TERMS & CONDITIONS
This Merchant Agreement (“Merchant Agreement”) contains the terms under which Positrips LLC. (“Positrips”) agrees to grant Merchant access to and use of Positrips’s online platform and services. By executing a Service Order that references this Merchant Agreement,
The parties agree as follows:
1.1. “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
1.2. “Agreement” means this Merchant Agreement together with each Platform Addendum and the Service Order.
1.3. “Chargeback” means a request to invalidate a payment that a Customer files directly with (a) his or her debit or credit card company; (b) his or her debit or credit card-issuing bank; or (c) any other entity that provides payment services.
1.4. “Confidential Information” means information in any form, whether oral or written, of a business, financial or technical nature which is disclosed by a party (“Disclosing Party”) in the course of this Agreement and which the recipient (“Receiving Party”) reasonably should know is confidential, but excluding the information listed in Section 12.2. The terms of this Agreement (including pricing) are each party’s Confidential Information.
1.5. “Customer(s)” is defined in the applicable Platform Addendum.
1.6. “Effective Date” means the date set forth in the Service Order.
1.7.“Fraudulent Charge” means a credit or debit card charge by a Customer that is determined by the card company or payment processor to be fraudulent.
1.8 “Merchant” means the entity identified as such in the Service Order.
1.9.“Merchant Content” means (a) each and all of the text, graphics, logos, video, audio, information, data, software, and other content and materials relating to the Merchant Services which are produced or provided by or for Merchant, and (b) any and all copyrights, trademarks and other intellectual property and proprietary rights related thereto, as now or hereafter constituted and in any form or media.
1.10. “Merchant Service(s)” is defined in the applicable Platform Addendum.
1.11.“Positrips Content” means all information, data, products, materials, and all other content, software and services made available on or through the Positrips Platform or otherwise generally provided to Merchant by Positrips.
1.12. “Positrips Fees” means the Commissions, Flat Fees and other amounts payable to Positrips, as set forth in the Service Order.
1.13 “Positrips Platform” means the Positrips services purchased by Merchant as set forth in the Service Order.
1.14. “Platform Addendum” means an addendum attached to this Agreement, which contains terms specific to a purchased Positrips Platform offering.
1.15. “Service Order” means the Positrips Service Order executed by Positrips and Merchant referencing this Merchant Agreement.
1.16. “Voucher” means a confirmation of purchase provided by Positrips to a Customer after processing the Customer’s purchase.
2. THE SERVICES
2.1 Service Order, Product Schedules, Precedence. Merchant orders the subscriptions to use one or more Positrips Platform offerings pursuant to the Service Order. Each Positrips Platform offering is also subject to the applicable Platform Addendum. If there is any conflict among any elements of this Agreement, the descending order of precedence will be (unless expressly stated otherwise for any particular terms): Service Order, Platform Addendum, Merchant Agreement.
2.1 Merchant Account. Merchant must set up an account with Positrips in connection with Merchant’s use of the Positrips Platform ("Merchant Account"). Merchant will designate one or more of its employees to be the point of contact with Positrips for the management and support of the Positrips Platform, and who will be responsible for establishing and managing Merchant’s use of the Positrips Platform, including the creation of authentication credentials to access the Merchant Account. Merchant will safeguard all Merchant Account user authentication credentials in its possession or under its control and is responsible for acts and omissions of its Merchant Account users relating to this Agreement as though they were Merchant’s own. Merchant is responsible for all activities that occur under the Merchant Account and for the accuracy, quality and integrity of the Merchant Content that Merchant or its users input into the Positrips Platform.
2.3 Use of the Positrips Platform. The rights granted to Merchant to use each Positrips Platform offering are set forth in the applicable Platform Addendum, and are subject to any use limitations that may be set forth in the applicable Platform Addendum and the Service Order.
2.3.1. Positrips.com. If Merchant has enrolled in Positrips’s Positrips.com marketplace offering, the Positrips Activity Marketplace Addendum attached hereto will apply.
2.4 Changes to Agreement. From time to time Positrips may change the terms of this Master Agreement or a Platform Addendum. Positrips reserves the right to make any and all such changes. Positrips will strive to provide advance notice of any change that materially alters the terms of this Master Agreement or a Platform Addendum.
3. SALE AND PERFORMANCE OF MERCHANT SERVICES
3.1 Seller of Record. Merchant agrees that it is the sole seller of record of all Merchant Services, and that Positrips’s activities are undertaken solely to assist Merchant in facilitating the sale of such Services. Positrips will not be a party to any agreement between Merchant and the Customer and Merchant is directly responsible for any and all breaches or other liabilities occurring in connection with the Merchant Services.
3.2 Collection of Payment from Customers. Merchant appoints Positrips as its agent to collect credit and debit card payments on its behalf from Customers for purchases of Merchant Services made through or entered into the Positrips Platform. Positrips will use third party payment processors for all credit and debit card transactions as determined solely by Positrips, and this Agreement will be subject to the requirements of such processors and of applicable law.
