Last updated: Thursday, 4th April, 2023
By executing an order form that incorporates by reference this Merchant Master Services Agreement (respectively, the "Order Form" and "MSA", and together the "Agreement"), the entity that executes and enters into such Order Form ("Merchant," "you," or "your") accepts and agrees to be bound by the terms of this MSA as of the effective date of the initial Order Form (the "Effective Date") entered between Binkey Inc., a Delaware corporation (“Binkey,” “we,” “us,” or "our") and the Merchant.
1.1 Order Forms.
Each Order Form will include a description of the services to be provided under the terms of this Agreement, costs associated with such services, additional payment terms, and additional unique terms in relation to the scope covered under the Order Form. To the extent there are any direct and irreconcilable conflicts between the provisions in the Order Form and this MSA, the provisions under the Order Form will prevail for services and the scope covered under such Order Form.
1.2 Services and Access.
Subject to the terms and conditions of this Agreement, including payment obligations, Binkey grants Merchant a non-exclusive, non-transferrable (except as expressly permitted under this Agreement), revocable (under the terms of the Agreement) right during the term of this Agreement to access and use within the United States solely for Merchant's internal business use in order to manage the Binkey's offerings and services, such as Binkey Pay and Binkey Burse, ordered under an Order Form (the "Binkey Offerings") as integrated into Merchant's ecommerce site ("Merchant Site"): (a) Binkey's online Binkey for Business Portal (the "Portal") by Merchant and the individuals whom Merchant grants permissions to access the Portal ("Authorized Users"); (b) the API or plug-in, as applicable, used to implement the Binkey Offerings onto the Merchant Site ("API"); and (c) the Documentation (as defined below). The Binkey Offerings, access to the Portal, API, and Documentation, and any other services provided for in the Order Form are collectively referred to as the "Services" under this MSA.
1.3 Payment Processing.
Where provided for in the Order Form, and as part of our Services, we may provide Merchants with payment processing services, including, without limitation, Health Benefit Account payment processing services, on Merchant Site. All funds transfers are provided by our third-party payment processor(s) (“Payment Processor(s)”), as Binkey does not receive, hold, or transmit funds. “Health Benefit Account” means a tax advantaged account designed to help purchasers of Merchant's products ("Purchasers") cover a range of out-of-pocket health expenses.
Merchant acknowledges and agrees that Binkey's payment processing services will be subject to Binkey's policies ("Binkey Policies") in relation to payment processing and reviews, and third-party terms and policies such as terms set by the Payment Processor and a Purchaser's bank and plan administrator ("Third-Party Terms and Policies") with respect to Purchaser's payment and payment method. These Binkey Policies and Third-Party Terms and Policies may include terms and policies surrounding processing fees, insufficient fund or overdraft fees, eligible expenses, processing and clearing times, review and audit of high-risk payments, payment suspensions, and payment denials. Merchant agrees to cooperate with any such reviews or directions provided by Binkey (such as to delay or cancel shipping of a product) where a payment by a Purchaser is under review or needs to be cancelled due to being flagged as high-risk, violates Binkey Policies or Third-Party Terms and Policies, or to comply with applicable laws.
Binkey does not endorse or assume any responsibility for a Payment Processor, a Purchaser's bank or plan administrator, Health Benefit Account, or any other third-party (collectively and individually, "Third-Party(ies)"), including such Third-Party's websites, information, materials, products, content, or services ("Third-Party Materials"). Merchant's access to a Third-Party Material whether linked from the Services or otherwise, is at Merchant's own risk, and Merchant understands that this Agreement and Binkey’s Privacy Notice do not apply to Merchant's use of such Third-Party Materials. Merchant expressly releases Binkey from any and all liability arising from Merchant's use of any Third-Party Material. Additionally, Merchant's dealings and interactions with Third Parties found on the Service are solely between Merchant and such Third Party.
