These Terms of Service are entered into this ______________, (“Effective Date”) by and between Billfold LLC (“Billfold”) located at 31 Perry St. New York, New York 10014, and {COMPANY NAME}, located at {ADDRESS} (“Company”). These Terms of Service, together with any applicable Master or Event Addendum(s), (collectively, the “Terms”) set forth the terms and conditions governing access to and use of Billfold’s website, products, and services. Billfold and Company may each be individually referred to herein as a “party” and collectively as the “parties.” In consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Billfold is a technology and services company specializing in rapidly deployable and scalable cashless payment solutions. Pursuant to these Terms, Company may retain Billfold to perform Services on its behalf for the term of an agreement as specified in the Master Addendum. (“The term”). For each event that falls within the term of this agreement, the Services to be performed (“Services”) and the equipment to be provided by Billfold (“Equipment”) together with any other details (e.g. term, fees, etc.) will also be set forth in a Master Addendum. Any additional services or hardware required by the Company beyond the scope of the Master Addendum will be governed by an Event Addendum(s). Both the Master Addendum and each Event Addendum shall be governed by and incorporate these Terms by reference. If any provision in an Master or Event Addendum conflicts with the terms and conditions contained in these Terms, the terms and conditions set forth in that Master or Event Addendum shall prevail. Billfold shall have no obligation to provide access to or use of any Services beyond those governed by the Master Addendum, unless and until the Parties have mutually executed an Event Addendum for the applicable Event, and Billfold has received the required payment specified in the Event Addendum.
Upon Billfold’s receipt of a fully executed Addendum, and the required payment, Billfold will provide Company a link or a form inviting Company to set up an Account for the applicable Event or Events. Once activated, Company will be able to configure the POS menu and pricing options for the Event via the Company’s Account dashboard tools. If requested in the Addendum, Billfold will configure the POS menu on Company’s behalf for the fees set forth in the Event Addendum. In addition to the configuration tools, Company shall be able to access realtime and post Event sales data, run Event reports and order additional Services from the Account. Company is responsible for all activity that happens on or through its Account. To protect Company’s Account, Billfold strongly recommends keeping the Account password confidential and not reusing the Account password with other services. Company agrees to secure its Account credentials and to promptly notify Billfold of any breach of security, misuse, or unauthorized use of your Account or credentials.
3.1. Authorization. To enable us and our affiliate to process Transactions for Company, Company hereby direct and authorize Billfold and our affiliates to receive and process payments owed to Company through the Services.
3.2. Account Information. Billfold may ask Company for personal, business and financial information Billfold uses to identify Company and other individuals associated with its Account. Throughout the term, and subject to the Terms herein, Billfold may share Company’s Account information with its affiliates to meet its obligations under these Terms, verify Company’s eligibility to use the Services, establish any necessary accounts with Billfold’s affiliates, monitor Charges and other activity, and conduct compliance reviews. Billfold’s use of the information Company provides to Billfold is described in more detail in Billfold’s Privacy Policy, the terms of which are incorporated herein.
3.3. Acceptable Use Policy. Company’s use of the Services is subject to Billfold’s Acceptable Use Policy (“AUP”). Company hereby acknowledge and confirm that is will, at all times, comply with the AUP, and that any violations of the AUP will be a breach of these Terms.
3.4. Processing Affiliate Rules. Billfold works with multiple affiliates to effect payment processing services: (1) Braintree, a division of PayPal, Inc. (“Braintree”) and (2) Stripe, Inc (“Stripe”). By using the Billfold payment processing Services, Company agrees to the respective service agreements of these affiliates, outlined in Schedule 1. Company’s use of the Billfold payment processing Services constitutes Company’s acceptances of these terms.
3.4.1. Addition /Removal of Affiliates. Affiliates may be added or removed from the above list (in 3.4) at any time, subject to consultation with Company. Reasonable efforts will be made by Billfold to accommodate requests from Company for the onboarding of specific affiliates, provided that a clear economic benefit to Company is evidenced to Billfold by Company and no economic or functional impairment is reasonably expected to be suffered by Billfold from that onboarding or affiliate relationship.