3.3 Vouchers. Positrips will provide each purchasing Customer with a Voucher and directions on how to use a Voucher to redeem the purchased Merchant Service. Merchant agrees to fully and faithfully accept and honor all Vouchers sold to Customers and to perform all Merchant Services in accordance with the terms and conditions as stated in the Voucher at the time of purchase. Merchant will accept Vouchers presented on mobile devices unless otherwise agreed upon in writing.
4. FEES; COLLECTION AND REMITTANCE; CHARGEBACKS; REFUNDS
4.1 Fees. Positrips shall be paid a commission (“Commission”) or a flat fee (“Flat Fee”) on all of the Merchant Services purchased through or entered into the Positrips Platform, as set forth in the Service Order. Positrips will also be paid any other Positrips Fees set forth in the Service Order. Positrips will withhold and retain the Positrips Fees for its own account from Customer Payments (defined below) and remit any net Merchant Payment (defined below) to Merchant as described below. Positrips also reserves the right to invoice Merchant for Positrips Fees in Positrips’s sole discretion. Payment of each invoice is due within thirty (30) days of the invoice date. Merchant will reimburse any reasonable costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Positrips to collect any amount that is not paid when due.
4.2 Collection and Remittance. Positrips will typically fully receive payments collected by Positrips from Customers through Braintree and American Express within three (3) business days after the purchase date. On the next payment date after receipt of payments, Positrips will remit to Merchant, the total amount of the payments collected by Positrips from Customers for the Merchant Services (“Customer Payments”) minus all Commissions, Flat Fees and other Positrips Fees and amounts due to Positrips, as well as all Customer refunds, Chargebacks and Fraudulent Charges. All such payments by Positrips are collectively referred to as “Merchant Payments”. Unless otherwise provided in the Platform Addendum or the Service Order, Merchant Payments will be made each business day. All Merchant Payments will be converted into and made in U.S. Dollars, unless otherwise agreed upon by the parties in the Service Order. Positrips is not responsible for the collection or payment of any incidentals from Customers. Positrips has the right to recoup any wire fees due to incorrect, incomplete bank information provided by the Merchant, and may exercise the right to do so.
4.3. Taxes With respect to payments collected by Positrips for purchases of Merchant Services through the Positrips Platform, Positrips will collect and withhold from Customers all applicable Transaction Taxes and will remit such Transaction Taxes to Merchant as part of the Merchant Payments. “Transaction Taxes” means all applicable sales, use taxes, value added taxes (VAT), and other transactional taxes for purchases of Merchant Services. Merchant is responsible for filing all returns and remitting all taxes and other governmental charges in connection with the sale or performance of the Merchant Services (including all Transaction Taxes, whether Positrips collected the Customer payment or Merchant collected the Customer payment directly) and any payments accrued or received by Merchant for the Merchant Services, and Merchant agrees to fully indemnify, hold harmless and defend Positrips and its Affiliates and contractors from all liabilities related to taxes and other governmental charges. Merchant also agrees to fully comply with all applicable laws and to timely file and remit all taxes and other charges to the appropriate tax or other authorities. Positrips further may be legally required to report the Merchant Payments and other payments made to Merchant to tax or other governmental authorities under applicable law.
4.4. Chargebacks and Fraudulent Charges.
4.4.1. Handling of Chargebacks. In the event a Customer who purchased the Merchant Services initiates a Chargeback, Merchant agrees that Positrips will deduct the full amount of the Chargeback, as well as any associated fees, fines, or penalties, from Customer Payments for the next Merchant Payment due to Merchant. If Merchant’s next Merchant Payment is insufficient, Merchant agrees to pay Positrips the full Chargeback balance upon invoicing as set forth in Section 4.1. Positrips agrees to use reasonable efforts to investigate and, if appropriate, challenge suspect Chargebacks. Merchant agrees to use reasonable efforts, at Merchant’s expense, to assist Positrips, at Positrips’s request, in the investigation of any such suspect Chargebacks. If Positrips, in its sole judgment, determines that a separate agreement sufficiently protects it from a particular Chargeback, Positrips may, in its sole discretion, waive Merchant’s obligation to compensate Positrips directly.
4.4.2. Excessive Chargebacks. If Positrips determines that Merchant is incurring excessive Chargebacks, Positrips may establish controls or conditions governing Merchant’s account, such as: (a) establishing new processing fees, (b) delaying payouts, (c) refusing the award of Chargebacks, or (d) terminating or suspending services.
4.4.3. Fraudulent Charges. In the event of a Fraudulent Charge, Merchant agrees that Positrips will deduct the full amount of the Fraudulent Charge, as well as any associated fees, fines, or penalties, from Customer Payments for the next Merchant Payment due to Merchant. If Merchant’s next Merchant Payment is insufficient, Merchant agrees to pay Positrips the full balance upon invoicing as set forth in Section 4.1.
