Last updated: November 12, 2018
Kickfin will provide the Services to the Merchant for the Term of this Agreement subject to payment of applicable Fees and the terms and conditions of this Agreement. The “Services” include the following:
Merchant Data Management: Through Merchant’s Account on the Kickfin System, Merchant shall be able to enter, store and manage information concerning Payment Recipients, Tips, Tip Data, Lender and cash deposited or withdrawn from the Safe, Payment Recipient Data as well as other information (collectively, “Merchant Data”);
Purchase of Tip Claims: Kickfin may purchase Tip Claims from Payment Recipients that Payment Recipients offer to sell to Kickfin pursuant to Payment Recipient Terms, subject to such limits on such purchases as apply under applicable law or as Kickfin may require, at its discretion. While Merchant undertakes to pay Kickfin the amounts of the Tip Claims as set out below, Kickfin shall first purchase the Tip Claim from a Payment Recipient and shall not be entitled to any payment from Merchant until after such purchase is made. The purchase of Tip Claims by Kickfin from Payment Recipients are independent of their subsequent redemption by Kickfin with Merchant; neither is contingent on the other. Kickfin reserves the right to suspend the purchase of any one or group of Tip Claims at its discretion and without prior notice to or consent from Merchant;
Data Communication: In so far as is reasonably necessary to provide the Services, Kickfin shall collect, store and disclose Data to and from Servicers, Lender, Safe System Supplier, other Third Party Servicers and Kickfin subcontractors, each as selected by Kickfin from time to time;
Safe: Subject to review and approval of the Application by Kickfin, for the Term of this Agreement, Kickfin hereby leases the Safe identified on the Application or in the Account to Merchant (the “Safe Lease”) without charge. Upon termination or expiration of this Agreement, Merchant shall no longer have the right to use the Safe and shall permit Kickfin and/or its representative access to Merchant’s premises in order to remove the Safe. At no time shall Merchant acquire any ownership right in or to the Safe. Merchant shall not permit any lien or security interest to be created or instituted against the Safe at any time while the Safe is on Merchant’s premises or otherwise. Merchant shall use the Safe only in conjunction with both Lender and the Services. Once the Safe is installed on Merchant’s premises and approved as operational by the Safe System Supplier’s agent, Merchant shall not in any way modify the installation, change the mechanisms used to secure the Safe in the premises, move the Safe, or in any other manner change the installation as approved by both the Safe System Supplier’s agent and Kickfin. Further, Merchant shall not in any way (i) change the exterior of the Safe, (ii) access, alter, modify, or tamper with or attempt to access, alter, modify, or tamper with the internal workings of the Safe, or (iii) use the Safe for any purpose other than in conjunction with the Services. Within ten (10) days of receipt of the Safe, Merchant shall report any and all damage thereto or defects therein, failing which Kickfin shall not be under any obligation to provide any replacements or repairs in relation to the Safe. Kickfin warrants that upon installation, the Safe shall be in good working order. For a period of ninety (90) days after delivery, should any part of the Safe prove to be defective in material or workmanship, Kickfin, will repair or replace such part with new or refurbished parts, at no charge to Merchant including parts and labor. This warranty is available Monday through Friday from 9:00 AM to 5:00 PM, Pacific time, excluding holidays, labor charges for warranty service performed outside of this time period will be billed, including travel and room and board at prevailing rates. In so far as Kickfin benefits from manufacturer warranties with respect to a Safe, Kickfin shall pass the benefit thereof through to Merchant. Service for the Safe following such ninety (90) days shall be provided in consideration of the corresponding Fees. This is the only warranty made as to this installation and is in lieu of all other warranties, implied, or statutory, including the warranty of merchantability or fitness for a particular purpose concerning the Safe. Kickfin’s sole obligation under warranty is limited to the repair or replacement of the Safe or its parts; and
Third Party Servicer Invoicing: At the discretion of Kickfin, Merchant can instruct certain Third Party Servicers, including the Lender, to invoice Kickfin for their respective services supplied to Merchant; Kickfin shall pay those invoices and include the amounts thereof in Fees, which Merchant shall be obligated to pay.
Kickfin shall grant Merchant a unique and private Account accessible through the Service. The Account shall be a record of Transactions and Fees. Kickfin shall provide Merchant with access codes for the Account. Merchant may not disclose such codes or permit any third party to use them on penalty of forfeiting the whole of the Account. Merchant assumes full responsibility for the use of its Account and the access codes thereto and shall indemnify Kickfin for any and all claims, losses or other liabilities arising therefrom. From time to time, Merchant will be invited to enter certain preferences and specifications within the Account that will apply to the Services; Merchant assumes exclusive responsibility for such selections even if they contain errors on the part of the Merchant or cause losses to the Merchant. Except as required to deliver the Services or as otherwise required by law, Kickfin shall not grant any third-party access to the Account of Merchant.
