This is the Terms of Use and the Privacy Policy (collectively the “TOU”). Within this document, the term “you” or “End User” refers to the individual end user which has been authorized to use the Terminal Plus product (the “Product”) (and each Merchant as an entity and user of the Product), whereby the terms “we”, “our,” or “us” refers to the developer of the Products, you and developer, each a “Party” and collectively, the “Parties” to this TOU. The “Product(s)” as used in this TOU includes any web properties associated with the Products.

Terms of Use

You are allowed to use this Product only under the following terms (“Terms”):

1. Eligibility. In order to use this Product, you must be at least eighteen (18) years old or have explicit permission from a parent, guardian, employer, or supervisor to agree to this TOU, and provide true, complete, and up to date contact information. By using the Product you represent and warrant that you meet all of the requirements listed above, and that you will not use the Product in a way that violates any Laws, regulations, or this TOU. We may refuse service, close accounts of any users, and change eligibility requirements at any time. For purposes of this TOU, “Law” means all applicable national, federal, state, provincial, and local: (a) Laws (including common law), ordinances, regulations, and codes; and (b) orders, requirements, directives, decrees, decisions, judgments, interpretive letters, guidance and other official releases of any government, authority, department or agency, or any judicial or regulatory (including self-regulatory) organization having authority, oversight jurisdiction or similar power over any of the Parties.

2. Term Period. The Term Period begins when you sign up for an account and continues for as long as you use the Product. In addition, each time you or an authorized End User log into or utilize the Product you've officially accepted this TOU and agreed to be bound by its terms. If you sign up on behalf of another person, you represent and warrant that you have the authority to accept this TOU on their behalf.

3. Closing Your Account. You may terminate your, and any End User’s, use of the Product according to the written agreement you entered into with us (the “Agreement”). We may suspend or terminate the Product from your use in accordance with the Agreement or for a violation or suspected violation of these TOU, or at any time, with or without cause. Once your account is terminated, we may permanently delete it and all of the data associated with it. If you do not log into your account for nine (9) or more months, we may treat your account as "inactive" and permanently delete it and all the data associated with it.

4. Changes. We reserve the right to change any of part of the TOU at any time by posting a revised TOU on our website or within the Product, and/or by sending an email to the last email address you gave us. The new TOU will become effective immediately and apply to any continued or new use of the Product. We may change our website, the Product, or any features of the Product at any time, without prior notice to you.

5. Account Username and Password. You are responsible for keeping the Product and your or any End User’s electronic account usernames and passwords confidential. You are also responsible for the use by any individual of any account that you have access to, whether or not you authorized such use. You will immediately notify us of any unauthorized use of your accounts. We shall not be liable to you or to any third party for any losses due to stolen, hacked, lost, or forgotten usernames and/or passwords. We do not have access to your password, and for security reasons, we shall never request that you divulge your password to us, and may only reset your password.

6. Integration to Third Party Systems / Hardware. We are not responsible for any maintenance, development, or support related to integration of the Product with any third party system. You are solely responsible for obtaining certified hardware or equipment that is approved and enabled for the use of the Product as well as the installation, servicing, and maintenance of such hardware or equipment. You are responsible for ensuring that such hardware or equipment is compliant with software releases or other specifications required by us, as may be modified from time to time in our sole discretion.

7. Rights

   1. Proprietary Rights Owned by Us. You expressly agree to respect our proprietary rights in all components comprising the Product. Proprietary rights include, but are not limited to, any patents, trademarks, service marks, copyrights, trade secrets, trade names, and any other intellectual property.

   2. Proprietary Rights Owned by You. You represent and warrant that you either own or have permission to use all of the material you enter into the Product, including but not limited to, your brand, inventory, content, photographs, push notification messages, and all other information you enter into the Product. You retain ownership of the proprietary materials you upload to the Product. We may use or disclose your materials only as we describe in the TOU, or as required by Law.

8. Aggregation. We may use any of your data in an aggregated format in accordance with this TOU or as otherwise permitted by Law.

9. Privacy Policy. We may access, collect, use, and disclose your information in accordance with the Privacy Policy.

10. Right to Review. We may view, copy, and internally distribute content from your account to create algorithms and programs that help us spot problem accounts, improve the Products, offer additional services to you or to other customers, aggregate data, or for any other lawful purpose.

11. General Rules. You expressly agree to the following rules of use for the Product:

    1. You will not put into the Product any material, including graphics or other content, that is not created by you or that would violate any third party’s copyrights, trademarks, rights of privacy and publicity, trade secrets, patents, or other proprietary or legal rights.