4.5 Refunds. In the event of a Fraudulent Charge or a payment of any refund to a Customer, (a) Positrips will not charge or retain any applicable Commission on the applicable transaction, and (b) Positrips will not be responsible for paying any amount to the Merchant for such transaction, except to the extent otherwise expressly provided in a Platform Addendum.
5. PROPRIETARY RIGHTS
5.1 Positrips Property and Rights. Merchant acknowledges and agrees that Positrips and its successors and assignees are and will remain the exclusive owners in all jurisdictions of the Positrips Platform and Positrips Content, including all patents, copyrights, trademarks, trade secrets, moral rights and other intellectual property rights and proprietary rights related thereto, excluding only the Merchant Content (together, “Positrips Property and Rights”). All rights not expressly granted to Merchant under this Agreement are hereby reserved by Positrips, and no license or other rights are being granted by Positrips by implication, estoppel or otherwise.
5.2 Merchant Content. Positrips acknowledges and agrees that, as between Positrips and Merchant, Merchant is and will remain the exclusive owner in all jurisdictions of the Merchant Content, including all patents, copyrights, trademarks, trade secrets, moral rights and other intellectual property rights and proprietary rights related thereto. Merchant hereby grants to Positrips a worldwide, nonexclusive, fully-paid up, royalty-free, transferable right and license (with right to sublicense through multiple tiers) during the Term to copy, reproduce, distribute, disclose, publish, broadcast, communicate, display and/or perform (whether publicly or otherwise), host, store, prepare derivative works from, translate, modify or combine with other data or information or content, and/or otherwise use any and all of the Merchant Content and to have others exercise such rights and license on behalf of Positrips in connection with the Merchant Services.
5.3. Merchant Input. Positrips welcomes any feedback or other input that Merchant may provide Positrips concerning improvements to the Positrips Platform (“Input”). Input excludes Merchant’s Confidential Information. By providing Input to Positrips, Merchant agrees that all Input becomes Positrips’s exclusive property, and Merchant hereby assigns to Positrips all its rights to Input, including all intellectual property rights in Input. At Positrips’s request and expense, Merchant agrees to execute documents and take such further action as Positrips may reasonably request to assist it in acquiring, perfecting, or maintaining intellectual property rights in Input.
6. RESTRICTED ACTIVITIES. Merchant agrees that it will not directly or indirectly:
(a) infringe upon or misappropriate any Positrips Property and Rights, or remove or alter any proprietary notices or labels;
(b) take any act which undermines the integrity or functionality of or interferes with, or transmits or uploads any content or code which contains a virus, Trojan horse, worm or other harmful component, or circumvents or disables any security or data protection measures for any part of the Positrips Platform;
(c) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Positrips Property and Rights;
(d) circumvent or disable any technological or security features or measures in the Positrips Platform;
(e) rent, lease, or sublicense the Positrips Platform or otherwise provide unauthorized access thereto;
(f) reproduce, distribute, transmit, publish, display, perform, disclose, prepare derivative works from, translate, modify or combine or use any of the Positrips Property and Rights, excepting only uses expressly permitted by this Agreement;
(g) upload or submit or transmit any Merchant Content or other material which (i) infringes upon or misappropriates the intellectual property rights or other legal rights of any third party, (ii) constitutes unlawful, obscene, harassing or offensive content or activity or (iii) breaches or violates any privacy or confidentiality or other legal obligations; or
(h) frame, mirror or link to any of the Positrips Platform without the express written consent of Positrips in its sole discretion.
7.1.1. Indemnification by Positrips.
7.1.1. Indemnification. Positrips agrees to fully indemnify, defend and hold harmless Merchant and its officers, directors, employees, representatives and agents (collectively, “Merchant Indemnified Parties”) from and against any and all liabilities, losses, judgments, damages or expenses, including but not limited to reasonable attorney’s fees and expenses (collectively, “Losses”), incurred by any Merchant Indemnified Party arising out of any third party claim, proceeding or suit (each, “Claim”) that alleges that the use of the Positrips Platform by the Merchant Indemnified Parties infringes or misappropriates any United States, patent, copyright, trademark or other proprietary rights of such third party, if (a) the applicable Merchant Indemnified Party gives Positrips prompt written notice of the Claim; (b) Positrips has full and complete control over the defense and settlement of the Claim; (c) the applicable Merchant Indemnified Party provides assistance in connection with the defense and settlement of the Claim as Positrips may reasonably request; and (d) the applicable Merchant Indemnified Party complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing materials).
7.1.2. Mitigation. If Merchant’s or their respective agents’ use of the Positrips Platform is, or in Positrips’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a Claim under Section 7.1, then Positrips may either: (a) procure the continuing right of Merchant to use the Positrips Platform; (b) replace or modify the Positrips Platform in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Positrips is unable to do either (a) or (b), Positrips may (c) terminate Merchant’s rights to the Positrips Platform under this Agreement and provide Merchant with a prorated refund of prepaid fees, if applicable, covering the remainder of the term of this Agreement.
