Smartex.io MERCHANT PAYMENT SERVICE AGREEMENT
Smartex.io L.t.d., a British corporation, doing business as Smartex.io, Ltd. ("Smartex.io") offers technology and services for merchants that wish to accept payment in Ether and other digital currencies (the "Service"). For you or your company ("Merchant") to obtain or continue using the Service, Merchant must agree to and accept the terms and conditions of this agreement (this "Agreement"). This Agreement sets out the terms and conditions under which Merchant may utilize the Service. Please read this Agreement carefully. Words and phrases with initial letters capitalized shall have the meaning set forth in Section 14, if not defined earlier in this Agreement.
BY CLICKING ON THE "I AGREE" BUTTON OR A SIMILAR AFFIRMATION, OR BY ACKNOWLEDGING ACCEPTANCE OF THE AGREEMENT BY ANY OTHER METHOD ALLOWED BY Smartex.io, OR BY USING OR ACCESSING THE SERVICE VIA A COMPUTER OR A MOBILE APPLICATION, MERCHANT ACKNOWLEDGES AND AGREES THAT: (I) IT HAS REVIEWED AND UNDERSTANDS THE AGREEMENT; (II) IT AGREES TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT; AND (III) ITS USE OF THE SERVICE WILL BE GOVERNED BY THIS AGREEMENT. If Merchant does not agree or is not willing to be bound by the terms and conditions of this Agreement, Merchant should not click on the "I AGREE" button and should not seek to or use the Service.
The parties agree as follows:
Merchant's Capacity and Authority. Merchant represents and warrants that the person executing this Agreement is 18 years of age or older, has the legal authority to accept this Agreement, and that such acceptance will be binding on Merchant.
Payment Gateway Service. The Service consists of a payment gateway, dashboard , and the Service APIs, which together enable merchants to accept ether and other digital currencies as payment from purchasers of goods or services. Merchant will use the Service only in accordance with the terms and conditions of this Agreement, including payment of fees. Merchant authorizes Smartex.io to receive virtual currencies, exchange and disburse them on Merchant's behalf, and to take any and all actions that Smartex.io finds necessary or desirable to provide the Service or to comply with applicable laws.
3.1 ID and Password. Merchant must select an ID and password to access Merchant's Account and use the Service. Merchant will restrict access to such ID, password, and Account to Merchant's employees and agents as may be reasonably necessary consistent with the purposes of this Agreement. Merchant will ensure that each such employee and agent is aware of and otherwise complies with all applicable provisions of this Agreement regarding such use and access. Merchant is solely responsible for maintaining adequate security and control of any and all IDs, passwords, or any other codes for purposes of giving Merchant access to the Service. Smartex.io shall be entitled to rely on information it receives from Merchant's dashboard or otherwise from Merchant's Account and may assume that all such information was transmitted by or on behalf of Merchant. Merchant shall comply with all Smartex.io recommendations and notices regarding the security of Merchant's ID, password and payment gateway Account(s).
3.2 Purchaser Information. Merchant is solely responsible for obtaining any information required of those who purchase Merchant's goods or services, for example, to ensure that a purchaser meets necessary age requirements. Similarly, if applicable law requires that a purchaser's identity or location be verified, Merchant must verify the purchaser's identity. Smartex.io will not be responsible for Merchant's failure to adequately verify Merchant's purchasers' identities, age, location or other qualifications. Merchant will keep all records needed for fulfilling the merchandise to the purchaser and providing any post-sale support to the purchaser.
3.3 Processing Limits. Smartex.io reserves the right to impose transaction processing limits on Merchant's Account, to which Merchant will comply. These limits may take the form of the total value of transactions within a period of time, or an upper limit for an individual transaction. Smartex.io may ask Merchant to provide Smartex.io with documentation to set such limits at the time of processing Merchant's application or to assess or review Merchant's processing limits. Smartex.io may impose any conditions it may determine in its sole discretion in relation to transaction processing limits.
3.4 Merchant Service Providers. Merchant may have enrolled in the Service via a Merchant Service Provider. If so: (a) in addition to any other agreement Merchant may have with the Merchant Service Provider, the terms and conditions of this Agreement govern Merchant's use and Smartex.io's provision of the Service; and (b) Merchant expressly acknowledges and agrees that Smartex.io may share information about Merchant and Merchant's Account with its Merchant Service Providers.
3.5 Third Party Products and Services. Merchant's use of third party products and services shall be governed by and subject to separate third party product, service, software, or license agreements. Smartex.io will not be a party to such third party agreements and does not warrant or guarantee any third party product or service.
3.6 Regulated Goods and Services.
(a) If Merchant's goods or services fall into a regulated area such that Merchant must obtain a license from regulatory authorities or comply with a regulatory framework, then: (i) Merchant will alert Smartex.io to this status before using or continuing to use the Service for any regulated Transaction; (ii) Merchant will provide Smartex.io with a current license, in full force and effect for any and all sales or services for which a license is required, issued by the appropriate regulatory authority before using the Service for any Transaction, and keep such license(s) current and in good standing; and (d) Merchant will immediately notify Smartex.io if its authorization to provide services under such license(s) or such license(s) is itself suspended or revoked, and cease using the Service.
