Platform Terms of Use
This platform terms of use agreement (the “Agreement”) is entered into as of the date of acceptance of these terms (the “Effective Date”) between Argense, a Canadian corporation (“Argense”) and the entity accepting this agreement through the site Argense.com or otherwise the (“Client”) accepting this Agreement. Capitalized terms in this Agreement are defined in the Glossary at the end of this Agreement if not otherwise defined in the provisions below.
1. Platform Services.
Argense will use its commercially reasonable efforts to perform its obligations hereunder and provide the Platform Services to Client, subject to Client’s payment of the Platform Services Fees due hereunder and compliance with the terms and conditions of this Agreement. The Platform Services shall be provided in accordance with the Platform Service Specifications set out in the client dashboard. As an element of the Platform Services, Argense hereby grants to Client, during the term hereof, a non-exclusive, non-transferable right to use the Platform, on the terms and conditions of this Agreement. The Platform and Platform Services shall be used by Client and Client Customers solely for Client’s own business purposes and for Client Customer’s own personal or business purposes (as it relates to an individual or business Client Customer) and not for or in relation to any business or personal activity of any other Person.
Any customizations completed hereunder by Argense for Client (each, a “Customization”) shall be part of the Platform Services and governed in accordance herewith. Any Customization not already set out in the Platform Services Specifications shall be agreed upon in advance in a writing between the parties.
Client shall not decompile, reverse engineer, or otherwise seek or utilize any expression of the Platform Services in other than in object code form. Client shall not alter or otherwise modify the Platform Services.
As a condition of Client’s right to use the Platform hereunder, Client hereby grants to Argense the right to audit, inspect and review all of Client’s records regarding the Platform and Platform Services during ordinary business hours and upon reasonable notice.
Client’s right to use the Platform shall terminate on any termination of this Agreement. Further, Argense reserves the right to terminate Client’s right to use the Platform upon any suspension of the supply of the Platform Services to Client.
2. Service Limitations.
Argense shall be responsible for the provision of the Platform Services only and shall not provide any Financial Services or Marketing Services to Client hereunder. All Financial Services, including but not limited to financial accounts and e-wallets, are provided by the Financial Services Provider, who is separate and unrelated to Argense. All balances held within the Financial Services are held by the Financial Services Provider. The processing of payments for transactions between Client and Client Customers, if any, shall be governed pursuant to separate Financial Services Provider Agreements between Client and its Financial Services Providers, such as they may be from time to time. Further, Client may, at its sole discretion, enter into separate Third-Party Servicer Agreements with businesses offering Marketing Services or other services relative to its Product, none of which shall be binding on Argense.
Notwithstanding the provision of Servicer Agreement Assistance, Argense makes no representations or warranties about the suitability or qualifications of any other Third-Party Servicer, the quality of their services or products, their ability to perform under any Third-Party Servicer Agreement with Client, any minimum quantity or quality of internet traffic or sales by Client as a result of the Marketing Services, or any other matter related to such Third-Party Servicer and expressly disclaims all such representations and warranties. Any decision by Client to enter into a Third-Party Servicer Agreement shall be made in Client’s sole discretion after Client’s independent review of such Third-Party Servicer Agreement and any investigation of such Third-Party Servicer that Client deems appropriate in its sole and independent judgment.
In the event Client elects to enter into any Financial Services Provider Agreement or any Third-Party Servicer Agreement, such contracts shall be solely between Client and the Financial Services Provider or Third-Party Servicer identified therein, on terms acceptable to the Client and the Financial Services Provider or Third-Party Servicer, as applicable. Unless and only to the extent that Argense is expressly identified as a party thereto, Argense shall have no responsibility or liability for the terms therein or the performance of any services or any party thereunder. Further, Argense offers no opinion as to the legality or enforceability of the terms of any Financial Services Provider Agreement or Third-Party Servicer Agreement. Argense is not responsible for the failure of any Third-Party Servicer Agreement or Financial Services Provider Agreement to yield their expected results nor for the performance, non-performance, representations, misrepresentations, negligence, willful misconduct, or any other acts or omissions of any Third-Party, such as, for example, Financial Services Provider or Third-Party Servicer. Argense is also not party to the Client’s Product transactions or the relationship between Client and Client Customers and accepts no liability for such transactions or relationship.
3. Intellectual Property Rights.
The Argense Marks, Platform, Platform Services, and the Site including related source and object codes, documentation (including all descriptive material concerning the functions and technical specifications thereof, user instructions, technical manuals, and other materials issued to Client), appearance, structure and organization are, without limitation, all proprietary products of Argense. Title to the Argense Marks, Platform, Platform Services, and the Site, and any copy, update, modification or merged portion thereof, shall at all times remain with Argense. Client shall not use the Argense Marks without Argense’s prior written consent, which consent may be given or withheld in Argense's sole and absolute discretion.
