Transaq Ltd. Terms of Service
These Transaq Terms of Service (henceforth, the “Agreement”) are entered into by Transaq Ltd. (henceforth, “Transaq”, “Us” and “We”) and the entity or person agreeing to these terms (“Customer”). Transaq has developed certain suite of Services and Software (collectively the “Services”), which Customer desires to use for its business purposes. Customer will be provided access to the Services contingent on their acceptance of the Agreement and such access to and use of the Services shall be governed by the terms of this Agreement.
This Agreement is accepted by the Customer and is effective as of the date Customer registers an Account with Transaq and begins using the Services (the “Effective Date”). If you are accepting on behalf of Customer, you represent and warrant that: (a) you have full legal authority to bind Customer to this Agreement; (b) you have read and understand this Agreement; and (c) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, do not click to accept.
1. DEFINITIONS
1.1. “Account” means each individual Customer account in the Transaq Service system.
1.2. “Activation Date” means the later of the date this Agreement is accepted Customer;
1.3. “Authorized User(s)” means any person that Customer allows to have access to the Services and Customer’s account, including Customer’s employees and staff and any third parties that Customer allows to view or use the Services.
1.4. “Billing Cycle” means each calendar month.
1.5. “Confidential Information” means all proprietary and confidential information exchanged by the parties or to which access is provided by one party to the other, including the Software; trade secrets; the substantive terms of this Agreement; a party’s non-public business, strategic and financial information; any plans, programs or forecasts; intellectual property; Customer Data; Third-Party Software and other third-party confidential information that is disclosed by one party to the other, any written materials marked as confidential and any other information, including visual or oral information, which reasonably should be understood to be confidential. Confidential Information does not include information that the receiving party can prove: (a) is now or later becomes generally available to the public without fault of the receiving party; (b) was rightfully in the receiving party’s possession prior to its disclosure by the disclosing party; (c) is independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is obtained by the receiving party without obligation of confidentiality from a third party who has the right to disclose it. The receiving party may also disclose Confidential Information to the extent required under a judicial or legislative order or proceeding; provided that the receiving party gives the disclosing party, if feasible, prior notice and an opportunity to respond or object to such disclosure.
1.6. “Customer Data” means all information and data input by Customer or its Authorized Users into the Transaq Service, including all usernames, passwords, and other data provided by Customer and its Borrowers. However, Customer Data does not include the Usage Data relating to Customer’s and its Users’ use of the Transaq Service.
1.7. “Services” means a web-based, hosted SaaS service. The Services are hosted on servers of Transaq or its agents, which the Customer may access via the Internet. The Services may include any Third-Party Software that is embedded within the Services or is made available to Customer under the terms of this Agreement, but excludes Third-Party Software that is licensed or provided to Customer under a separate license or subscription agreement.
1.8. “Prohibited Products” means the products listed on Appendix A hereto.
2. ACCESS TO TRANSAQ SERVICES AND SOFTWARE
2.1. Transaq Service. Transaq grants Customer the a non-exclusive and non-transferable license to access and use the Services during the term of this Agreement, subject to the terms and conditions of this Agreement. Transaq will make the Services available for Customer and its Authorized Users to access during the term of this Agreement, subject to the terms and limitations set forth herein.
2.2. Access. During the term of this Agreement, from and after the Activation Date and completion of initial configuration of the Services for Customer, and provided that Customer has paid all fees due and owing and is in compliance with the terms of the Agreement, Customer and its Authorized Users will be able to access and use the Services.
2.3. Authorized Users and Accounts. Authorized Users are granted a nonexclusive, non-transferable right to access and use the Transaq Service for the sole benefit of Customer, subject to these Terms. Each Authorized User must accept the Terms prior to accessing the Transaq Service. These Terms may be modified from time to time in Transaq’s discretion; updated versions shall be effective upon notice to Authorized Users. Transaq’s commitments, representations, and indemnities set forth in this Agreement apply only to Customer itself.