7.1.3. Exceptions. Positrips will have no obligation under this Section 7.1 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) the combination, operation, or use of the Positrips Platform with any software, services, tools, hardware, equipment, supplies, accessories, or any other materials or services not furnished by Positrips or recommended in writing by Positrips if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Positrips Platform that Merchant required or provided, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) use of the Positrips Platform outside of the scope of the license granted to Merchant; (d) any modification of the Positrips Platform not made or authorized in writing by Positrips where such infringement would not have occurred absent such modification; or (e) the Merchant Content.
7.2. Indemnification by Merchant. Merchant agrees to fully indemnify, defend and hold harmless Positrips and its officers, directors, employees, representatives, agents, distribution partners and their respective successors and assigns (collectively, “Positrips Indemnified Parties”), from and against any and all Losses incurred by any Positrips Indemnified Party arising out of any Claim relating to or arising out of (a) any of the Merchant Services; (b) Merchant’s breach of any provision, warranty or representation in this Agreement; (c) Merchant’s intentional acts or omissions or any form of negligence or other similar wrongdoing; (d) any infringement or misappropriation of intellectual property or other rights by any Merchant Content; or (e) Merchant’s failure to comply with any applicable laws, if (i) the applicable Positrips Indemnified Party gives Merchant prompt written notice of the Claim; (ii) Merchant has full and complete control over the defense and settlement of the Claim; provided, however, that Merchant shall not settle any Claim that admits liability or places any obligation on a Positrips Indemnified Party; (iii) the applicable Positrips Indemnified Party provides assistance in connection with the defense and settlement of the Claim as Merchant may reasonably request; and (iv) the applicable Positrips Indemnified Party complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing materials).
7.3. Disclaimer. Neither Positrips nor Merchant will be liable for any form of equitable or implied indemnification to the other with respect to this Agreement, the subject matter of this Agreement or otherwise.
8. WARRANTIES AND DISCLAIMERS
8.1. Mutual Warranties. Each party represents and warrants that it has power and authority to enter this Agreement, the person or entity executing this Agreement has the power and authority to bind the party to this Agreement, and its entry into and performance of this Agreement will not breach any contractual obligations with third parties.
8.2. Disclaimer. NOTWITHSTANDING ANY CONTRARY PROVISION, AND TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW:
8.2.1.THE Positrips PLATFORM AND ALL COMPONENTS THEREOF, AND ALL ADVICE, INFORMATION AND MATERIALS, ARE BEING PROVIDED TO MERCHANT AND ANY RELATED PERSON OR ENTITY “AS IS” AND WITH ALL FAULTS. ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED OR STATUTORY) OF Positrips OR ANY AFFILIATE ARE HEREBY EXCLUDED AND DISCLAIMED, INCLUDING BUT NOT LIMITED TO (a) ANY AND ALL IMPLIED OR OTHER WARRANTIES OF TITLE OR NON-INFRINGEMENT, (b) ANY AND ALL IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, USEFULNESS OR SUITABILITY, AND (c) ANY REPRESENTATION OR WARRANTY THAT THE Positrips PLATFORM OR ANY PART THEREOF WILL BE SECURE, RELIABLE, TIMELY, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE; OR THE RESULTS THAT MAY BE OBTAINED FROM ANY OF THE FOREGOING.
8.2.2.ANY ACCESS TO OR USE OF THE Positrips PLATFORM SHALL BE AT MERCHANT’S SOLE RISK AND MERCHANT IS RESPONSIBLE FOR EVALUATING AND BEARING ALL RISKS ASSOCIATED WITH SUCH ACCESS AND USE.
9. LIMITATIONS OF LIABILITY.
NOTWITHSTANDING ANY CONTRARY PROVISION OR ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY OF ANY KIND, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, Positrips WILL NOT BE LIABLE TO MERCHANT OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER OF THIS AGREEMENT. IN NO EVENT WILL Positrips’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY RELATED CLAIMS, ACTIONS OR CAUSES OF ACTION AND ANY CLAIMS FOR INDEMNIFICATION, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT OF Positrips FEES PAID TO Positrips FOR THE MERCHANT SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT FIRST GIVING RISE TO THE RELEVANT CLAIM, ACTION OR CAUSE OF ACTION. MERCHANT UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND ARE REASONABLE AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THE FOREGOING LIMITATIONS SHALL NOT BE INCREASED BY MULTIPLE CLAIMS, ACTIONS OR CAUSES OF ACTION WHETHER SIMILAR OR NOT.
Merchant agrees to maintain in full force and effect adequate liability insurance coverage in connection with the Merchant Services at all times during the Term and for a period of two (2) years following the end of the Term. Merchant agrees at the request of Positrips to name Positrips and its Affiliates as additional insureds on such insurance policies. This can generally be done easily and without additional cost by contacting the insurance broker or insurance company. Merchant’s compliance with this Section 10 does not limit its indemnification or other obligations under this Agreement.