The Argense Marks, Platform, Platform Services, and the Site are protected by copyright, trade secret and other Intellectual Property Rights. All Intellectual Property Rights relating to the Argense Marks, Platform Services, and the Site shall be and shall remain the property of Argense. Neither this Agreement, nor Client’s access to or use of the Argense Marks, Platform, Platform Services, or the Site, or any part thereof, grants or confers to Client any right, title or interest in the Argense Marks, Platform, Platform Services, or the Site other than the limited right of use granted herein.
Client acknowledges that Argense retains the exclusive right to reproduce, publish, sell, modify, distribute, prepare derivative programs of, grant to other users the right to use, and license the Argense Marks, Platform, Platform Services, and the Site. Client shall not remove any trademarks, proprietary legends, or copyright notices from the Platform, Platform Services, or the Site, or reproduce, publish, sell, modify, distribute, prepare derivative programs of, or grant to any Third-Party the right to use the Argense Marks, Platform, Platform Services or the Site in any manner.
Client shall make no copies of the Argense Marks, Platform Services or the Site, or any component thereof, or any documentation related thereto, for any purpose whatsoever without the prior written consent of Argense, which consent may be withheld in Argense's sole and absolute discretion.
Argense reserves all rights not expressly granted to Client in this Agreement.
4. Collection of Information.
In furtherance of its performance of the Platform Services, Argense reserves the right to request from Client such information and documentation as Argense may require, including, without limitation, information and documentation regarding Client, its beneficial owners, Client’s past transactional information, payment methods used, and Client’s other business and financial information. Such information and documentation may be used initially by Argense to determine which potential Financial Services and/or Third-Party Services may be offered to Client, subject to completion and acceptance of additional Application materials as may be required by potential Financial Services Providers and/or Third-Party Servicers. On instruction from Client, Client’s information and documentation collected by Argense in respect of the Platform Services will be shared with Argense Affiliates and/or potential Third-Party Servicers or Financial Services Providers.
Client understands that, in connection with the Platform Services, Argense may conduct background investigations which may include obtaining credit reports on Client. Client hereby authorizes Argense now, or at any time while it is party to this Agreement, to conduct background investigations and obtain a credit report on Client.
Upon three (3) days written notice at any time, Client agrees to furnish Argense such financial statements and financial information as Argense may request relating to the Client, Client’s creditworthiness and/or the Client’s ability to fulfill its financial and other obligations under this Agreement or any other agreement it has with Argense.
5. Account.
So long as Client is not in breach of this Agreement or any other agreement Argense has with Client, Client shall be granted a unique and private Account accessible through the Platform. The Account shall be a record of Client Data, certain Third-Party Servicer Agreements accepted by Client, and certain Third-Party Servicer Fees. Argense shall provide Client with access codes for the Account. Client may not disclose such codes or permit any Third-Party to use them on penalty of forfeiting the Account. Client shall immediately notify Argense of any actual or suspected disclosure of or unauthorized access to Client’s access codes or the Account. Client assumes full responsibility for the use of its Account and the access codes thereto.
From time to time, Client may be invited by the Platform Services to select preferences and specifications within the Account that will apply to the Platform Services. Further, Client will have the opportunity to select the services of other Third-Party Servicers and may accept their Third-Party Servicer Agreements through the Platform Services. Client assumes exclusive responsibility for all such selections even if they contain errors on the part of the Client or cause losses to the Client. Client acknowledges that using the Account for Servicer Agreement Assistance may result in Client entering into legally binding agreements with third parties for which Argense has no liability. Except as required to deliver the Platform Services or as otherwise required by law, Argense shall not grant any Third-Party access to the Account of Client.
Client’s right to use the Account shall terminate on any termination of this Agreement unless otherwise permitted by Argense. Further, Argense reserves the right to terminate Client’s right to use the Account upon any suspension of the supply of the Platform Services to Client.
6. Security.
Client shall operate its business and manage access to the Account in a manner that provides security for Data. Client shall immediately notify Argense of any actual or suspected breaches in the security of Data, whether in Client systems or Third-Party systems. Client shall use commercially reasonable efforts to maintain Client’s System in a manner that adheres to customary security standards, such as they are from time to time. Client will not operate its system in a manner that does not meet the security requirements of its Financial Services Providers.
Argense shall use commercially reasonable efforts to operate its systems in a manner that adheres to customary security standards, such as they are from time to time.
7. Prohibited Activities.
It is forbidden for a Client to use the Platform Services to, directly or indirectly, knowingly or unknowingly assist in any illegal activity or any Prohibited Activity which can be found at www.argense.com/legal/aup.html. On any breach of this prohibition by Client, Argense may, at its sole discretion, terminate this Agreement or the Account with cause and without prior notice to or consent from Client.
