Paylink Terms Conditions
Updated July 17th, 2020
This Terms of Use and License Agreement for Merchant’s Use of the PayLink Solution (“Agreement”) is made effective as of the date you click to agree to these terms and is by and between Payment Logistics Limited, located at 11011 N Torrey Pines Rd #250, La Jolla, CA 92037 (“PL”) and the entity and/or individual who signs up for the PayLink Solution (as defined herein), as well as any employees or agents acting on behalf of the entity and/or individual who sign up for the PayLink Solution (“Merchant”). Each Merchant shall require each individual user of the PayLink Solution to accept the terms of this Agreement.
- RECITALS
- WHEREAS PL, in conjunction with various financial institutions and upstream providers, provides merchant account services and related services that enable merchants to accept credit card, debit card and related payments from consumers (the “Merchant Account Services”).
- WHEREAS PL owns and operates a payment gateway that provides connectivity between merchants and various upstream payment networks and third-party merchant account providers (the “Gateway Services”). Some of PL’s client merchants utilize the Gateway Services to process transactions with third party merchant account providers and some of PL’s client merchants utilize the Gateway Services in conjunction with PL’s Merchant Account Services.
- WHEREAS PL provides, among other products and services, a product referred to as PayLink, which is a program designed to allow PL’s client merchants to digitally connect with their patrons to facilitate commerce through various modules, which modules may include, but are not limited to, the following: A) Digital Mobile Checkout; B) Kiosk Pay; C) In-store Patron Ordering; D) Staff Ordering; E) Digital Receipts; F) Wait-List Paging; G) Digital Feedback Survey; H) Online Ordering; I) Loyalty; J) Traditional Pay-at-the-Table; and K) Third Party Integration Interface. PayLink, in whatever form or module it is used, along with all operating manuals, operating procedures, and other information in any form provided concerning PayLink, shall be referred to herein as the “PayLink Solution”;
- WHEREAS, in order for PL to provide Merchant with the Merchant Account Services, the Merchant will have executed, or will need to execute, a separate Merchant Processing Agreement (“MPA”). The MPA is a tri-party agreement between the Merchant, PL and a sponsoring bank. The MPA consists of a completed and executed merchant account application, which application is required for each Merchant, and PL’s Program Guide, which each merchant account application incorporates by reference by providing a link to the Program Guide;
- WHEREAS, the PayLink Solution requires the Gateway Services and for PL to provide Merchant with the Gateway Services, the Merchant will have executed, or will need to execute, a separate Gateway Services Agreement (“GSA”). The GSA may be executed alongside the MPA or it may be executed alongside this Agreement or as a separate document.
- WHEREAS, subject to the terms and conditions set forth herein, Merchant wishes for PL to provide Merchant the PayLink Solution pursuant to the terms and conditions set forth herein.
- LIMITED LICENSE
- PL grants Merchant a non-exclusive, non-transferable license to access and use PL’s Intellectual Property (as defined in Seton 2.3), including but not limited to the Customer Data (as defined in Section 3.1), in the course of using the PayLink Solution, but only for the limited purpose of using the PayLink Solution, except as set forth in Section 3.1. Merchant shall not be permitted to sublicense PL’s Intellectual Property. Any rights not expressly granted herein are reserved. There are no implied rights of any kind to PL’s Intellectual Property Rights (as that term is defined in Section 2.3 below). This limited license is to Merchant only, and expressly is not intended to include any related companies, subsidiaries or parent companies.
- Merchant shall not make copies of, or further distribute, any aspect of the PayLink Solution, including copying any portion of any aspect of it, or of any Customer Data (as defined in Section 3.1) onto any other medium, except as expressly set forth herein. Merchant shall not distribute, sublicense, lease, resell, rent, alter, modify or adapt the PayLink Solution, including but not limited to, translating, reverse engineering, or creating derivative works. Except as set forth in Section 3.1, upon termination or expiration of this Agreement, whether terminated with or without cause, and whether Merchant or PL terminates the Agreement, all licenses granted to Merchant hereunder shall immediately terminate, and within five (5) days thereof, Merchant shall either return to PL or destroy any Confidential Information (as defined in Section 3.1), and shall so certify to PL in writing.
- “Intellectual Property” means all of the following: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated with the PayLink Solution; (ii) patents, patentable inventions, computer programs, and software associated with the PayLink Solution; (iii) databases and Customer Data (as that term is defined in Section 3.1 herein) associated with the PayLink Solution; (iv) trade secrets and the right to limit the use or disclosure thereof associated with the PayLink Solution; (v) copyrights in all works, including software programs associated with the PayLink Solution; and (vi) domain names associated with the PayLink Solution. PL’s Intellectual Property rights in the PayLink Solution shall be defined herein, collectively, as “Intellectual Property Rights.”
