Thank you for visiting www.boonli.com (the "Site"). The Site is owned and operated by Boonli, LLC, a California company having its principal place of business at 820 American Street, Suite A, San Carlos, CA, 94070 ("Boonli"). The school, catering company, restaurant or other business that enters into this agreement (the "Agreement") with Boonli will be referred to as the "Merchant". Other capitalized terms in this Agreement are defined in the glossary at the end of the Agreement.
THIS IS A LEGALLY BINDING AGREEMENT BETWEEN THE MERCHANT AND BOONLI. PLEASE READ IT CAREFULLY BEFORE USING BOONLI SERVICES.
FAIR CREDIT REPORTING ACT CONSUMER DISCLOSURE AND GENERAL AUTHORIZATION
In connection with Merchant procuring Services from Boonli, the Person accepting this Agreement understands that a consumer report as defined in the Federal Fair Credit Reporting Act as amended ("FCRA"), 15 U.S.C. 1681 and following, may be obtained by Boonli from a consumer reporting agency ("CRA"). Merchant (which term shall include its guarantors in this consent) understands that this report may include information with respect to public record information, criminal records, motor vehicle operation history, education records, names and dates of previous employers, reason for termination of employment and work experience, and/or credit worthiness, capacity and standing, character, general reputation, personal characteristics, or mode of living, such information may be used to evaluate whether Merchant is an appropriate candidate for transacting with Boonli and this determination may be adverse to Merchant. The information obtained will not be provided to any parties other than to designated authorized representatives of Boonli. Merchant further understands that the CRA may not give out information about Merchant to Boonli without Merchant’s written consent. Merchant hereby authorizes Boonli now, or at any time while it is party to an agreement with Boonli or otherwise engaged by Boonli, to obtain a consumer report on Merchant. This authorization does not include the release of Merchant’s medical information. A copy, fax or scan of this consent shall be considered as effective and valid as the original. Merchant understands that in the event any adverse action is taken against Merchant based in whole or in part on the consumer report, Merchant shall be provided with the name of the CRA and a copy of the report as well as a description of Merchant’s rights under the FCRA.
On request, California, Minnesota, and Oklahoma residents, can obtain a copy of any consumer credit report requested by Boonli.
On request, New York residents, can be informed if a consumer credit report has been requested on Merchant by Boonli as well as the name of the agency providing the report.
Merchant and its guarantors have read and understand the above and authorize Boonli to perform the above investigations.
The Services are a web-based payment processing service by which Boonli serves as an agent for Merchant to receive payments on its behalf and provide related reporting to Merchant.
So long as Merchant is not in breach of this Agreement, Merchant shall be granted a unique and private Account accessible through the Service. The Account shall be a record of Merchant Transactions and Fees. Boonli shall provide Merchant with access codes for the Account. Merchant shall not disclose such codes or permit any third party to use them. Merchant assumes full responsibility for the use of its Account and the access codes thereto and shall indemnify Boonli for any and all claims, losses or other liabilities arising therefrom. Except as required to deliver the Services or as otherwise required by law, Boonli shall not grant any third party access to the Account of Merchant.
Merchant agrees to notify Boonli immediately of any loss or disclosure, whether voluntary or otherwise, of any Account password or access code to a third party. This notification must be made to Boonli and confirmed by registered letter with return receipt confirming the receipt of such notification by Boonli. Boonli will interrupt or refuse all access and any orders made using this password within one (1) business day following the receipt of the registered letter. While Boonli may take earlier action based on other communication methods, only the date of receipt of the registered letter will result in Boonli having an obligation to interrupt the Services.
3. Prohibited Activities
It is forbidden for a Merchant to use the Services to, directly or indirectly, knowingly or unknowingly assist in any illegal activity or any Prohibited Activity (all of which are listed below in the Glossary).
4. Prohibited Merchants
The following Persons are prohibited from using the Services: (i) Persons who appear on the U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN); (ii) Persons who are less than 18 years of age; and (iii) Persons, or their Affiliates whose Accounts (whether hereunder or under another similar agreement) have been terminated by Boonli.
5. Customer Payments
Customers in receipt of an Invoice shall be directed by Boonli, as agent of Merchant, to pay the amount of the Invoice to Boonli which payment shall constitute payment to the Merchant of the Invoice.
6. Merchant Billing
When a Merchant wishes to receive payment through the Services, the Merchant hereby appoints Boonli as its agent for the purposes of: (i) presenting Invoices to Customers of the Merchant; (ii) receiving Customer Transaction payments, as agent of Merchant; and (iii) issuing Receipts to Customers, as agent of Merchant. Merchant hereby instructs Boonli to issue Invoices, accept Transactions and issue Receipts through the Services, in the amounts specified by the Merchant through Account, and the Merchant agrees that Boonli is acting on behalf of the Merchant in its carrying out of the foregoing and shall honor the terms of each Invoice, Transaction and Receipt as if they were carried out by the Merchant itself.