11. TERM AND TERMINATION
11.1. Term. The term of this Agreement commences on the Effective Date and ends on the date specified in the Service Order (“Initial Term”). Upon expiration of the Initial Term the parties may renew this Agreement for successive renewal periods (each, a “Renewal Term”) at such rates as may be mutually agreed upon in writing between them. Positrips will provide Merchant with notice of its proposed Positrips Fees for the next Renewal Term at least thirty (30) days prior to the expiration of the then-current term. The Initial Term and each Renewal Term are referred to in this Agreement as the “ Term”.
11.2. Termination. Either party can terminate this Agreement for cause (including any material breach of this Agreement by the other party) by immediate written notice to the other party.
11.3. Effects of Termination. Upon termination of this Agreement for any reason: (a) each license to a Positrips Platform offering granted by Positrips to Merchant will immediately terminate; (b) Merchant will purge all copies of all Positrips Content from any computer, server or other hardware and each party will return the other party’s Confidential Information; (c) each party’s respective rights and obligations under Sections 3, 4, 5, 7, 8, 9, 10, 11.3, 12 and 13 of this Merchant Agreement and relevant portions of each Platform Addendum, including the payment to Positrips of all compensation obligations incurred prior to the effective date of termination, each shall survive and remain in full force and effect; (d) Merchant shall continue to fulfill all unused Vouchers, and all terms of this Agreement with respect to the fulfillment of unused Vouchers (except all licenses granted by Positrips) shall survive termination until their applicable expiration; and (e) all claims or causes of action in existence as of the date of termination shall survive.
12.1. Non-disclosure. The Receiving Party will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or use of the Disclosing Party’s Confidential Information and the disclosure of the Disclosing Party’s Confidential Information to third parties without the Disclosing Party’s prior written consent. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s Affiliates, consultants, contractors, representatives and agents (including financial advisors, accountants and attorneys) (collectively, “Representatives”) who are acting on behalf of the Receiving Party and are bound by, or are otherwise protected by legal privilege or confidentiality and non-disclosure commitments on terms no less protective of the Confidential Information than the terms of this Agreement. If a Receiving Party is legally compelled to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall (a) provide prompt written notice (if legally permissible) to the Disclosing Party so that the Disclosing Party can seek a protective order or other appropriate remedy, and (b) limit any such disclosure to the extent of the legal requirement, and the disclosed information will remain Confidential Information despite such disclosure.
12.2. Exceptions. Confidential Information excludes information which: (a) is or becomes (through no act or omission of the Receiving Party in breach of this Agreement), generally available to the public; (b) becomes known to the Receiving Party or any of its Affiliates on a non-confidential basis through a third party who is not subject to an obligation of confidentiality with respect to that information; (c) was lawfully in the possession of the Receiving Party or any of its Affiliates prior to such disclosure; (d) is independently developed by the Receiving Party or any of its Affiliates; or (e) the Disclosing Party agrees is not confidential or may be disclosed, to the extent of that consent.
13.1. Merchant Warranty. Without limiting Merchant’s other obligations, Merchant represents and warrants that (a) it will provide the Merchant Services in a professional and safe manner at all times; (b) it will not infringe upon or misappropriate the intellectual property or other rights of any other person or entity with respect to the subject matter of this Agreement; (c) Merchant has all necessary rights to grant the licenses granted by it to Positrips, including the right to use the name, likeness, and identifying information of any identifiable person in the Merchant Content; and (d) Merchant possesses all licenses and registrations necessary to conduct its business and to provide all Merchant Services to be offered herein.
13.2. Governing Law. This Agreement and all matters relating to or in connection with this Agreement shall be governed by the laws of the State of California, United States of America, without regard to any conflict of laws principles that require the application of the laws of a different jurisdiction.
13.3. Arbitration. Notwithstanding any contrary provision hereof, all disputes, claims, controversies and matters relating to or in connection with this Agreement (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in San Francisco, California, USA before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
13.4. Venue. Subject to Section 13.3, any other actions (if any) arising out of or related to this Agreement must be brought exclusively in the federal or state courts located in the County of San Francisco, California USA, and each of the parties agrees that such courts shall have exclusive jurisdiction and venue for any such actions. Positrips also may seek injunctive or other equitable relief for breach of this Agreement in any court of competent jurisdiction wherever located. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable attorney’s fees and costs from the other party.
13.5. Assignment. Merchant may not assign, transfer, delegate or sublicense this Agreement or any rights or obligations hereunder, either voluntarily or by operation of law or means of a merger, consolidation or sale of stock or other ownership interest or other change of control or ownership, and any such purported act shall be null and void. Subject to the foregoing restrictions this Agreement shall benefit and be binding upon each of the parties and their respective successors and permitted assignees. Other than in the case of indemnified parties, there shall be no third party beneficiaries of this Agreement.
