge of another.
C. Maintaining commercially reasonable business practices in conjunction with use of the Services, collecting, storing and transmitting its customer data in a secure manner and protecting the privacy of its customer data. Merchant shall comply with SericaPay's requests for reasonable action on Merchant's part, to the extent necessary, to maintain security and integrity of the Services;
D. Updating to the most current Software version and security updates and patches necessary to properly operate the Services and keeping all Merchant enrollment and payment information current and updated on the Manager Web Site; and
E. Merchant agrees, and hereby represents and warrants that Merchant shall (A) use the Services in accordance with the applicable user guides and other documentation; and (B) not use or permit others to use information obtained through the use of the Services for any purpose other than in conjunction with the Services and in a manner described in the documentation for the Services
3.2 Proprietary Rights. Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein ("SericaPay Intellectual Property Rights") are owned by SericaPay or its licensors, and you agree to make no claim of interest in or ownership of any such SericaPay Intellectual Property Rights. You acknowledge that no title to the SericaPay Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the SericaPay or its licensors' service, other than the rights expressly granted in this Agreement. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by SericaPay and all existing and future copyright and other right, title and interest in and to each such Derivative Work, are assigned to, and shall automatically vest in, SericaPay. SericaPay shall have no obligation to grant you any right in any such Derivative Work. Except to the extent permitted by applicable law, Merchant shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative workbased upon, distribute, or time share the Services or any components thereof, or otherwise apply any procedure or process to the Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. Merchant shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Services or components thereof.
4.1 Services. Subject to the terms in this Agreement, SericaPay agrees to (i) provide to Merchant the Services for which Merchant enrolls and pays the applicable fees, and (ii) provide Merchant with access to standardized reports regarding Merchant's Transactions processed using the Services and certain reporting tools to assist Merchant in accounting activities. SericaPay hereby grants to Merchant the right to access and use the Services in accordance with the Agreement. SericaPay is not bound by nor should Merchant rely on any representation by (i) any agent, representative or employee of any third party that Merchant may use to apply for our services; or in (ii) information posted on our Web site of a general informational nature.
4.2 Modification of Terms; Changes to Services. Except as otherwise provided in this Agreement, Merchant agrees that SericaPay may amend or modify this Agreement or the Services by posting on the SericaPay Manager Web Site or emailing to you the revised Agreement, and the revised Agreement shall be effective at such time. You agree to periodically review the Manager Web Site, including the current version of this Agreement available on the Manager Web Site, to be aware of any such amendments. If you do not agree with any amendment to the Agreement, you may terminate this Agreement at any time by providing us with notice as set forth in this Agreement. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, except as otherwise expressly stated herein, but you will not incur any additional fees. By continuing to use SericaPay services after any amendment to this Agreement or change in Services, you agree to abide by and be bound by any such amendments or changes. We are not bound by nor should you rely on any representation by (i) any agent, representative or employee of any third party that you may use to apply for our Services; or in (ii) information posted on our Web site of a general informational nature. No employee, contractor, agent or representative of SericaPay is authorized to alter or amend the terms and conditions of this Agreement.
4.3 Secure Transactions. SericaPay has implemented and will maintain security systems for the transmission of Merchant's Transactions, consisting of encryption and "firewall" technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. SericaPay does not guarantee the security of the Services or Transaction data, and SericaPay will not be responsible inthe event of any infiltration of its security systems, provided that SericaPay has used commercially reasonable efforts to prevent any such infiltration. Merchant further acknowledges and agrees that Merchant, and not SericaPay, is responsible for the security of Transaction data or information or any other information stored on Merchant's servers, and that SericaPay is not responsible for any other party's servers (other than subcontractors of SericaPay solely to the extent SericaPay is liable for its own actions hereunder).
5.1 The SericaPay Privacy Statement. Our privacy statement for the Services is located on our Web site at https://sericatrading.com/privacy/ and is incorporated herein by reference, as it is applicable to the Services. The privacy statement sets forth your and our rights and responsibilities with regard to your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Web site. You agree to monitor our Web site periodically to review such amendments. By using our services after modifications to the privacy statement, you have agreed to these modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement.