7. Transaction Payment
Merchant can only accept Card payments through the Services. Merchant shall cause all other payments from Customers including those by way of ACH, check or cash to be made directly from Customer to Merchant without use of the payment element of the Services.
8. Transaction Settlement
Boonli uses an acquiring bank and processor to acquire funds as agent for Merchant hereunder. Such funds are settled to its Deposit Account, which account is separate from the ongoing commercial operating account of Boonli. Boonli shall release to Merchant any and all such Merchant funds received from Customers, less applicable Fees or other liabilities of Merchant to Boonli hereunder. Merchant shall give the Customer full credit for every Transaction payment as of when Boonli has received Transaction funds and Customer shall not receive reduced credit with Merchant on account of Fees that Boonli may deduct from settlements to Merchant. Boonli will not settle Transaction funds to any recipient other than Merchant. All settlements to Merchant hereunder are provisional and are subject to adjustment where Boonli determines that a settlement error has occurred.
9. Boonli Regulatory Status
Boonli is not a bank, money transmitter or other money services business. Boonli is a payment facilitator and payment processor for Invoices of the Merchant and acts as agent of Merchant in the receipt of Transaction payments of Invoices by Customers pursuant to the terms of this Agreement. Funds deposited by Customers into the Deposit Account are not insured by Boonli or any third party, except the Federal Deposit Insurance Corporation, to the extent that an ordinary commercial bank account benefits from its insurance. Boonli reserves the right to monitor use of the Service to ensure compliance with this Agreement. If it is determined Merchant is not in compliance with this Agreement, Boonli reserves the right to take appropriate action including, but not limited to, assessing additional Fees or suspension or termination of the Account. Merchant acknowledges that such monitoring of use may include determining whether or not the Service is accessed under the account from multiple IP addresses, as well as noting excessive use or other irregularities.
10. Merchant Release of Customer on Payment to Boonli
MERCHANT AGREES AND COVENANTS THAT UPON BOONLI RECEIVING A PAYMENT TRANSACTION FROM A CUSTOMER OF THE MERCHANT, THAT AS OF THE RECEIPT BY BOONLI OF THE AMOUNT OF THE TRANSACTION, THAT THE CUSTOMER IS THEREBY RELEASED FROM ANY LIABILITY TO THE MERCHANT IN RESPECT OF SUCH AMOUNT PAID. THE CUSTOMER OF THE MERCHANT IN EACH TRANSACTION IS NAMED AS A THIRD PARTY BENEFICIARY UNDER THIS AGREEMENT WITH THE MERCHANT SO THAT THE CUSTOMER CAN ENFORCE THE TERMS HEREOF AGAINST THE MERCHANT IN SO FAR AS THE MERCHANT ATTEMPTS TO COLLECT A GIVEN TRANSACTION PAYMENT WHETHER OR NOT A RECEIPT HAS ALREADY BEEN ISSUED. NO DELAY IN PAYMENT BY BOONLI ON A GIVEN TRANSACTION AMOUNT TO MERCHANT, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION SEIZURE OF BOONLI ASSETS OR BANKRUPTCY OF BOONLI, SHALL SERVE TO DIMINISH THE FOREGOING OR ENTITLE MERCHANT TO COLLECT ANY AMOUNT FROM A CUSTOMER IN RESPECT OF WHICH PAYMENT HAS BEEN MADE BY A CUSTOMER TO BOONLI PURSUANT TO THE TERMS OF THIS AGREEMENT.
11. Merchant Customer Relationship
Boonli is not party to the Merchant Relationship, being the commercial relationships that necessitates Transactions. Merchant shall be solely responsible for any Product requests and orders it or its Customers place through the use of the Services or other use of the Services. Boonli shall not be held liable for any errors caused by Merchant or Customer or interruptions of any hosting company computer systems or communication lines.
The Services may permit for Merchant to make disclosures to Customers concerning its Product ("Merchant Disclosure"). Boonli shall not edit Merchant Disclosure and assumes no liability for Merchant Disclosure even if Boonli is the platform through which it is communicated to Customers.
FOR GREATER CERTAINTY, IF MERCHANT DISCLOSURE INCLUDES DISCLOSURE OF ALLERGY WARNINGS, INGREDIENTS OR OTHER SAFETY OR HEALTH INFORMATION, MERCHANT SHALL: (I) ENSURE THAT SUCH INFORMATION IS CLEAR, ACCURATE AND COMPLIANT WITH APPLICABLE LAWS; AND (II) NOT RELY EXCLUSIVELY ON THE SERVICES TO DELIVER SUCH DISCLOSURE TO CUSTOMERS.
