(Last Updated June 26, 2020)
THESE TERMS INCLUDE, AMONG OTHER THINGS, A BINDING ARBITRATION PROVISION THAT CONTAINS A CLASS ACTION WAIVER. PLEASE REFER TO SECTION 20 BELOW FOR MORE INFORMATION.
- Acceptance of Terms. You acknowledge that you have read, understood, and agree to be bound by the following terms and conditions (the “Merchant Terms”). You represent that you have authority to enter into these Merchant Terms on your own behalf and on behalf of any person or organization for which you act. If you do not agree with these terms and conditions, please do not access or use the Platform.
- License. Subject to these Merchant Terms, myGini grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Platform solely for your own business purpose, and solely as permitted by and in compliance with the terms and applicable law.
- Eligibility. You must be at least eighteen (18) years old to use the Platform. By agreeing to the Merchant Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years old; (ii) that you have not previously been suspended, removed or deactivated from the Platform; (iii) that you are a legal resident of the United States; (iii) use the Platform on behalf of a business entity; and (v) that your registration and your use of the Platform is in compliance with any and all applicable laws and regulations.
- myGini Accounts. In order to use the Platform, you must create an account on behalf of your business (a “Merchant Account”) with myGini. When you set up your Merchant Account, you will be required to create log-in credentials and to provide certain information about your business. You agree that the information you provide to myGini on registration and at all other times, will be true, accurate, current, and complete, and that you will keep this information accurate and up-to-date at all times. We also request that you create a password for your Merchant Account. You agree not to disclose your password to anyone else, and you also agree you will be solely responsible for any activities or actions take under your Merchant Account, whether or not authorized by you. Please notify us immediately of any unauthorized use of your password or Merchant Account. We are not liable for any loss or damage from your failure to comply with these requirements.
- Modification of the Terms. We reserve the right, at our discretion, to change the Merchant Terms on a going forward basis at any time. Please check the Merchant Terms periodically for changes. Your continued use of the Platform after the changes become effective constitutes your binding acceptance of such changes. In the event that a change to the Merchant Terms materially modifies your rights or obligations, we will make an effort to notify you of the change, such as by sending you an email to the address we have on file for you, or presenting a pop-up window or other notification to you through the Platform when you log in, and we may require that you accept the modified Merchant Terms in order to continue to use the Platform. Immaterial modifications are effective upon publication, and material changes will be effective upon the earlier of (a) continued use of the Platform with actual knowledge of the modification, or (b) thirty (30) days following the change. For the avoidance of doubt, disputes arising hereunder will be resolved in accordance with the Merchant Terms in effect at the time the dispute arose.
- Consent to Electronic Communications. By using the Platform, you agree that myGini may send you all records, notices, documents, disclosures, agreements or other communications (collectively, “Communications”) that we provide in connection with your use of the Platform electronically. We may provide these Communications to you by posting them in the Platform and/or by emailing them to you at the primary email address associated with your Merchant Account.
- Text Messages. You consent to receive SMS messages (including text messages), and telephone calls (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, with service-related information about the Platform or your Merchant Account. You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. myGini, our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages, text messages, e-mails or other means. Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice, including the right to terminate SMS messaging with or without notice, without liability to you.
- Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Platform (“Feedback”), then you hereby grant myGini an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty free right to exploit the Feedback in any manner and for any purpose, including to improve the Platform, and to create other products and services.
- Prohibited Conduct. BY USING THE SERVICES YOU AGREE NOT TO:
- access or use any part of the Platform for any personal, family or household purpose;
- access or use the Platform for any illegal purpose;
- attempt to gain unauthorized access to any other user’s Merchant Account;
- modify or attempt to modify or in any way tamper with, circumvent, disable, damage or otherwise interfere with the Platform;
- access or use the Platform in a way that may infringe upon the intellectual property or other rights of any third party, including, without limitation, trademark, copyright, privacy, or publicity rights; or
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- modify, adapt, translate or create derivative works based upon the Platform or any part thereof, except and only to the extent the foregoing restriction is expressly prohibited by applicable law; or
- intentionally interfere with or damage operation of the Platform or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
- interfere with or disrupt networks connected to the Platform or violate the regulations, policies, or procedures of such networks.
- Term. These Merchant Terms are effective beginning when you accept the Merchant Terms and will remain in full force and effect while you use the Platform unless these Merchant Terms are terminated as described in Section 14.
- Termination of Use; Discontinuation and Modification of the Platform. If you engage in prohibited conduct or otherwise violate any of the Merchant Terms, your permission to use the Platform will automatically terminate. You also agree that we may, at any time and without notice to you, suspend or revoke your access to and use of the Platform, and any Merchant Account you may have in connection with the Platform including: (i) where we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights or interests of myGini or any third party; or (ii) in connection with any general discontinuation of the Platform. We also reserve the right to modify the Platform at any time without notice to you. We will have no liability whatsoever on account of any change to the Platform or any suspension or revocation of your access to or use of the Platform. You may terminate your Merchant Account at any time by emailing myGini at [email protected]; provided that upon termination, you will remain liable for any amounts owed to myGini under these Merchant Terms or the myGini Affiliate Agreement. Please note that it may take myGini up to fifteen (15) business days to process termination of your Merchant Account.