As an element of the Services, Kickfin hereby grants to Merchant, during the term hereof, a non-exclusive, non-transferable, limited right (the “Access Right”) to use the Kickfin System, upon the terms and conditions hereinafter set forth. The Kickfin System shall be used by Merchant solely for its internal business purposes and Merchant acknowledges and agrees that Kickfin does not convey any right, title or interest in the Kickfin System to Merchant other than the Access Right. All proprietary and trade secret rights relating to the Kickfin System shall be and remain the property of Kickfin. Nothing in this Agreement shall confer or grant to Merchant any Intellectual Property Rights in the Kickfin System or other software of Kickfin other than the limited Access Right described above.
During the Term of this Agreement, Merchant shall not procure services of third parties that are similar to or competitive with the Services.
The Access Right shall terminate on any termination of this Agreement or any suspension of the supply of the Services.
Intellectual Property Rights in Service
The Kickfin System, including its source and object codes, documentation (including all descriptive material concerning the functions and technical specifications of the Kickfin System, user manuals, technical manuals, and other materials issued to Merchant in connection with the Access Right or the Kickfin System), appearance, structure and organization, is a proprietary product of Kickfin and is protected by copyright and other laws. Title to the Kickfin System, and any copy, update, modification or merged portion thereof, shall at all times remain with Kickfin. Merchant acknowledges that Kickfin expressly reserves the entire right, title and interest in and to the Kickfin System, and retains the exclusive right to reproduce, publish, sell, modify, distribute, prepare derivative programs of, and license to other licensees, the Kickfin System. Merchant shall not remove any trademarks, proprietary legends, or copyright notices from the Kickfin System, or reproduce, publish, sell, modify, distribute, prepare derivative programs of, or sublicense the Kickfin System in any manner.
Merchant shall make no copies of the Kickfin System, or any component thereof, or any Kickfin System documentation, for any purpose whatsoever without the prior written consent of Kickfin (which consent may be given or withheld in Kickfin’s sole and absolute discretion). Merchant shall not decompile, reverse engineer, or otherwise seek or utilize any expression of the Kickfin System other than in object code form to access the Services. Merchant shall not alter or otherwise modify the Kickfin System.
Kickfin is not a bank, money transmitter, payment processor nor is it any form of money services business.
It is forbidden for a Merchant to use the Services to, directly or indirectly, knowingly or unknowingly assist in any illegal activity or any Prohibited Activity.
The following Persons are prohibited from using the Services: (i) Persons who appear on the U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN); (ii) Persons who are less than 18 years of age; and (iii) Persons, or their Affiliates who have procured services from Kickfin and have been terminated for cause by Kickfin.
Merchant shall use the Services only in conjunction with Merchant’s business operations. Merchant shall not use the Services on behalf of any third party. Merchant shall review Merchant Data and Tip Data and promptly notify Kickfin of any irregularities or actual or suspected unauthorized activity. In order to satisfy its obligations hereunder, Merchant shall collect only such Merchant Data as is necessary for provision of the Services hereunder and shall only collect, store or disclose such information in accordance with applicable Laws. Merchant shall use commercially reasonable efforts to maintain the security of Merchant Data.
Kickfin offers no guarantee as to the financial or other results of any Lender Agreement or other Third Party Services Agreement, all of which are the sole and exclusive responsibility of Merchant under its agreements with Third Party Servicers, Lender, Payment Recipients and other third parties. Merchant acknowledges and agrees that none of the Transactions in any way affect or modify the employment or independent contractor relationship between Merchant and Payment Recipients. Kickfin makes no representation or warranty as to the accuracy or completeness of the Services or the Kickfin Data other than as expressly set forth herein . Kickfin is under no obligation to monitor the Tip Data to, for example, detect fraud by Payment Recipients or others.
Connectivity. Merchant shall ensure that is has a functioning high-speed and secure internet connection through which the Kickfin System, Safe System Supplier and the Safe shall be connected in a manner prescribed by Kickfin and the Safe System Supplier.
Information. Merchant shall ensure that all Merchant Data entered into the Kickfin System is accurate, complete and up-to-date, including but not limited to Payment Recipient Data and Tip Data. Merchant shall be liable for the inaccuracy or incompleteness of Merchant Data provided to Kickfin. Prior to informing Kickfin that a given Payment Recipient is eligible for Tips, and through its use of the Services, Merchant shall verify that Payment Recipient Data and Tip Data in the Kickfin System is correct and shall promptly correct any errors or omissions therein;
Audit. During the Term of this Agreement and so long as Merchant has any actual or potential liabilities to Kickfin under this Agreement, Merchant shall allow Kickfin or its designee to inspect the records of Merchant, the premises of Merchant, including but not limited to the Safe and the contents thereof and the Merchant System in order to verify compliance of Merchant with the terms of this Agreement. Merchant shall instruct Payment Recipients to be available to provide information necessary for the Services.