12. No Returns Refunds or Chargebacks
Other than as set out below, Boonli shall not permit any Transaction to be subject to a return, reversal, refund or chargeback unless Boonli believes that the Transaction occurred through a breach hereof by Merchant or was otherwise in furtherance of Prohibited Activity, in which case Boonli reserves the right to return the face-value thereof to the Customer or withhold the amount thereof pending an order by a court of competent jurisdiction to remit it to Merchant, Customer or a government authority.
If a Customer is not satisfied with Merchant Product, Merchant will resolve the issue directly with Customer. Boonli shall have no liability or responsibility for any return or refund requested by Customer. Resolution will be based on Merchant’s refund policy. Merchant acknowledges and agrees that Customers shall not seek refunds from Boonli or through the Site, and that Merchant shall bear sole responsibilities for such refunds.
If Boonli may, in its sole discretion, on a case-by-case basis, assist with a Transaction refund to a Customer in which case Merchant shall pay a handling Fee of up to $2.00 per refund Transaction. In the event that the funds subject to the refund request have not yet been disbursed to the Merchant, Boonli may, at its discretion, retain such funds pending resolution of the refund request or dispute. If authorized by Merchant, or at its own discretion, Boonli may, utilize any Merchant funds held by Boonli, to honor any such Customer refund requests and any amounts expended by Boonli in such situations may be off-set against any amounts due to Merchant. If the amounts expended by Boonli exceed the amounts due to Merchant (after deduction of all Fees and other amounts owed to Boonli), Merchant shall immediately pay reimburse Boonli on receipt of an invoice detailing such payments by Boonli.
If a Customer makes a payment to Merchant through the Service, but cancels their Product order and Merchant wishes to provide Customer with a credit for the amount of the cancelled order or Merchant wishes to provide a credit to a Customer for some other reason, the Service will allow the amount of such credit to be visible to the Customer. Merchant, however, carries the exclusive obligation to honor such credit and none of such credits are stored by Boonli for Customer or otherwise.
If a Customer has a credit remaining in their account with the Merchant and it is apparent that the Customer will no longer be using the Merchant’s services accessed through the Boonli Platform (e.g. no more children in the school), as determined by Boonli, Boonli reserves the right to charge the Merchant an end user termination Fee equivalent to the amount of such Customer’s credit ("End User Termination Fee").
13. Intellectual Property Rights in Service
Merchant is hereby granted a non-exclusive, non-transferrable limited right to use the Services for the term of this Agreement only. Boonli reserves all rights not expressly granted to Merchant in this Agreement. Merchant shall have no right, title, or interest under any Intellectual Property Rights except as expressly permitted in this Agreement. The Service is protected by copyright, trade secret and other Intellectual Property Rights. Boonli or its third party licensors, own the title, copyright and other worldwide Intellectual Property Rights in the Service, the Site, software, documentation, descriptions or other products and materials furnished by Boonli. This Agreement does not grant Merchant any rights to any of the names, trademarks or service marks of Boonli. Merchant shall not use any name or trade marks of Boonli without prior express consent from Boonli. Merchant may not transfer, assign or sub-license the right to use the Services under this Agreement.
Merchant shall pay Fees in consideration for the Services. Fees shall vary depending on the Service options selected by the Merchant. Potential Fees are posted to the Site. After selecting the specific Services that Merchant wishes to procure, either through the Account or through correspondence with Boonli, Boonli shall provide a document detailing the exact Fee structure, billing scenarios and invoicing procedures applicable to Merchant under this Agreement (the "Service Fee Letter"). Once provided by Boonli, the Service Fee Letter forms part of and is incorporated by reference to, this Agreement. Fees may be amended by Boonli from time to time by posting such changes to the Site. After a change in Fees has been posted to the Site for thirty (30) days, it shall be deemed incorporated herein and into the applicable Service Fee Letter,
Fees shall first be paid by set-offs from settlements of Transaction funds to Merchant hereunder. Where there are insufficient Transaction funds to pay Fees or other amounts owing hereunder: (i) Merchant grants Boonli the right to ACH the amount of the Fees, plus other amounts owing from the Merchant Deposit Account as per the ACH Consent; or at the discretion of Boonli (ii) Merchant shall pay all such amounts to Boonli within two (2) business days of a demand by Boonli. Fees collected are not refundable.
Costs for services offered by Boonli but not included in the Fees applicable to this Agreement, including additional customization services, training and consulting, travel and living costs incurred by Boonli employees while servicing Merchant (each, an "Additional Service") shall be separately invoiced by Boonli at its standard rates, such as they may be from time to time. No such Additional Services shall be conducted unless the terms and conditions for providing such services have been agreed to in writing. The Additional Services, on which both parties agree to be provided in a writing, shall be deemed to be Services provided under this Agreement.
All Fees and other costs owed by Merchant to Boonli shall be paid within fifteen (15) days from date of the invoice from Boonli to Merchant.