8. Prohibited Clients.
The following Persons are prohibited from using the Platform Services: (i) Persons who appear on the United States (“U.S.”) Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN); (ii) Persons who appear on any of the lists reflected on the U.S. Department of Commerce Bureau of Industry and Security Lists of Parties of Concern (http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern); (iii) Persons who appear on the United Nations Consolidated Sanctions List; (iv) Persons who appear on the United Kingdom Financial Conduct Authority List of Prohibited Individuals; (v) Persons who appear on the Canadian Anti-Terrorism Act, Listed Entities; (vi) Persons who appear on the Hong Kong Monetary Authority List; (vii) Persons who appear on the Sky Net Wanted published by the Chinese government; (viii) Persons who are less than 18 years of age; and (ix) Persons, or their Affiliates who have been subject to an Account termination with cause.
9. Third-Party Servicer Marketing Services.
Certain Third-Party Servicers may offer Marketing Services. Where permitted by a Third-Party Servicer and where selected by Client, Client may, at its discretion, use the Platform Services to deliver information for such Third-Party Servicer to use in performance of Marketing Services, such as, for example, Client Marks, Banners, Buttons and other internet advertising content (“Marketing Materials”). Client states that it has all necessary Intellectual Property Rights to use the Marketing Materials and engage a Third-Party Servicer to do the same, and such activity shall not infringe any Third-Party Intellectual Property Rights. Argense has no duty to review and shall have no liability with respect to Marketing Materials or the use thereof, all of which shall be governed exclusively pursuant to the Third-Party Servicer Agreement, to which Argense shall not be a party. Notwithstanding the foregoing, in the event that Argense observes any Marketing Material to be in actual or potential violation of Third-Party Intellectual Property Rights, illegal or manifestly offensive, it reserves the right to remove it from the Client’s Platform Services upload, without penalty or liability hereunder. As between Argense and Client, the form and content of all such Marketing Materials shall be exclusively in the control of Client, and Client shall comply and shall be responsible for its selected Third-Party Servicer’s compliance with all Applicable Laws and Rules in the collection, use, storage, creation, modification, use and distribution of the same. Argense shall not be responsible for any aspect of Marketing Materials, Marketing Services, Marketing Services success, or the performance of any Third-Party Servicer providing Marketing Services.
10. Platform Services for Client Data Transactions Only
Client shall use the Platform for only good faith Client Data Transactions and Client Customer Data Transactions. Client shall review Client Data Transactions and its Account frequently and shall promptly notify Argense of any irregularities or actual or suspected unauthorized activity. In order to carry out Client Data Transactions, Client shall collect only such data as is necessary for such Client Data Transactions, as determined by Client’s Financial Services Provider or Third-Party Servicer, and shall only collect, store or disclose such information in accordance with Applicable Laws and Rules and a privacy policy that is posted on the Client website.
11. Platform Services Fees.
Client shall pay Platform Services Fees to Argense for use of the Platform Services. The Platform Services Fees are outlined in the client dashboard. In the event Client and Argense are unable to agree upon the Platform Services Fees, this Agreement shall immediately terminate, and no Platform Services shall be provided hereunder.
Platform Service Fees are due immediately, when incurred, and are non-refundable, except as otherwise agreed by Argense. Platform Services Fees are subject to change as per the terms of this Agreement. Platform Services Fees that are not paid to Argense when due, following a notice requesting payment, will accrue interest of 1.5% per month or the maximum amount allowed by Law, whichever is less, starting on the day after they were due. Client is liable for all taxes that may apply to the Platform Services Fees.
Client shall direct Financial Services Provider to settle the whole amount of Platform Services Fees due to Argense, and other amounts owing to Argense hereunder, directly to Argense by way of off-sets from settlements otherwise payable to the Client by Financial Services Provider. At the discretion of Argense, Client shall establish a Client Deposit Account from which Client authorizes Argense to debit, by means of ACH and/or wire transfer, or such other means as the Client Deposit Account will permit, all Platform Services Fees and all other amounts due from Client in conjunction with this Agreement. If Platform Services Fees due to Argense and other sums owed to Argense by Client are not paid by offsets from settlements from the Financial Services Provider, Client agrees to maintain sufficient funds in Client Deposit Account to cover debit transactions hereunder. If Client fails to maintain sufficient funds in the Client Deposit Account, Client shall immediately, on demand, pay Argense all sums owed, including any fees relating to rejected transfer attempts. By accepting this Agreement, Client states that it has authority to agree to such transactions and that the Client Deposit Account identified by Client is a valid and legitimate account for the handling of these transactions. The authorization to debit the Client Deposit Account shall remain in effect until Argense receives written notice from Client revoking it. Client also certifies that the appropriate authorizations are in place to allow Client to authorize this method of payment. Notwithstanding any revocation of Client’s authorization to debit the Client Deposit Account, Client remains liable for and shall timely pay all Platform Services Fees and other sums due to Argense hereunder and pursuant to any Addendum and in accordance with the terms herein. All changes to the identification of the Client Deposit Account must be made in writing in accordance with the Agreement. Client understands that if any of the information supplied as to the Client Deposit Account is incorrect, Client will be responsible for the error and the results thereof and, where available, will be billed for any rejected transfer attempts and will be billed at Argense’s current hourly rate for work associated therewith. Client acknowledges that the origination of all transactions on the Client Deposit Account must comply with the provisions of Applicable Laws and Rules.