2.4. Restrictions. Customer and its Authorized Users will : (a) not market, advertise, offer for sale, or sell any of the Prohibited Products in correlation with use of the Services. (b) not copy or modify the content on the Transaq websites, or any other materials or other proprietary documents provided by Transaq; (c) not modify, alter, create derivative works of, reverse engineer, decompile or disassemble the Software; (d) not sublicense, distribute or sell the Services or Customer’s rights thereto, or allow any third parties to use or access the Transaq Service or Software. (e) take all reasonable precautions to prevent Customer’s employees and consultants from making unauthorized copies of the Services, or other Transaq materials or intellectual property, or misusing the Transaq Service or such Transaq materials or intellectual property in any way that would constitute a breach of this Agreement.
If Customer discovers any breaches of this Agreement by it or breach of these Terms by its Authorized Users, it will promptly notify Transaq and take commercially reasonable actions to resolve the problem, including any actions reasonably requested by Transaq, as soon as reasonably possible. Transaq reserves the right to audit Customer’s use of the Services, upon twenty-four (24) hours’ prior written notice to Customer, to confirm that Customer’s use of the Transaq Service is in compliance with the terms of this Agreement..
2.5. Third-Party Software. Any open source components of the Transaq Service are subject to the applicable third-party open source license terms; Transaq will use reasonable efforts to make such terms available upon request. Other Third-Party Software that is embedded in the Services, or is provided by Transaq as an integrated part of the Services, is provided by Transaq to Customer pursuant to the applicable terms of this Agreement, unless a separate third-party license or subscription agreement for such Third-Party Software is provided to Customer. Third-Party Software is authorized only for use in connection with the Services, unless otherwise permitted under an open source license.
3. OWNERSHIP
3.1. Transaq Ownership. Transaq and/or its licensors retain all right, title and interest, including without limitation all patents and patent rights, trademarks, service marks, copyrights, trade secrets and other proprietary rights, in and to the Services, including all content provided by Transaq as part of the Services. Transaq also owns all right, title and interest in and to (i) the usage data relating to its customers’ use of the Transaq Service (“Customer Usage Data”), and (ii) the results or information provided by third party vendors in response to actions or queries of customers. Transaq specifically reserves all rights not expressly granted to Customer in this Agreement.
3.2. Customer Personal Data. Customer owns all right, title and interest in and to Customer Data, subject to Transaq’s rights as set forth below. Transaq will use commercially reasonable efforts to safeguard the security and confidentiality of Customer Data. Customer grants Transaq the right to use, reproduce, modify and distribute Customer Data as necessary or appropriate to transmit, store, encrypt, calculate, and analyze the Customer Data, conduct reporting, and to provide, modify and improve the Transaq Service and Software. Customer also grants Transaq the right to share Customer Data with third parties in connection with Transaq’s general activities of conducting business, including providing Customer with possible solutions to their business needs, and developing and providing third party integrations with the Software.
3.3. Customer Usage Data and De-Identified Data. Transaq has the right to monitor all use of the Services to obtain Usage Data. Transaq also has the right to collect, aggregate and remove all personally identifiable information from Customer Data, and to retain, use and disclose such de-identified data for any purpose, including development of the Services, and research purposes without reimbursement or notification to, or consent or authorization from, Customer. Transaq owns all such de-identified data.
3.4 Customer Feedback and Suggestions. If Customer provides Transaq Feedback about the Services, then Transaq may use that information without obligation to Customer, and Customer irrevocably assigns to Transaq all right, title, and interest in that Feedback.