13.6 Notices. All notices and other communications (collectively “Notices”) required to be given or delivered to a party shall be in writing and addressed to the party at its principal corporate offices or as otherwise designated by notice hereunder. All Notices shall be deemed to have been given or delivered upon: (a) personal delivery; (b) three (3) days after deposit in the United States mail by certified or registered mail (return receipt requested); (c) two (2) business days after deposit with an internationally recognized overnight courier; or (d) one (1) business day after transmission by electronic mail. All Notices and other communications required or permitted under this Agreement shall be made in the English language.
13.7. Miscellaneous. This Agreement (including all Product Schedules and the Service Order) constitutes the entire understanding and agreement with respect to its subject matter and supersedes all prior and other current agreements and discussions between the parties, provided that any confidential or proprietary information disclosed previously to Merchant shall be part of the Positrips’s Confidential Information. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. In the event that any of the provisions of this Agreement shall be held to be invalid or unenforceable by a competent court or arbitrator, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable. When the context requires, the plural shall include the singular and the singular the plural, and any gender shall include any other gender. No provision of this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. Notwithstanding any contrary provision of this Agreement, whenever the words “include,” “includes” or “including” or any other variation are used in this Agreement, such words shall be deemed, unless the context otherwise requires, to be followed by the words “without limitation.” Section headings are only for convenience and are not part of this Agreement.
13.8. Counterparts. The Service Order may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement. The Service Order may also be executed and delivered by electronic mail and such execution and delivery will have the same force and effect of an original document with original signatures.
Positrips Professional Software Addendum
This document is a Platform Addendum to the Merchant Agreement between Positrips and Merchant. Any capitalized terms not otherwise defined in this Platform Addendum have the meaning given in such Merchant Agreement. The parties agree as follows:
1.1. "Customer(s)" means, with respect to this Platform Addendum, one or more of any person or entity that reserves or purchases a Merchant Service from Merchant’s business, where the purchase is made through or entered into the Positrips Professional Software.
1.2. "Merchant Online Channel(s)" means one or more of any website, mobile application or other online platform of Merchant or its Affiliates which offer Merchant Services.
1.3. "Merchant Service(s)" means, with respect to this Platform Addendum, one or more of Merchant’s activities or other goods or services that the Merchant offers to Customers using the Positrips Professional Software, or otherwise manages using the Positrips Professional Software.
1.4. "Positrips Professional Software" means the Positrips Platform offering that consists of (a) an online service to enable online bookings (referred to as "Positrips Booking Flow"), (b) a comprehensive product suite, including any Positrips mobile or similar application for use in connection with such online service and related Positrips Content (referred to as "Positrips Backend"), and (c) all services to enable connectivity with other Third parties (referred to as "Positrips APIs").
2. Positrips PROFESSIONAL SOFTWARE
2.1. License. Subject to Merchant’s full compliance with this Agreement (including this Platform Addendum) at all times, Positrips grants to Merchant a limited non-exclusive, non-sublicensable, non-transferable, non-assignable and revocable right and license during the Term to access and use the Positrips Professional Software solely for its internal business operations and for purposes of (a) processing sales made directly from Merchant and (b) using web and mobile tools to assist Merchant in managing its business ("Positrips Professional Software License"). The use of the Positrips Professional Software for any purpose not expressly permitted by this Agreement (including this Platform Addendum) is prohibited and will be deemed to be a material breach of this Agreement (including this Platform Addendum).
2.2. Setup and Support. Positrips will provide assistance with setup and activation, as well as support for the Positrips Professional Software, according to Positrips’s standard policies as made available or provided to Merchant.
2.3. Modifications. Positrips may modify or update the Positrips Professional Software at any time without prior notice.
2.4.1.During the Term, Positrips will be the exclusive provider to Merchant, its Affiliates and other agents of all items listed in the Service Order, excluding the Positrips Backend.
2.4.2.Merchant shall not make the Positrips Professional Software or any such use or access available in any manner to or for any third party at any time.
2.4.4.Merchant may not store any Customer credit card information or other information prohibited by applicable law in or by use of the Positrips Professional Software or any other part of the Positrips Platform, whether or not the Customer has purchased tickets through the Positrips Professional Software.
2.4.5.Upon termination of this Agreement for any reason, Merchant shall purge all copies of all Positrips Professional Software from any computer, server or other hardware.
3.1. Fees. Positrips shall receive compensation for all Merchant Services purchased through or entered into the Positrips Professional Software pursuant to the procedures set forth in the Merchant Agreement.
3.2. Refunds. Merchant may provide refunds or adjustments to Customers for their purchases of Merchant Services made through the Positrips Professional Software using refund functionality enabled by Positrips and accessible through the Positrips Platform. Funds to cover refunds will be deducted from Merchant’s payout balance during each remittance of Merchant Payments as described in the Merchant Agreement. In the event of insufficient funds to cover the amount of the refund, Merchant’s credit card on file may be charged. Positrips may retain from Merchant or Customers any Positrips Fees and applicable processing fees on refunded transactions.