2.1. Account Registration
Use of and access to the Portal and related Services by Merchant requires registration of accounts on the Portal ("Account(s)"). In registering for Accounts, Merchant agrees to and ensure its Authorized Users: (a) provide true, accurate, current, and complete account information; and (b) maintain and promptly update the account information to keep it true, accurate, current, and complete.
2.2. Account Maintenance
Merchant is responsible for all activities that occur under its and its Authorized Users' Accounts and for maintaining the confidentiality all Account passwords and information. Merchant shall immediately notify Binkey of any unauthorized use of the Account, Account passwords, or other breach of security related to the Services upon its knowledge. Binkey is not and will not be liable for any loss or damage arising from failure by Merchant and its Authorized Users to manage their Accounts, including failure to safeguard passwords or credentials. Merchant and its Authorized Users may control their user profile and how they interact with the Portal by changing the settings in the My Account page. By providing Binkey its email address Merchant and its Authorized Users consent to Binkey using the email address to send Merchant and its Authorized Users Services-related notices, including any notices required by law, in lieu of communication by postal mail. Binkey may also use the email address provided to send other messages, such as changes to features of the Services and special offers. If Merchant or its Authorized Users do not want to receive such email messages, they may opt out of receiving such email messages by clicking on the “unsubscribe” link in the email message. Opting out may prevent Merchant or the Authorized User from receiving email messages regarding updates, improvements, or offers.
2.3. Usage Restrictions
Merchant shall use and ensure its Authorized Users use the Services provided therewith in accordance with the terms of this Agreement and any user manuals, specifications, policies, and guidelines relating to the Services provided to Merchant for use ("Documentation"). Merchant shall not and ensure its Authorized Users do not engage in any of the following prohibited activities: (a) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (b) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the Binkey servers than a human can reasonably produce in the same period of time by using a conventional on- line web browser (except that Binkey grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (c) transmitting spam, chain letters, or other unsolicited email; (d) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (e) taking any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load in our infrastructure; (f) uploading invalid data, viruses, worms, or other software agents through the Services; (g) collecting or harvesting any personal information, including account names, from the Services; (h) impersonating another person, misrepresenting your affiliation with a person or entity, conducting fraud, or hiding or attempting to hide your identity; (i) interfering with the proper working of the Services; (j) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; (k) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; (l) modify, adapt, translate, create derivative works of, rent, lease, loan, distribute, or license the Services, in whole or in part; (m) transfer, loan or otherwise provide the Services, or access to the Services, to any third party; (n) modify, translate, reverse engineer, decompile, or otherwise attempt to access the source code form of the Services or attempt to discover underlying algorithms or techniques; or (o) use the Services in violation of any laws, regulations; (p) access the Services to build a competitive product or service, or copy any ideas, features, functions, graphics of the Services; (q) remove or obscure any proprietary or other notices contained in the Services; (r) disclose to any third party the results of any benchmark tests or other evaluation of the Services; (s) violate any third-party intellectual property or other rights in its use of the Services, including but not limited to violating U.S. export control laws; or (t) authorize or enable any third parties to do any of the foregoing.
2.4. Purchaser Relationship
Merchant understands and agrees that Binkey is a service provider to Merchant solely to the extent provided under this Agreement, and Merchant is solely responsible for its relationship with its Purchasers, including but not limited to the provision and delivery of Merchant's products and services to Purchasers, customer and technical service to its Purchasers, and handling of any Purchaser complaints, returns, and refund policies.
2.5. Restricted Goods and Services
Merchant shall not, without Binkey’s prior written consent, use the Services to sell any Restricted Goods or Services, and Binkey reserves the right to prohibit the use of the Services to sell such goods or services. “Restricted Goods or Services” means goods or services which Binkey considers, in its sole discretion, to be dangerous, inappropriate for the Services, or high risk, for example, but not in limitation, (a) goods or services that are illegal under applicable law (i.e., goods or services that infringe third- party intellectual property, including without limitation counterfeit goods and pirated content); (b) inherently dangerous goods, including without limitation illegal drugs or derivatives thereof, cannabidiol products and nutraceuticals, psychoactive substances, equipment to facilitate drug use, weapons, ammunition, explosive materials and fireworks, instructions for making explosives or harmful products, or tobacco products; (d) pornographic materials; (e) products that enable dishonest behavior, including without limitation hacking software or instructions, fake documents, and academic cheating products; (f) without limiting the foregoing, any goods or services which are prohibited by law to be sold to customers under 18 years of age; and (g) gift cards.