(b) Merchant will promptly provide, and cause third parties under its control to promptly provide, such information as Smartex.io may request from time to time regarding: (x) the Merchant, its policies, procedures, and activities, (y) any good or service offered for sale and for which the Merchant may use the Service to accept payment, or (z) any Transaction using the Service, to the extent Smartex.io deems such information reasonably necessary to comply with its policies or procedures, applicable law, an audit, or the guidance or direction of, or request from, any regulatory authority or financial institution.
Data Collection, Privacy and Security.
(a) Registration Data. Merchant must open an Account to use the Services, and provide information during the registration process (the "Registration Data"). During registration or afterwards, Smartex.io may require additional information about Merchant and the person agreeing to this Agreement on behalf of Merchant which if received will also be deemed Registration Data. Registration Data may include mailing address, phone number, website, digital currency addresses, bank account information, and date of birth, tax identification number, government-issued identification, and other items. Merchant also authorizes Smartex.io to obtain information about Merchant from third parties, such as credit bureaus and identity verification services. Merchant will maintain and promptly update the Registration Data to keep it accurate, current and complete. Smartex.io may reject Merchant's Account registration, or later suspend or terminate Merchant's Account without notice and refuse any and all current or future access to the Service if Smartex.io determines in its sole discretion that the Registration Data are not accurate, current, complete or satisfactory. Smartex.io can reject Merchant's Account registration for any reason.
(b) Purchaser and Transaction Data. Merchant shall comply with all applicable laws, policies and regulations governing the security, privacy, collection, retention and use by Merchant of Purchaser Data and Transaction data, including financial information and personally identifiable Purchaser information. Merchant agrees to provide a privacy notice to Purchasers on Merchant's website that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement. Merchant and its Purchasers may transfer personally identifiable information internationally in order for Smartex.io to provide the Service, and Merchant warrants to Smartex.io that Merchant will obtain the necessary consents for such transfer of personally identifiable information and shall not provide any personally identifiable information for which consent has not been provided.
(c) Data Security. Merchant is solely responsible for the security of data residing on servers owned or operated by Merchant or its service providers (e.g., a cloud services company or ecommerce platform). Merchant will comply with all then-current, applicable legal obligations and security measures associated with the collection, security, dissemination and destruction of Purchaser Data and Transaction Data. Merchant acknowledges that Merchant is responsible for the security of Purchaser Data while in Merchant's possession. Merchant warrants that Merchant has taken such precautions as are necessary to ensure that Merchant's server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Merchant's system is breached and an unauthorized third party has access to or has accessed Purchaser data or Transaction data, Merchant shall notify Smartex.io promptly of such breach. Merchant will comply with all Smartex.io security protocols and security advisories.
(b) Smartex.io, its, Merchant Service Providers, Affiliates, partners, suppliers or their agents or contractors may transfer data amongst themselves, internationally, for the purpose of the provision and management of the Service. Smartex.io may also transfer data: (i) to third parties assisting Smartex.io in evaluating Merchant's eligibility to use the Service, or to assess whether Merchant, Purchasers, or Transactions comply with law or regulations; (ii) with non-affiliated entities that assist Smartex.io in providing products and services that Merchant has requested; (iii) with companies with which Smartex.io has agreements to provide marketing services on Smartex.io's behalf; (iv) to prevent prohibited or illegal activities; or (v) as otherwise permitted or required by law. While Smartex.io uses commercially reasonable efforts to safeguard data, Smartex.io does not warrant that Purchaser Data and Transaction Data will be transported without unauthorized interception or modification or that data will not be accessed or compromised by unauthorized third parties; however, Smartex.io uses commercially reasonable efforts to use third party security programs that are customary in the industry.
4.3 Security and Data Retention. Smartex.io acknowledges that Smartex.io is responsible for the security of Purchaser Data while in Smartex.io's possession. Merchant is solely responsible for compiling and retaining permanent records of all Transactions and Purchaser Data for Merchant's reference. Except as otherwise required in this Agreement, at no time shall Smartex.io have an obligation to Merchant or Purchasers to store, retain, report or otherwise provide any copies of or access to any records of Transactions, Transaction Data, or Purchaser Data collected or processed by Smartex.io except to process payments.
5.1 Smartex.io Service Fees. Merchant shall pay to Smartex.io the fees set forth in the Fee Schedule, attached hereto as Appendix B (the "Service Fees"). The Service Fees include Transaction processing fees.
