Boonli will provide the Services to the Merchant for the Term of this Agreement subject to the payment of applicable Fees and compliance with the terms of this Agreement. As part of the Services, Boonli hereby grants to Merchant, during the term hereof, a non-exclusive, non-transferable, non-assignable right to use Services, upon the terms and conditions hereinafter set forth. Such right may not be extended within Merchant’s organization beyond the needs and requirement of Merchant to utilize the Services, without Boonli’s prior written consent. Merchant acknowledges that the Services are cloud-based hosted services and no copies of the Services or Boonli Platform will be delivered to Merchant. The Services shall be used by Merchant solely for its internal business purposes and Merchant acknowledges and agrees that Boonli does not convey any right, title or interest in the Services or Boonli Platform to Merchant. Nothing in this Agreement shall confer or grant to Merchant any Intellectual Property Rights in the Services or Boonli Platform.
Merchant shall not to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code or utilize any expression of the Boonli Platform in other than object code form. Merchant shall not alter or otherwise modify the Boonli Platform.
The Boonli Platform, including its source and object codes, documentation (including all descriptive material concerning the functions and technical specifications of the Boonli Platform, Merchant manuals, technical manuals, and other materials issued to Merchant), appearance, structure and organization, is a proprietary product of Boonli and is protected by copyright and other laws. Title to the Boonli Platform, and any copy, update, modification or merged portion thereof, shall at all times remain with Boonli. Merchant acknowledges that Boonli expressly reserves the entire right, title and interest in and to the Boonli Platform, and retains the exclusive right to reproduce, publish, sell, modify, distribute, prepare derivative programs of, and license to other licensees, the Boonli Platform. Merchant shall not remove any trademarks, proprietary legends, or copyright notices from the Boonli Platform, or reproduce, publish, sell, modify, distribute, prepare derivative programs of, or sublicense the Boonli Platform in any manner.
Merchant shall make no copies of the Boonli Platform, or any component thereof, or any Boonli Platform documentation, for any purpose whatsoever without the prior written consent of Boonli.
The right of Merchant to use the Services shall terminate on any termination of this Agreement or any suspension of the supply of the Services.
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 may not disclose such codes or permit any third party to use them on penalty of forfeiting the whole of the Account. Merchant assumes full responsibility for the use of its Account. From time to time, Merchant will be invited to enter certain preferences and specifications within the Account that will apply to the Services; Merchant assumes exclusive responsibility for such selections even if they contain errors on the part of the Merchant or cause losses to the Merchant. Except as required to deliver the Services or as otherwise required by law, 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 password or access code to a third party. This notification must be made to Boonli and confirmed by certified 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 certified letter. While Boonli may take action based on other communication methods, only the date of receipt of the certified letter will be required to be recognized by Boonli.
3. Maintenance and Service Changes
Boonli shall use commercially reasonable efforts to ensure smooth operation of the Services for the duration of this Agreement. Boonli shall not, however, have any liability whatsoever to Merchant in the event of any failure or bugs in the Services, or interruptions of the Services. When made aware either by Merchant or otherwise, of any error, anomaly, malfunction or bug, Boonli shall respond in the manner it determines to be appropriate, or decide to not respond, in its sole discretion.
During the term of the Agreement, Boonli shall maintain, update or replace the Services and the Site in such a manner as it determines to be appropriate. Boonli may, but has no duty to, provide new Service versions for Merchant to correct errors, improve, develop or adapt the existing version and adding new functions and features.
Merchant expressly agrees that Boonli does not have the obligation to provide any specific developments or error corrections in the Services or any such future developments or corrections separately, even if specific developments are provided and used in connection with specific Services.