    2. You will not use any misleading or incorrect names, addresses, email addresses, subject lines, or other information using our Product.

    3. You will not upload or compose content that contains or offers any unlawful or illegal goods or services.

    4. You will not share usernames and/or passwords with anyone except authorized End Users.

    5. You will not use this Product in a way that violates any Law.

    6. By using the Product or any corresponding website, you agree and consent to the Privacy Policy, and all information we collect, store, disclose, and share.

    7. You will not try to decipher, decompile, disassemble, or reverse engineer the Product.

    8. You will not import or incorporate Social Security Numbers or sensitive personal information of any kind into the Product.

    9. Any breach of this Section will be considered a material breach of this TOU and may result in immediate suspension or termination of your access to the Product.

12. Compliance with Laws. You represent and warrant that your use of the Product will comply with all applicable Laws and regulations. You are responsible for determining whether the Product is suitable for you to use in light of any regulations that apply to your business. If you are subject to regulations and you use our Product, we are not liable if our Product does not meet those regulation requirements.

13. Reporting Violations. If you become aware that you or any End User is in violation of this TOU, you are required to notify us immediately.

14. Limitation of Liability.

    • IN NO EVENT SHALL WE BE LIABLE TO YOU, OR ANY PERSON OR PARTY SEEKING A CLAIM OR ACTION THROUGH YOU, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, BUSINESS INTERRUPTION, SPECIAL DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF WE OR THE DEVELOPER OF THE SOFTWARE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR DAMAGES RELATED TO OR INCONNECTION WITH THE HARDWARE OR EQUIPMENT UTILIZED IN RELATION TO THE PRODUCT(S). IN ANY CASE, YOU EXPRESSLY AGREE AND UNDERSTAND THAT OUR LIABILITY UNDER THESE TOU SHALL NOT EXCEED THE PREVIOUS ONE (1) MONTH OF FEES PAID BY YOU UNDER THE AGREEMENT.

15. No Warranties. All sales, use, and other tax information are estimates only, may not be accurate, and should not be relied upon for any purpose. You are responsible for the payment of all local, state, and federal taxes, and should consult a tax professional when calculating your taxes. All time clock, time tracking, and wage information are estimates generated by the Product, may not be accurate, and are not to be relied upon in any fashion, whether for internal accounting, payroll, tax, or any other purposes.

    Messages and notifications are for basic informational purposes only and are not intended to be relied upon in situations where such information is needed or where lost, erroneous, inaccurate or incomplete notification may lead to death, personal injury, property or environment damage. We do not guarantee the availability, accuracy, completeness, reliability, or timeliness of any data or information displayed by the Product. Further, we do not guarantee or represent any specific result or outcome as a result of you utilizing the Product in any way.

    THE PRODUCT IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR OBLIGATION TO UPGRADE OR ENHANCE OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (I) ANY IMPLIED WARRANTIES AND CONDITIONS OF ACCURACY, END USER ABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND (II) THAT THE PRODUCT WILL FUNCTION WITH ANOTHER SOFTWARE OR SYSTEM, OR THAT IT WILL FUNCTION UNINTERRUPTED OR ERROR-FREE. WE DO NOT REPRESENT THAT THE PRODUCT WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUS, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND EXPRESSLY DISCLAIM ANY LIABILITY RELATING THERETO.

    WE DO NOT GUARANTEE YOU, AND SHALL NOT BE HELD LIABLE FOR, ANY LOSS OF REVENUE, LEVEL OF EXPOSURE, DOWNLOADS, SALES, SATISFACTION, SUCCESSFUL IMPLEMENTATION, OR INSTALLATIONS WITH RESPECT TO THE PRODUCT.

16. DISPUTE RESOLUTION – ARBITRATION AND CLASS ACTION WAIVER

    NOTE: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND THE RESOLUTION OF DISPUTES

    1. MANDATORY ARBITRATION: ANY AND ALL DISPUTES BETWEEN THE PARTIES, ARISING OUT OF OR IN CONNECTION WITH THESE TOU, SHALL BE FINALLY RESOLVED BY ARBITRATION UNDER THE ARBITRATION RULES OF THE ADR INSTITUTE OF CANADA, INC. IN EFFECT AT THE TIME THE ARBITRATION IS COMMENCED (http://www.adric.ca). Such arbitration will be administered by the ADR Institute of Canada, Inc. The seat of arbitration will be in Toronto, Ontario, Canada, unless the arbitrator determines that justice or fairness requires otherwise. The language of the arbitration will be English. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If the amount of the claim is CA$10,000.00 or less, the arbitration shall be conducted under the simplified procedure rule of the ADR Institute of Canada, Inc. Arbitration Rules. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted that party’s individual claim and, as such, will not affect issues or claims involving any person or entity who is not a party to the arbitration. Any decision rendered in any arbitration proceeding shall be final and binding on each of the parties to the arbitration and judgment may be entered thereon in any court of competent jurisdiction.