5.2 Settlement. We will clear the payments over the applicable peer-to-peer payment network (such as the ether network) and post the balance to Merchant's accounting ledger, according to Merchant's preference settings. The debits and credits to Merchant's accounting ledger are funds temporarily held by Smartex.io until settlement to Merchant's bank account occurs. Merchant can receive a settlement in Merchant's fiat currency (such as USD) or in the virtual currency paid by the Purchaser. Virtual currency-to-fiat currency exchange rates will be determined by and calculated by the Service. If settled in fiat currency, Smartex.io will settle the same amount as invoiced for the purchase at checkout, less Smartex.io's fees, without any adjustments due to virtual currency exchange rate fluctuations from the time of payment to the time of settlement. However, if Merchant chooses to receive settlement from Smartex.io in ethers or other virtual currency, then Merchant assumes the volatility risk of such virtual currency, which historically are far more volatile than fiat currency.
5.3 We will settle Merchant's accumulated balance by direct deposit of fiat currency if Merchant so elects, and Merchant: (a) hereby authorizes Smartex.io to initiate electronic credits to Merchant's bank account at any time to process Transactions; (b) will provide Smartex.io with its valid bank account information, and keep such information current; (c) will give Smartex.io two (2) days prior notice before closing Merchant's bank account; (d) agrees that minimum settlement amounts apply; and (e) agrees to the terms of service of the financial partner providing deposit. Merchant is solely liable for all fees and costs charged by or associated with Merchant's bank account(s), including for overdrafts, or for Merchant's wire fees. Smartex.io will not be liable for any delays in receipt of funds or errors in bank account entries caused by Merchant or third parties. Merchant acknowledges that on occasion, there may be delays in processing Merchant's transaction(s) if Smartex.io's bank delays or refuses to process ether transactions. Smartex.io will use commercially reasonable efforts to notify Merchant if any such delays take place, and to prevent such events from taking place.
5.4 Refund Procedures. Merchant will maintain a clear refund policy and disclose it to Merchant's purchasers. Merchant may determine its refund policy and procedures, provided that they comply with all applicable laws and regulations, and with the provisions of this Agreement and Smartex.io's refund policy. Any required currency conversion during the refund process will be calculated at the exchange rate determined by Smartex.io.
5.5 Fee Changes. Smartex.io may change Smartex.io fees and will give Merchant thirty (30) days' prior notice of any fee increase. Merchant's acceptance of a new Fee Schedule, or Merchant's continued use of the Service after such notice period, constitutes Merchant's acceptance of such changes.
5.6 Taxes. Merchant shall pay all applicable tax assessed on Merchant's income. Smartex.io shall pay all applicable tax assessed on Smartex.io's income.
5.7 Opening/Closing Accounts. Should a Merchant fail to pay fees due under a Smartex.io Account ("Original Account") and subsequently opens another Account ("Subsequent Account") Smartex.io reserves the right to bill the Subsequent Account for amounts due under the Original Account whether or not the Original Account was closed.
5.8 Disputes. If we need to conduct an investigation or resolve any pending dispute related to Merchant's Account, we may delay settlement or restrict access to Merchant's funds while we do so. Additionally, we may delay settlement or restrict access to Merchant's funds if required to do so by law, court order or at the request of law enforcement.
5.9 Merchant Service Providers. If agreed upon by the parties, a Merchant Service Provider may charge, bill, and collect such fees from Merchant, in the amounts stated in and in accordance with the terms and conditions of the agreement between Merchant and such Merchant Service Provider. If Merchant's relationship with a Merchant Service Provider expires or terminates and such Merchant Service Provider was billing Merchant for certain fees, Merchant agrees to pay Smartex.io for any further use of the Service effective immediately upon any such expiration or termination in accordance with the terms herein.
Term, Termination and Suspension.
6.1 Term. This Agreement shall commence on the Effective Date and remain in full force and effect until terminated pursuant to this Section 6.
6.2 Termination. Merchant may terminate this Agreement at any time and for any reason, with or without cause, upon thirty (30) days' written notice to Smartex.io. Smartex.io may terminate this Agreement or Merchant's access to the Service, at any time and for any reason, with or without cause, upon thirty (30) days' written notice.
6.3 Termination or Suspension by a Merchant Service Provider. In the event Merchant is billed by a Merchant Service Provider: (a) Merchant hereby authorizes the Merchant Service Provider to terminate this Agreement on Merchant's behalf; and (b) if Smartex.io receives notice from such Merchant Service Provider that it has terminated or suspended its relationship with Merchant; then Smartex.io may suspend or terminate Merchant's right to access and use the Service or this Agreement without notice and without liability arising against Smartex.io.
6.4 Threatening Condition. In the event that Smartex.io suspects or reasonably believes that Merchant is in violation of its obligations under this Agreement or that Merchant's conduct (including data transmission) poses a threat to Smartex.io's systems, equipment, processes, business, customers, Purchasers, or Intellectual Property (the "Threatening Condition"), Smartex.io may immediately suspend Merchant's Account and use of the Service, or any portion of the Service, without prior notice. Merchant agrees to suspend any and all activity on the affected Account until the Threatening Condition is cured. Smartex.io may also suspend or cancel the Account and use of the Service: (i) if required by law; (ii) in response to a subpoena, court order, or other binding government order; (iii) if the Merchant does not cure a Threatening Activity within ten (10) days of notice; or (iv) if the Account activity presents a heightened risk of legal or regulatory non-compliance.