Merchant owns all individual Customer and sales information collected by Merchant in connection with the Merchant Services sold through Merchant Online Channels. Merchant understands that Positrips collects the foregoing information into a database through the Positrips Professional Software. Merchant hereby grants to Positrips and its successors and assignees a non-exclusive, worldwide, fully paid, assignable, transferable, sublicensable, and irrevocable license (a) during the Term to access, reproduce and otherwise use such information in connection with providing the Positrips Platform and performing this Agreement, and (b) during and following the Term to access, reproduce and otherwise use such information on an anonymized and aggregated basis in connection with Positrips’s business. For clarity, Positrips will not sell or disclose identifiable information about Merchant or Merchant’s Customers to a competitor of Merchant.
Positrips Activity Marketplace Addendum
This document is a Platform Addendum to the Merchant Agreement between Positrips and Merchant. Any capitalized terms not otherwise defined in this Platform Addendum have the meaning given in such Merchant Agreement. The parties agree as follows:
1.1. "Customer(s)" means, with respect to this Platform Addendum, one or more of any person or entity that (a) reserves or purchases a Merchant Service on the Positrips Activity Marketplace, or (b) is otherwise a registered user of any Positrips Online Sites or any Third Party Channels.
1.2. "Merchant Service(s)" means, with respect to this Platform Addendum, one or more of Merchant’s activities or other goods or services listed on any part of the Positrips Activity Marketplace.
1.3. "Positrips Activity Marketplace" means one or more of (a) Positrips Online Sites and (b) Third Party Channels.
1.4. “Positrips Online Sites” means the Positrips Platform offering that consists of the website, the Positrips Customer mobile application or any other Positrips online platforms for Customers. The Positrips Online Sites include related Positrips Content.
1.5. "Third Party Channels" means any third party website, mobile application or other online or offline platform that resells Merchant Services from the Positrips Online Sites. Third Party Channels are not considered part of the Positrips Platform except as expressly set forth in Section 2.3 of this Platform Addendum.
2. Positrips ONLINE SITES
2.1. License. Subject to Merchant’s full compliance with this Agreement (including this Platform Addendum) at all times, Positrips grants to Merchant a limited non-exclusive, non-sublicensable, non-transferable, non-assignable and revocable right and license during the Term to access and use the Positrips Online Sites solely for its internal business purposes in order to manage and update the listing of the Merchant Services on the Positrips Activity Marketplace and to access information about the Customers who have purchased the Merchant Services ("Positrips Online Sites License"). The use of the Positrips Online Sites for any purpose not expressly permitted by this Agreement (including this Platform Addendum) is prohibited and will be deemed to be a material breach of this Agreement (including this Platform Addendum).
2.2. Customer Support. Positrips will provide commercially reasonable customer support to Customers. However in the event that Customers contact Merchant directly, Merchant’s own employees will respond to requests for support to the extent Merchant is qualified to do so, and otherwise such requests must be immediately referred to Positrips.
2.3. Third Party Channels. The Third Party Channels are deemed to be part of the Positrips Platform for purposes of Section 6 of the Merchant Agreement.
2.4. Third Party Channels. Positrips does not control and is not responsible for any Third Party Channels and any content, products, services and information accessible from or provided through any of them.
3.1. Fees. Positrips shall receive compensation for all Merchant Services purchased through any of the Positrips Online Sites and Positrips Activity Marketplace partner sites pursuant to the procedures set forth in the Merchant Agreement.
3.2. Additional Compensation. Positrips may also receive additional commissions or other compensation from third parties in connection with the sale of Merchant Services through the Positrips Activity Marketplace or otherwise, which shall be for the sole account of Positrips.
4. LISTING OF MERCHANT SERVICES
4.1. Listing. Positrips may list or have listed at its sole option one or more of the Merchant Services on any part of the Positrips Activity Marketplace, and Merchant will allow Customers to purchase the listed Merchant Services. However, Positrips may reject or discontinue the listing or sale of any of the Merchant Services in its sole discretion without prior notice.
4.2. Access and Support. Merchant agrees to provide Positrips with the same access and support necessary to market, promote and distribute the Merchant Services that Merchant makes available to other resellers.
4.3. Listing Content. Merchant must fully and accurately describe the Merchant Services being offered on the Positrips Activity Marketplace at all times, provided that Positrips reserves the right to exercise final editorial control. Listings may include Merchant Content that is pre-approved by Positrips in its sole discretion, however Merchant is solely responsible for the accuracy of all Merchant Content. Merchant agrees to immediately notify Positrips in writing if any of the Merchant Content or Merchant Services do not comply with all applicable laws.
4.4. Listing Changes.
4.4.1.Merchant will be responsible for continuously updating the scheduling and pricing for the Merchant Services through its Merchant Account. Positrips may, but is not obligated to, access Merchant’s Merchant Account to update or revise the same. Merchant will promptly provide updated Merchant Content for Merchant’s listing from time to time when requested by Positrips.