Should Merchant not pay sums owed to Boonli by the agreed upon date, Boonli reserves the right to suspend or terminate the Services for said Merchant. In addition to suspension and termination rights, Boonli reserves the right to charge interest from the payment due date at a rate of 18% per annum, or the maximum amount allowed by law, whichever is less.
All Fees are exclusive of all taxes, levies or duties imposed by any national, federal, state or local taxing authorities, including those outside of the United States. Merchant shall be solely responsible for payment of all such taxes and filing of related filings. Should Boonli be required to pay any such taxes, Merchant shall reimburse Boonli for all tax payments in full, within thirty (30) days of receipt of an invoice therefore.
15. ACH Consent
Merchant desires to effect settlement of credits and debits from the Merchant Deposit Account by means of ACH and/or wire transfer in conjunction with the Services for Merchant by Boonli. In accordance with this desire, Merchant authorizes Boonli and/or its affiliates to initiate debit and credit entries to the Merchant Deposit Account (the details of which are provided by Merchant through the Account or by other means acceptable to Boonli). Merchant agrees to maintain sufficient funds in Merchant Deposit Account to cover debit transactions. By signing this authorization, Merchant states that it has authority to agree to such transactions and that the Merchant Deposit Account indicated is a valid and legitimate account for the handling of these transactions. This authority is to remain in effect until Boonli receives written notice from Merchant revoking it. This authorization is for the payment of Transaction funds to Merchant, Fees or any other sums owed to Boonli to Boonli. Merchant also certifies that the appropriate authorizations are in place to allow Merchant to authorize this method of settlement. All changes to the identification of the Merchant Deposit Account under this authorization must be made in writing in accordance with the Agreement. Merchant understands that if the information supplied as to the ABA Routing Number and Account Number of the Merchant Deposit Account is incorrect, and funds are incorrectly deposited, Boonli will attempt to assist Merchant in the recovery of such funds but has no liability as to restitution of the same. Boonli’s assistance in recovering the funds, where available, will be billed to Merchant at Boonli’s current hourly rate for such work. Merchant acknowledges that the origination of ACH transactions to the Merchant Deposit Account must comply with the provisions of U.S. law.
16. Merchant Representations
Merchant hereby warrants and covenants to Boonli that:
Duly Constituted. The Merchant is a business or carries on an organized economic activity for profit or otherwise and, if it is not an individual, is duly constituted under the laws of its constituting jurisdiction and that it has legal capacity to enter into this Agreement and perform its obligations hereunder. The Merchant is registered as a business in every jurisdiction where it carries on business;
Duly authorized. Merchant has the necessary corporate power and authority to execute this Agreement and to perform its or his obligations hereunder. Such execution and performance by the Merchant does not require any action or consent of, any registration with, or notification to, any person, or any action or consent under any laws or regulations which the Merchant is subject;
Notice of Defects. Merchant will immediately advise Boonli and its Customers in writing of defects in the Product or any claim or threatened claim against it in relation to the Product;
Compliance with Laws. The Product conforms to all applicable laws in the jurisdictions where Boonli, Merchant and its customers are located. It will conduct its business affairs in an ethical manner and in accordance with the terms and intent of this Agreement, and in compliance with all Applicable Laws. Merchant shall not use the Services to sell or promote or otherwise facilitate any Prohibited Activities;
Solely for Business Purposes. Merchant shall use the Services exclusively for business purposes or in the course of carrying on an organized economic activity, whether for profit or otherwise;
Opportunity to Consult Counsel. Merchant has had the opportunity to consult legal counsel for the purpose of reviewing and obtaining advice as to the terms hereof;
Boonli Not Liable for Product. Merchant assumes all responsibilities and liabilities associated with its Product. Boonli assumes no liability for any Product.
Recalls and Allergy Alerts. Merchant shall notify Customers and all relevant Persons of any Product recalls or allergy alerts.
Sale of Product. Merchant shall offer for sale those Products that it advertises on the terms and conditions advertised by the Merchant. Merchant shall not make any false representations concerning any Products. Merchant shall not sell any Product that is illegal in the United States or any applicable jurisdiction where Boonli, Merchant or Merchant Customers are located or domiciled. This provision shall also apply to all Products and services sold by the Merchant, whether or not the Services are used in relation thereto.
Maintenance and Service. Merchant shall be exclusively responsible for any and all support and maintenance related to any Product and it shall supply such support and maintenance to purchasers of Product in a prompt, professional manner and on reasonable terms. While Boonli assumes no obligation in this regard, Boonli reserves the right to forward all correspondence concerning a Product to the Merchant.