12. Third-Party Servicer Fees
Client shall authorize its Financial Services Provider to share payment transaction information of Client with Argense, as Client Data Transactions. Client shall direct its Financial Services Provider, and authorizes Argense, as its agent, to deliver Client Data Transactions that direct its Financial Services Provider, to settle the fees applicable under Third-Party Servicer Agreements directly to such Third-Party Servicer identified by Client, as offsets from any settlement funds payable to Client its under its Financial Services Provider Agreement with such Financial Services Provider. Client hereby directs Argense to obtain from each such Third-Party Servicer such information as is necessary to calculate and cause the Financial Services Provider to split Client settlements to pay such Third-Party Servicer Fees. Argense shall not have any liability for the payment of any Third-Party Servicer Fees.
Client shall not permit its Financial Services Provider to make payments to any Third-Party Servicer if Platform Services Fees have not first been paid by Client; Client instructs Argense to deliver Client Data Transactions to Client’s Financial Services Provider to adhere to such rule.
13. Client Representations and Warranties.
Client hereby warrants and covenants to Argense that:
a) Duly Constituted.
Client is a business carrying on an organized economic activity for profit or otherwise and, if it is not an individual acting in a business capacity, it is duly constituted under the laws of its constituting jurisdiction. Further, Client has legal capacity to enter into this Agreement and perform its obligations hereunder. Client is registered as a business in every jurisdiction where it carries on business and such registration is required.
b) Duly authorized.
Client has the necessary corporate power and authority to execute or otherwise accept this Agreement and to perform its obligations hereunder. Such execution and performance by the Client 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 Client is subject to.
c) Truthful Information
Client shall not provide Argense or any Third-Party Servicer with any information that is incorrect or incomplete. Neither the Application, if any, nor any Client Transaction Data contains, nor shall they contain any information that is false or misleading.
d) Notice of Defects.
Client will immediately advise Argense and Client’s Customers in writing of defects in the Product or any claim or threatened claim against it in relation to the Product.
e) Compliance with Applicable Laws and Rules.
The Product, Client’s advertising and marketing of the Product (whether performed or published by Client or a Third-Party Servicer on behalf of Client), the sale of the Product, and Client Site conform and shall continue to conform to all Applicable Laws and Rules in the jurisdictions where Argense, Client and its Client Customers are located, the Product is advertised for sale, and the Product is sold. Client 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 and Rules, including but not limited to all laws and regulations applicable in each jurisdiction where the Product is sold. Client shall not use the Platform Services to sell or promote or otherwise facilitate any Prohibited Activities. Client will not use the Platform Services to assist in the illegal import or export of goods or services.
f) Solely for Business Purposes.
Client shall use the Platform Services exclusively for business purposes and not as an individual for personal purposes.
g) Opportunity to Consult Counsel.
Client has had the opportunity to consult legal counsel for the purpose of reviewing and obtaining advice as to the terms hereof.
h) Argense Not Liable for Product.
Client assumes all responsibilities and liabilities associated with its Product. Argense assumes no liability for any Product.
14. Indemnification.
In addition to any other indemnifications included herein, Client shall defend, indemnify and hold harmless Argense and its Affiliates and their respective owners, directors, officers, employees, agents, licensors, suppliers, assigns and successors in interest (the “Argense Indemnified Parties”) from and against any and all liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys’ fees and expenses) (collectively “Liability”) arising from or directly in indirectly related to (i) Client’s and any other Person’s use of the Account and the access codes thereto, (ii) any breach of any warranty, covenant or agreement by Client under this Agreement or other failure of Client to comply with its obligations under this Agreement; (iii) Client’s performance under this Agreement including, without limitation, performance, non-performance, or defect in performance, any statement, misstatement, representation or misrepresentation made by Client or any representative of Client; (iv) the alleged or actual negligent or willful acts or omissions of Client, Client’s agents, employees and/or Affiliates; (v) any statements, claims, representations or warranties made by Client or Client’s agents, employees and/or Affiliates, relating to the Product or any other matter; (vi) Client’s operation of its business including, without limitation, the Client Site; (vii) any act or omission by or claim by any Financial Services Provider, Third-Party Servicer, or other Person with respect to Client or its Product; (viii) any Financial Services Provider Agreement or Third-Party Servicer Agreement; (ix) Client’s Product transactions, the relationship between Client and Client Customers, any claims of Client Customers; (x) all Client Data Transactions; and (xi) taxes on any Product; and (xii) the Product itself.
Argense shall indemnify and hold Client harmless from and against liabilities arising from a breach of its obligations of confidentiality hereunder or a security breach in its systems.
15. Term and Termination.
a) Term.