4.4.2.If Merchant wants to change a Merchant Service on the Positrips Activity Marketplace (other than the scheduling and pricing of such Merchant Service), Merchant must provide Positrips with prior written notice of the proposed change at least thirty (30) business days in advance. No changes to the Merchant Services will become effective on the Positrips Activity Marketplace without Positrips’s approval in its sole discretion.
4.4.3.If Merchant wants to stop offering a Merchant Service on the Positrips Activity Marketplace, Merchant must provide Positrips with prior written notice of the proposed discontinuance at least ten (10) business days in advance.
5. PROMOTION, MARKETING AND PRICING OF MERCHANT SERVICES
5.1. Promotion by Positrips. Positrips has the unlimited right and option to promote the Merchant Services through the Positrips Activity Marketplace, email marketing, and any other online or offline third party marketing channel as determined by Positrips in its sole discretion. Positrips also may identify the Merchant as a merchant of Positrips, and Merchant consents in advance to all such uses. The manner and method by which the Merchant Services are displayed on the Positrips Activity Marketplace, and to what extent and duration, also will be determined by Positrips in its sole discretion from time to time.
5.2. Lowest Retail Price. Merchant is solely responsible for setting its own prices for the Merchant Services and must promptly update all prices through the Merchant Account, provided that Positrips and its sublicensees will have the right to offer the Merchant Services to Customers at the lowest retail prices and best terms offered by Merchant for such Merchant Services in the same or similar market ("Lowest Retail Price"). If Positrips determines that Merchant’s listed pricing report is not the Lowest Retail Price for the relevant Merchant Service, Positrips may use the lower price on the Positrips Activity Marketplace.
5.3. Promotional Offers. Merchant may sell Merchant Services with better terms using time-limited promotional vouchers under contract exclusively to third-party daily deal sites such as Groupon, LivingSocial, and Amazon Deals, provided that Merchant gives Positrips notice in writing of each proposed promotional offer at least ten (10) business days before commencing such offer.
6. SALE AND PERFORMANCE OF MERCHANT SERVICES
6.1. Sale and Vouchers. Positrips will sell the Merchant Service on Merchant’s behalf to the Customer through the Positrips Activity Marketplace, provide each purchasing Customer with a Voucher as described in the Merchant Agreement and inform Merchant in a timely manner that a Merchant Service has been purchased. The retail price of each Voucher will be the "all inclusive" and total charge made to the Customer for the Merchant Service, unless otherwise expressly noted in the Positrips Activity Marketplace listing.
6.2. Honoring Vouchers. Merchant will use its best efforts to accommodate Customers arriving after the cut-off time for any Merchant Service. If the Merchant Service is not available when the Customer seeks to redeem the Voucher, then subject to applicable law, (a) Merchant agrees to offer the Customer a similar service of equal or greater value, and (b) if the Customer refuses the alternative offer, then Positrips reserves the right to issue a full refund to the Customer and deduct the same from any current or future payments due to Merchant.
6.3. Legal Compliance. Merchant agrees to comply with all applicable laws with respect to the Merchant Services and the other subject matter of these Terms. Merchant’s obligations under these Terms shall include compliance with laws prohibiting the provision of alcohol or tobacco or other restricted products to minors. If Merchant refuses to accept a Voucher because Merchant believes it is unlawful to do so, Merchant will notify Positrips immediately in writing and Positrips shall be relieved of any obligation to pay Merchant for the Merchant Services represented by the Voucher.
7. FEEDBACK AND REVIEWS.
Merchant (a) agrees that the Positrips Activity Marketplace may implement mechanisms that rate, and allow Customers to rate, and provide photos, videos, reviews and commentary regarding Merchant and the Merchant Services (together "Feedback"); (b) consents to Feedback being made publicly available and distributed; (c) agrees that all Feedback is (as between the parties) owned by Positrips or the relevant third party provider, except for any Merchant Content included therein; (d) agrees that neither Positrips nor any third party provider shall have any responsibility or liability to Merchant or an Affiliate in the case of negative or disputed Feedback,and all such responsibility or liabilities are hereby disclaimed; and (e) agrees that Positrips or the third party provider may limit Merchant’s activities on the Positrips Activity Marketplace based upon Feedback. Merchant also agrees to not upload any feedback from any other third party websites to the Positrips Activity Marketplace without the prior written consent of Positrips (which may be withheld in its sole discretion), and to not self-generate positive Feedback regarding the Merchant Services or upload any negative Feedback for other merchants on the Positrips Activity Marketplace, either directly or by persons under Merchant’s direction.
Positrips owns all individual Customer and sales information collected by Positrips in connection with the Merchant Services sold through the Positrips Activity Marketplace. Any such information about a Customer provided by Positrips to Merchant shall be used by Merchant solely to honor the Customer’s Voucher and provide the Merchant Service to the Customer.