17. Collection, Use, Storage and Disclosure of Personal Information.
18. Dispute Settlement Policy
In the event of a dispute between a Merchant and Boonli as to the accuracy or completeness of any Service provided to the Merchant, Merchant shall provide Boonli with a detailed written description of its concerns. Boonli shall then, within thirty (30) days of receipt of such writing, investigate the matter and provide a response which response shall be final and not subject to further review, except through arbitration as described below.
19. Reserve Account
Merchant shall deposit into an account (the "Reserve Account") maintained by Boonli (or other depository institution approved by Boonli) initially or at any time in the future as requested Boonli, sums sufficient to satisfy your current or future obligations as determined by Boonli. Funds, if any, in the Reserve Account shall remain in the Reserve Account until each of the following has occurred: (a) this Agreement has been terminated; and (b) Merchant has paid in full all amounts owing or that could ever be owed under this Agreement, including, without limitation, all outstanding or uncollected amounts and potential chargebacks from or in respect of Merchants or Merchant Customers. Boonli may, at its discretion, require that the amount on deposit in the Reserve Account be increased. In no event shall Merchant be entitled to a return of any sums remaining in the Reserve Account before three hundred (300) days following the effective date of termination of this Agreement.
Boonli may, at its discretion, deposit into the Reserve Account funds they would otherwise be obligated to pay Merchant, for the purpose of establishing or maintaining the Reserve Account in accordance with this Agreement if Boonli determines such action is reasonably necessary to protect its interests. Merchant shall maintain at all times a balance in the Reserve Account sufficient to protect Boonli against losses resulting from transactions initiated by Merchant or in respect of Merchant.
Boonli may, at its discretion, apply deposits in the Reserve Account against any outstanding amounts owed by Merchant under this Agreement or any other agreement between Merchant or any of its Affiliates and Boonli or any of its Affiliates. Also, Boonli may debit the Reserve Account to exercise their rights under this Agreement to collect any amounts due to Boonli or a Merchant (as determined by Boonli) including, without limitation, rights of set-off and recoupment. Without limitation, Boonli may, at its discretion, offset any amounts owing to it from any amounts it would otherwise be obligated to settle to Merchant.
Merchant shall defend, indemnify and hold harmless Boonli, its processors and acquiring banks and their respective directors, officers, employees, agents, assigns, and successors-in-interest from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action, costs and expenses (including attorneys’ fees and expenses) arising out of or resulting from: (i) Merchant’s performance or breach under this Agreement including, without limitation, performance, non-performance, or defect in performance, any statement, misstatement, representation or misrepresentation made by Merchant; (ii) the negligent or wilful acts or omissions of Merchant or any of its agents or employees; (iii) any statements, claims, representations or warranties made by Merchant or its agents or employees, relating to the Products or any other matter; (iv) the Merchant Relationship; (v) Merchant’s provision or, or failure to provide Product; (vi) any tax liabilities of Merchant or related to the sale of its Product; (vii) Descriptions; and (viii) any vendor, Customer or other Person.
21. Term and Termination
Term. This Agreement shall be effective commencing on the date that Merchant has accepted the terms of this Agreement via the Site or in writing (the "Effective Date") and thirty (30) days thereafter (the "Initial Term"). After the Initial Term, this Agreement shall be renewed automatically for additional consecutive thirty (30) day periods, unless earlier terminated in accordance with the terms hereof.
Termination. Either party may terminate this Agreement at any time on notice to the other party. Boonli reserves the right to suspend supply of the Services or terminate this Agreement without prior notice to Merchant in the event that Boonli determines, in its sole discretion, that continuing to perform hereunder would expose Boonli to excessive security, financial or reputational risk.
Procedure upon Termination. Upon any termination of this Agreement, Merchant shall no longer be entitled to use the Account, Services or the Site. Upon request by Boonli at termination, Merchant shall either destroy or return all data and documentation related to the Site and Service, in all forms, both complete and partial, in all media. Merchant must send Boonli a certified letter within one (1) month of termination of this Agreement from its legal representative confirming that Merchant has completely ceased using the Site and Services and that all data and documents have been returned or destroyed, as applicable. All provisions regarding indemnification, representations, warranties, liability and limits thereon and confidential information shall survive termination and termination of this Agreement shall not relieve the Merchant of its obligations to pay accrued Fees or other liabilities to Merchant hereunder. On termination, Transactions pending settlement at the time of termination shall be settled notwithstanding the termination, subject to a right of offset in favor of Boonli to off-set unpaid Fees or other liabilities of Merchant to Boonli under this Agreement.
Discontinuance. Boonli reserves the right to discontinue or modify the Service at any time, provided that such discontinuance shall not interfere in settlement of Merchant funds already in possession of Boonli less applicable Fees and other liabilities of Merchant to Boonli.
Each party acknowledges that it may directly or indirectly disclose Confidential Information to the other party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information. Each party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement. Except as otherwise contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of the Agreement. Nothing in this Agreement shall prevent Boonli from collecting, storing, using and disclosing Merchant Confidential Information for the purpose of providing the Services.