This Agreement shall begin on the Effective Date and shall end when terminated by either party in accordance with the provisions herein.
b) Termination.
Either party may terminate this Agreement if the other party is in material breach hereof and such breach remains uncured for thirty (30) days following notice thereof. Argense can terminate this Agreement or suspend performance hereunder at any time for any reason or for no reason with or without prior notice to Client. Client shall have the right to terminate this Agreement at any time, with or without cause, by giving Argense at least ninety (90) days prior written notice. Client shall be liable to Argense for all Platform Services Fees due Argense and other liabilities that accrued prior to or following termination notwithstanding any termination hereof. Argense shall not be liable for any losses incurred by Client on account of any termination hereof.
c) Procedure upon Termination.
Upon any termination of this Agreement, Client shall no longer be entitled to use the Account or any of the Platform Services except in limited circumstances and subject to Argense’s approval. All provisions regarding indemnification, representations, warranties, liability and limits thereon and confidential information shall survive termination, and termination of this Agreement shall not relieve Client of its obligations to pay accrued Platform Services Fees or other liabilities to Argense hereunder. All such Platform Services Fees and other liabilities shall be paid by Client to Argense immediately following termination. Client shall bear the whole of its costs associated with any termination, including but not limited to finding a substitute supplier of services similar to those of Argense. Argense reserves the right to permanently delete all Client Data and other Client information in Argense systems on any termination of this Agreement except as expressly set forth herein.
d) Discontinuance.
Argense reserves the right to discontinue the Platform Service at any time.
16. Confidentiality.
Each party acknowledges that it may directly or indirectly disclose Confidential Information to the other party in the course of negotiation and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other Third-Party if applicable), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat the disclosing party’s Confidential Information with the same degree of care and security as it treats its most confidential information, but in no event with less than a reasonable degree of care. Each party may disclose the disclosing party’s Confidential Information to employees and agents who require such knowledge to perform under this Agreement provided such employees and agents have agreed to abide by the confidentiality provisions set forth herein. Argense may, at its discretion, share any Client Confidential Information with any Argense Affiliate in order to facilitate their fulfillment of their obligations under any agreement they may have with Client. 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.
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 or customers. Confidential Information, to be such, must be of a nature that it is reasonably expected to be kept confidential. Confidential Information shall include customer lists, pricing information, computer access codes, instruction and/or procedural manuals, software, APIs, Data, 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: (i) is already known to the receiving party free of any restriction at the time it is obtained; (ii) is subsequently learned from an independent Third-Party free of any restriction and without breach of this Agreement; (iii) becomes publicly available through no wrongful act of the receiving party; (iv) is independently developed by the receiving party without reference to any Confidential Information of the other; or (v) is required to be disclosed by law. Without limitation, Argense Data shall be Confidential Information of Argense. Client grants Argense permission to collect and use Client Confidential Information during and following the term of this Agreement for statistical and fraud reduction purposes.
17. DISCLAIMERS AND LIMITATION OF LIABILITY.
THE PLATFORM SERVICES ARE PROVIDED ON AN "AS-IS", "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ARGENSE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, MADE TO MERCHANT OR ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE PLATFORM SERVICES PROVIDED BY ARGENSE OR THAT THE OPERATION OF THE PLATFORM SERVICES WILL BE INTERRUPTION OR ERROR FREE.
ARGENSE SHALL NOT BE LIABLE FOR (I) ACTS OR OMISSIONS OF ANY THIRD-PARTY SERVICER, FINANCIAL SERVICES PROVIDER, MERCHANT, MERCHANT AGENTS OR ANY OTHER THIRD PARTIES, ERRORS IN TRANSMISSION; (II) ANY LOSS RESULTING FROM ANY DELAY, INTERRUPTION OR FAILURE TO PERFORM HEREUNDER DUE TO ANY FORCE MAJEURE EVENT; (III) ANY DECISION BY ARGENSE TO TERMINATE THIS AGREMEENT OR SUSPEND PERFORMANCE HEREUNDER; OR (IV) THE DECISION OF ANY FINANCIAL SERVICES PROVIDER OR THIRD-PARTY SERVICER TO NOT ACCEPT MERCHANT AS A CLIENT, SUSPEND SERVICES TO MERCHANT OR TERMINATE THEIR AGREEMENT WITH MERCHANT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ARGENSE, ITS AFFILIATES, AND THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND LICENSORS, SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO MERCHANT OR ANY THIRD-PARTY OR ANY OTHER PERSON UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR ANY LOSS, THEFT, DISAPPEARANCE, OR DAMAGE TO MERCHANT DATA, EACH OF WHICH IS HEREBY EXPRESSLY EXCLUDED BY AGREEMENT OF MERCHANT, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ARGENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS REQUIRED BY LAW, IN NO EVENT SHALL ARGENSE’S CUMULATIVE LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO MERCHANT, OR ANY THIRD-PARTY, IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT EXCEED THE PLATFORM SERVICES FEES ACTUALLY PAID TO ARGENSE BY MERCHANT DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
IN NO EVENT WILL MERCHANT COMMENCE ANY ACTION, SUIT OR PROCEEDING AGAINST ARGENSE FOR ANY LIABILITY, DAMAGES, LOSSES, CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION MORE THAN TWELVE (12) MONTHS FOLLOWING THE DATE UPON WHICH MERCHANT BECAME OR SHOULD REASONABLY HAVE BECOME AWARE OF THE SAME.