4. CUSTOMER OBLIGATIONS
4.1. Obligations. Customer will: (a) be responsible for its Authorized Users’ compliance with this Agreement; (b) be responsible for the accuracy, quality and legality of Customer Data and of the means by which Customer acquired such data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Transaq promptly of any such unauthorized access or use; (d) use the Services only in accordance with its documentation (as available) and/or its intended purpose; (e) not make the Services available to anyone other than Authorized Users; (f) not use the Transaq Service to store or transmit illegal material, or to store or transmit material in violation of third-party privacy rights; (g) not use the Transaq Service to store or transmit any virus, Trojan, worm, or other malicious or harmful computer software code or routines; (h) not interfere with or disrupt the integrity or performance of the Services; (i) not attempt to gain unauthorized access to the Transaq Service or its related systems, networks, or other user data; (j) not engage in copying, scraping, or reverse engineering of the Software or any aspect of the Services; (k) not use the Transaq Service for spamming, phishing, pharming, or for any obscene or immoral purpose; (l) not to circumvent the security features of the Services; (m) in the event of a dispute, not engage in any conduct or communication, public or private, that disparages Transaq or any of its products or services (other than within legal proceedings); and, (n) conduct itself, and require that its employees conduct themselves, in a professional manner during interactions with all Transaq personnel.
4.2. Usage Limitations. The Services may be subject to other usage limitations, based on the Customer’s contract and location, such as availability of services.
4.3. Customer Security Requirements. Customer is solely responsible for the protection of the usernames and passwords of Authorized Users, and data in on their own servers/devices.
4.4. Transaq Security Requirements. Transaq will use commercially reasonable, industry-standard methods to safeguard the security of the Services, including encryption, incident management, data backup and other procedures to ensure both the safety and security of the Customer Data in its possession. In compliance with PCI-DSS, Transaq partners with reputable and compliant providers who ensure the security of cardholder data passing through the Services.
5. TERMS OF PAYMENT
5.1. Fees & Costs. All pricing and transactions between Transaq and Customer will be in U.S. Dollars, at the rates outlined on Transaq’s pricing page unless otherwise stated. Customer is responsible for any and all fees incurred. All fees are charged at the time of purchase, subscription, usage, or approval of charge, as applicable to that particular type of fee. All fees are non-refundable unless otherwise expressly stated in this Agreement.
5.1.1. Transactions Fees – These are fees based on completed transactions performed in or through the Transaq Service, as listed on Transaq’s pricing page.
5.1.2. New Features – Transaq may add services or features to the Services that will be available to Customer on an optional basis and may be subject to an additional fee. Fees for these new features or services will be specified in each case, and will be on a per use basis.
5.1.3. Fraud. Transaq is not obligated to issue refunds or credits to Customer’s clients but may do so if a Customer commits fraud, if there are mistakes by Transaq or a Customer, or a Customer’s product violates the Terms of Service. Transaq also has the right to delay payouts for risk assessment, suspend accounts, and refund payouts without warning if there is evidence of fraud.
5.1.4. Pricing Changes. Transaq retains the right to adjust pricing and fees at any time in response to changes in the fees of the partners and networks that underlie the Services. Transaq will make reasonable efforts to inform the Customer about such changes and their effective date at the earliest possible time.
5.2. Billing Method. Customer is required to either pay in advance or be enrolled for automatic withdrawal with a valid payment profile. The primary payment profile that is on file will be automatically processed for payment on the day after the end of the Billing Cycle. If Customer elects automatic withdrawal, Customer hereby authorizes Transaq to collect this automatic payment, using the payment profile selected by Customer, for the balance due each Billing Cycle. Customer’s activation payment profile will automatically be set to the primary payment profile upon activation, unless Customer changes that setting. Customer may manage this payment profile in the Transaq Service, Transaq will invoice Customer on a monthly basis all Fees in accordance with its pricing page, as applicable, for the prior month’s activity, Any such disputes must be reasonable and made in good faith. For amounts in dispute by Customer, Customer shall provide notice within five (5) business days of the end of the Billing Cycle. If Customer fails to give notice in this time frame, Customer waives all disputes.