For the purposes of this Agreement, "Confidential Information" means all proprietary, secret or confidential information or data relating to either party and its affiliates, operations, employees, products or services, clients, customers or potential customers. Confidential Information shall include customer lists, cardholder account numbers, pricing information, computer access codes, instruction and/or procedural manuals, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by law. Without limitation, the terms of this Agreement shall be Confidential Information of Boonli only.
23. LIMITATION OF LIABILITY
NO WARRANTIES. THE SERVICE IS PROVIDED ON AN "AS-IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOONLI EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE SERVICES PROVIDED BY BOONLI OR THAT THE OPERATION OF THE SERVICES WILL BE INTERRUPTION OR ERROR FREE OR WITHOUT VIRUSUS OR OTHER HARMFUL MATERIALS. BOONLI DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE USE OF THE SERVICE. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE IS AT MERCHANT’S OWN DISCRETION AND RISK. MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM THE SERVICE.
LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NONE OF BOONLI, ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS OR LICENSORS, SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF BOONLI HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT FOR BOONLI’S OBLIGATION TO SETTLE THE FACE VALUE OF TRANSACTION FUNDS ACTUALLY RECEIVED AND OWING TO MERCHANT, LESS FEES AND OTHER LIABILITIES OF MERCHANT TO BOOLI HEREUNDER, WHERE THE LIABILITY OF BOONLI SHALL NOT EXCEED THE AMOUNT OF SUCH TRANSACTION FUNDS RECEIVED BUT NOT SETTLED TO MERCHANT, IN NO EVENT SHALL BOONLI’S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO THE MERCHANT, OR ANY THIRD PARTY, IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT (AND ALL OTHER AGREEMENTS BETWEEN BOONLI AND MERCHANT) EXCEED THE FEES ACTUALLY PAID TO BOONLI BY MERCHANT DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
Force Majeure. Boonli shall use its commercially reasonable efforts to perform its obligations hereunder, however, none of Boonli, its Affiliates, shareholders, directors, officers, agents or licensors shall be liable for any loss resulting from the activities of Merchant, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond Boonli’s reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment. Boonli’s obligations hereunder shall be suspended during any of the foregoing circumstances, which suspension shall not be a cause for termination of this agreement by Merchant.
24. PERSONAL GUARANTEE
Where indicted in the Account, the individuals whose names and addresses appear as guarantors and who have accepted to be guarantors hereunder through the Site or by other means (collectively, the "Guarantor") hereby unconditionally, jointly and severally, guarantee Merchant’s performance and satisfaction of all the covenants, representations and warranties set forth in the Agreement. Boonli may collect amounts owing to it hereunder from Guarantor without exhausting its remedies against Merchant.
Notices. Any notice, demand, request or other communication required or permitted to be given under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested or other recognized courier, facsimile or by email: to Boonli at the address set forth above; to Merchant at the address provided therefore upon registration with the Site; or to such other address as either party may have previously indicated to the other in writing in accordance with the foregoing. Any such notice, request, demand or communication shall be deemed to have been received on the day it was delivered personally, or on the fifth (5th) day following mailing, unless there is a disruption of any kind of postal service.
Independent Contractor. Neither party has any right to create any obligations on the part of the other party, without the other's prior written consent. Nothing in this Agreement or the course of dealing of the parties shall be construed to constitute the parties hereto as partners, joint ventures or as agents or employees of one another or as authorizing either party to obligate the other in any manner.
On-Line or Written Formation of Contract. By acceptance of the terms hereof on-line by Merchant or by execution of a written acceptance of the terms hereof by Merchant, this Agreement together with any supplemental agreements and appendixes constitute the entire validly legally binding agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. Merchant agrees to receive communication under this Agreement by electronic means through the Account or by email to the address indicated for Merchant in the Account. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
Amendments to this Agreement. From time to time Boonli will post amendments or revisions to this Agreement, including, without limitation, amendments to Fees, on the Site. Boonli will provide notice of these amendments or revisions to Merchant through the Site. If the amendment or revision is required in order to Boonli and the Services to remain in compliance with applicable laws or payment processor regulations, then the amendment or revision shall take effect as of when it is posted to the Site. If, on the other hand, the amendment or revision is not required under law or by a payment processor of Boonli, and Merchant does not close its Account within thirty (30) days of notice on the Site of the amendment or revision, then the Merchant shall be deemed to have accepted the amendment or revision. Other than as provided in this section, this Agreement may not be amended except by express consent of both parties through the Site or by such other means as Boonli may reasonably prescribe.
Assignment. Merchant may not assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Boonli which consent may be withheld for any reason, at Boonli's sole discretion. Boonli may assign any of its rights or obligations hereunder without prior notice or consent of Merchant. Any assignment hereof not in accordance with this provision shall be null and void.