5.2 Use of the Data. Merchant acknowledges and agrees that in the course of providing the Services, SericaPay will capture certain transaction and user information (collectively, the " Data "). Merchant agrees to provide to SericaPay, and SericaPay shall capture, only the Data that is required by the Software and is necessary for SericaPay to provide the Services. SericaPay agrees to use Data in its personally identifiable form only as necessary to complete the requested transaction. SericaPay shall not disclose Data to third parties or use the Data, except that SericaPay shall have the rights (i) to use the Data as necessary to perform the Services contemplated in this Agreement (including distributing the Data to third parties providing services requested by Merchant); (ii) to maintain the Data as long as necessary or as required by law and used internally for record keeping, internal reporting, and support purposes; (iii) to compile and disclose Data in the aggregate where individual merchant Data is not identifiable, including without limitation, calculating merchant averages by region or industry; and (iv) to provide the Data as required by law or court order, or to defend SericaPay's rights in a legal dispute. You represent and warrant that you have provided notice to, and obtained consent from, any third party individuals whose personal data you supply to us as part of our services with regard to: (i) the purposes for which such third party's personal data has been collected, (ii) the intended recipients or categories of recipients of the third party's personal data, (iii) which parts of the third party's data are obligatory and which parts, if any, are voluntary; and (iv) how the third party can access and, if necessary, rectify the data you hold about them. You further agree to provide such notice and obtain such consent with regard to any third party personal data you supply to us in the future. We are not responsible for any consequences resulting from yourfailure to provide notice or receive consent from such individuals nor for your providing outdated, incomplete or inaccurate information.
As consideration for the services you purchased, you agree to pay SericaPay the applicable service(s) fees set forth on our Web site, or as otherwise provided by SericaPay concurrently with this Agreement, at the time of your selection, or, if applicable, upon receipt of your invoice from SericaPay. Except as otherwise provided herein, all fees are due immediately and are non-refundable, except as otherwise expressly noted herein or in one or more attached Schedules. Unless otherwise specified herein or on our Web site, the Services are for a one-year initial term and renewable thereafter for successive one-year periods. Any renewal of your Services with us is subject to our then-current terms and conditions, including, but not limited to, successful completion of any applicable authentication procedure, and payment of all applicable service fees at the time of renewal. You are solely responsible for your business banking, credit card or Direct Debit (" DDR ") information you provide to SericaPay and must promptly inform SericaPay of any changes thereto (e.g., change of expiration date or account number). Changes should be communicated to SericaPay by entering the updated information through the SericaPay tools or contacting SericaPay customer support. All payments shall be made in US dollars or SericaPay digital currencies. All fees are non-refundable unless otherwise explicitly stated in this Agreement. If we do issue a refund, it will only be via the same payment method used by you to pay for the Services. For additional services or add-on services, Merchant shall either prepay SericaPay's then-current annual prepaid fees, if available, or pay the then-current monthly fees for such services, in accordance with Section 6.2 below. If Merchant uses SericaPay add-on services that are subject to additional standard fees that are not prepaid at enrollment, then SericaPay shall either immediately charge Merchant's credit card or debit Merchant's DDR account, as applicable, for SericaPay's then-current fees for such services or invoice Merchant for such additional standard fees, and Merchant shall pay such invoice immediately. You agree to pay all value added, sales and other taxes (other than taxes based on SericaPay's income) related to SericaPay services or payments made by you hereunder. All payments due to SericaPay shall be made without any deduction or withholding on account of any tax, duty, charge or penalty except as required by law in which case the sum payable by a party in respect of which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, SericaPay receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required. Set up fees, if any, will become payable on the applicable effective date for the applicable SericaPay services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less. Merchant hereby authorizesSericaPay to charge Merchant's linked bank accounts, credit cards provided to SericaPay or debit Merchant's digital asset or digital currency transactions for the fees due for the Services, and Merchant shall provide to SericaPay proper debit authorization for purposes of allowing SericaPay to debit the applicable Merchant account to collect fees due under this Agreement. All fees owed by Merchant to third parties are Merchant's sole responsibility and are not covered by this Agreement.