5.3. Remedies for Nonpayment. If Customer’s account is more than 15 days past due and the overdue amounts have not been paid within ten (15) days after receipt of written notice of such breach (including by an on-screen non-payment notification to Customer within the Transaq Service), Transaq has the option and right to require payment on the account by partially or fully suspending and blocking Customer’s and its Authorized Users’ access to the Services until all past-due amounts are paid. Customer’s account may be assessed additional fees for blocking or unblocking the account due to late payment, and Customer hereby consents to this collection practice. This express statement of remedy is not a waiver of any other remedies available the Transaq in law or equity.
5.4. Taxes. Customer is responsible for all applicable taxes on the fees paid by Customer to Transaq, including, without limitation, any and all sales, use, and value-added taxes, (excluding taxes on Transaq’s net income). Customer is solely responsible for any sales/use taxes, even if not collected by Transaq. To the extent required by governing law, Transaq will invoice Customer for any sales or use taxes applicable to the Transaq Service and remit such amounts to the applicable governmental authorities. If Customer is a tax-exempt entity, Customer will provide a tax-exemption certificate to Transaq.
6. CONFIDENTIAL INFORMATION
6.1. General Confidentiality Obligations. The recipient of Confidential Information will only use the disclosing party’s Confidential Information to exercise the recipient’s rights and fulfill its obligations under the Agreement, and will use reasonable care to protect against the disclosure of the disclosing party’s Confidential Information. The recipient may disclose Confidential Information only to its Affiliates, employees, agents, or professional advisors (“Delegates”) who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that its Delegates use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement.
Notwithstanding any provision to the contrary in this Agreement, the recipient or its Affiliate may also disclose Confidential Information to the extent required by applicable legal process; provided that the recipient or its Affiliate uses commercially reasonable efforts to (a) promptly notify the other party before any such disclosure of its Confidential Information, and (b) comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the recipient determines that complying with (a) and (b) could (i) result in a violation of Legal Process; (ii) obstruct a governmental investigation; or (iii) lead to death or serious physical harm to an individual.
6.2. Personal Data and Privacy. Transaq agrees to maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including personal information and personal data of Users and other individuals (“Personal Data”). Transaq will not disclose or use Personal Data except (i) as set forth in this Agreement or the then-current Privacy Policy on Transaq’s website, (ii) as compelled by law, (iii) as expressly permitted or instructed by Customer, or (iv) as reasonably necessary in order to provide the Services and other services in connection with this Agreement. Transaq shall require its employees and contractors to be subject to confidentiality undertakings with respect to Customer Data, including Personal Data.
7. WARRANTIES AND LIMITATION OF LIABILITIES
7.1. Customer Warranties. Customer represents and warrants that: (a) Customer has the necessary right, power and authority to execute this Agreement and to perform Customer’s obligations herein; (b) no authorization or approval from any third party is required in connection with Customer’s execution, delivery or performance of this Agreement; (c) this Agreement constitutes a legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms; (d) Customer’s obligations under this Agreement do not violate any law or breach any other agreement to which Customer is bound; (e) all representations and statements made by Customer in this Agreement, or in any other document relating hereto by Customer or on Customer’s behalf, are true, accurate and complete in all material respects; (f) Customer is engaged in a lawful business that includes the sale of products and/or services, and Customer has such permits and licenses as are required to conduct its business under the laws of all applicable jurisdictions in which Customer conducts such business; and (g) Customer will comply, at its sole expense, with all federal, state and local laws, policies, guidelines, regulations, ordinances or rules applicable to Customer in connection with this Agreement and its use of the Services.
