MERCHANT SERVICES AGREEMENT
Last Update: October 13, 2015
This Merchant Services Agreement ("Agreement") is a contract between you ("Merchant") and Parkt, Inc., d/b/a Validated, and its affiliates ("Validated") and applies to your use of Validated’s online merchant platform, website, extensions, mobile applications, desktop applications and API’s (collectively, the "Merchant Services"). In this Agreement, "you" and "your" refer to Merchant and your designated agents, including your administrative contact, and "we," "us" and "our" refer to Validated. You must read, agree with, and accept all of the terms and conditions contained in this Agreement. By using the Merchant Services, you acknowledge that you have agreed to this Agreement. 1. INTRODUCTION
The Merchant Services feature a digital platform that allows registered merchants to send transportation validation offers via smartphone to users of Validated’s mobile application (the "App"). In order to use the Merchant Services, you must complete the online registration process ("Registration") and set up a merchant account. 2. VALIDATION OFFERS
The Merchant Services will allow you to create, offer and manage custom transportation validation offers (a "Validation Offer") for users of the App. Validation Offers are offered and accessible through the App, and can be redeemable in person at a merchant location. By presenting a Validation Offer, Merchant agrees to honor such Validation Offer on the advertised terms. Validation Offers may be created using one, or any combination of the following variables:
(a) Fixed Rate Offer with No Minimum Spend – Merchant may subsidize a fixed dollar amount, without requiring the user to spend a minimum dollar amount with Merchant.
(b) Validation Offer with Minimum Spend – Merchant may require a user to spend a specified amount with Merchant before the user is eligible for a Validation Offer. Minimum spend amounts shall be exclusive of any sales tax or gratuity.
(c) Fixed Date Offers – Merchant may present a Validation Offer for a fixed period of time (e.g. September 8). Fixed date offers may not expire until the close of the business day specified in the Validation Offer, which may extend into the next calendar day (e.g. If Merchant’s business hours are from 12:00 PM – 2:00 AM, a Validation Offer for September 8 must remain effective until 2:00 AM on September 9).
You may have multiple Validation Offers active at any one time, each with different variables. Redeemed Validation Offers cannot be cancelled, changed or transferred. Validated will not offer refunds on redeemed Validation Offers. 3. VALIDATION CREDIT BALANCE, FEES AND PAYMENT TERMS
3.1 Validation Credit Balance. When a user redeems a Validation Offer with a Merchant, Validated will credit the user’s account on the App with a corresponding amount of Validation Credits. Validation Credits can be redeemed through the App for cash or bitcoin. On a monthly basis, within thirty (30) days of receiving the Monthly Validation Report (as defined below) from Validated, you shall transfer to Validated an amount equal to the aggregate value of Merchant’s Validation Offers redeemed by users during the previous calendar month ("Validation Credit Balance"). Such amounts shall be held by Validated, as an agent for the Merchant, until the earlier of (i) the user redeeming the corresponding Validation Credits, or (ii) 24 months after such Validation Credits were awarded to the user. Validation Credits not redeemed by the user after 24 months will expire, and any corresponding funds held by Validated shall be returned to the Merchant.
3.2 Monthly Validation Report. Within five (5) business days of the end of each calendar month or billing cycle, Validated shall provide to Merchant a written report containing the corresponding date and amount of each Validation Offer redeemed during such month or billing cycle.
3.3 Fees. You agree to pay Validated the applicable Commission Fee as set out in Schedule 1 hereto. Merchant shall be invoiced on a monthly basis, and such invoice shall be payable within thirty (30) days of receipt by the Merchant. Commission Fees are non-refundable, except as otherwise expressly set forth herein.
3.4 Payment Method. You agree to pay the applicable Validation Credit Balance and Commission Fees via credit card, ACH, check or wire transfer. By providing Validated with your credit card or bank account details, you authorize Validated to charge your credit card or bank account. You are solely responsible for the credit card or bank account information you provide to Validated and must promptly inform Validated of any changes thereto. 4. ACCOUNT TERMINATION AND SUSPENSION
This Agreement will commence on the date you accept the terms of this Agreement (the "Effective Date"). Either Party may terminate the Agreement for convenience at any time upon 30 day written notice to the other party. This Agreement may be terminated immediately by Validated if Merchant material breaches this Agreement and such breach is not remedied within ten (10) business days after have been given written notice of such breach. On the 24-month anniversary of the termination date, Validated will refund to the Merchant any remaining Validation Credit Balance. Validated may suspend your access to the Merchant Services immediately, without prior notice if: (i) you fail to pay any fees when due, and such failure is not remedied within three (3) business days, or (ii) you fail to materially comply with this Agreement. 5. DISCLAIMER
THE MERCHANT SERVICES ARE PROVIDED HEREUNDER ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND AND EXCEPT AS EXPRESSLY STATED HEREIN, VALIDATED DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARDS TO THE MERCHANT SERVICES. VALIDATED DOES NOT REPRESENT OR WARRANT THAT THE MERCHANT SERVICES SHALL OPERATE SECURELY OR WITHOUT INTERRUPTION. 6. INDEMNIFICATION
You will defend, indemnify and hold harmless Validated, its affiliates, and its officers, directors, employees and agents from any loss, damage, liability, claim, demand or cost (including reasonable attorney’s fees) made or incurred by any third party, including without limitation your customers, due to or arising out of (i) your breach of this Agreement, (ii) the sale or use of any product or services sold by you; (iii) your use of the Merchant Services, or (iv) your negligence or misconduct. 7. LIMITATION OF LIABLITY
IN NO EVENT SHALL VALIDATED’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE COMMISSION FEES PAID TO VALIDATED BY YOU HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT WILL VALIDATED OR ITS LICENSORS HAVE ANY LIABLITY TO MERCHANT OR ANY OTHER PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT VALIDATED HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGE. 8. PROPRIETARY RIGHTS
The Parties hereby grant the other a non-exclusive, non-transferable, revocable, non-sublicensable, limited license to use its names, trademarks and servicemarks as required and necessary to provide, or use, the Merchant Services. 9. GENERAL PROVISIONS
9.1 Entire Agreement and Modification. This Agreement, the Terms of Service and all other agreements and schedules referenced herein, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede any prior oral, written, or online agreements. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the Parties.
9.2 Severability. If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
9.3 Assignment; No Waiver. This Agreement binds and is for the benefit of the successors and permitted assigns of each Party. You may not assign this Agreement or any rights under it, in whole or in part, without Validated’s prior written consent. Any attempt to assign this Agreement other than as permitted above will be null and void. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, without regard for its conflicts of laws principles.
9.5 Notices. Except as otherwise expressly stated in this Agreement, all notices to Validated shall be in writing and delivered, via courier or certified or registered mail, return receipt requested, to 1000 2nd Avenue, Suite 1770, Seattle, WA 98104, or any other address provided by Validated. All notices to you shall be delivered to your email address as provided by you in your merchant account information.
9.6 Relationship of the Parties. The Parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture, except that Validated shall act as an agent of the Merchant solely with respect to maintaining the Validation Credit Balance.
Commission Fee Schedule
|If no Minimum Spend, or Minimum Spend is $10 or less||$0.25|
|If Minimum Spend is greater than $10||2.5% of Minimum Spend|