4. Collection, Use, Storage and Disclosure of Personal Information
Merchant shall use commercially reasonable efforts to operate its business in a manner that provides security for Data. Merchant assumes exclusive responsibility for ensuring the security of Merchant Systems and Data. Merchant shall immediately notify Boonli of any actual or suspected breaches in the security of Data, whether in Merchant Systems or third party systems. Where applicable, Merchant shall comply with Payment Card Industry Data Security Standards, ("PCI DSS") and other Rules, such as they are from time to time. Boonli is not liable for the operation or failure of Merchant Systems or those of any third party, including but not limited to banks, processors, issuers, hosting services, internet service providers and other Third Party Servicers. Merchant will not operate its Merchant System in a manner that does not meet the security requirements of Third Party Servicers.
6. 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). Merchants who breach this clause shall, at the discretion of Boonli be subject to Account Termination with Cause.
7. 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 who have procured services from Boonli and have been terminated for cause by Boonli.
Merchant shall use the Services only in conjunction with good faith Merchant Transactions and not for Transactions for or on behalf of third parties. Merchant shall review Transactions and promptly notify Boonli of any irregularities or actual or suspected unauthorized activity. In order to carry out Transactions, Merchant shall collect only such Data as is necessary for such Transactions, as per requirements of the Third Party Servicer and shall only collect, store or disclose such information in accordance with applicable laws.
Merchant acknowledges that under this Agreement Boonli offers no guarantee as to the financial or other results of any Transaction all of which are the sole and exclusive responsibility of Merchant under its agreements with Third Party Servicers and other third parties. Boonli makes no representation or warranty as to the accuracy or completeness of any Transaction or other Data all of which is the responsibility of Merchant. Boonli is under no obligation to monitor the content of Data to, for example, detect fraud by individual Merchants, Merchant customers or Third Party Servicers.
9. Merchant Customer Relationships
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.
Merchants shall pay Fees for use of the Services. Boonli offers various Fees depending on the Service options selected by the Merchant. Following initial registration of Merchant on the Site, Boonli shall provide Merchant with a service fee letter detailing the applicable Fees, billing scenarios and invoicing procedures applicable to Merchant (the "Service Fee Letter"). Once accepted by Merchant and Boonli, the Service Fee Letter forms part of this Agreement. Merchant shall pay Fees and other amounts owing to Boonli within fifteen (15) days of the date of the invoice which Boonli provides to Merchant. All fees and costs are non-refundable. 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 the lower of 18% per annum, or the maximum amount allowed by law.
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").
Fees are exclusive of all taxes, levies or duties imposed by any national, federal, state or local taxing authorities. Merchant shall be solely responsible for payment of all such taxes. 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.
Fees shall be paid as per the payment methods that are acceptable to Boonli and integrated with the Account by Merchant and Boonli. Where Merchant fails to pay Fees to Boonli under this Agreement or is otherwise liable to Boonli hereunder, Merchant grants Boonli the right to ACH the amount of the Fees, plus other amounts from the Merchant Deposit Account as per the ACH Consent (set out below).
Merchant agrees to maintain sufficient funds in Merchant Deposit Account to cover the ACH transactions hereunder.
Costs related to any other service 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 may be separately invoiced at the discretion of Boonli. No such additional services shall be conducted unless the terms and conditions for providing such services have been agreed to in writing by both parties.
11. 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 Fees or any other sums owed 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.
12. 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 do 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 shall 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. Merchant shall 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 and regulations, including but not limited to all laws and regulations applicable in each jurisdiction where the Product is sold. Merchant shall not use the Services to sell or promote or otherwise facilitate any Prohibited Activities. Merchant will not use the Services to assist in the illegal sale, import or export of goods or services.
Solely for Business Purposes. Merchant shall use the Services exclusively for business purposes or in the course of carrying on an organized economic activity, whether for profit or otherwise.
Opportunity to Consult Counsel. It 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.
Latest Version Only. Merchant shall promptly install any and all upgrades, bug fixes and other improvements to the Services, such as they may be from time to time.
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.