7.2. Transaq Warranties. Transaq represents and warrants that: (a) Transaq has the necessary right, power and authority to execute this Agreement, to grant the rights and licenses herein granted to Customer, and to perform Transaq’s obligations herein; (b) no authorization or approval from any third party is required in connection with Transaq’s execution, delivery or performance of this Agreement; (c) this Agreement constitutes a legal, valid and binding obligation of Transaq, enforceable against Transaq in accordance with its terms; (d) the Transaq Service will conform in all material respects with its intended purpose. In the event of a breach of this warranty, Transaq’s exclusive obligation and liability will be (i) to repair or correct the Transaq Service so that it conforms to this warranty, or (ii) if the Transaq Service cannot be or is not so corrected within a reasonable time, either party may elect to terminate this Agreement and Customer shall receive a refund of any prepaid amounts for the Transaq Service from the date of termination; and (e) From and after the Activation Date, Transaq will use commercially reasonable efforts to provide Customer with access the Transaq Service excluding downtime (i) scheduled in advance for maintenance on a periodic basis, (ii) due to unscheduled emergency maintenance, (iii) due to faults caused by Customer or Customer’s system, or (iv) due to other causes outside of the reasonable control of Transaq, including without limitation malfunction or cessation of Internet services by any third party network or ISP or service interruptions caused by the third party cloud storage service. To the extent reasonably feasible, Transaq will provide Customer reasonable advance notice for emergency maintenance or Software performance interference issues.
7.3. Limitation of Warranties; Disclaimers. EXCEPT AS EXPRESSLY PROVIDED FOR IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TRANSAQ: (A) DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED USE OF THE SERVICES OR SOFTWARE; (B) MAKES NO REPRESENTATION ABOUT CONTENT OR INFORMATION ACCESSIBLE THROUGH THE SERVICES; AND (C) WILL ONLY BE REQUIRED TO PROVIDE THE REMEDIES EXPRESSLY STATED HEREIN FOR FAILURE TO PROVIDE THE SERVICES. TRANSAQ SERVICES MAY NOT BE SUITABLE FOR THE CUSTOMER’S USES. CUSTOMER MUST EXERCISE INDEPENDENT JUDGMENT WHEN USING THE SERVICES TO ENSURE THAT TRANSAQ IS SUITABLE FOR THE CUSTOMER’S USES.
Transaq is not responsible or liable for damage, malfunction, or performance failures resulting from misuse, physical abuse, improper operation, the environment or other causes beyond Transaq’s exclusive control. No employee of Transaq or any third party has the right to make any representation or warranty regarding the Transaq Service, except as expressly set forth in this Agreement.
Transaq does not make any representation, warranty or guarantee as to the results that may be obtained from Customer’s use of the Services or as to the accuracy or reliability of any information therein. Customer understands and agrees that Transaq shall bear no risk with respect to Customer’s sale, products or services, including any risk associated with the security of Customer’s website, credit card fraud or chargebacks, or any risk associated with Customer’s failure to pursue license or registration with the appropriate governmental agencies to conduct business. Transaq is not responsible and does not assume any obligations for any regulatory compliance or disclosures required of Customer.
Customer expressly agrees that Transaq shall not be liable for any loss or damages whatsoever arising from or caused by (i) Customer’s failure to properly configure, use or manage the Services; (ii) any fraudulent transactions; (iii) disruption of the Services attributable to a Force Majeure event; (iv) actions or inactions of any third party, including without limitation, merchant service providers, payment processors, bank URL support, email systems, or any products or services with which the Services are integrated; (v) any person’s unauthorized access to Customer Data (including credit card number and other personally identifiable information), transaction data or personal information, except if such access is due solely to Transaq’s grossly negligent or willful misconduct; or (vi) Third-Party Software that is not embedded within the Services.
7.4. Limitations of Liability. In no event will Transaq be held liable for lost data, lost profits or any indirect, incidental, consequential, punitive or indirect damages arising from or in relation to this agreement. Transaq’s total liability for damages arising from this agreement, will not exceed the amounts paid by the customer under this agreement during the one month period prior to the date on which the cause of action arose. In the case a separate one time service fee was charged, the cap on liability shall be the amount of that fee.
7.5. Legal Compliance. Customer acknowledges that Transaq’s personnel are not financial experts, attorneys, accountants or experts on the applicable laws of any jurisdiction. Transaq personnel may consult with Customer’s Authorized Users and provide assistance and recommendations, but Customer is solely responsible for compliance with any applicable laws, regulations and professional standards by Customer and its Authorized Users. This includes, without limitation, whether it is legal or appropriate, under the laws and regulations that govern Customer. THE FINAL DECISION ABOUT ANY ASPECT OF CUSTOMER’S BUSINESS, INCLUDING WITHOUT LIMITATION COMPLIANCE WITH LAWS IN CONNECTION WITH CUSTOMER’S USE OF THE TRANSAQ SERVICE, IS THE SOLE AND EXCLUSIVE RESPONSIBILITY OF CUSTOMER.