2.6. Service Location
The Services are controlled and operated from facilities in the United States. Binkey makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
3.1 Monitoring
During the term of this Agreement and for a reasonable period thereafter, Binkey has the right, but not the obligation, to monitor and audit Merchant and its Authorized User's usage of and logs in the Services, including the Portal, as necessary to verify Merchant's compliance with the terms of the Agreement. Merchant agrees to provide and ensure its Authorized Users provide reasonable cooperation in such audits where requested by Binkey.
3.2 Suspension
Binkey may temporarily suspend Merchant and any Authorized User's access to any portion or all of the Services if Binkey reasonably determines or suspects that: (a) there is a threat or attack on any of the Services; (b) Merchant or any Authorized User's use of the Services disrupts or poses a security risk to the Services or to any other customer or vendor of Binkey; (c) Merchant or any Authorized User is using the Services in violation of this Agreement, including but not limited to the Usage Restrictions herein; (d) Binkey's provision of any of the Services to Merchant or any Authorized User as contemplated under this Agreement becomes prohibited by applicable law; (e) Merchant is delinquent in its payment obligations; or (f) any Account information provided by Merchant or its Authorized Users is or becomes untrue, inaccurate, not current, or incomplete. Binkey shall use commercially reasonable efforts in providing written notice of any suspension to Merchant and to provide updates regarding resumption of access to the Services following any suspension. Binkey shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the suspension is cured. Binkey will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Merchant any Authorized User may incur as a result of a suspension under this section.
Merchant shall pay to Binkey all fees and any expenses as specified in the applicable Order Forms. Except as provided otherwise in the applicable Order Form: (a) all fees shall are payable upon receipt of invoice; and (b) all payments are non-refundable. All amounts payable are exclusive of applicable taxes (e.g., sales, use, or value-added tax), unless otherwise stated, and Merchant is solely responsible for the payment of any such taxes that may be imposed on its use of the Services or in making any payments to Binkey. Binkey may, in its sole discretion, apply a late fee for any invoice not paid within the specified payment terms. The late fee is calculated as 1.5% of the outstanding amount, or the maximum rate allowed by law, whichever is lower, applied and compounded monthly. In the event Binkey pursues collection of any invoice not paid within the specified payment terms, Merchant will reimburse all reasonable third-party costs and fees incurred by Binkey in connection with such collection activities.
5.1. Binkey's Ownership
The Services, including the Portal, Binkey Offerings, Documentation, API, and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, and copyrights (the “Binkey Content”), and all intellectual property rights related thereto, are the exclusive property of Binkey and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Binkey Content. Use of the Binkey Content for any purpose not expressly permitted by this Agreement is strictly prohibited. Binkey reserves all rights not expressly granted herein in the Services and the Binkey Content.
Merchant and its Authorized Users may choose to or Binkey may invite Merchant or its Authorized Users to submit comments or ideas about the Service, including without limitation about how to improve the Service or Binkey's products (“Feedback”). Merchant understands and agrees that its and its Authorized Users' disclosures are gratuitous, unsolicited and without restriction and will not place Binkey under any fiduciary or other obligation, and that Binkey is free to use the Feedback without any additional compensation to Merchant or its Authorized Users, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Merchant further acknowledges that, by acceptance of the Feedback, Binkey does not waive any rights to use similar or related feedback or ideas previously known to Binkey, or developed by its employees, or obtained from sources other than by Merchant or its Authorized Users.