6.1 For Annual Prepaid Agreements. Merchant agrees to pay to SericaPay the applicable [annual fees for the applicable Services enrolled for and used by Merchant (the " Annual Prepaid Service Fee ") for twelve (12) months] from the due date as described above in this Section 6, or twenty-four (24) months if Merchant prepays for two (2) years. Merchant shall pay a separate Annual Prepaid Service Fee for each SericaPay Services account for which Merchant registers. Merchant agrees that SericaPay shall have no obligation to provide the Services until it has received Merchant's Annual Prepaid Service Fee. We will endeavor to provide you notice prior to the renewal of the Services at least fifteen (15) days in advance of the renewal date. Unless either party terminates the Agreement early in accordance with the terms herein or unless otherwise notified by SericaPay electronically or via the SericaPay Manager Web Site, then for each renewal term of this Agreement following the initial annual or bi-annual prepaid term, Merchant hereby authorizes SericaPay to charge Merchant's credit card or DDR account [or digital wallet] that SericaPay has on file for Merchant or invoice Merchant, as applicable, for the annual renewal period. In the event Merchant desires to request another payment method, Merchant shall contact Customer Support no less than thirty (30) days prior to the end of the applicable prepaid term. SericaPay reserves the right at the end of each prepaid term to change its fees upon written or electronic notice to Merchant. If SericaPay is unable to collect the Annual Prepaid Service Fee from Merchant for each renewal period, then SericaPay shall have the right to terminate this Agreement in accordance with the terms herein.
6.2 For Non-Prepaid Agreements. Merchant agrees to pay to SericaPay the applicable fees for each separate SericaPay account for the Services used by Merchant, as described in these registration pages or as otherwise provided in writing by SericaPay concurrent herewith. There will not be any pro-ration of fees paid or invoiced unless otherwise agreed in writing by SericaPay. Merchant agrees to pay all value added, sales and other taxes (other than taxes based on SericaPay's income) related to the Services or payments made by Merchant to SericaPay. SericaPay may, at its option, either invoice or debit Merchant's credit card or DDR account, as applicable for the fees due SericaPay. Initial set up fees will become payable on the Effective Date. Monthly fees will be invoiced or debited at the end of the calendar month in which the Services are performed. Merchant agrees to pay all such invoices immediately or as otherwise indicated on the applicable invoice. Merchant agrees, at the request of SericaPay, to provide SericaPay with an authorized credit card name, number and date of expiration or a DDR account number [or digital wallet].
[6.3 Transaction Fees]. In addition to any annual or monthly fees, you agree to pay us a transaction fee equal to 2.9% + 0.30 per transaction.
6.4. Deposits and Withdrawals. You may transfer funds between your linked bank account and SericaPay as necessary to deposit funds into or withdraw funds from your [SericaPay Wallet]. SericaPay will not charge a fee for you to transfer funds to or from SericaPay, but bank transfer fees may apply. Funds sent via bank wire (if permitted by SericaPay) are subject to additional wire fees. For deposits, SericaPay will credit your USD Wallet a corresponding amount of dollars after funds are delivered to SericaPay, typically within two to three business days after you authorize a deposit. For withdrawals, SericaPay will immediately debit your USD Wallet when you authorize a withdrawal and funds will typically settle to you within two to three business days. Bank fees are netted out of transfers to or from SericaPay. We will not process a transfer if associated bank fees exceed the value of the transfer.
7.1 SericaPay represents and warrants that (a) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (b) all corporate action on the part of SericaPay, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken.
A. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SERICAPAY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, SERICAPAY, ITS SERVICE PROVIDERS, SUPPLIERS, AND LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES AREDOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
SERICAPAY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND SERICAPAY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
B. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SERICAPAY, ITS PROCESSORS, SERVICE PROVIDERS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL SERICAPAY BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR SERICAPAY ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
C. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SERICAPAY, ITS SERVICE PROVIDERS, SUPPLIERS, AND LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICE; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENTOR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) SELLER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL SERICAPAY, ITS PROCESSORS, SERVICE PROVIDERS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY SQURE IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
D. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SERICAPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
E. The Services are controlled and operated from facilities in the United States. SericaPay makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
F. All third party hardware and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. SERICAPAY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL SERICAPAY BELIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
7.2 Merchant represents and warrants that it shall comply with all applicable privacy, consumer and other laws and regulations with respect to its (i) provision, use and disclosure of the Data; (ii) dealings with the users providing the Data; and (iii) use of the Services. Additionally, Merchant represents and warrants that (a) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (b) all corporate action on the part of Merchant, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken; (c) this Agreement constitutes its valid and legally binding obligation, enforceable against it in accordance with the terms hereof; (d) if Merchant is a corporation, then it is a corporation in good standing in its jurisdiction of incorporation; (e) it has read and understands the entire Agreement and desires to be bound thereby, and it has been represented by counsel of its own choosing; and (f) it represents and warrants that, except as expressly set forth herein, no representations of any kind or character have been made to induce it to execute and enter into this Agreement.
This section is subject to the terms of Section 9. You will indemnify, defend, and hold us and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies; (b) your wrongful or improper use of the Services; (c) any transaction submitted by you through the Services (including without limitation the accuracy of any customer content or product, service, or transaction information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (e) your violation of any law, rule or regulation of the United States (State or Federal) or any other country; (f) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code.
Merchant acknowledges that SericaPay is not a financial institution. SericaPay is responsible only for providing data transmission to effect or direct certain payment authorizations for Merchant and is not responsible for the operation of web sites of ISPs or the availability or performance of the Internet, or for any damages or costs Merchant suffers or incurs as a result of any instructions given, actions taken or omissions made by Merchant or any ISP. IN NO EVENT WILL SERICAPAY'S LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO SERICAPAY BY MERCHANT HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT WILL SERICAPAY OR ITS LICENSORS HAVE ANY LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) TO MERCHANT OR ANY OTHER PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SERICAPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent allowed by applicable law.
10.1 Term; Renewal. This Agreement will commence on the later of (i) the date Merchant accepts the terms of this Agreement (the "Effective Date"), or (ii) the date that Merchant's SericaPay account is activated for live Transactions, if different; and will continue for a period of one (1) year (or two (2) years if Merchant prepays for two years), unless terminated earlier or suspended according to the provisions of this Agreement. This Agreement will thereafter automatically renew for successive twelve (12) month terms (or twenty-four (24) month terms if Merchant prepays for twenty-four months), unless either party gives the other party written or electronic notice, in accordance with the terms herein, of its intention not to renew the Agreement, at least thirty (30) days prior to the end of the then-current term or renewal term if termination is by SericaPay. Any renewal of your Services is subject to our then-current terms and conditions, successful completion of any applicable authentication procedure, if any, and payment of all applicable service fees at the time of renewal. Additional payment terms may apply to the SericaPay Services you purchase.
10.2 Termination. If your SericaPay account is terminated or suspended for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Services, (c) that the license provided under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of yourinformation and account data stored on our servers, and (e) that SericaPay shall not be liable to you or any third party for termination or suspension of access to the Services or for deletion of your information or account data.
10.3 Your Right to Terminate. You may terminate this Agreement and other SericaPay agreements by closing your SericaPay account at any time. Upon closure of a SericaPay account, any pending transactions will be cancelled. Any funds that we are holding in custody for you at the time of closure, less any applicable Fees, will be paid out to you according to your payout schedule, assuming all payout-related authentication requirements have been fulfilled (for example, you may not close your SericaPay account as a means of evading your payout schedule). If an investigation is pending at the time you close your SericaPay account, we may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds in dispute, we will release those funds to you.
10.3 Suspension or Termination by US. We may terminate this Agreement or suspend or close your SericaPay account for any reason or no reason at any time upon notice to you. We may also suspend the Services and access to your SericaPay account (including the funds or digital assets in your SericaPay account) if you (a) have violated the terms of this Agreement, any other agreement you have with SericaPay, or SericaPay’s policies, (b) pose an unacceptable credit or fraud risk to us, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.
10.4 Effect of Termination. We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or in connection with any termination or suspension of the Services. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement.