- Effect of Termination. Upon termination of these Merchant Terms: (a) your license rights will terminate and you must immediately cease use of the Platform; and (b) you will no longer be authorized to access your Merchant Account or the Platform. Sections 14 through 21 and any other Section which, by its nature or express terms, should survive will, in each case, survive.
- Ownership; Proprietary Rights. The Platform is owned and operated by myGini. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, look-and-feel, and all other elements of the Platform provided by myGini (the “Materials”) are protected by United States copyright, trade dress, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Platform are the property of myGini or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to myGini or its affiliates and/or third-party licensors. Except as expressly authorized by myGini, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. myGini reserves all rights to the Materials not expressly granted in the Merchant Terms.
- Indemnification. To the fullest extent permitted by law, you agree to indemnify, defend and hold myGini and all of its successors, parents, subsidiaries, affiliates, officers, directors, stockholders, investors, employees, agents, representatives and attorneys and their respective heirs, successors and assigns (collectively, the “Indemnified Parties”), harmless from and against any and all claims, liabilities, losses, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Parties arising out of or relating to (i) your access to, use of or alleged use of the Platform; (ii) your violation of these Merchant Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You shall cooperate as fully as reasonably required in the defense of any such claim. myGini reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You agree not to settle any matter without the prior written consent of myGini. This indemnification, defense and hold harmless obligation will survive these Merchant Terms and the termination of your use of the Platform.
- Disclaimers; No Warranties. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS REQUIRED BY LAW, MYGINI DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS REGARDING THE PLATFORM OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. SPECIFICALLY, BUT WITHOUT LIMITATION, MYGINI DOES NOT WARRANT THAT: (1) THE INFORMATION PROVIDED IN, OR THAT MAY BE OBTAINED FROM USE OF, THE PLATFORM WILL MEET YOUR REQUIREMENTS OR BE CORRECT, ACCURATE, UP-TO-DATE, OR RELIABLE; (2) USE OF OR ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ASSUME ALL RISK FOR ALL DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE PLATFORM. YOU HEREBY ACKNOWLEDGE THAT USE OF THE PLATFORM IS AT YOUR SOLE RISK. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE INDEMNIFIED PARTIES NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OPERATING OR DELIVERING THE PLATFORM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE INDEMNIFIED PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES WHERE SUCH DAMAGES RESULT FROM OR ARISE IN CONNECTION WITH THE PLATFORM, MYGINI’S MARKETING OF THE PLATFORM, OR YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE PLATFORM.
- EXCEPT AS PROVIDED IN SECTION 20(e) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE INDEMNIFIED PARTIES TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THESE MERCHANT TERMS OR YOUR ACCESS OR USE OF THE PLATFORM IS LIMITED TO $100.
- Dispute Resolution.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
- Governing Law and Forum. These Merchant Terms will be governed by and construed in accordance with the laws of the State of California without reference to conflict of law provisions. Any action, proceeding, arbitration hearing or mediation relating to or arising from these Merchant Terms must be brought, held, or otherwise occur in San Francisco County, California.
- WAIVER OF JURY TRIAL AND CLASS ACTIONS. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM MAY BE RESOLVED BY BINDING ARBITRATION AND THAT (i) YOU ARE GIVING UP ITS RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM ALLEGED AGAINST THE INDEMNIFIED PARTIES; (ii) YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT RESOLVE ANY CLAIM ALLEGED AGAINST THE INDEMNIFIED PARTIES; (iii) YOU ARE GIVING UP YOUR 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 MYGINI.
- Arbitration Process. In the event of a dispute, claim, or controversy (“Claim”) between you and myGini, arising from or relating in any way to these Merchant Terms, the Platform, or to the relationship formed between the parties as a result of these Merchant Terms, including Claims regarding the applicability of this arbitration clause or the validity of the entire Merchant Terms, the Claim shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules. All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis. You and myGini will agree on another arbitration forum if the AAA ceases operations. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between you and myGini. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The prohibition against class action contained in this Section 20 shall be non-severable from the remainder of this Section 20.
- Arbitration Location and Procedure. Unless you and myGini otherwise agree, the arbitration will be conducted in San Francisco, California. If your Claim is less than $10,000, then the arbitration will be conducted solely on the basis of the documents that you and myGini submit to the arbitrator, unless the arbitrator determinates that a hearing is necessary. In such case, the hearing may be conducted telephonically. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA rules.
- Fees and Arbitrator’s Decision. Each party will be responsible for its own fees, provided that if either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York, NY 10017, telephone 1-800-778-7879.
- Federal Arbitration Act and Scope of Arbitration Agreement. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in these Merchant Terms shall be construed to prevent any party’s use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owned by either party to the other. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, YOU AND MYGINI 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.
- Contact Information. If you have any questions regarding myGini, the Platform, or the Merchant Terms please contact myGini at [email protected].