By submitting or otherwise making available any data (“Merchant Data”) through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Binkey a royalty-free, sublicensable, non-exclusive, license to use, reproduce, modify, distribute, syndicate, and make derivative works of all such Merchant Data, in whole or in part, and in any form, media or technology, whether now known or hereinafter developed, for use in connection with the Service and to create and compile deidentified and aggregated data.
Please note that by creating a User Account and providing Merchant and its Authorized User's phone numbers, the Authorized User is consenting to receive autodialed or prerecorded calls and text messages from Binkey at the telephone number(s) provided to Binkey. Binkey may place such calls or texts to (i) help keep the User Account secure through the use of two-factor authentication; (ii) help access the User Account when the Authorized User has forgotten its password; or (iii) as otherwise necessary to service the User Account or enforce this Agreement, Binkey's policies, or applicable law.
9.1. Scope and Definition.
"Confidential Information" means non-public, proprietary, and confidential information of the disclosing party, such as trade secrets, performance data, designs, features, layouts, configurations, processes, formulae, specifications, programs, test results, technical know-how, methods, and procedures of operation that, if disclosed in writing or other tangible form is clearly labeled or identified as 'confidential,' 'proprietary,' or the like, or would reasonably be deemed confidential due to the nature of the information; provided, however, Confidential Information does not include information that the receiving party can prove: (a) the receiving party knew at the time of disclosure, free of any obligation to keep it confidential, as evidenced by written records; (b) is or becomes generally publicly known through authorized disclosure; (c) is independently developed by individuals who have not had access to the such Confidential Information and without the use thereof as evidenced by written records; or (d) the receiving party has rightfully obtained from a third party who has the right to transfer or disclose it.
9.2. Protection of Confidential Information
Each party acknowledges that the other party claims the Confidential Information as a special, valuable and unique asset. Neither party shall use the other party's Confidential Information, nor permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement. Each party shall use the same degree of care to protect the Confidential Information as it would use with respect to its own information of like importance that it does not desire to have published or disseminated, but in any event no less than reasonable care.
9.3. Permitted Disclosures
Except where it receives the other party's prior written consent, each party agrees not disclose to any third party the other party's Confidential Information except as expressly provided for in this Agreement. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's affiliates and its and their employees, officers, directors, professional advisers, and contractors who: (a) have a need to know of such Confidential Information to assist such party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement; (b) are made aware of the Confidential Information's confidential or proprietary nature; and (c) are bound by a written or professional obligation to protect such Confidential Information. Additionally, the receiving Party may disclose the necessary terms and transactions under this Agreement to its prospective and actual investors who are under a written obligation to protect the Confidential Information as contemplated herein for the sole purpose of evaluation and due diligence. The receiving party shall be responsible to the disclosing party for any breach of these confidentiality obligations by any of the receiving party's affiliates and its and their employees, officers, directors, professional advisers, contractors, and prospective and actual investors to whom the disclosing party's Confidential Information was disclosed by the receiving party.
9.4. Compelled Disclosures
The receiving party may disclose the other party's Confidential Information to the extent, in the opinion of its counsel, is required by law or court order to be disclosed; provided, however that at the time of receipt of any such notice or order and, where legally permissible, prior to making any disclosure, the party subject to such disclosure requirement will use reasonable efforts to provide notice to the other party of the receipt of such order and notice and the scope of disclosure to be made, and reasonably cooperate with the other party for it to seek a protective order or other remedy.
10.1. Personal Information
Neither party shall sell, publish, or share Personal Information received from the other party under this Agreement with any third party (except to its subcontractors performing a party's obligations under this Agreement), nor use the Personal Information for any purpose other than: (a) to fulfill its obligations and exercise its rights provided for under this Agreement; (b) to otherwise comply with laws and as may be required by government authorities; or (c) as may be otherwise instructed or permitted in writing by the originating Party. "Personal Information" as used herein means personally identifying information or information that could reasonably be used to identify an individual: (x) as defined under the applicable data privacy laws as 'personal information', 'personal data', 'personally identifiable information', 'non-public personal information', or the like; and (y) is provided by a party (whether of its employees or of its customers, contractors, or vendors) to the other party under this Agreement.