10.5 Reinstatement of Services. If Services are suspended or terminated by SericaPay due to lack of payment by Merchant, reinstatement of Services shall be subject to Merchant paying SericaPay (i) new set-up fees, at SericaPay's then-current rates; and (ii) as applicable, all past due annual or monthly fees and Transaction fees.
11.1 Confidential Information. "Confidential Information" means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential. All source code and the terms of this Agreement will be considered Confidential Information.
11.2 Confidentiality Obligations. Each party (i) shall not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and for purposes of performing this Agreement, and (ii) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party's Confidential Information only for the purpose of its performance under this Agreement. In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information and which are provided to the receiving party hereunder.
11.3 Limitation of Confidentiality . The Obligations set forth in Section 11.2 ("Confidentiality Obligations") above do not apply to information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (iv) is disclosed with the written approval of the disclosing party, or (v) is disclosed five (5) years from the effective date of termination or expiration of this Agreement.
11.4 Exceptions to Confidentiality. Notwithstanding the Confidentiality Obligations set forth in Section 11.2 above, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (ii) on a "need-to-know" basis under an obligation of confidentiality substantially similar in all material respects to those confidentiality obligations in this Section 10 to its legal counsel, accountants, contractors, consultants, banks and other financing sources.
12.1 Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder, except for Merchant's payment obligations hereunder, due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this Section shall give the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof, and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided, however, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, either party may immediately terminate the Agreement.
12.2 Entire Agreement and Modification. The terms in this Agreement constitute the entire agreement between SericaPay and Merchant regarding its subject matter and its terms supersede any prior or simultaneous agreement, terms, negotiations, whether written or oral, or whether established by custom, practice, policy or precedent, between the parties hereto. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties herein.
12.3 Severability. In the event that any provision of this Agreement is unenforceable or invalid such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
12.4 No Assignment. Merchant may not assign this Agreement without the prior written consent of SericaPay.
12.5 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without reference to its conflicts of laws principles. Each party consents to the exclusive venue and jurisdiction of the courts located in San Francisco, California for any dispute arising out of or related to this Agreement. The parties acknowledge and agree that this Agreement is made and performed in California. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement.
12.6 Export Restrictions. Merchant acknowledges and agrees that it shall not import, export, or re-export directly or indirectly, any commodity, including Merchant's products incorporating or using any SericaPay products in violation of the laws and regulations of any applicable jurisdiction.
12.7 Notice. Except as otherwise expressly stated in this Agreement, all notices to SericaPay shall be in writing and delivered, via courier or certified or registered mail, to SericaPay, Inc., Attention: Compliance Officer, 660 4 th Street, #214, San Francisco, CA, or any other address provided by SericaPay. All notices to you shall be delivered to your mailing address or e-mail address as provided by you in your account information, as updated by you pursuant to this Agreement. Unless you choose to opt-out of receiving marketing notices, you authorize SericaPay to notify you as our customer, via commercial e-mails, telephone calls and other means of communication, of information that we deem is of potential interest to you, including without limitation communications describing upgrades, new products and services or other information pertaining to the Services or other SericaPay offerings relating to Internet security or to enhancing your identity on the Internet. Notwithstanding the above, Merchant shall not have the right to opt-out of service or support notices relating to the Services, including without limitation, notices of service modifications, security, performance issues or technical difficulties.
12.8 Headings. The section headings appearing in the Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
12.9 Independent Contractors. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
12.10 Non-Disparagement; Publicity. During the term of the Agreement, neither party will disparage the other party or the other party's trademarks, web sites, products or services, or display any such items in a derogatory or negative manner on any web site or in any public forum or press release. Unless otherwise stated herein, neither party shall issue a press release or otherwise advertise, make a public statement or disclose to any third party information pertaining to the relationship arising under this Agreement, the existence or terms of the Agreement, the underlying transactions between SericaPay and Merchant, or referring to the other party in relation to the Agreement without the other party's prior written approval.
12.11 Costs. Except as expressly stated in the Agreement, each party shall be solely responsible for the costs and expenses of performing its obligations hereunder. The SericaPay service is provided by SericaPay, Inc. which holds FINCEN Registration DI0363. Any information provided is general only and does not take into account your objectives, financial situation or needs.