8. INDEMNIFICATION
8.1. By Transaq. Transaq will defend Customer against any and all third party claims or suits (each a “Claim”) that the Services infringes any third party U.S. patent that has issued as of the Effective Date, copyright or trademark, or misappropriates any trade secret, and Transaq will pay any liabilities, damages, costs and expenses (including reasonable attorneys’ fees) finally awarded in connection with such Claim or paid in settlement. If the Services are finally held or reasonably believed by Transaq to infringe, Transaq shall use reasonable efforts to bring the Services into non-infringement or to provide to Customer a substitute service and/or software that is non-infringing. If such options are not commercially reasonable, Transaq may terminate that part of the Services or this Agreement upon written notice to Customer, in which event Transaq shall refund to Customer all prepaid fees paid for any period after termination of this Agreement, as well as any period prior to termination during which Customer was prevented from accessing the Services. Transaq shall have no liability for infringement claims arising out of or related to any Third-Party Software, or arising uses of the Services not in accordance with Transaq’s prescriptions.
8.2. By Customer. If any action is instituted by a third party against Transaq (a) arising out of or relating to Customer’s use of the Services, including without limitation (i) any breach or alleged breach by Customer of any of its representations, warranties, or obligations set forth in this Agreement; (ii) any breach of any applicable law or regulation governing or otherwise applicable to Customer’s industry, business, or operations; (iii) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Customer or its employees, or agents; or (iv) any claims associated with the provision of services by Customer to its Borrowers; or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Transaq and shall pay all damages attributable to such claim which are finally awarded against Transaq or paid in settlement of such claim.
8.3. Indemnification Procedure. Any party that is seeking to be indemnified under this Section 9 (an “Indemnified Party”) for a third party Claim must (i) promptly notify the other party (the “Indemnifying Party”) of the Claim; and (ii) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (a) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (b) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (c) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will reasonably cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense. The Indemnified Party may, at its option and expense, participate in the defense of the Claim with counsel of its own choosing.
9. TERM AND TERMINATION
9.1. Term. There is no set term or automatic expiration.
9.2. Cessation of Use without Cause. Customer may cease use of the Services at any time with or without cause. However, the Services continue to be in use so long as the user or some process instated by the Customer continues to interface with the Services, such as website integrations or subscriptions charged to the Customer’s client through the Services. All fees incurred prior to the point where Customer ceases to use the Services must be paid.
9.3. Termination for Cause. Transaq may terminate this Agreement at any time if Customer party commits a material breach of this Agreement and does not cure such breach within fifteen (15) days of written notice specifying the nature of such breach (except for breaches by a party of its confidentiality obligations or payment obligations, for which the cure period will be five (5) business days after receipt of written notice of such breach, including by an on-screen non-payment notification to Customer within the Services).
A confidentiality breach is deemed cured if the Customer (i) mitigates the damages resulting from the breach to the extent reasonably feasible; and (ii) takes reasonable steps, such as modifying its internal policies and practices, to prevent such a breach from reoccurring. Notwithstanding the foregoing, Transaq may, in its reasonable business judgment, determine that a confidentiality breach was sufficiently material that it wishes to terminate this Agreement without permitting a cure, in which case the Transaq shall so notify Customer and this Agreement shall terminate at the end of the five (5) day notice period. Transaq may also terminate or suspend Customer’s account and this Agreement immediately, without prior notice, if Transaq reasonably determines that Customer is conducting an illegal business or if Transaq is instructed to terminate or suspend Customer’s account by federal or state regulatory authorities. If the reason for a suspension of Customer’s account is resolved, Transaq agrees to promptly restore access to Customer’s account.