Successors. This Agreement and the provisions hereof shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
Escheatment. If, for whatever reason, Boonli is unable to contact a Merchant to complete a Transaction for their benefit, then Merchant shall retain title in such unsettled funds, but after ten (10) months, Boonli reserves the right to remit the amount thereof to government authorities responsible for taking possession of lost property in the jurisdiction of the Merchant or that of Boonli.
Enforcement. The Merchant shall be liable for and shall indemnify and reimburse Boonli for any and all reasonable attorneys’ fees and other costs and expenses paid or incurred by Boonli in the enforcement of this Agreement, or in collecting any amounts due from Merchant hereunder, or resulting from any breach of any of the terms or conditions of this Agreement.
Remedies. All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
Severability. If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
Governing Law and Choice of Forum. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the Judicial Arbitration and Mediation Services ("JAMS"), before a single arbitrator mutually agreed to by the parties. If an arbitrator has not been selected by the parties by the sixtieth (60th) day following the demand for arbitration, the arbitrator shall be selected by JAMS. The parties consent to the judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, however, should adequate grounds exist for Boonli seeking immediate injunctive or immediate equitable relief, Boonli may seek and obtain such relief without the necessity of posting bond. The parties hereby consent to the exclusive jurisdiction in the state and Federal courts of or in the State of California for purposes of seeking such injunctive or equitable relief as set forth above. The parties acknowledge and agree that, in connection with any such arbitration and regardless of outcome, (a) each party shall pay all of its own costs and expenses, including without limitation its own legal fees and expenses, and (b) joint expenses shall be borne equally among the parties. Notwithstanding the foregoing, the arbitrator may cause the losing party to pay to the winning party (each as determined by the arbitrator consistent with its decision on the merits of the arbitration) an amount equal to any reasonable out-of-pocket costs and expenses incurred by the winning party with respect to such arbitration (as may be equitably determined by the arbitrator).
Claims. No legal action of any kind arising out of this Agreement may be brought by Merchant against Boonli if the event giving rise to said legal action occurred more than one (1) year before the legal action is commenced. To the extent permitted by law, the parties agree to waive their rights to a jury trial or class action.
Customer Support. Questions, comments or requests submitted to Boonli customer service department shall be handled via telephone or email correspondence.
Whole Agreement. References to "this Agreement" include any Account Fees, schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by Boonli and furnished to Merchant from time to time. This Agreement replaces any earlier versions hereof appearing on the Site or otherwise.
The following terms shall have the meanings indicated below:
"Account" means an account made available to a Merchant through which Merchant can transmit instructions or receive information in relation to the Services;
"ACH Consent" means consent by the Merchant permitting Boonli to initiate debits and credits from the Merchant Deposit Account by ACH in the form set out in Schedule "A" below. Where the ACH Consent is granted electronically, the Merchant Deposit Account shall be defined as per the information inputted by the Merchant into its Account profile on the Site;
"ACH" means Automated Clearing House payment transaction;
"Affiliate" means, in relation to a Person, another Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person's principal partners, shareholders, or owners of some other ownership interest.
"Applicable Law" means, with respect to any Person, any domestic or foreign, federal, state, provincial or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, judgment, decree or other requirement of any Governmental Entity which is legally binding and applicable to such Person or any of its Affiliates or any of their respective properties, assets, equity holders, officers, directors, members, partners, employees, consultants or agents;
"Application" means the paper or online application completed by Merchant when applying for the Services all of which is incorporated herein by reference;
"Boonli End User Terms of Service" means an agreement between Boonli and a Customer pursuant to which Customer can initiate a payment to Merchant and access information related thereto;
"Boonli Platform Terms of Service" means an agreement between Boonli and Merchant pursuant to which the Merchant can create and access records related to the Services;
"Confidential Information" means all proprietary, secret or confidential information or data relating to Boonli and any of its Affiliates, operations, employees, independent sales organizations, agents, products or services, clients, customers or potential customers, Merchants, users or merchants. Confidential Information shall include, without limitation, Merchant lists, all Merchant agreements and all parts thereof, financial or other data in any format, computer access codes, instruction and/or procedural manuals, payroll information, human resource or personnel information, business strategies, software, documentation and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by law. Should Confidential Information be required to be disclosed by Merchant, Merchant shall promptly and before complying with required disclosure notify Boonli, so that Boonli may seek appropriate remedies or protective orders. Within thirty (30) days of disclosing information to Merchant, Boonli may indicate to Merchant that said information forms part of the Confidential Information. In order for Merchant to perform hereunder, Boonli will be obliged to disclose to Merchant certain Confidential Information concerning the Services and Business;
"Customer" or "End User" means a parent or Person who wishes to make a payment to a Merchant through the Services pursuant to the Boonli End User Terms of Service;