10.2.Safeguards and Compliance
Each party represents and warrants that: (a) it uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of the other party's Confidential Information, including Personal Information and other sensitive information and data; (b) it has the right to provide any and all Personal Information that is being provided to the other party under this Agreement; and (b) the provision of its data and information, including Personal Information, does not violate law, or a third party's rights to privacy. Each party agrees to provide prompt written notice to the other and reasonable cooperation in case the other party's information or data in its possession or control undergoes or is reasonably suspected to have undergone a security breach.
10.3.Protected Health Information
If either party will be providing the other with access to Protected Health Information (as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)) in the course of providing or receiving the Services, parties agree to: (a) enter into a Business Associate Agreement ("BAA"), which BAA shall be entered under and made part of this MSA; and (b) comply with the requirements of HIPAA as amended by the Health Information Technology for Economic and Clinical Health Act, as incorporated into the American Recovery and Reinvestment Act of 2009.
This Agreement will remain in full force and effect beginning on the Effective Date until either: (a) all Order Forms entered hereunder have expired or been terminated in accordance with the terms of the applicable Order Forms; or (b) the Agreement has been otherwise terminated under the provisions of this MSA.
Merchant agrees to defend, indemnify and hold harmless Binkey and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (a) Merchant and its Authorized Users' use of and access to the Service; (b) Merchant Data; (c) Merchant's or its Authorized Users' violation of this Agreement, including without limitation your breach of any of the representations and warranties or Usage Restrictions; (d) Merchant's violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (e) Merchant's violation of any applicable law, rule or regulation; or (f) Merchant's gross negligence or willful misconduct.
13.1 Mutual
Each party represents and warrants that: (a) it has full capacity and authority and all necessary licenses, permits and consents to enter into and to perform its obligations under this Agreement; and (b) its performance of obligations and exercise of its rights under this Agreement will be in compliance with applicable laws.
13.2 Disclaimers.
EXCEPT AS EXPLICITLY PROVIDED FOR IN THE AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT THE EXTENT EXPLICITLY PROVIDED FOR IN THIS AGREEMENT, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BINKEY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, BINKEY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR AT ALL TIMES SECURE; THAT ALL DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS ENTIRELY FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
FURTHER, BINKEY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND BINKEY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN MERCHANT AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
FURTHERMORE, MERCHANT AKNOWLEDGES AND UNDERSTANDS THAT BINKEY DOES NOT PROVIDE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, NOR IS BINKEY AN EMPLOYEE HEALTH OR WELFARE BENEFIT PLAN OR INSURANCE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BINKEY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL BINKEY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR MERCHANT'S ACCOUNT OR THE INFORMATION CONTAINED THEREIN, SUBJECT TO THE TERMS OF THIS AGREEMENT.
IN NO EVENT SHALL BINKEY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO MERCHANT FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS ARISING OUT OF THIS AGREEMENT IN ANY AMOUNT EXCEEDING THE AMOUNT MERCHANT PAID TO BINKEY HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF BINKEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES MERCHANT SPECIFIC LEGAL RIGHTS, AND MERCHANT MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Upon a party’s receipt of written notice of a dispute under this Agreement, the parties will appoint senior representatives to meet and attempt in good faith to resolve the issues set forth in the dispute notice. If the dispute is not satisfactorily resolved after a meeting by the parties, the parties may elect to hold further meetings in an attempt to amicably resolve the issue or escalate resolution through non-binding mediation prior to initiating resolution through arbitration. Any dispute relating to this Agreement will be resolved by binding arbitration, rather than in court. The Federal Arbitration Act and federal arbitration law apply to this Agreement. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules. In the event either party initiates non-binding mediation or binding arbitration under this provision, it will provide written notice to the other party of its election to do so. The place of such non-binding mediation or binding arbitration shall be Washington, DC, and Delaware law shall apply. In regards to non-binding mediation, the parties shall select a mutually agreeable mediator and share equally in the costs of the mediation. In regards to binding arbitration, the selection of the arbitrator shall be made in accordance with the AAA rules with the prevailing Party being awarded reasonably attorney fees and costs. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties shall be free to seek equitable remedies, including injunctive relief at any point in any court of competent jurisdiction without first mediating or arbitrating the issue.