9.4. Effect of Termination. In the event of termination of this Agreement for any reason, Customer shall immediately cease using the Services. After termination of this Agreement (including any applicable transition period (i.e. through the end of the Billing Cycle)), Customer will not have any access to the Services or the Customer Personal Data stored therein; it is Customer’s sole responsibility to copy or remove such Customer Personal Data from the Services prior to termination. After termination, Transaq has no obligation whatsoever to maintain or store that data and Transaq will promptly delete or remove such data from its system. Transaq reserves the right to store the Customer Personal Data after termination to comply with applicable laws and regulations. Each party shall promptly return to the other party or destroy all Confidential Information of the other party, and upon request of the other party will certify such return or destruction, provided that if retention of any Confidential Information is required by law or practice, then such retained Confidential Information shall remain subject to the terms of this Agreement, including. Customer shall pay all accrued charges and fees within thirty (30) days of the date of termination.
Upon termination a Party (“Receiving Party”) shall promptly delete, destroy or return any Confidential Information or other information in whatever form belonging to the other Party (“Disclosing Party”) in such manner as the Disclosing Party shall direct, failing which the Disclosing Party, its servants, contractors, or agents may enter upon the Receiving Party’s premises and remove same without prejudice to any other remedies. Both Parties shall immediately remove signs, trademarks, displays, or other promotional materials referring to the other.
Sections 2.4, 3, 4.4, 5, 6.2, 7, 9.2 and 9.3 shall survive any termination of this Agreement.
10. MISCELLANEOUS
10.1. Assignment. Customer will not assign this Agreement or transfer, lease, export or grant a sublicense of the rights granted herein to any third party (other than designating Authorized Users), without Transaq’s prior written consent. Transaq’s consent to an assignment of this Agreement by Customer is subject to Transaq’s review and approval of the proposed assignee. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding on, each Party’s respective successors and permitted assigns.
10.2. Governing Law. This Agreement shall be governed by the laws of State of Wyoming (excluding conflicts of laws provisions). The parties submit to the exclusive jurisdiction and venue of Wyoming State and federal courts with respect to any action between the parties relating to this Agreement. The prevailing party in any action shall be entitled to an award of its reasonable costs and attorneys’ fees from the other party.
10.3. Injunctive Relief. Customer acknowledges that the Services and other Confidential Information are highly valuable to Transaq and its licensors, and that money damages would not be a sufficient remedy for any breach of Customer’s obligations herein with respect to confidentiality or misuse of Transaq’s or its licensors’ proprietary materials and information. Therefore, in the event of any breach by Customer of its obligations with respect to the scope of its rights or its confidentiality obligations, Transaq or its licensors shall be entitled to seek specific injunctive relief as a remedy for such breach, in addition to all other available legal or equitable remedies, without the necessity of posting bond or other security, to the extent permitted by law.
10.4. Publicity. Neither party shall release or use the other party’s name, logo, trademark or other intellectual property, or reference this Agreement in any manner, except as specified in accordance with this Agreement, without the prior written consent of the other party; provided, that the foregoing shall not apply with respect to a party’s sales, marketing, investor, regulatory and similar non-public materials and discussions. Notwithstanding the foregoing, (i) Transaq is permitted to include Customer’s name and/or logo on customer lists on Transaq’s website and in other marketing materials; and (ii) if requested by Transaq, the parties will cooperate in good faith to issue a press release that acknowledges the partnership between the Parties within 60 days of the Effective Date.