3.5. Misuse. If Company misuses the payment processing Services, engages in activity Billfold or our affiliates identify as damaging to our respective brands, or if Billfold is required to do so by our affiliates, we may submit information about Company, and other individuals associated with your Account, to the MATCH terminated merchant listing maintained by Mastercard and accessed and updated by Visa and American Express, or to the Consortium Merchant Negative File maintained by Discover. Addition to one of these lists may result in Company’s inability to accept payments from payment cards. Company understands and consents to Billfold sharing this information and to the listing itself, and Company will fully reimburse Billfold for any losses Billfold incurs from third-party claims, and Company waives its rights to bring any direct claims against Billfold that result from such reporting. Billfold’s reporting of information under this paragraph is separate from any other right that Billfold may exercise under this Terms, and Billfold may separately terminate these Terms or suspend your Account due to the misuse that caused us to make the report.
3.6. Multi-Currency Processing. Billfold may offer Company the ability to have funds settled to its Settlement Account in a currency different from the one in which it accepted payment from a Customer (“Multi-Currency Processing”). To use this Service, Company must provide Billfold with a valid Settlement Account for each currency for which it requests settlement, based on Billfold’s list of available settlement currencies. Billfold may add or remove currencies from its list of available settlement currencies at any time. If Company uses Multi-Currency Processing, Billfold will identify the applicable conversion rate. If Company Refunds a Charge, the conversion rate that will apply will be the rate in effect at the time of the Refund, not the Charge. By submitting a Charge or Refund, Company will be deemed to have accepted the applicable conversion rate.
3.7. Customer Disputes.
3.7.1. Company’s Responsibility. Billfold is not responsible for the products or services Company sells, or that Company’s Customers purchase using the Services. Company acknowledges and confirms that Company is solely responsible for (i) the nature and quality of the products or services it provides, and for delivery, support, Refunds, Returns, and for any other ancillary services it provides to its Customers, and (ii) for knowing whether a Transaction initiated by its Customer is erroneous or suspicious. If Company are unsure about a Transaction, Company agrees to research the Transaction and, if necessary, contact its Customer before fulfilling or completing the Transaction. Company is solely responsible for any losses it incurs due to erroneous or fraudulent Transactions in connection with its use of the Services. Consistent with the foregoing, Company is responsible for: (i) acquiring appropriate consent to submit Charges through the Services on behalf of its Customers; (ii) providing confirmation or receipts to Customers for each Charge; (iii) verifying Customers’ identities; and (iv) determining a Customer’s eligibility and authority to complete Transactions. Billfold is not responsible for or liable for Charges that are later the subject of a Dispute, Refund, or Reversal, are submitted without authorization or in error, or violate any Laws. Company is immediately responsible to Billfold for all Disputes, Refunds, Reversals, Returns, or Fines regardless of the reason or timing. Failure to timely and effectively manage Disputes with Company’s Customers may result in the Company’s inability to accept payment cards for your business.
3.7.2. Losses. Company is liable for all losses it incurs when lost or stolen payment credentials or accounts are used to purchase products or services. Billfold does not and will not insure Company against losses caused by fraud under any circumstances. If a Reversal is issued, Billfold will provide Company notice and a description of the cause of the Reversal.
3.7.3. Challenging Disputes. Generally, Customers have the right to Dispute a charge for up to 1 year from the Transaction date. In many but not all cases, you may have the ability to challenge a Dispute by submitting evidence to Billfold. We may request additional information to provide to our affiliates to assist you in contesting the Dispute, but we cannot guarantee that your challenge will be successful. Our affiliates may deny your challenge for any reason they deem appropriate. Where a challenge is entirely or partially successful, your Settlement Account will, subject to our exercise of our rights, be credited with the funds associated with the Charge that is the subject of the Dispute (or a portion thereof). You may not submit a new Charge which duplicates a Transaction that is subject to a Dispute.