- Other than any express licenses granted by this Agreement, PL grants no right or license to Merchant or Merchant’s agents, employees or resellers, by implication, estoppel or otherwise, to any Intellectual Property Rights of PL. PL shall retain all ownership rights, title, and interest in and to the PayLink Solution, and all Intellectual Property Rights, subject only to the rights and licenses specifically granted herein. PL shall have the sole right, but not the obligation, to pursue copyright and patent protection, in PL’s sole discretion, for its Intellectual Property. The parties will cooperate with each other in pursuing such protection, including without limitation executing and delivering to each other such instruments as may be required to register or perfect PL’s interests in any Intellectual Property Rights and any assignments thereof. Merchant shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from the other party in connection with this Agreement.
- At no time shall Merchant use the Intellectual Property to harm or damage the Intellectual Property. Any unauthorized use of the Intellectual Property will be a material breach of this Agreement.
- CONFIDENTIALITY AND OWNERSHIP OF CUSTOMER DATA
- The parties acknowledge that in the course of Merchant implementing and using the PayLink Solution, Merchant and PL shall collect confidential information of Merchant’s customers (“Customer Data”), and PL shall share with Merchant PL’s Intellectual Property and other information and data concerning the operation of the PayLink Solution. The Customer Data and all non-public aspects of the PayLink Solution, including without limitation information concerning the know-how, technology, techniques, or business or marketing plans related to the PayLink Solution (collectively, the “Confidential Information”), are confidential and proprietary to, and trade secrets of, PL. Merchant stipulates and agrees, as a material condition of using the PayLink Solution, that PL owns and controls the Confidential Information, including but not limited to all Customer Data collected through the operation and implementation of the PayLink Solution. Merchant may use and share the Customer Data while licensed to do so, as set forth in Section 2. To the extent Merchant already possessed customer information prior to sharing such information with PL, PL acknowledges and agrees that this Agreement does not impact Merchant’s rights, if any, to such customer information. In addition, if PL shares Customer Data with Merchant through an external interface (i.e., outside of the PayLink Solution), then PL grants Merchant a continuing, non-exclusive license to use such Customer Data (even after termination of this Agreement), provided Merchant treats Customer Data as Merchant treats its own confidential information, consistent with the guidelines set forth in Section 3.2.
- Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from PL, the Merchant shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of PL’s Confidential Information; (ii) not use PL’s Confidential Information in any fashion except to perform its duties hereunder or with PL’s express prior written consent; (iii) disclose PL’s Confidential Information, in whole or in part, only to employees and agents of Merchant who need to have access thereto for Merchant’s internal business purposes; (iv) take all necessary steps to ensure that Merchant’s employees and agents are informed of and comply with the confidentiality restrictions contained herein; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. Merchant shall promptly notify PL of any unauthorized disclosure or use of the Confidential Information. Merchant shall cooperate and assist PL in preventing or remedying any such unauthorized use or disclosure.
- Any employees, agents or representatives of Merchants who accept this Agreement expressly agree to treat Customer Data and Confidential Information as set forth herein.
- FEES
- In addition to any fees that Merchant is obligated to pay pursuant to the MPA and GSA, Merchant shall pay fees, if any, in accordance with the service plan for which Merchant signs up. Failure to comply with or otherwise pay any fees due is a material breach of this Agreement. PL may offset monies owed to PL under this Agreement against monies PL owes Merchant under the MPA. PL may increase the fees it charges upon 20 days prior written notice. PL shall provide notice of a fee increase, and PL may provide notice of a fee increase in any of the following manners, in accordance with the Notice provision set forth herein in Section 11.6.
- TERM AND TERMINATION
- At all times, PL may terminate this Agreement, upon 30 days written notice to Merchant. Merchant may, except in cases where the PayLink Solution plan for which Merchant signed up lists a minimum contract term, terminate this Agreement, upon 30 days written notice to PL. When a minimum contract term is included in a service plan, Merchant may terminate this Agreement, upon no less than 30 days written notice prior to the end of minimum contract term or any renewal term.
- PL, in its sole discretion, may suspend or terminate this Agreement for any reason at any time without prior notice, if Merchant does not comply with the terms of this Agreement. PL shall provide Merchant written notice if PL terminates the Agreement under this subsection.
- Termination of the Agreement shall immediately terminate and revoke any license the Merchant has pertaining to the PayLink Solution. Merchant acknowledges and agrees that upon termination, PL owns all Customer Data, and that upon.