"Deposit Account" means a bank account of Boonli maintained in its capacity as an agent of a Merchant for the purpose of accepting payments on behalf of Merchant;
"Fees" means those amounts for which Merchants are liable to pay in consideration of the Services;
"Governmental Entity" means any federal, provincial, state or local or foreign government or any court, arbitrator, administrative or regulatory agency or commission or other governmental authority or agency;
"Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress, works of authorship, inventions, discoveries and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
"Invoice" means an electronic document that represents an amount owing from a Customer to a Merchant for which the Merchant wishes to receive payment by way of the Services;
"Merchant Deposit Account" means a bank account of the Merchant designated by the Merchant in the Application, through the Account or in the Service Fee Letter as the account into which Transaction amounts should be deposited and from which liabilities of Merchant to Boonli are to be debited;
"Merchant Relationship" means the agreement or other relationship between a Merchant and a Customer pursuant to which the Merchant provides products or services to a Customer evidenced by an Invoice;
"Merchant" means a Merchant who wishes to receive payment from a Customer through the Services and is identified in the Application or on the cover page of this Agreement;
"Person" is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity;
"Product" means any product or service for sale by Merchant for which Merchant wishes to receive payment through the Services;
"Prohibited Activity" means the operation of or the direct or indirect facilitation of any of the following adult or adult-related services, including escort services, adult massage, or other adult-entertainment services; adult performers or adult webcam services; any act that is illegal in the united states or in the jurisdiction where the person carrying out the activity is resident, domiciled or located; bath salts and herbals; betting, including lottery tickets, casino gaming chips, off-track betting, memberships on gambling-related internet sites and wagers at races; bill payment services; buyers or discount clubs; cigarettes, tobacco or e-cigarettes; credit counseling or repair agencies; credit protection or identity theft protection services; digital goods including digital currency; direct marketing or subscription offers; inbound or outbound telemarketing businesses including lead generation businesses; infomercial sales; internet, mail or telephone order pharmacies or pharmacy referral services; items that encourage, promote, facilitate or instruct others to engage in illegal activity; items that may be counterfeit including, but not limited to: designer handbags, clothing and accessories, and consumer electronics; items that may infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; items that promote hate, violence, racial intolerance, or the financial exploitation of a crime; items that promote, support or glorify acts of violence or harm towards self or others; legal fees including bankruptcy attorneys; live animals; medical equipment; multi-level marketing businesses (MLM); obscene or pornographic items; payment aggregators; prepaid phone cards or phone services; purchase, sale or promotion of drugs, alcohol, or drug paraphernalia, or items that may represent these uses; real estate or motor vehicles; rebate based businesses; sales of money-orders or foreign currency; up-sell merchants; using the Services as a means to transfer funds between bank accounts held in the same name; using the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation and other proprietary rights and data collection and privacy; using the Services in a manner that Boonli or any payment card network reasonably believes to be an abuse of the payment card system or a violation of payment card network rules; using the Services in any manner that could damage, disable, overburden, or impair Boonli including without limitation, using the services in an automated manner; using the Services in violation of the terms of this Agreement, as reasonably determined by Boonli; using the Services that in any way assists Merchant or others in the violation of any law, statute or ordinance; using the Services to collect payments that support pyramid or ponzi schemes, matrix programs, other "business opportunity" schemes or certain multi-level marketing programs; using the services to control an account that is linked to another account that has engaged in any of the foregoing activities; using the Services to defame, harass, abuse, threaten or defraud others, or collect, or attempt to collect, personal information about users, registered recipients, or third parties without their consent; using the Services to intentionally interfere with another user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code; using the Services to make unsolicited offers, advertisements, proposals, or to send junk mail or spam to others; using the Services to provide Customer with a cash advance from Customer’s own credit card or to help others to do so; using the Services to send or receive what Boonli considers to be funds for something that may have resulted from fraud or other illegal behavior; using the Services while impersonating any person or entity or falsely claiming an affiliation with any person or entity; or weapons including replicas and collectible items; weight loss programs; wire transfer money orders;
"Receipt" means a Merchant receipt delivered by Merchant or Boonli to a Customer of Merchant that serves as proof of payment of a Transaction amount by the Customer to the Merchant, by way of the Services;
"Services" means the service of Boonli acting as an agent of a Merchant for the purpose of: (i) informing Customers of the Merchant concerning how Transactions may be completed for the benefit of the Merchant; (ii) serving as an agent of the Merchant for the purpose of accepting payment from Customers; and (iii) serving as an agent of Merchant to deliver receipts to Customers for payment to Merchant by way of Transactions;
"Site" means www.boonli.com;
"Transaction" means an actual or attempted payment transaction by a Customer to Merchant by way of the Services.
27. Contacting Boonli
If Merchant has any questions concerning this Agreement, please contact Boonli through the contact information set out on the Site.