3.8. Responsibilities and Disclosures to Your Customers. It is very important to Billfold that Company’s Customers understand the purpose, amount, and conditions of Charges submitted to us. With that in mind, when using the Payment Processing Services Company agrees to: (i) authorize and appoint Billfold as its Merchant for Transactions, and Company will indicate that Billfold is the merchant of record for Transactions (ii) accurately communicate, and not misrepresent, the nature of the Transaction, and the amount of the Charge in the appropriate currency; (iii) provide a receipt that accurately describes each Transaction to Customers; (iv) provide Customers a meaningful way to contact you in the event that the product or Service is not provided as described; (v) not use Services to sell products or Services in a manner that is unfair or deceptive, exposes Customers to unreasonable risks, or does not disclose material terms of a purchase in advance; and (iv) inform Customers that Billfold and its affiliates process Transactions (including payment Transactions) for Company. Company also agrees to maintain and make available to its Customers a fair and neutral Refund policy, and clearly explain the process by which Customers can receive a Refund. If Company engages in Transactions with Customers who are individuals (i.e. consumers), Company specifically agrees to provide consumers disclosures required by Law, and to not engage in unfair, deceptive, or abusive acts or practices.
3.9. Reserves. Company acknowledges and confirms that Billfold is authorized to invoice the company for the Reserve amount set forth in the Master or Event Addendum and to hold such funds in accordance with the terms herein. Company is not allowed to draw funds from Reserve Funds, and Company will not receive interest from funds maintained in Reserve Funds. Reserve Funds on each transaction are held for at most {120} days from the date of processing of each transaction by Billfold on behalf of the Company. For any disputes after the 120 day period, Company acknowledges and confirms that Billfold will invoice Company for any such additional amounts as is deemed necessary to ensure Dispute Charges are covered by the Reserve Funds. Any funds remaining in Reserve Funds after Dispute Charges have been deducted, upon the expiration of the Reserve Funds term, will be credited to the Settlement Account. If the amount of Dispute Charges exceeds the Reserve, Company acknowledges and confirms that Billfold will invoice Company for any such additional amounts on a {weekly} basis. The Dispute Charges are calculated as the total value of all disputed transactions finalized in the cardholder's favor, plus a {$30} fee per dispute received. In the event that Company does not make payment of an invoice for Dispute Charges within {7 days (net 7)} of receipt of invoice, Billfold shall retain the right to charge late fees of {2%} per month, pro-ratable, on the outstanding balance of the invoice.
3.10. Settlement. Company affirms that it is authorized to initiate settlements to and debits from the Settlement Account, and that the Settlement Account is owned by Company. Funds typically settle to your Settlement Account 5 business days from the date of the Transaction. Please be aware that our affiliates or the financial institution holding the Settlement Account may delay settlement for any reason. Billfold is not responsible for any action taken by the institution holding the Settlement Account to not credit the Settlement Account or to otherwise not make funds available to Company as expected. Please make sure the information provided to Billfold about the Settlement Accounts is accurate and complete. If Company provides Billfold with incorrect information (i) Company understands that funds may be settled to the wrong account, and that Billfold may not be able to recover the funds from such incorrect transactions and, (ii) Company agrees that it is solely responsible for any losses it or third parties incur due to erroneous settlement transactions, Company will not make any claims against Billfold related to such erroneous settlement transactions, and Company will fully reimburse Billfold for any losses it incurs.
3.11. Settlement Errors. The Company Account contains Transaction history, and other activity on Company’s Account. Except as required by Law, Company is solely responsible for reconciling the information in the Dashboard with Company’s records of Customer Transactions, and for identifying any errors. Company agrees to review its Account and immediately notify Billfold of any errors. Billfold will investigate any reported errors, including any errors made by Billfold or its affiliates, and, when appropriate, attempt to rectify them by crediting or debiting the Settlement Account identified in the Dashboard. However, Company should be aware that Company’s ability to recover funds Company have lost due to an error may be very limited or even impossible, particularly if Billfold did not cause the error, or if funds are no longer available in any Settlement Account. For Transaction errors, Billfold will work with Company and its affiliates to correct a Transaction error in accordance with the applicable Payment Method Rules. Company must notify Billfold of any settlement errors within 60 days of settlement or Company waives its right to make any claims against Billfold or its affiliates.