Security – Electronic. Merchant shall use commercially reasonable efforts to operate its business in a manner that provides security for Data, Customer Data and the Safe. Merchant shall immediately notify Kickfin of any actual or suspected breaches in the security of Data, Customer Data or the Safe, whether in Merchant Systems or Third Party Servicer systems or otherwise. Kickfin is not, however, liable for the operation or failure of Merchant or any third party, such as, for example, any Third Party Servicer, including but not limited to Merchant banks, processors, issuers, alarm services, security services, armored car services, hosting services, or internet service providers. Merchant shall use commercially reasonable efforts to maintain the Merchant System in a manner that adheres to customary security standards applicable to Merchant, and Merchant will not operate its Merchant System in a manner that does not meet the security requirements of Third Party Servicers.
Safe. The Safe shall at all times remain the sole and exclusive property of Kickfin. Merchant shall not place any liens or other encumbrances on the Safe itself. The foregoing shall not limit the right of Merchant to grant Lender security on the contents of the Safe.
Security – Physical. Merchant is responsible for the theft, destruction or other loss of the Safe, Merchant Systems and the contents of each and Kickfin shall have no liability in respect thereof.
Lender. Kickfin makes no representations or warranties as to Merchant’s ability to obtain a Lender Agreement. If a Lender Agreement is executed by Merchant and Lender, Kickfin has no liability under the Lender Agreement and Merchant assumes all liabilities thereunder. Merchant authorizes Kickfin to collect from and disclose to Lender all Merchant Data necessary for the Services and such information as Lender may request in relation to the Lender Agreement. Kickfin can disclose this provision of this Agreement to the Lender to evidence the foregoing consent;
Other Third Party Servicers. Unless expressly agreed in a separate writing by Kickfin, Kickfin has no liability under any Third Party Servicer Agreement and Merchant assumes all liabilities thereunder. For those Third Party Servicers and related services approved in advance by Kickfin, one of which is Lender, Kickfin may pay invoices with respect to their services and, later, invoice Merchant for the same, plus applicable mark-ups, all of which shall be considered Fees for which Merchant is liable under this Agreement. Merchant authorizes Kickfin to collect from and disclose to Third Party Servicers all Merchant Data necessary for the Services and such information as Third Party Servicers may request in relation to their respective Third Party Servicer Agreements. Kickfin can disclose this provision of this Agreement to the Third Party Servicers to evidence the foregoing consent. Merchant shall fulfill its obligations under Third Party Servicer Agreements;
Privacy Consents. Merchant expressly consents to Kickfin collecting, storing, using and disclosing all Merchant Data necessary to provide the Services. Merchant shall not provide any Merchant Data, such as Payment Recipient Data, for example, for which Merchant does not have all necessary consents from the subject Payment Recipients to provide such data to Kickfin and for Kickfin to use the same hereunder. Merchant shall be liable for the failure of any of any privacy consents and the ensuing fines, claims or other losses. Where a Payment Recipient contacts Kickfin with respect to the Payment Recipient Terms, Merchant grants permission to Kickfin to share information on the Kickfin System concerning such Payment Recipient with such Payment Recipient.
Purchase of Tip Claims. Merchant shall purchase from Kickfin all Tip Claims purchased by Kickfin from Payment Recipients. The only condition precedent to the closing of each such purchase shall be Kickfin presenting the Tip Claim for redemption to Merchant, by electronic means, through the Account whereupon the face value thereof, plus associated Fees, shall be payable to Kickfin. Merchant shall settle the face-value of each Tip Claim, plus related Fees, to Kickfin no later than the day after which they are presented for redemption at Merchant through the Account. Merchant hereby instructs Kickfin to collect such amounts by ACH from the Merchant Deposit Account as soon as they become due to Kickfin. Merchant shall be under no obligation to purchase any Tip Claim for which Kickfin has not already paid the face-value thereof to the Payment Recipient who sold it to Kickfin, or initiated a payment transaction with a third party payment provider for the same. Kickfin represents Tip Data shall be accurate and shall be liable for any liabilities or losses on account of inaccuracies therein. Merchant shall not use the Services for processing any payment other than the redemption of Tip Claims purchased by Kickfin from a Payment Recipient then engaged by Merchant.
Retainer. In order to maintain the supply of Services by Kickfin and to protect Kickfin from Merchant being unable to redeem Kickfin-purchased Tip Claims, Merchant shall provide Kickfin with a retainer (the “Retainer”). The specific amount of the Retainer is indicated on the Application, but Kickfin reserves the right to require the Merchant to increase the amount thereof at its sole discretion. Less any outstanding liabilities of Merchant to Kickfin, the full amount of the Retainer shall be returned to Merchant on termination hereof. The Retainer is not a deposit and will not benefit from FDIC insurance.
Payment Recipient – Merchant . While Tips arise within the context of the relationship between Merchant and Payment Recipient, Kickfin is not a party to that relationship and shall have no liability to Kickfin or Payment Recipient in respect thereof. When the relationship between a Payment Recipient and Merchant is terminated, Merchant shall indicate such change in the Account and Kickfin shall cease purchasing Tip Claims from such former Payment Recipient. Merchant is responsible for its relationships with Payment Recipients and shall ensure that it performs, with respect to Payment Recipients, in full compliance with all applicable Laws, such as, for example, Laws concerning working conditions and minimum wages.