6.5 Effect of Termination. Upon expiration or termination of the Agreement for any reason, the Service (including the Account) will no longer be available to Merchant, all licenses, rights and obligations of the parties under this Agreement shall be extinguished, and except that (a) all payment obligations to Smartex.io shall survive; and (b) the rights and obligations of the parties under Sections 1, 3.2, 3.4, 3.5, 3.6(b), 4.1(b) and (c), 4.2, 4.3, 5, 6.5, 7.1, 7.3, 7.4, 7.7, 8 (for three (3) years) , and 9 through 14 shall survive such expiration or termination. No liability will arise against Smartex.io for termination, suspension, or cancellation as permitted under this Section 6 or other provisions of this Agreement.
7.1 Smartex.io. The parties agree that Smartex.io or its Affiliates owns and retains all right, title and interest in and to the Smartex.io Trademarks, Service, copyrights and any related technology utilized under or in connection with this Agreement, including but not limited to all Intellectual Property rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to Merchant or any other entity or person under this Agreement. Merchant grants Smartex.io and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into their products or services any suggestion, enhancement request, recommendation, correction or other feedback provided by Merchant Purchasers relating to the Service.
7.2 API and Service Documentation License. Subject to the terms and conditions of this Agreement, Smartex.io hereby grants to Merchant and Merchant hereby accepts from Smartex.io a personal, limited, non-exclusive, non-transferable license and right to the Service API and accompanying Service Documentation solely during the term of this Agreement and solely: (a) to use the Service for the purpose of selling products and services to Purchasers; and (b) use the accompanying Service Documentation solely for the purpose of using the Service APIs and Service. Smartex.io's fees are for the Service provided, and not in consideration for the licenses granted under this Section 7.
7.3 Open Source. Merchant acknowledges and agrees that Smartex.io and its Affiliates has developed and licenses without royalties certain software packages, libraries, or software components under open source licenses ("Open Source Code") such as the MIT license. Merchant's use, reproduction and distribution of any Open Source Code are governed solely by the terms of the applicable open source software license and not this Agreement. Smartex.io provides such Open Source Code "AS IS", without any express or implied warranty. Smartex.io will have no liability arising from Open Source Code.
7.4 Restrictions. Merchant will not (and will not permit any third party to) directly or indirectly use or access or otherwise use the Service to: (a) make the Service available to anyone other than Merchant and its Purchasers; (b) sell, resell, license, sublicense, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering; (c) interfere with or disrupt the performance or integrity of the Service; (d) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit; (e) frame or mirror any part of the Service, except as expressly permitted by the Service Documentation; or (f) to build a competitive product or service; (g) reverse engineer, decrypt, decompile, decode, disassemble, or otherwise attempt to obtain the human readable form of any of the Service, to the extent such restriction is permitted by applicable law.
7.5 Smartex.io Trademarks License. Subject to the terms and conditions of this Agreement, Smartex.io hereby grants to Merchant a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display the Smartex.io Trademarks on Merchant's website in connection with Merchant's offering of payment options to Purchasers.
7.6 Merchant's Marks License. Subject to the terms and conditions of this Agreement, Merchant hereby grants to Smartex.io a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display Merchant's Marks as necessary in connection with the performance of the Service.
7.7 Use of Trademarks. Each party shall strictly comply with all standards with respect to the other party's Trademarks contained herein or which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more Trademarks of the other party. All uses of the other party's Trademarks shall inure to the benefit of the party owning such Trademark. Either party may update or change the list of Trademarks usable by the other party hereunder at any time by written notice to the other party.
(a) Merchant must reproduce any Smartex.io Trademarks exactly as shown in Appendix A, including the exact reproduction of any proprietary markings or legends and including the appropriate ® or ™ symbol at the first and most prominent reference, or as soon as practicable thereafter.
(b) Except as otherwise provided herein, Merchant shall not use, register or attempt to register any (a) Smartex.io Trademarks or (b) marks or domain names that are confusingly similar to any of the Smartex.io Trademarks. Merchant shall not (i) use the Smartex.io Trademarks except as expressly authorized in this Agreement; (ii) take any actions inconsistent with Smartex.io's ownership of the Smartex.io Trademarks and any associated registrations, or attack the validity of the Smartex.io Trademarks, its ownership thereof, or any of the terms of this Agreement; (iii) use the Smartex.io Trademarks in any manner that would indicate Merchant is using such Smartex.io Trademarks other than as a licensee of Smartex.io; nor (iv) assist any third party do any of the same.