Merchant shall defend, indemnify and hold harmless Boonli, its directors, officers, employees, agents, assigns, processors, banks, suppliers 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 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 Merchant’s agents and/or employees; (iii) any statements, claims, representations or warranties made by Merchant or Merchant’s agents and/or employees, relating to the Products or any other matter; (iv) Merchant’s provision or, or failure to provide Product; (v) the Merchant Relationship; (vi) acts or omissions of Customers; (vii) Merchant relationship with any Third Party Servicers or any other third party; (viii) any and all tax liabilities associated with the sale of Product, regardless of which party has a legal duty to collect and remit the same; (ix) use of the Account; (x) any vendor to Merchant; (xi) 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; (xii) responding to requests for Customer Data or Merchant information by third parties including but not limited to subpoenas or court orders for the same; and (xiii) Transactions or other financial transactions of Merchant or Customers.
14. 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 (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, provided that Merchant shall be liable to Boonli for all Fees or other liabilities that accrued prior to or following termination notwithstanding any termination hereof. Boonli can terminate or suspend performance hereunder at any time for no reason or for any reason without prior notice or consent to Merchant. 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 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.
Discontinuance. Boonli reserves the right to suspend or discontinue the Service at any time at its sole discretion without liability or penalty hereunder.
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.
16. LIMITATION OF LIABILITY
THE SERVICES ARE 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 SERVICES 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.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BOONLI, ITS SUPPLIERS, AGENTS AND LICENSORS, SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO MERCHANT OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF BOONLI HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT AS REQUIRED BY LAW, 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.
Boonli shall use its commercially reasonable efforts to perform its obligations hereunder, however, Boonli, its Affiliates, agents or licensors shall not be liable for any loss resulting from the activities of Merchant, nor from any erroneous statements or errors in transmission, nor 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.
Boonli does not represent or warrant that the Service suits Merchant’s or its Customers’ needs. In addition, in the event of any failure of the Service, or in the event Boonli otherwise defaults under any provisions of this Agreement, then Merchant’s sole and exclusive remedy shall be termination of this Agreement and, to the maximum extent permitted under applicable law, Merchant hereby waives and relinquishes any and all other rights or remedies it may have at law or in equity.
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. 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 for 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. Notwithstanding the foregoing, Boonli reserves the right, without any prior notice or consent, to change the method of access to Services or the Account.
Non-Disparagement. Neither party with publish negative statements concerning the other party during the Term of this Agreement. Merchant shall not use the names, logos or marks of Boonli other than as expressly permitted by Boonli.
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 endure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
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.
Publicity. Any publicity by either party, including but not limited to press releases, shall be subject to the prior written approval of both parties. Boonli may include Merchant in its public list of customers. Merchant authorizes Boonli to display its logo and include “Powered by Boonli” on Merchant Customer interface to the Services.
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.
“Account” means an account made available to a Merchant through which Merchant can transmit instructions or receive information in relation to the Services;
“ACH Consent” means the consent of Merchant to carry out debits and credits on the Merchant Deposit Account set out in Section 11;
“ACH” means Automated Clearing House payment transaction;
“Acquiring Bank” means a bank or financial institution that has a relationship with a Processor that has agreed to evaluate and provide merchant account and payment authorization services to Merchant;
“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.