Tax Collection and Filing. Merchant acknowledges and agrees that Tips are income for Payment Recipients that obligate Merchant and Payment Recipient to record such income as required under applicable Law and collect and remit all applicable taxes and tax forms related thereto. Kickfin is not a payroll service and assumes no liability for the calculation, remittance or filings with respect to Tips or other Merchant activity and Merchant shall assume exclusive liability for such activities.
Payment Recipient – Kickfin. Payment Recipient Terms with Kickfin are between Kickfin and Payment Recipient and Merchant has no liability with respect thereto. Merchant may obtain access to Payment Recipient Account information through the Account. Merchant shall not make any use of such information or other information concerning Payment Recipient other than as expressly permitted by Payment Recipient.
Escheatment. Where Kickfin purchases a Tip Claim from a Payment Recipient and, for whatever reason, is not able to settle the amount thereof to the Payment Recipient Account, Kickfin shall use commercially reasonable efforts to settle such amount but shall not be liable to do so and may, at its discretion, return the amount thereof to Merchant whereupon Merchant assumes exclusive liability to settle such amounts to the Payment Recipient or escheat them to the appropriate state authorities.
Electronic Communication. Merchant agrees to receive notices and other communication under this Agreement through the Account or by the email address provided on the Application.
Abuse Intolerance Discrimination. Merchant shall not, nor shall it allow any Payment Recipient, to use the Services to carry out any abusive, intolerant or discriminatory acts.
Merchants shall pay Fees for use of the Services. All Fees are due immediately and are non-refundable, except as otherwise agreed by Kickfin. The Fees are subject to change as per the terms of this Agreement. Fees collected are not refundable. Fees that are not paid when due, following a notice requesting payment, will accrue interest of 1% per month or the maximum amount allowed by Law, whichever is less, starting on the day after they were due.
Merchant is liable for all federal, state and local taxes that may apply to the Services and they are in addition to the Fees.
Fees shall be paid as per the payment methods that are acceptable to Kickfin in the Kickfin System and integrated with the Account by Merchant and Kickfin.
In so far as Fees include amounts invoiced for Third Party Servicer Services, and the charges by such Third Party Servicers increase, Fees shall be correspondingly increased without prior notice to Merchant or consent of Merchant. Where a Third Party Servicer changes its systems or interfaces requiring updates to the Kickfin System in order for the two to remain compatible, Kickfin reserves the right to pass through to Merchant costs associated with such updates.
Merchant desires to effect debits and settlement of any credits from the Merchant Deposit Account by means of ACH and/or wire transfer, or such other means as the Merchant Deposit Account will permit in conjunction with the Services. In accordance with this desire, Merchant authorizes Kickfin, its Affiliates and their respective processors to initiate debit and credit entries to the Merchant Deposit Account for Fees, other amounts owing to Kickfin hereunder and for corrections to the same. Merchant agrees to maintain sufficient funds in Merchant Deposit Account to cover debit transactions hereunder. By accepting this Agreement, Merchant states that it has authority to agree to such transactions and that the Merchant Deposit Account indicated is a valid and legitimate account for the handling of these transactions. This authority is to remain in effect until Kickfin receives written notice from Merchant revoking it. This authorization extends to the payment of Fees and all other sums owed to Kickfin or any of its Affiliates. Merchant also certifies that the appropriate authorizations are in place to allow Merchant to authorize this method of settlement. All changes to the identification of the Merchant Deposit Account under this authorization must be made in writing in accordance with the Agreement. Merchant understands that if the information supplied as to the account number of the Merchant Deposit Account is incorrect Merchant will be responsible for the error and the results thereof and, where available, will be billed to Merchant at Kickfin’s current hourly rate for such work. Merchant acknowledges that the origination of all transactions on the Merchant Deposit Account must comply with the provisions of applicable Law and Rules.
If Merchant has provided credit card information to Kickfin, then Kickfin is authorized to debit Fees and any and all other amounts owing hereunder to such card.
Merchant hereby warrants and covenants to Kickfin that:
Duly Constituted. Merchant is a business or carries on an organized economic activity for profit or otherwise and, if it is not an individual, is duly constituted under the laws of its constituting jurisdiction and that it has legal capacity to enter into this Agreement and perform its obligations hereunder. The Merchant is registered as a business in every jurisdiction where it carries on business;
Duly authorized. Merchant has the necessary corporate power and authority to execute this Agreement and to perform its or his obligations hereunder. Such execution and performance by the Merchant does not require any action or consent of, any registration with, or notification to, any person, or any action or consent under any laws or regulations which the Merchant is subject;
Notice of Defects. Merchant will immediately advise Kickfin and its Customers of defects in the Merchant Product or any claim or threatened claim against it in relation to the Merchant Product;
Compliance with Laws. The Merchant Product conforms to all applicable Laws in the jurisdictions where Kickfin, Merchant and its Customers are located. It will conduct its business affairs in an ethical manner and in accordance with the terms and intent of this Agreement, and in compliance with all applicable Laws. Merchant shall not use the Services to sell, promote or facilitate any Prohibited Activities. Merchant will not use the Services to assist in the illegal import or export of goods or services;
Solely for Business Purposes. Merchant shall use the Services exclusively for business purposes or in the course of carrying on an organized economic activity, whether for profit or otherwise;
Insurance. Merchant shall maintain a commercial liability insurance policy that includes, without limitation, coverage for losses arising from the loss, destruction or theft of the Safe and the contents thereof;
Opportunity to Consult Counsel. Merchant has had the opportunity to consult legal counsel for the purpose of reviewing and obtaining advice as to the terms hereof; and
Taxes and Related Filings. To the extent that Merchant is responsible for collecting or remitting any taxes, source deductions, employment insurance or other Payment Recipient or Merchant Product related assessments, Merchant shall fulfill all of its obligations with respect to such collections, remittances and related filings and shall not look to Kickfin for completing any of such duties.