8.1 Each party receiving Confidential Information (the "Receiving Party") from the other party (the "Disclosing Party") agrees: (a) to hold the Disclosing Party's Confidential Information in strict confidence, and use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Merchant will not disclose the terms of any Fee Schedule, except to its legal counsel and accountants having at least as restrictive obligations of confidentiality.
8.2 Notwithstanding any provision in this Agreement to the contrary, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided that (to the extent legally permitted) the Receiving Party gives the Disclosing Party prior written notice of the compelled disclosure and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
Representations and Warranties; Disclaimers
9.1 Mutual Warranties. Each party represents and warrants to the other that (a) it has all necessary right, power and ability to execute this Agreement and to perform its obligations therein; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery or performance of this Agreement; and (c) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms.
9.2 Smartex.io Warranties. Smartex.io represents and warrants that that Service shall confirm in all material respects to all specifications and documentation provided by Smartex.io to the Merchant.
9.3 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1 ABOVE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, Smartex.io, ITS AFFILIATES, SUPPLIERS AND LICENSORS MAKE NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICE, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT, AND Smartex.io SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE; EXCEPT ANY IMPLIED CONDITION OR WARRANTY THE EXCLUSION OF WHICH WOULD CONTRAVENE ANY STATUTE OR CAUSE ANY PART OF THIS SECTION 9.2 TO BE VOID ("NON-EXCLUDABLE WARRANTY").
Smartex.io'S LIABILITY TO MERCHANT FOR BREACH OF ANY NON-EXCLUDABLE WARRANTY IS LIMITED, AND MERCHANT'S SOLE AND EXCLUSIVE REMEDY, IS TO HAVE Smartex.io USE COMMERCIALLY REASONABLE EFFORTS TO REPAIR THE SERVICE OR PROVIDE THE SERVICE AGAIN, OR IF IT CANNOT DO SO USING COMMERCIALLY REASONABLE EFFORTS, THEN REFUND THE PRICE PAID BY THE MERCHANT FOR THE PARTICULAR PORTION AND DURATION OF THE SERVICE THAT DID NOT CONFORM TO THE NON-EXCLUDABLE WARRANTY.
(a) THE PRECEDING WARRANTY WILL NOT APPLY IF: (I) THE SERVICE PROVIDED HEREUNDER IS USED IN MATERIAL VARIATION WITH THIS AGREEMENT; (II) THE SERVICE HAS BEEN MODIFIED WITHOUT THE PRIOR WRITTEN CONSENT OF Smartex.io; OR (III) A DEFECT IN THE SERVICE HAS BEEN CAUSED BY ANY OF MERCHANT'S MALFUNCTIONING EQUIPMENT OR SOFTWARE; PROVIDED THAT APPLICABLE LAW ALLOWS SUCH LIMITATIONS ON THE NON-EXCLUDABLE WARRANTY.
(b) MERCHANT ACKNOWLEDGES THAT NEITHER Smartex.io NOR ITS AFFILIATES, SUPPLIERS, OR LICENSORS HAVE REPRESENTED OR WARRANTED THAT THE SERVICE WILL BE ALWAYS AVAILABLE, ACCESSIBLE, UNINTERRUPTED, AND TIMELY, SECURE, ACCURATE, COMPLETE, ENTIRELY ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. MERCHANT MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE SERVICE BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR WARRANTIES OF ANY MERCHANT SERVICE PROVIDER. MERCHANT EXPRESSLY ACKNOWLEDGES THAT THE SERVICE IS A NETWORK-BASED SERVICES THAT MAY BE SUBJECT TO OUTAGES, INTERRUPTIONS, ATTACKS BY THIRD PARTIES AND DELAY OCCURRENCES.
9.4 Merchant's Warranties. Merchant represents and warrants that at all times during the term of this Agreement and any renewal thereof: (i) all representations and statements made by Merchant in this Agreement, or in any other document relating hereto by Merchant or on Merchant's behalf, are true, accurate and complete in all material respects, and that the Registration Data are accurate, current, and complete (apart from optional items); (ii) it is engaged in a lawful business and has all necessary rights and authorizations to sell and distribute its products or services; (iii) Merchant will comply, at Merchant's own expense, with all laws, policies, guidelines, regulations, ordinances or rules applicable to Merchant, this Agreement, Purchaser Data and Transactions, particular, Merchant represents and warrants each of the following:
(a) In connection with the exercise of Merchant's rights and obligations under this Agreement, Merchant will comply, at Merchant's own expense, with all laws, policies, guidelines, regulations, ordinances, rules applicable to Merchant, this Agreement, Purchaser Data or the Transactions or orders of any governmental authority or regulatory body having jurisdiction, and with the Service Documentation. Smartex.io reserves the right to amend, modify or change the Service Documentation at any time. Merchant shall not use the Service in any manner, or in furtherance of any activity that may cause Smartex.io to be subject to investigation, prosecution, or legal action.