10.5. Severability. In the event that any of the terms or provisions herein are determined by a court of competent jurisdiction to be unenforceable or invalid for any reason whatsoever, such terms shall be severed, and the enforceability or validity of the remaining terms shall not be affected thereby. The parties agree to attempt in good faith to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
10.6. Entire Agreement; Amendment; Waiver. This Agreement, including the addenda and exhibits attached hereto, which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and that this Agreement supersedes all proposals, oral or written, all previous negotiations, and all other communications between the parties with respect to the subject matter hereof. Any terms and conditions of any purchase order or other instrument issued by Customer in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement shall not be binding on Transaq and shall not apply to this Agreement unless mutually executed by Customer and Transaq. Except as otherwise specifically set forth herein, this Agreement may be amended only by a written document signed by authorized representatives of both parties. The waiver by either party of any default, breach or obligation hereunder shall be ineffective unless in writing, and shall not constitute a waiver of any subsequent breach or default.
10.7. Notices. All notices or other communications required under to this Agreement to Transaq shall be in writing and shall be deemed given if delivered personally or mailed by registered or certified mail, return receipt requested, or by commercial overnight delivery service with provisions for a receipt, or by confirmed facsimile or e-mail, to the address of the receiving party set forth below or such other address a party may specify by written notice. Notwithstanding the foregoing, notices from Customer to Transaq regarding changes to or termination of Customer’s use of the Services may also be sent to the email address support@transaq.io.
Transaq Contact Information:
support@transaq.io
Transaq
1309 Coffeen Avenue,
STE 1200,
Sheridan, WY
82801
All notices to Customer shall be delivered through Transaq’s internal communication portal, or otherwise via email to the email address provided by Customer upon regsitration.
10.8. Force Majeure. Transaq shall be excused from delays or failure to perform the Services or other services pursuant to this Agreement to the extent such delays or failure result from acts of nature, strikes, fire, riots, war, acts of public enemies, fires, pandemics, epidemics, labor disputes, or any other causes beyond its reasonable control (each a “Force Majeure” event). In the event of a delay in implementation and related services or other failure to perform obligations due to any Force Majeure event, the date or dates of performance of such services or obligations shall be extended for a period equal to the time lost by reason of the delay. If a party’s performance is affected by an event of Force Majeure, including Customer’s payment obligation, it will promptly inform the other party and will use commercially reasonable efforts to fulfill its obligations under this Agreement and to remove or avoid any disability and mitigate any damages caused by such event of Force Majeure at the earliest time and to the greatest extent as is reasonably feasible.
10.9. Independent Contractors. The parties are independent contractors, and this Agreement shall not be construed to create any agency, fiduciary relationship, franchise, or partnership between them. Further, it is not the intention of this Agreement or of the Parties to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.
10.10. Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. This Agreement shall become effective when one or more counterparts have been signed by the parties hereto and delivered to the other parties, it being understood that the parties need not sign the same counterpart.
10.11. Electronic Signatures. Each party agrees that if it or any other party draws, types or attaches its signature or any other text, symbol or image in a box or space associated with any Contract Document, such party is agreeing to be legally bound by such terms and conditions. The parties agree that such action constitutes an “Electronic Signature,” which shall have the same force and effect as an original signature.
Appendix A – Prohibits Products/Services
– Products or content for which you do not hold proper license or intellectual property rights and counterfeit goods;
– Any products restricted by our payment processing partners;
– Products that are illegal in Merchant’s or Transaq’s operating territories;
– Age restricted products such as: drugs and paraphernalia, alcohol, tobacco, vaping products, gambling, sexually-oriented or pornographic content, CBD, weapons, ammunition, auctions, sweepstakes, lotteries, donations, get-rich-quick schemes, etc.;
– Regulated services such as: banking, money services, lending, collections, real estate, mortgages, , air travel, bankruptcy, bail bonds, debt-relief, warranties, etc.;
– Pharmacies, pharmaceuticals and nutriceuticals;
– Unfair, deceptive, predatory or abusive practices, including but not limited to Multi-level marketing, pyramid, or IBO schemes;
Although Transaq makes every effort to keep this list up to date, it may change without notice. All changes take effect immediately. It is your obligations to check back frequently.
If you are unsure as to whether or not your services/merchandise fall under any of these categories, send an email to support@transaq.io with the heading “PROHIBITED PRODUCTS/SERVICES QUERY”.