AML KYC. Merchant will provide all information and documentation requested by Kickfin, in its sole discretion, for purposes of due diligence and meeting any of Kickfin’s or its banks or third-party processor’s CIP, KYC, BSA/AML requirements. All information and documentation provided by Merchant to Kickfin in respect of itself and any Payment Recipient shall be accurate and complete including without limitation, information regarding Tips. Tips reported due to Payment Recipients arise out of a legitimate business transaction and serve a legitimate business purpose. Merchant shall cooperate in providing Kickfin with any reasonably requested information needed to verify the legitimacy of Merchant’s business and any of the representations and warranties above.
Merchant shall defend, indemnify and hold harmless Kickfin and its Affiliates and their suppliers, directors, officers, owners, employees, agents, assigns, and successors-in-interest from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys’ fees and expenses) arising out of or resulting from (i) Merchant’s performance under this Agreement including, without limitation, performance, non-performance, or defect in performance, any statement, misstatement, representation or misrepresentation made by Merchant or a Payment Recipient; (ii) the negligent or wilful acts or omissions of Merchant or a Payment Recipient; (iii) any statements, claims, representations or warranties made by Merchant or its agents and/or employees, relating to the Merchant Products or any other matter; (iv) any claim by any Third Party Servicers or other third party with respect to Merchant; (v) any claim by Lender or Safe System Supplier with respect to Merchant; (vi) any claim by a Payment Recipient with respect to Merchant; (vii) any claim by a state department of labor or other government agency with respect to Merchant or a Payment Recipient; (viii) all Kickfin costs incurred by Kickfin with respect to responding to a subpoena related to Merchant or a Payment Recipient; and (ix) any claims related to Merchant Product.
Term and Termination
Termination. Either party may terminate this Agreement at the end of the then current Term by providing notice to the other party not less than ninety (90) days prior to the end of the then current Term. Kickfin can terminate or suspend performance hereunder at any time for no reason or for any reason without prior notice or consent to Merchant.
Effect of Termination. Merchant shall be liable to Kickfin for all Fees or other liabilities that accrued prior to or following termination notwithstanding any termination hereof. Upon any termination of this Agreement, Merchant shall no longer be entitled to use the Account, Access Right or any other part of the Services. Merchant shall purchase from Kickfin all Tip Claims presented to Merchant for redemption during and also following any termination hereof. All provisions regarding indemnification, representations, warranties, liability and limits thereon and confidential information shall survive termination and termination of this Agreement shall not relieve the Merchant of its obligations to pay accrued Fees or other liabilities to Merchant hereunder. Merchant shall bear the whole of its costs associated with any termination, including but not limited to finding a substitute supplier of services similar to those of Kickfin. Kickfin reserves the right to permanently delete all Merchant Data, Customer Data and other Merchant information in Kickfin systems on any termination of this Agreement. Less outstanding liabilities of Merchant to Kickfin, Kickfin shall return the Retainer to Merchant within sixty (60) days of termination of this Agreement.
Discontinuance. Kickfin reserves the right to modify or discontinue the Service at any time.
Each party acknowledges that it may directly or indirectly disclose Confidential Information to the other party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information. Each party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement. Except as otherwise contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of the Agreement. Neither party shall use the Confidential Information of the other party except in furtherance of its performance hereunder. Merchant grants Kickfin the right to use all Merchant Data as necessary to supply the Services and also to use anonymized versions thereof for statistical, fraud prevention and Service improvement purposes. This confidentiality provision shall survive termination of this Agreement.
For the purposes of this Agreement, “Confidential Information” means all proprietary, secret or confidential information or data relating to either party and its affiliates, operations, employees, products or services, clients or customers. Confidential Information, to be such, must be of a nature that it is reasonably expected to be kept confidential. Confidential Information shall include Customer lists, employee numbers, Tip Claim information, computer access codes, instruction and/or procedural manuals, software, APIs, Data, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by law. Without limitation, Kickfin Data shall be Confidential Information of Kickfin.