(b) Merchant's use of the Service will not relate to sales of (i) narcotics, research chemicals or any controlled substances, (ii) cash or cash equivalents, including derivatives, (iii) items that infringe or violate any copyright or trademark, (iv) ammunition, firearms, explosives, weapons or knives regulated under applicable law, or (v) any services which competes with Smartex.io, (vi) goods or services that are illegal under applicable law. If Merchant sells products or services that are legal in certain jurisdictions but not in others, then Merchant shall undertake all measures necessary (including "geofencing") to ensure that it does not offer such goods or services to Purchasers in the jurisdictions where doing so would be illegal under the laws of such jurisdictions. Smartex.io and its Affiliates will have no liability for Merchant failing to undertake such measures, or otherwise breaching its obligations under this Section.
(c) Merchant's use of the Service will not relate to transactions that (i) show the personal information of third parties in violation of applicable law, (ii) support pyramid or Ponzi schemes, matrix programs or other "get rich quick" schemes, (iii) provide credit repair or debt settlement services, or are illegal under applicable law.
(d) Merchant's use of the Service will not involve gambling or any other activity with an entry fee and a prize, including, without limitation casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, and sweepstakes, unless Merchant has obtained Smartex.io prior approval and Merchant and Merchant's customers are located exclusively in jurisdictions where such activities are permitted by law.
Limitations of Liability and Disclaimers.
10.1 LIMITATIONS. UNDER NO CIRCUMSTANCES WILL: (A) Smartex.io OR ANY OF ITS AFFILIATES OR VENDORS (OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF Smartex.io OR OF ITS AFFILIATES OR VENDORS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (HOWEVER OR WHENEVER ARISING), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) Smartex.io'S TOTAL LIABILITY TO MERCHANT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY Smartex.io PRODUCTS OR SERVICES, EXCEED THE AGGREGATE COMPENSATION Smartex.io RECEIVED FOR PROVIDING THE SERVICE TO MERCHANT DURING THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
10.2 DISCLAIMER. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, MERCHANT EXPRESSLY AGREES THAT NEITHER Smartex.io NOR ANY OF ITS AFFILIATES OR VENDORS (NOR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF Smartex.io OR OF ITS AFFILIATES OR VENDORS) SHALL BE LIABLE FOR ANY LOSS (HOWEVER OCCURRING, INCLUDING NEGLIGENCE) ARISING FROM OR RELATED TO: (A) MERCHANT'S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE MERCHANT'S ACCOUNT; OR (B) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A MERCHANT SERVICE PROVIDER, PAYMENT PROCESSOR OR BANK.
11.1 Indemnification by Smartex.io.
(a) General. Smartex.io shall defend, indemnify and hold Merchant and any of Merchant's officers, directors, agents and employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Merchant, to the extent that such cause of action is based upon a claim that the Service infringes a copyright, patent, trade secret, or other intellectual property rights of a third party under the laws of the United States or Europe.
(b) Limitation; Prevention of Infringement. Smartex.io's obligations in Section 11.1(a) do not apply if: (i) the Service has been modified by parties other than Smartex.io; (ii) the Service is used in conjunction with data where use with such data gave rise to the infringement claim; (iii) Merchant's failure to install upgrades or patches provided by Smartex.io where such upgrade or patch would have removed the infringing condition; (iv) Merchant's use of the Service in a manner inconsistent with Service Documentation; or (v) Merchant's use of the Service with software or hardware not authorized by Smartex.io, where use with such other software or hardware gave rise to the infringement claim. If the Service or any component thereof becomes, or in Smartex.io's opinion is likely to become, the subject of a claim of infringement, then Merchant shall permit Smartex.io, at Smartex.io's sole option and expense, either to: (i) procure for Merchant the right to continue using the Service as permitted in this Agreement; or (ii) replace or modify the affected Service or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, Smartex.io is unable to cure the infringement, either party may immediately terminate this Agreement. THIS SECTION 11.1 STATES THE ENTIRE LIABILITY OF Smartex.io TO MERCHANT WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES.
11.2 Indemnification by Merchant. Merchant shall defend, indemnify, and hold harmless Smartex.io and its affiliates, parents, or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Smartex.io, arising out of or relating to (a) any breach or alleged breach by Merchant of any representation, warranty, or obligation of Merchant set forth in this Agreement; (b) any damage or loss caused by gross negligence, fraud, dishonesty or willful misconduct by Merchant or any of Merchant's employees, agents or customers; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by Merchant to Smartex.io; (d) payment card transactions submitted by Merchant to Smartex.io and rejected by Smartex.io or an issuing bank; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from Merchant's actions; (f) claims by Purchasers, including, without limitation, claims relating to the disclosure of Purchaser or consumer data by Merchant or its affiliates; or (g) any alleged or actual violation by Merchant of any applicable laws, statutes or regulations with jurisdiction over the subject matter hereof.
11.3 Indemnification Procedure. The obligations of each party ("Indemnitor") under this Section 11 to defend, indemnify and hold harmless the other party ("Indemnitee") shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice Indemnitee in any way.