    2. Class Action Waiver: THE PARTIES ACKNOWLEDGE AND AGREE THAT ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THESE TOU SHALL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND SHALL NOT BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES. YOU FURTHER AGREE TO WAIVE, AND HEREBY WAIVE, ANY RIGHT YOU MIGHT HAVE TO COMMENCE OR TO PARTICIPATE IN ANY CLASS ACTION OR TO LITIGATE OR ARBITRATE ON A CLASS-WIDE BASIS AGAINST US RELATED TO ANY CLAIM.

    3. Choice of Law. THESE TOU, as well as the Dispute Resolution provisions contained herein, will be governed by and interpreted solely in accordance with the laws of Ontario and the laws of Canada applicable therein, without regard to any conflicts of laws provisions.

    4. Miscellaneous. A court, not the arbitrator, will decide any questions regarding the validity, scope and/or enforceability of this Section Any litigated action (as opposed to an arbitration) regarding, relating to or involving the validity, scope and/or enforceability of this Section 16, or otherwise, shall be brought in the courts of the city of Toronto, province of Ontario, and you expressly agree to the exclusive jurisdiction of such courts. You hereby agree and consent to the personal jurisdiction and venue of such courts, and expressly waive any objection that you might otherwise have to personal jurisdiction or venue in such courts.

17. Indemnity. You agree to defend, indemnify, and hold us harmless from any losses (including attorney fees) that arise in connection with any third party claim or demand against us and all of our damages arising out of, resulting from, or in connection with 1) your breach of these TOU, 2) your, or any End User’s, use of the Products in violation of the terms set forth in these TOU, 3) any hardware or equipment utilized by you in relation to the Products, or 4) your gross negligence or willful misconduct. You also agree to defend, indemnify, and hold us harmless from any losses (including attorney fees) that result from any claims that you or someone using your password or accessing your account behaved in a way that allegedly violated any Law or any of provision of this TOU.

18. Third Parties. We are not responsible for the behavior or accuracy of any advertisers, linked websites, customers or consumers, or other End Users.

19. Equitable Relief. If you breach any of your obligations under these TOU, then we may seek injunctive or other equitable relief.

20. Assignments. You may not assign any of your rights under this agreement to anyone else without our prior written consent. We may assign our rights to any other individual or entity at any time, at our discretion.

21. Force Majeure. We will not be liable for any delay, failure in performance, loss or damages or for any failure of the Product because of circumstances beyond our control. Such circumstances may include, but are not limited to: a natural disaster, act of war or terrorism, riot, labor condition, governmental action, power outage, or internet disturbance.

22. Severability. If any section of these TOU is held to be unenforceable by a court of competent jurisdiction, that section will be removed or edited, and the rest of these TOU will remain in full force and effect.

23. Headings. The headers and sidebar text are provided only to make these TOU easier to read and understand.

24. SMS messages. By using the Product, you agree to receive SMS text messages relating to the Product, Services, our website properties, and other services, products, advertisements, offers, and solicitations offered by our affiliates, customers, from us, our customers who license the Product, and other third parties.

25. Obligations. You will provide all documents and take any actions necessary to meet your obligations under this TOU.

26. Notices. Any notice to you will be effective when we (i) send a copy of the notice to the last email or physical address you gave us or (ii) post a copy of the notice in our Product or on our website. Any notice from you to us shall be sent via registered mail or overnight courier to: Global Payments Direct, Inc., 3550 Lenox Road, Suite 3000, Atlanta, Georgia 30326, Attn: Corporate Secretary, and will be effective upon actual receipt.

27. Entire Agreement. The Terms of Use and Privacy Policy, and any additional terms from any additional documentation you've agreed to, embody the entire agreement and understanding of the Parties, and supersede all prior agreements, representations, and understandings. As it relates to the Products, in the event of any conflict, ambiguity or inconsistency between this TOU and any other document, the terms of this TOU shall govern, unless otherwise stated therein.