LIMITATION OF LIABILITY
THE SERVICE AND SAFE ARE PROVIDED ON AN “AS-IS”, “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KICKFIN EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE SERVICES OR SAFE PROVIDED BY KICKFIN OR THAT THE OPERATION OF THE SERVICES OR SAFE WILL BE INTERRUPTION OR ERROR FREE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, KICKFIN, ITS SUPPLIERS, AGENTS AND LICENSORS, SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO MERCHANT OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF KICKFIN HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT SHALL KICKFIN’S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO THE MERCHANT, OR ANY THIRD PARTY, IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID TO KICKFIN BY MERCHANT DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
Kickfin shall use its commercially reasonable efforts to perform its obligations hereunder, however, Kickfin, its Affiliates, agents or licensors shall not be liable for any loss resulting from the activities of Merchant, nor from any erroneous statements or errors in transmission, nor to any malfunction of the Safe or the Safe System, nor for any Lender Cash or any other cash stored or placed in the Safe, nor for any Safe System reporting of or any transport of any Lender Cash or any other cash stored or placed in the Safe, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond Kickfin’s reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment. Kickfin’s obligations hereunder shall be suspended during any of the foregoing circumstances, which suspension shall not be a cause for termination of this agreement by Merchant.
Notices. All notices to Merchant hereunder shall be delivered to Merchant to the e-mail address provided on establishment of the Account. Any notice given by Merchant to Kickfin under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested to Kickfin at the address indicated on the Site and addressed to the ‘Legal Department’. Email notices shall be effective when sent. Notices to Kickfin shall be effective upon receipt.
Independent Contractor. Neither party has any right to create any obligations on the part of the other party, without the other’s prior written consent. Nothing in this Agreement or the course of dealing of the parties shall be construed to constitute the parties hereto as partners, joint ventures or as agents or employees of one another or as authorizing either party to obligate the other in any manner. Merchant shall not (1) bind Kickfin to any contract or agreement, (2) incur any obligation on behalf of Kickfin, (3) release, assign or transfer any agreement, claim, security or any other asset of Kickfin, (4) borrow or lend any money in the name of Kickfin, or (5) submit to any claim or liability related to the Services or allow judgment to be taken or confessed against Kickfin. Merchant, being an independent contractor, shall not receive as compensation, or be reimbursed, for any of the following: (i) work materials that Merchant may use in performing hereunder, (ii) business facilities, telephone, automobile or any other equipment, (iii) any Merchant employee benefit, (iv) reimbursement for any other cost or expense incurred by Merchant in its promotion of the Services hereunder.
On-Line or Written Formation of Contract. By acceptance of the terms hereof on-line by Merchant or by execution of a written acceptance of the terms hereof by Merchant, this Agreement together with any supplemental agreements and appendixes constitute the entire validly legally binding agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
Amendments to this Agreement. From time to time Kickfin will post amendments or revisions to this Agreement to the Site, the Account or by email including, without limitation, amendments to Fees. Kickfin will provide notice of these amendments or revisions to Merchant through the Account, Site, by e-mail or through the Account. If the amendment or revision is required in order to Kickfin and the Services to remain in compliance with applicable laws or industry rules, then the amendment or revision shall take effect as of when it is posted. If, on the other hand, the amendment or revision is not required under applicable law or industry rules, and Merchant does not close its Account within thirty (30) days of notice, as provided above, then the Merchant shall be deemed to have accepted the amendment or revision. Other than as provided in this section, this Agreement may not be amended except by express consent of both parties through the Site or by such other means as Kickfin may reasonably prescribe. Notwithstanding the foregoing, Kickfin reserves the right, without any prior notice or consent, to change the method of access to Services or the Account. In the event of an emergency, Kickfin reserves the right to suspend access the Services.
Non-Disparagement. Neither party with publish negative statements concerning the other party during the Term of this Agreement and thereafter in any form (e.g. Facebook, Twitter etc.). Merchant shall not use the names, logos or marks of Kickfin other than as expressly permitted by Kickfin.
Assignment. None of Merchant or any of its successors may assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Kickfin which consent may be withheld for any reason, at Kickfin’s sole discretion. Kickfin may assign any of its rights or obligations hereunder without prior notice or consent of Merchant.
Successors. This Agreement and the provisions hereof shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Merchant may not assign any of its rights or obligations under this Agreement to any third party without the prior written consent of Kickfin.
Enforcement. The Merchant shall be liable for and shall indemnify and reimburse Kickfin for any and all reasonable attorneys’ fees and other costs and expenses paid or incurred by Kickfin in the enforcement of this Agreement, or in collecting any amounts due from Merchant hereunder, or resulting from any breach of any of the terms or conditions of this Agreement. Merchant shall also be responsible for any and all cost, fees or expenses of Kickfin in relation to or arising from responding to requests for Customer Data, Merchant Data or other Merchant information by third parties including but not limited to subpoenas or court orders for the same.
