Merchant Processing Agreement
This Merchant Processing Agreement (the “Agreement”) is made and entered into by and between you and Swipely, Inc., a Rhode Island corporation doing business as Upserve (“Upserve”). This agreement contains the terms and conditions that govern the use of, and terms and conditions upon which Upserve will provide to you various services (collectively the “Service”) through Upserve’s website and/or mobile application.
These Terms of Service (“Terms“) govern your access to and use of Upserve’s website (the “Services“), and any information, text, graphics, or other materials uploaded, downloaded or appearing on the Services (collectively referred to as “Content“). Your access to and use of the Services is conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms. The term “you” or “User” refers to a user who browses the Upserve Website or registers for Upserve’s service. The term “we” refers to Upserve. This Agreement applies exclusively to your access to and use of Upserve’s website, and does not alter any other agreement you may have with us.
Privacy and Your Personal Information
For information about Upserve’s data protection practices, please read Upserve’s Privacy and Security Policy, which is hereby incorporated into these Terms. This policy explains how Upserve treats your personal information when you access and use the Services. The policy may be updated from time to time at our discretion. Changes will be effective upon posting to the Services.
You are responsible for your use of the Services, for any Content you post to the Services, and for any consequences thereof.
You may use the Services only if you can form a binding contract with Upserve and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.
Content on the Services
All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via the Services and, we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk.
Under no circumstances will Upserve be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere.
Rules for Posting
As part of the Services, Upserve allows Users to post Content on various locations on Upserve.com. These locations may be hosted by Upserve or by one of our third party service providers on Upserve’s behalf. You agree in posting Content to follow certain rules.
- You are responsible for all Content you submit to the Services.
- You may not interfere with other Users’ use of the Services, including, without limitation, taking any action that imposes a disproportionate burden on the infrastructure of the Services or that negatively affects the availability of the Services to others.
- You agree that we may use any feedback, suggestions, or ideas you post in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant us a perpetual, worldwide, non-exclusive, fully transferable, sublicensable, non-revocable, fully paid-up, royalty-free license to use the feedback you provide to us in any way.
All right, title, and interest in and to the Services (excluding Content provided by Users) are and will remain the exclusive property of Upserve and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in the Terms gives you a right to use the Upserve name or any of the Upserve trademarks, logos, domain names, and other distinctive brand features.
Restrictions on Content and Use of the Services
Upserve gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software that is provided to you by Upserve as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Upserve, in the manner permitted by these Terms.
We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate Users or reclaim usernames. Please review the Rules for Posting above to better understand what is prohibited on the Services. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to User support requests, or (v) protect the rights, property or safety of Upserve, its Users and the public.
Except as permitted through the Services (or these Terms), you must use a Upserve documented API with an authorized authentication token if you want to reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Content or Services, subject to separate written agreement with Upserve governing the terms and use of the Upserve API.
You may not do any of the following while accessing or using the Services: (i) access, tamper with, or use non-public areas of the Services, Upserve’s computer systems, or the technical delivery systems of Upserve’s providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Upserve (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Upserve; (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; (v) interfere with, or disrupt, (or attempt to do so), the access of any User, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services; (vi) use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Services or any portion of the Services, without Upserve’s express written consent, which may be withheld in Upserve’s sole discretion; (vii) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Services, other than the search engines and search agents available through the Services and other than generally available third-party web browsers (such as Microsoft Explorer); (viii) commercially exploit any Content on the Services other than Content provided by you, (ix) attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Services.
Account Information from Third Party Sites
With the Services, Users may direct Upserve to retrieve their own information maintained online by third-party financial institutions with which they have customer relationships, maintain accounts or engage in financial transactions (“Account Information“). Upserve works with one or more service providers under contract to access this Account Information. Upserve makes no effort to review the Account Information for accuracy, legality or non-infringement.
By using the Services, you expressly authorize Upserve and its partners to access your Account Information maintained by identified third parties, on your behalf as your agent.
Upserve cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings or other service interruptions. Upserve cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any User data, communications or personalization settings. For example, when displayed through the Services, Account Information is only as fresh as the time shown, which reflects when the information is obtained from such sites. Such information may be more up-to-date when obtained directly from the relevant sites. You can refresh your Account Information through the Services, in the manner prescribed in the associated instructions.
You agree and understand that you are responsible for maintaining the confidentiality of your password which, together with your login ID e-mail address, allows you to access the Services. That login ID and password, together with any mobile number or other contact information you provide form your “Registration Information.”
By providing us with your e-mail address, you agree to receive all required notices electronically, to that e-mail address. It is your responsibility to update or change that address, as appropriate. Notices will be provided in HTML in the text of the e-mail or through a link to the appropriate page on our site, accessible through any standard, commercially available Internet browser.
If you become aware of any unauthorized use of your Registration Information, you agree to notify Upserve immediately at the email [email protected]
Upserve respects the intellectual property rights of others and expects Users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us, as described by the procedures on our DMCA page, which are part of these Terms, at www.upserve.com/dmca.
The Services Are Available “AS-IS”
Your access to and use of the Services or any Content is at your own risk. You understand and agree that the Services is provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, UPSERVE AND ITS PARTNERS DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content thereon. Upserve will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services, or any Content. You also agree that Upserve has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from Upserve or through the Services, will create any warranty not expressly made herein.
The Services may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the Content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Upserve of such websites or resources or the content, products, or services available from such websites or resources. Upserve is not responsible for the products and services offered by or on third-party sites. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UPSERVE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT UPSERVE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.
Your Indemnification of Upserve
You shall defend, indemnify and hold harmless Upserve and its officers, directors, shareholders, and employees, from and against all claims and expenses, including but not limited to attorneys fees, in whole or in part arising out of or attributable to any breach of these Terms by you.
Ending Your Relationship with Upserve
These terms will continue to apply until terminated by either you or Upserve as set out below. If you want to terminate your legal agreement with Upserve, you may do so by closing your account for the Services.
Please use the directions below to cancel your account:
- Send email to [email protected] with your request to delete your account. Please include: (i) your login ID email address; (ii) your name. Because email may be forged, you may be asked to verify that you are indeed the account owner.
Upserve may at any time, terminate its legal agreement with you:
- if you have breached any provision of these Terms (or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of these Terms);
- if Upserve in its sole discretion believes it is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
- immediately upon notice, to the e-mail address provided by you as part of your Registration Information.
Waiver and Severability
The failure of Upserve to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms will remain in full force and effect.
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of Rhode Island without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in Providence County, Rhode Island, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. If you are accepting these Terms on behalf of a United States federal government entity that is legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you but instead these Terms and any action related thereto will be will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of Rhode Island (excluding choice of law).
These Terms, the Upserve Rules, our Privacy and Security Policy, and the other terms and conditions reference herein are the entire and exclusive agreement between Upserve and you regarding the Services (excluding any services, such as Merchant Payment Processing Services, for which you have a separate agreement with Upserve that is explicitly in addition or in place of these Terms), and these Terms supersede and replace any prior agreements between Upserve and you regarding the Services (excluding any services, such as Merchant Payment Processing Services, for which you have a separate agreement with Upserve that is explicitly in addition or in place of these Terms.
We may revise these Terms from time to time, the most current version will always be at upserve.com/terms. If the revision, in our sole discretion, is material we may notify you via an Upserve update or e-mail to the email associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
These Services are operated and provided by Upserve Inc., 10 Dorrance Street, Providence, RI 02903. If you have any questions about these Terms, please contact us: [email protected]