16.1. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16.2. Assignment
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Merchant, but may be assigned by Binkey without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
16.3. Force Majeure
Notwithstanding any other provision in this Agreement, neither party shall be liable for any delay or failure to perform hereunder (other than failure to pay money when due) or liable for any loss or damages where such failure is proximately caused by an unforeseen occurrence beyond the control and without the fault or negligence of the party affected and which by exercise of reasonable diligence the said party is unable to prevent or provide against. The parties shall promptly resume performance hereunder after the force majeure event has passed. If the force majeure event in question continues for a continuous period in excess of sixty (60) days, either party will be entitled to give notice in writing to the other party to terminate this Agreement.
16.4. Notification Procedures and Changes to the Agreement
Binkey may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to Merchant via email notice, written or hard copy notice, or through posting of such notice on Binkey's website or the Portal, as determined by Binkey in its sole discretion. Binkey reserves the right to determine the form and means of providing notifications to its users, provided that Merchant may opt out of certain means of notification as described in this Agreement. Binkey is not responsible for any automatic filtering Merchant or Merchant's network provider may apply to email notifications Binkey sends to the email address Merchant provides to Binkey.
16.5. Modifications and Amendments
Binkey has the right to modify any provision in this MSA at any time, solely with prospective effect, by posting the modified MSA on [] or other page on our website as may be communicated to Merchant (the "URL"). Binkey will provide Merchant with notice of any changes via email at the email address linked to Merchant's Account or through other reasonable means. The modifications shall come into effect thirty (30) days after Binkey notifies Merchant of the changes. Merchant's continued use of the Services more than thirty (30) days after Binkey's notification constitutes Merchant's acceptance of the modified terms of the MSA; provided however, for any modifications that have a material impact on Merchant, Merchant may send a notice of objection to the modification ("Objection Notice") in writing (email to suffice) within such thirty (30) day period, and parties shall make good faith efforts to find mutually agreeable terms related to the proposed modification and enter into a written amendment signed by both parties reflecting the mutually agreed upon terms. Where parties are unable to find mutually agreeable terms and enter into said amendment within forty-five (45) days from your Objection Notice despite both parties' good faith efforts, either party may terminate this Agreement by written notice to the other. Merchant's continued use of the Services more than thirty (30) days after Binkey notifies Merchant of the modifications as provided for in this section without sending an Objection Notice during such thirty (30) days constitutes Merchant's acceptance of the modified MSA. Merchant may access a copy of the current MSA on the URL. The Merchant can find when the MSA was last changed by checking the “Last Updated” date posted at the beginning of the MSA. Except as stated above, no other amendment to the MSA or this Agreement shall be valid unless such amendment is made in writing and is signed by the authorized representatives of the parties. Any changes to the terms of an Order Form mut be made in writing and signed by authorized representatives of both parties. The foregoing does not limit Binkey's right to make changes to its product or services offerings, programs, or other operational changes, including providing updates to its Services, which impacts all or substantially all users or similarly situated customers of Binkey. Where Merchant notifies Binkey of any material harmful impact or degradation in quality caused by such changes, and Binkey is able to confirm such impact, parties agree to make best efforts to address a workaround.
16.6. Entire Agreement / Severability
This Agreement, including with any amendments and Order Forms that Merchant may enter into with Binkey in connection with the Service, shall constitute the entire agreement between the parties concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
16.7. No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and neither party's failure to assert any right or provision under this Agreement shall constitute a waiver of such right or provision.
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