Remedies. All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
Severability. If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
Governing Law, Binding Arbitration and Waiver of Jury Trial. This Agreement will be deemed to have been made and delivered in the State of California and will be governed as to validity, interpretation, construction, effect and in all other respects exclusively by the laws of the State of California, without giving effect to its conflicts of laws rules. The parties hereto agree that: (i) any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof (including without limitation the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding this arbitration provision), or to the use of the Services will be settled by binding personal arbitration by one (1) arbitrator, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. If, for any reason, a dispute relating to this Agreement or the transactions contemplated hereby is deemed outside the scope of this agreement to arbitrate, or if this agreement to arbitrate is deemed unenforceable or inapplicable (which decision regarding scope, enforceability, or applicability shall be in the exclusive authority and jurisdiction of the arbitrator as stated above), to the extent outside the scope, unenforceable or inapplicable, such legal suit, action or proceeding shall be instituted exclusively in a state court in San Francisco County, California, or in the United States District Court, Northern District of California; (ii) the parties each waive the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER. Further, unless both parties otherwise agree in writing, neither the arbitrator nor a judge may consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding relating to this Agreement. If this specific paragraph is held unenforceable, then the entirety of the agreement to arbitrate will be deemed void, but this Section shall otherwise remain enforceable. Except as provided in the preceding sentence, this Section will survive any termination of this Agreement; (iii) the arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules last in effect as of the date the Demand for Arbitration was properly sent, except as modified by this Section (the “AAA Rules”). (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this section; (iv) a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration by first class mail using the form provided by the AAA. The Demand for Arbitration must be provided within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two (2) years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach; (v) the arbitrator will be an attorney licensed to practice law in the State of California who is, at the time of the Demand for Arbitration, practicing in commercial law or banking law. If the parties are unable to agree upon an arbitrator within seven (7) days of actual receipt of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules last in effect as of the date the Demand for Arbitration was properly sent pursuant to this Section; (v) the arbitration will be conducted in San Francisco County, California, in English. If the claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents the parties submit to the arbitrator. If a claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration; (vi) the arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If a party prevails in arbitration it will be entitled to an award of attorney’s fees and expenses, to the extent provided under Applicable Law, and (vii) each party’s responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Whole Agreement. References to “this Agreement” include any Application,Fees, schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by Kickfin and furnished to Merchant from time to time. This Agreement replaces any earlier versions hereof appearing on the Site or otherwise.
The following Sections shall survive termination of this Agreement: all definitions not otherwise included in the following, 3 – Intellectual Property Rights in Service, 8 – Customer Merchant Relationship, 9 – Fees, 10 – ACH Consent, 11 – Merchant Representations and Warranties, 12 – Indemnification, 13 – Term and Termination, 14 – Confidentiality, 15 – Limitation of Liability, 16 – General, 17 – Survival, and 18 – Glossary.
The following terms shall have the meanings indicated below:
“Access Right” has the meaning set out in Section 2;
“Account” means an account made available to a Merchant through which Merchant can transmit instructions or receive information in relation to the Services;
“ACH Consent” means the consent of Merchant to carry out debits and credits on the Merchant Deposit Account set out in Section 9;
“ACH” means Automated Clearing House payment transaction;
“Affiliate” means, in relation to a Person, another Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person’s principal partners, shareholders, or owners of some other ownership interest.
“Application” means an electronic or other form of application completed by Merchant in in relation to the Services which may contain binding terms and obligations for Merchant;
“Customer Data” means any and all non-public personal information of Customers related to Transactions;
“Customer” means a Person who wishes to procure or does procure Merchant Product from Merchant;
“Data” means Merchant Data, Kickfin Data or Customer Data;
“Deposit Account” means a bank account of Kickfin maintained in its capacity as an agent of a Merchant for the purpose of accepting payments on behalf of such Merchant;
“Fees” means those amounts for which Merchants are liable to pay in consideration of the Services as indicated in the Application and other costs of Kickfin associated with delivering the Services;
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction;
“Kickfin Data” means information concerning the Kickfin System or provided to Merchant by Kickfin through the Account or otherwise;
“Kickfin System” means a cloud-based system operated by Kickfin that allows Merchant to access their Account, the Services and facilitate Transactions;
“Kickfin” has the meaning set out in the preamble of this Agreement;
“Laws” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction;
“Lender Agreement” an agreement between Merchant and Lender pursuant to which Lender loans funds to Merchant. Kickfin is not party to the Lender Agreement;
“Lender Cash” means cash placed in the Safe by Merchant that belongs to the Lender on the terms of the Lender Agreement;
“Lender” means a Third Party Servicer that provides loans to Merchant: (i) under a Lender Agreement; (ii) which loans are in consideration of transfer of title to the Lender by Merchant of certain cash in the Safe, such cash thereby becoming Lender Cash;
“Merchant Data” has the meaning set out in Section 1.a);
“Merchant Deposit Account” means a bank account of the Merchant designated by the Merchant as the account from which Fees or Tips redemption can be debited, which may be an account with a Third Party Servicer;
“Merchant Product” means any product or service for sale or provided by Merchant;
“Merchant Relationship” means the agreement or other relationship between a Merchant and a Customer where either wishes to make use of the Services in relation thereto.