Choice of Law and Arbitration.
12.1 Governing Law. This Agreement shall be governed by, subject to, and interpreted in accordance with British law, without regard to conflict of laws principles. The parties agree that this Agreement and the transactions contemplated therein shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
12.2 Arbitration. Any claim, dispute or controversy (whether in contract, tort or otherwise, whether pre-existing, present or future, and including statutory, consumer protection, common law, intentional tort) between the parties (each, a "dispute") shall be resolved exclusively and finally by confidential, binding arbitration in London, United Kingdom. The arbitrator shall have exclusive authority to resolve any dispute relating to arbitrability or enforceability of this arbitration provision including any unconscionability challenge or any other challenge that this arbitration provision or this Agreement is void, voidable or otherwise invalid. The arbitration shall be administered by the JAMS under its respective Commercial Rules of Commercial Arbitration. The arbitration and information disclosed in such arbitration shall be governed by the confidentiality provisions of this Agreement, except as necessary to enforce this arbitration provision or to enforce the award of the arbitrator. The arbitrator will not have the jurisdiction or power to award: (a) punitive damages, treble damages or any other damages which are not compensatory, even if permitted under any other applicable law; or (b) grant injunctive relief except to enjoin the infringement or threatened infringement of a party's intellectual property rights. Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
12.3 Neither party shall be entitled to join or consolidate claims by or against other developers or Purchasers, or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. If this specific provision is found to be unenforceable, then the entirety of the arbitration provisions in Section 12.2 shall be null and void.
12.4 Notwithstanding any other provision in this Section 12 to the contrary, either party will at all times be entitled to seek and obtain injunctive relief in relation to infringement or threatened infringement of its intellectual property rights in any court having jurisdiction. Each party agrees that notice of arbitration may be serviced by written notice as provided by Section 13.4.
13.1 Publicity. The parties may work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters, provided, however, that neither party will have any obligation to do so. In addition, neither party will issue such publicity and general marketing communications concerning this relationship or the Service without the prior written consent of the other party (not to be unreasonably withheld or delayed), except that Smartex.io may list Merchant as a customer of Smartex.io in its (or its Affiliates') list of customers online or in their marketing materials.
13.2 Non-exclusivity. Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein.
13.3 Relationship of the Parties. The parties are independent contractors and nothing in this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other party. Neither party shall make any representation that suggests otherwise. Merchant further recognize that if Merchant contracted for the Service with a Merchant Service Provider, such provider is an independent contractor and is not a joint venturer, partner, or agent of Smartex.io.
13.4 Notices. All written notices to Merchant shall be given either: (a) electronically, and effective when sent to the electronic mail address provided by Merchant during Account registration (or when updating its Registration Data), or when presented to Merchant after logging into the Merchant Dashboard; or (b) in a tangible writing and effective upon: (i) personal delivery, (ii) delivery of certified or registered mail, (iii) the first business day after sending by confirmed facsimile, or (iv) delivery by reputable courier service, in each case to the address provided by Merchant in its Account information.
13.5 Amendment. Smartex.io may amend the terms and conditions of this Agreement, including the Fee Schedule or any other document incorporated into this Agreement by reference, by either: (a) posting the revised Agreement on its website, and notifying Merchant of the posting; (b) by notifying Merchant in an email that includes the revised terms and conditions; or (c) presenting the revised terms and conditions to Merchant when it logs into the Service and obtaining Merchant's electronic acceptance or other form of consent. It is Merchant's responsibility to provide and update its external email address and check for such notices. Amended terms and conditions will become effective when Merchant accepts them online, or thirty (30) days after Smartex.io sends its notice, regardless of whether Merchant checks its email or receives such notice. Merchant's continued use of the Service or failure to cancel its Account after such thirty (30) day period will indicate its acceptance, if it has not done so already. Except as provided in this Section 13.5, this Agreement shall not be deemed or construed to be modified, amended, or waived, in whole or in part, except as set forth herein or by a separate written agreement duly executed by the parties to this Agreement. Any terms or conditions set forth on any purchase order or other document issued by Merchant is hereby rejected and disregarded, and any such document shall not be binding in any way on us unless executed by Smartex.io's duly authorized representative.
13.6 Severability; Interpretation. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. The word "or" as used in this Agreement has the meaning equivalent to "and/or". The terms 'include' and 'including' will be deemed to be immediately followed by the phrase "without limitation." This Agreement does not confer any rights or benefits to any third party beneficiaries. The headings appearing at the beginning of sections have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. The word "will" expresses an obligation of a party equivalent to "shall" if used in that context. The Agreement will not be construed in favor of or against any party by reason of the extent to which any party participated in the preparation of this Agreement.
13.7 Waiver. The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other or succeeding breach of such provision or a waiver of the provision itself.
13.8 Assignment. Merchant will not have the right or the power to assign any of Merchant's rights or delegate the performance of any of Merchant's obligations under this Agreement without the prior written consent of Smartex.io, including in the case of a merger.