18. General.
a) Assignment.
Argense may assign this Agreement and/or may delegate its duties hereunder, in whole or in part, to any Third-Party at any time without notice to Client or Client’s consent. Client shall not assign this Agreement or transfer or delegate any of its rights and responsibilities under this Agreement, nor grant any Third-Party access to its Account, without Argense's prior written consent, which consent may be withheld in Argense’s sole and absolute discretion. Any transfer of voting control of Client or Client’s parent shall be considered an assignment or transfer of this Agreement. Any assignment of this Agreement other than as provided herein shall be null and void. Failure to obtain Argense’s consent under this provision may, at the discretion of Argense, result in a termination of this Agreement. Any permitted assignee or successor entity must provide such additional information and execute such additional documentation or take any further actions as Argense may request. No assignee for the benefit of creditors, custodian, receiver, trustee in bankruptcy, debtor in possession, or other person charged with taking custody of Client’s assets or business shall have any right to continue, assume or assign this Agreement.
b) Parties.
This Agreement binds Client and its respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.
c) Severability.
Should any provision of this Agreement be determined to be invalid or unenforceable under any law, rule, or regulation, such determination will not affect the validity or enforceability of any other provision of this Agreement.
d) Waivers.
No term or condition of this Agreement may be waived except pursuant to a written waiver executed by the party against whom such waiver is sought to be enforced. Argense’s waiver of Client’s breach of any term or condition of this Agreement shall not be deemed a waiver of any subsequent breach of the same or another term or condition.
e) Entire Agreement.
This Agreement represents the entire understanding between Client and Argense with respect to the matters contained herein and supersedes any prior agreements between the parties. Client agrees that in entering into this Agreement it has not relied on any statement of Argense or its representatives.
f) Notices.
Except as otherwise provided in this Agreement, all notices must be given in writing. If to Client, notices may be (i) delivered by courier; (ii) sent by mail, postage prepaid, to Client’s address provided by Client in the Account; or (iii) sent to the e-mail address provided by Client in the Account. If to Argense, notices shall be delivered by courier or sent by mail for delivery in Canada, postage prepaid to the address appearing below or to such other address as Argense may from time to time specify to Client as set forth herein:
Argense: Argense Corporation
5890 Monkland Avenue, Suite 16
Montreal, QC H4A 1G2, Canada
Notices shall be deemed to have been given (i) if sent by mail, upon the earlier of ten (10) days after mailing or when actually received or, in the case of courier, when delivered, and (ii) if sent by email, when sent provided no “undeliverable” message was received. Notices sent to Client’s last known address (including e-mail address), as indicated in the Account as of the date notice was dispatched, shall constitute effective notice to Client under this Agreement.
g) Governing Law; Waiver of Jury Trial; Arbitration.
This Agreement will be governed by and construed in accordance with the laws of the Province of Quebec without reference to conflict of law provisions. Any action, proceeding, arbitration hearing or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in Montreal, Quebec, Canada and will be conducted in English.
PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT EACH CLAIM OR LIABILITY SHALL BE RESOLVED BY BINDING ARBITRATION AND THAT (i) MERCHANT IS GIVING UP ITS RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM OR LIABILITY ALLEGED AGAINST ARGENSE OR ITS AFFILIATES; (ii) MERCHANT IS GIVING UP ITS RIGHT TO HAVE A COURT RESOLVE ANY CLAIM OR LIABILITY ALLEGED AGAINST ARGENSE OR ITS AFFILIATES; (iii) MERCHANT IS GIVING UP ITS RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION FILED AGAINST ARGENSE AND/OR ITS AFFILIATES.
If any dispute occurs between the parties relating to the application, interpretation, implementation or validity of this Agreement, the parties agree to seek to resolve the dispute or controversy through mediation with ADR Chambers before pursuing any other proceedings. Nothing herein shall preclude any Party from seeking injunctive relief in the event that the party perceives that without such injunctive relief, serious harm may be done to the party. Any party to the dispute may serve notice on the others of its desire to resolve a particular dispute by mediation. The mediator shall be appointed by agreement between the parties or, if the parties cannot agree within five days after receipt of the notice of intention to mediate, the mediator will be appointed by ADR Chambers. The mediation will be held at Montreal, Quebec, Canada. The Parties agree to attempt to resolve their dispute at mediation. The costs of the mediator shall be shared equally by the Parties. If the dispute has not been resolved within thirty days of the notice of desire to mediate, any party may terminate the mediation and proceed to arbitration as set out below.