“Merchant Site” means the web site(s) used by the Merchant to solicit Customers;
“Merchant System” means those servers or hosts engaged by Merchant to collect, store, process and disclose Data;
“Merchant” means the merchant that is identified in the Application or on the cover page of this Agreement;
“Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity;
“Prohibited Activity” means the operation of or the direct or indirect facilitation of any of the following: any act that is illegal in the United States or in the jurisdiction where the Person carrying out the activity is resident, domiciled or located; bath salts and herbals; betting, including lottery tickets, casino gaming chips, off-track betting, memberships on gambling-related internet sites and wagers at races; bill payment services; buyers or discount clubs; cigarettes, tobacco or e-cigarettes; credit counseling or repair agencies; credit protection or identity theft protection services; digital goods including digital currency; direct marketing or subscription offers; inbound or outbound telemarketing businesses including lead generation businesses; infomercial sales; internet, mail or telephone order pharmacies or pharmacy referral services; items that encourage, promote, facilitate or instruct others to engage in illegal activity; items that may be counterfeit including, but not limited to: designer handbags, clothing and accessories, and consumer electronics; items that may infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; items that promote hate, violence, racial intolerance, or the financial exploitation of a crime; items that promote, support or glorify acts of violence or harm towards self or others; legal fees including bankruptcy attorneys; live animals; medical equipment; multi-level marketing businesses (MLM); obscene or pornographic items; payment aggregators; prepaid phone cards or phone services; purchase, sale or promotion of drugs, alcohol, or drug paraphernalia, or items that may represent these uses; real estate or motor vehicles; rebate based businesses; sales of money-orders or foreign currency; up-sell merchants; using the Services as a means to transfer funds between bank accounts held in the same name; using the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation and other proprietary rights and data collection and privacy; using the Services in a manner that Kickfin or any payment card network reasonably believes to be an abuse of the payment card system or a violation of payment card network rules; using the Services in any manner that could damage, disable, overburden, or impair Kickfin including without limitation, using the services in an automated manner; using the Services in violation of the terms of this Agreement, as reasonably determined by Kickfin; using the Services that in any way assists Merchant or others in the violation of any law, statute or ordinance; using the Services to collect payments that support pyramid or ponzi schemes, matrix programs, other “business opportunity” schemes or certain multi-level marketing programs; using the services to control an account that is linked to another account that has engaged in any of the foregoing activities; using the Services to defame, harass, abuse, threaten or defraud others, or collect, or attempt to collect, personal information about users, registered recipients, or third parties without their consent; using the Services to intentionally interfere with another user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code; using the Services to make unsolicited offers, advertisements, proposals, or to send junk mail or spam to others; using the Services to provide Customer with a cash advance from Customer’s own credit card or to help others to do so; using the Services to send or receive what Kickfin considers to be funds for something that may have resulted from fraud or other illegal behavior; using the Services while impersonating any person or entity or falsely claiming an affiliation with any person or entity; or weapons including replicas and collectible items; weight loss programs; wire transfer money orders;
“Retainer” has the meaning set out in Section 8.j);
“Safe Lease” has the meaning set out in Section 1.d);
“Safe System Supplier” means a third party engaged by Kickfin to supply the Safe System;
“Safe System” means a data collection and management system related to cash deposits and withdrawals occurring in the Safe;
“Safe” means the safe / recycler, if any, supplied to Merchant under the Safe Lease and this Agreement;
“Payment Recipient Account” means a financial account of a Payment Recipient with a U.S. bank or other financial institution, such as a payment card issuer or Paypal;
“Payment Recipient Data” means the name, contact information, identifying information, Payment Recipient Account information and other information related to a Payment Recipient;
“Payment Recipient Terms” means terms between Payment Recipient and Kickfin in a form that is acceptable to Kickfin;
“Payment Recipient” means an individual (i) who is lawfully residing in the U.S.; (ii) who is lawfully engaged as an employee of or independent contractor to Merchant; (iii) that Merchant expects will be entitled to Tip Claims from time to time; (iv) who is party to Payment Recipient Terms with Kickfin; and (v) who both Merchant and Kickfin deem eligible for being party to the Payment Recipient Terms, each in their own discretion;
“Site” means the website of Kickfin identified in the preamble of this Agreement;
“Third Party Servicer Agreement” means an agreement between Merchant and a Third Party Servicer concerning the supply of Third Party Services;
“Third Party Servicer Services” means the services of Third Party Servicers pursuant to Third Party Servicer Agreements;
“Third Party Servicer” means a third party engaged by Merchant to supply services to Merchant;
“Tip Claim” means the right of a Payment Recipient to payment of a Tip by Merchant;
“Tip Data” means information concerning a Tip and related Transactions;
“Tip” means a gratuity paid by a Customer to Merchant that Merchant wishes to pay to a Payment Recipient;
“Transaction” means: (i) the purchase of a Tip Claim by Kickfin from a Payment Recipient; (ii) the redemption of a Tip Claim by Merchant to Kickfin; (iii) the collection, storage or transmission of Data by Kickfin as part of the Services.