13.9 Force Majeure. Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, disruption or malfunction of the ether network or other cryptocurrency network, acts or omissions of a third party, infiltration or disruption of the Service by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the Service, or other catastrophes or any other occurrences which are beyond such parties' reasonable control (each a "Force Majeure Event"), provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.
13.10 Entire Agreement. This Agreement, together the Fee Schedule and the Smartex.io policies referenced herein, sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. Merchant acknowledges that this Agreement reflects an informed, voluntary allocation between Smartex.io and Merchant of all risks (both known and unknown) associated with the Service.
13.11 Mobile Device Application. If Merchant chooses to download and use the Smartex.io mobile device application, Merchant's use of the application shall be subject to the additional usage terms governing such application located within the application service provider's user interface.
13.12 Affiliates. The rights, duties or obligations of Smartex.io under this Agreement may be exercised or performed by Smartex.io or by any of Smartex.io's Affiliates, or any of their subcontractors or agents.Merchant agrees to bring any claim and or action relating to the foregoing solely against Smartex.io, and not against any of Smartex.io's Affiliates, or any of their vendors or agents.
13.13 Government Entity Obligations. If Merchant is a governmental or quasi-governmental entity, Merchant agrees that it has informed Smartex.io, and will inform Smartex.io of any changes or updates, in writing, of any law, regulation, ordinance, policy, or ethical requirement that would restrict or require disclosure of any political contributions made by Smartex.io or its directors, officers, or employees because of the existence of a contract between Merchant and Smartex.io.
"Account" means a top-level gateway identifier that is issued by Smartex.io to Merchant to enable Merchant's use of Service. For each business unit within Merchant's organization that requires invoices to be sent to an address different than the primary Account, a new Account is required.
"Affiliates" means any entity that controls, is controlled by, or is under common control with a party, including its parents and subsidiaries.
"Confidential Information" shall mean any data or information, oral or written, treated as confidential that relates to either party's (or, if either party is bound to protect the confidentiality of any third party's information, such third party's) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, Service Documentation (in whatever form or media provided), inventions, processes, plans, financial information, Purchaser data, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not be deemed to include information if: (i) it was already known to the receiving party prior to the Effective Date of this Agreement, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.
"Effective Date" means the earlier of the date Merchant acknowledges and agrees to the Agreement terms and conditions by (a) clicking the "I AGREE" button associated with the Agreement; (b) acknowledging Merchant's acceptance of the Agreement by any other method allowed by Smartex.io, including without limitation execution of a Merchant Service Provider application that incorporates the Agreement by reference; or (c) by using the Service.
"Fee Schedule" means a schedule of fees and charges to be paid by Merchant to Smartex.io, attached hereto as Appendix B.
"Intellectual Property" shall mean all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author's rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.
"Merchant Interface" means the user interface available to Merchants at https://smartex.io/dashboard/home.
"Merchant Service Provider" means any third party through whom Smartex.io may offer the Service to Merchant, including but not limited to a reseller, Independent Sales Organization ("ISO"), application service provider, merchant aggregator, acquiring bank and financing agency.
"Purchaser" and "purchaser" shall mean any person or entity that purchases or attempts to purchase any of Merchant's goods or services, whose Purchaser Data or Transaction Data Merchant will send to Smartex.io or that Smartex.io will otherwise obtain in connection with the Service.
"Purchaser Data" means any data concerning a Purchaser or collected from a Purchaser.
"Service APIs" means application programming interfaces that Smartex.io makes generally available to merchants under this Agreement which facilitates merchant payment functionality for merchants to accept cryptocurrency payments.
"Service Documentation" means collectively, the operating instructions, user manuals, and help files, in written or electronic form, made available to Merchant and that are intended for use in connection with the Service.
"Trademark(s)" means all common law or registered trademark, service mark, trade name and trade dress rights and similar or related rights arising under any of the laws of the United Kingdom or any other country or jurisdiction, whether now existing or hereafter adopted or acquired.
"Transaction" means any payment by ether or other virtual currency, authorization, invoice, refund, settlement request, decline transaction, or transaction associated with the foregoing, completed or submitted under Merchant's Account to Smartex.io.
Appendix A - Trademarks
I. Smartex.io Marks For purposes of this Agreement, "Smartex.io Trademarks" means those trademarks listed below and such other trademarks as Smartex.io may from time to time notify Merchant in writing to be Smartex.io Trademarks within the meaning of this Agreement.
II. Merchant's Marks For purposes of this Agreement, "Merchant's Marks" means Merchant's customary name and logo, and such other trademarks as Merchant may from time to time notify Smartex.io in writing to be Merchant's Marks within the meaning of this Agreement.
Appendix B - Fee Schedule
Unless agreed to the contrary in writing under separate agreement, Smartex.io charges a flat 1% transaction fee, which is charged immediately upon acceptance of payment from Purchaser. This fee may be reduced for merchants conducting a higher volume of transactions.