Subject to the mediation provisions set out above, if any dispute or controversy occurs between the parties relating to the interpretation or implementation of any of the provisions of this Agreement, the dispute will be resolved by arbitration at ADR Chambers pursuant to the general ADR Chambers Rules for Arbitration. Any party may serve notice of its desire to refer a dispute to arbitration. The arbitration shall be conducted by a single arbitrator who is a practicing commercial lawyer. The arbitration shall be held in Montreal, Quebec, Canada in the English language. The arbitration shall proceed in accordance with the Article 620 and following of Code of Civil Procedure of Quebec. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of the arbitrator shall be divided equally between the parties.
IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, MERCHANT AND ARGENSE MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.
h) Force Majeure.
Argense will not be liable for delays in the delivery of any Platform Services or other non-performance caused by events such as fires, explosion, earthquake, sabotage, accident, embargo, storms, labor strife, riots, war, terrorist attack, non-performance of our vendors or suppliers, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment, acts of God, pandemic, or other causes over which Argense has no reasonable control (“Force Majeure Events”). Argense’s obligations hereunder shall be suspended during any Force Majeure Event, which suspension shall not be a cause for termination of this Agreement by Client.
i) Written Formation of Contract.
Client and Argense consent to the use of electronic signatures on this Agreement. By acceptance of the terms hereof by Client by execution of a written acceptance of the terms hereof by Client, this Agreement together with any Schedules, supplemental agreements, addendums, and appendices constitute the entire valid legally binding agreement between the parties enforceable according to its terms.
j) Amendments to this Agreement.
From time to time Argense may post amendments or revisions to this Agreement, including, without limitation, amendments to its Platform Services Fees, on the Site, by e-mail or through the Account. Argense will provide notice of these amendments or revisions to Client through the Site, by e-mail or through the Account. If the amendment or revision is required in order for Argense and the Platform Services to remain in compliance with Applicable Laws and Rules, then the amendment or revision shall take effect as of when it is posted to the Site, by e-mail or through the Account. If, on the other hand, the amendment or revision is not required under Applicable Law and Rules, and Client does not close its Account within thirty (30) days of notice, as provided above, then the Client shall be deemed to have accepted the amendment or revision and it shall be effective upon any further use of the Platform Services by Client. 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 Argense may reasonably prescribe. Notwithstanding the foregoing, Argense reserves the right, without any prior notice or consent, to change the method of access to Platform Services or the Account. In the event of an emergency, Argense reserves the right to suspend access the Platform Services or the Account.
k) Non-Disparagement.
Neither party will publish negative statements concerning the other party during the term of this Agreement. Client shall not use the Argense Marks other than as expressly permitted by Argense in writing.
l) Relationship Between the Parties.
The parties shall perform their duties under this Agreement as independent contractors. Nothing contained herein will be deemed to create any other relationship between the parties. It is agreed that no party will represent itself to be the joint venturer, co-owner, partner, employer or employee of another party. The parties agree that, except as specifically provided in this Agreement, no party grants any other party the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf of another party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of another party, or to transfer, release or waive any right, title or interest of such another party.
m) Successors.
This Agreement and the provisions hereof shall ensure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
n) Enforcement.
The Client shall be liable for and shall reimburse Argense for any and all reasonable attorneys’ fees and other costs and expenses paid or incurred by Argense in the enforcement of this Agreement, or in collecting any amounts due from Client hereunder, or resulting from any breach of any of the terms or conditions of this Agreement by Client. Argense reserves the right to charge Client for all of Argense’s internal and external costs, fees or expenses incurred in relation to or arising out of any Third-Party request for Customer Data or other Client information including, but not limited to, subpoenas or court orders.
o) Remedies.
All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any particular 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.
p) Interpretation.
The division of this Agreement into sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. In this Agreement, words importing the singular number include the plural and vice versa and words importing gender include all genders.
19. Survival.
Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive and remain in effect in accordance with its terms upon the termination of this Agreement. For greater certainty, but without limitation, the following shall survive termination hereof: 2 Service Limitations, 3 Intellectual Property Rights, 7 Prohibited Activities, 8 Prohibited Merchants, 11 Platform Service Fees, 12 Third-Party Servicer Fees, 13 Merchant Representations and Warranties, 14 Indemnification, 15 Term and Termination (as to procedure on termination), 16 Confidentiality, 17 Disclaimers and Limitation of Liability, 18 General, 19 Survival and 20 Glossary.
Glossary.
The following defined terms are used in this Agreement:
“Account” means an account made available to a Client at the Site, through which Client can perform Client Data Transactions in relation to the Platform Services and provide instructions, information and documentation as may be requested by Argense.
“ACH” means Automated Clearing House payment transaction or an equivalent direct-debit service available within the jurisdiction where Client is located.
“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.