“API” means application programming interface;
“Application” means the paper or online application completed by Merchant when applying for the Services all of which is incorporated herein by reference;
“Boonli Data” means information concerning Services or provided to Merchant by Boonli through the Account or otherwise;
“Boonli Payment Service Terms” means one or more agreements between Boonli and Merchant or a third party concerning the Boonli Payment Services;
“Boonli Payment Services” means various payment services provided under Boonli Payment Service Terms, such as the are from time to time, none of which are provided under this Agreement;
“Boonli Platform” means a cloud-based system operated by Boonli that allows Merchant to access their Account and initiate Transactions;
“Boonli” has the meaning set out in the preamble of this Agreement;
“Card” means a credit card, debit card, prepaid card or other payment card or representation thereof that is issued by a bank or financial intuition that is a member of a Payment Network and that has authorized the Card for use on such Payment Network;
“Cardholder” or “Customer” means a Person who wishes to carry out a Card payment Transaction with Merchant for which Merchant wishes to use the Services;
“Customer Data” means any and all non-public personal information of Customers related to Transactions, such as for example, Card information;
“Data” means Merchant Data or Boonli Data;
“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 such Merchant;
“Equipment” means any point of sale or other equipment used by the Merchant to collect or transmit Transaction information;
“Fees” means those amounts for which Merchants are liable to pay in consideration of the Services, such as they are from time to time;
“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;
“Laws” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction;
“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 form which Fees can be debited;
“Merchant Relationship” means the agreement or other relationship between a Merchant and a Customer where either wishes to make use of the Services in relation thereto.
“Merchant Site” means the web site(s) used by the Merchant to solicit Customers or accept Transactions;
“Merchant System” means computer systems used by Merchant to manage Data or the Merchant’s business;
“Merchant” means the merchant that has accepted this Agreement, as identified in an Application, on the Site, in the Account or by other means acceptable to Boonli;
“Payment Network” means Visa U.S.A., Inc., Visa International, Inc., MasterCard International, Inc., and any other credit or debit card issuing company whose cards are processed by Acquiring Bank;
“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 or provided by Merchant;
“Prohibited Activity” means the operation of or the direct or indirect facilitation of any of the following any act that is illegal in the united states or in the jurisdiction where the person carrying out the activity is resident, domiciled or located; bath salts and herbals; betting, including lottery tickets, casino gaming chips, off-track betting, memberships on gambling-related internet sites and wagers at races; bill payment services; buyers or discount clubs; cigarettes, tobacco or e-cigarettes; credit counseling or repair agencies; credit protection or identity theft protection services; digital goods including digital currency; direct marketing or subscription offers; inbound or outbound telemarketing businesses including lead generation businesses; infomercial sales; internet, mail or telephone order pharmacies or pharmacy referral services; items that encourage, promote, facilitate or instruct others to engage in illegal activity; items that may be counterfeit including, but not limited to: designer handbags, clothing and accessories, and consumer electronics; items that may infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; items that promote hate, violence, racial intolerance, or the financial exploitation of a crime; items that promote, support or glorify acts of violence or harm towards self or others; legal fees including bankruptcy attorneys; live animals; medical equipment; multi-level marketing businesses (MLM); obscene or pornographic items; payment aggregators; prepaid phone cards or phone services; purchase, sale or promotion of drugs, alcohol, or drug paraphernalia, or items that may represent these uses; real estate or motor vehicles; rebate based businesses; sales of money-orders or foreign currency; up-sell merchants; using the Services as a means to transfer funds between bank accounts held in the same name; using the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation and other proprietary rights and data collection and privacy; using the Services in a manner that 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 Merchants, registered recipients, or third parties without their consent; using the Services to intentionally interfere with another Merchant’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;
“Rules” means the rules and regulations of Payment Networks, such as they may be from time to time;
“Services” means the service of a real-time, secure data transmission and data processing for multiple business-to-customer payment methods including Cards;
“Site” means www.boonli.com;
“Third Party Servicer Agreement” means an agreement between Merchant and a Third Party Servicer concerning the supply of Third Party Services;
“Third Party Servicer Services” means the services of Third Party Servicers pursuant to Third Party Servicer Agreements, which might, at the discretion of Merchant and the Third Party Servicer, include payment processing, emoney issuing or other payment and related services;
“Third Party Servicer” means (i) a third party; (ii) Boonli, which, in each case, is also party to a Third Party Servicer Agreement with Merchant;
“Transaction” means information transmitted or attempted to be transmitted by way of the Services and includes authorization, delayed capture, sale, void, voice authorization, inquiry, verification, reference transaction, non-reference credit, or credit data transmission between you, Boonli and a Third Party Servicer.