“Applicable Laws and Rules” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal bylaws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction and any applicable payment network rules adopted by Visa U.S.A., Inc., Visa International, Inc., MasterCard International, Inc., and any other credit or debit card issuing company.
“Application” means an electronic or paper application of Argense, if any, completed by Client in conjunction with this Agreement.
“Argense Data” means information concerning the Argense Platform.
“Argense Marks” means the logos, trade names, trademarks, and service marks of Argense.
“Argense Platform” means a system hosted and operated by Argense that allows Client to access the Platform Services and their Account.
“Banners” means run-of-network banner advertisements promoting Client Product, in which a Link is embedded.
“Buttons” means buttons in which a Link is embedded.
“Client” means a Person that has accepted this Agreement with Argense for Platform Services.
“Client Customers” means all Persons who are customers of Client and use the Platform Services.
“Client Customer Data” means information created by or for, transmitted to or from, or made available by or to Client Customer by way of the Platform Services or the Account.
“Client Data” means information created by or for, transmitted to or from, or made available by or to Client by way of the Platform Services or the Account and may include, for example, without limitation, reporting of certain performance indicators in respect of Third-Party Servicer Agreements and Product sales and other information or files related to Marketing Services.
“Client Data Transaction” means the actual or attempted sending or receipt by Client of Client Data or Client Customer Data to or from Argense or a Third-Party through the Platform Services.
“Client Deposit Account” means a bank account of the Client designated by the Client as the account from which Third-Party Servicer Fees can be debited, which may be an account with a Financial Services Provider.
“Client Marks” means Client’s logos, trade names, trademarks, and service marks.
“Client Site” means the web site(s) managed, administered or used by Client or any of its agents or Affiliates to solicit potential Client Customers and/or sell its Product.
“Data” means data related to Client Data, Client Customer Data and Argense Data.
“Effective Date” means the date appearing on the first page hereof.
“Financial Services” means the services of a financial institution. This Agreement does not include the provision of any Financial Services.
“Financial Services Provider” means a provider of Financial Services that is acceptable to Argense, in its sole discretion.
“Financial Services Provider Agreement” means an agreement between Client and a Financial Services Provider concerning the supply of Financial Services to Client.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress 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.
“Link” means a direct hypertext link to a landing page on which Client Product is offered for sale.
“Marketing Services” means the service offered or provided to Client by a Third-Party Servicer (specifically excluding Argense), consisting of promoting Client’s Product to actual or potential Client Customers.
“Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, other forms of entity, 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 thereof, acting in such capacity.
“Platform” means any system, portal, CRM, management system, etc. that Argense licenses or provides access to Client
“Platform Services” means: (i) the collection and transmission of information and documentation provided by Client or Client Customer to be used by a Third-Party Servicer or Financial Services Provider; (ii) the sharing of such information and documentation with Argense Affiliates and/or potential Third-Party Servicers or Financial Services Providers on instructions from Client or Client Customer; (iii) access to Third-Party Servicer Agreements and Third-Party Services; (iv) Servicer Agreement Assistance; (v) the services relating to Client Data; (vi) secure data transmission and data processing between Client, Argense and other Third-Party Servicers; (vii) data transfers with respect to subscription management; and (viii) communication of Client Marks, Banners, Buttons, Client marketing materials, and other information for Client to and from Third-Party Servicers;
“Platform Services Fees” means fees for the Platform Services to be paid by Client as set forth in the client dashboard.
“Program Service Specifications” means technical specifications applicable to the Platform Services as set out in the client dashboard.
“Product" means any product or service offered for sale or provided by Client.
“Prohibited Activity” In conjunction with our Platform Terms of Use, the Acceptable Use Policy (“AUP”) outlines activities that are prohibited or restricted in relation to everyone’s use of Argense’s products and/or services. If you engage in activities that violate the AUP, including activities outside of your use of our services, Argense may, at any time, and without notice, take actions as we deem appropriate. The AUP can be viewed at www.argense.com/legal/aup.html
“Site” means www.Argense.com, or any other site as Argense may use to supply the Platform Services from time to time.
“Third-Party Servicer” means a Person that is acceptable to Argense and Client, in their respective discretions, that supplies Third-Party Servicer Services for the benefit of Client pursuant to a Third-Party Servicer Agreement. On acceptance of this Agreement by Client, Argense shall be a Third-Party Servicer with respect to the Platform Services.
“Third-Party Servicer Agreement” means an agreement between Client and a Third-Party Servicer governing the supply of Third-Party Servicer Services.
“Third-Party Servicer Fees” means those amounts for which Client is liable to pay in consideration of the services provided to Client under Third-Party Servicer Agreements, such as they are from time to time.
“Third-Party Servicer Services” means services of a Third-Party Servicer supplied pursuant to a Third-Party Servicer Agreement which may include, without limitation, assistance in the supply or delivery of Client’s Product, Marketing Services, or assistance in the collection, storage, use and analysis of marketing data, transaction data or other data.