3.12. Security Interests. Company’s failure to pay amounts owed to Billfold or to its affiliates under this Agreement is a breach, and Company will be liable for any costs Billfold incurs during collection in addition to the amount owed. Collection costs may include attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest, and any other related cost. Company may not grant or assign any interest in payment processing proceeds to any third party until such time as the proceeds are deposited into the Settlement Account. Consistent with the foregoing, Company grants Billfold a lien and security interest in all funds for Transactions that Billfold process for Company, including funds that Billfold deposits into your Settlement Account, as well as funds held in any other bank accounts to which such Transaction funds are deposited or transferred. Upon our request, Company will execute and deliver any documents and pay any associated fees Billfold considers necessary to create, perfect, and maintain a security interest in such funds (such as the filing of a form UCC-1).
Company agrees to pay Billfold the fees set forth in the applicable Master Addendum and Event Addendum(s) together with any additional amounts due Billfold in connection with the Services or Equipment, including any Fines, Taxes, and any additional Services or Equipment purchased or leased by the client, but not reflected in the Master Addendum or Event Addendum(s) (collectively, “Fees”). Fees shall be paid in United States (U.S.) Dollars, and are non-cancelable and non-refundable. To the fullest extent permitted by law, Company hereby waives all claims relating to Fees unless claimed within sixty (60) days after charged.
5.1. Credit Card Billing. In order to use the Services, Company must provide Billfold with a valid credit card and authorize Billfold to charge the credit card for Fees incurred. Company agrees to maintain a valid credit card and authorization on file in your Account at all times, and Company acknowledges that its failure to do so puts Company in breach of these Terms. Billfold may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) if Company has elected a subscription service, on a recurring basis in accordance with the terms set forth in the Event Addendum for the applicable Event.
5.2. Late Charges. If Billfold is unable to collect any Fees due under these Terms as due, than in addition to any other rights or remedies it may have under these Terms, Billfold may charge a late charge of one and a half percent (1.5%) per month applied against any overdue amounts, or the maximum rate permitted by law, whichever is less. Company will be responsible for all reasonable expenses (including attorneys' fees) incurred by Billfold in collecting any delinquent amounts.
6.1. Fees Exclude Taxes. Fees are exclusive of any taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes, goods and Services taxes, excise, business, tariffs, service, and similar transactional taxes and charges imposed by any jurisdiction and any interest and penalties thereon, excluding taxes based on Billfolds net income (collectively, “Taxes”).Billfold is solely liable and responsible for: (i) determining what, if any, Taxes apply in connection with the Fees Billfold collects from Company for the provision of the Services and (ii) assessing, collecting, reporting, and remitting such Taxes to the appropriate tax and revenue authorities.
6.2. Withholdings. Taxes may not be deducted from the Fees due Billfold, except as required by law. If Company is required under the laws of a country to pay a withholding Tax in connection with amounts due Billfold under these Terms, such amounts may be deducted from the amounts due Billfold, provided that Billfold can use such withholding Tax credit to reduce its own income Tax liabilities. In such case, Company must promptly furnish Billfold with copies of original receipts for payment of such withholding Taxes. If a particular withholding Tax payment cannot not be used to reduce Billfold’s own Tax liabilities, or Company fails to promptly furnish original receipts for a particular withholding Tax payment, such withholding Tax payment may not be used to reduce any payment due Billfold, and Billfold may charge the credit card on file for the difference between the payment amount initially due and the payment received.
6.3. Sales Tax. In some states, sales Taxes are due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If Billfold is obligated to collect or pay Taxes in connection with your use of the Services, Billfold will gross-up the Fees due in the amount of the sales Taxes paid and charge the credit card on file any such amounts. If Company is exempt from sales Taxes, Company must provide Billfold with an original certificate from the appropriate taxing authority verifying your Tax-exempt status. Notwithstanding anything to the contrary in these Terms, Company understands and agrees that it is the sole responsibility of Company to ensure that either it or its agents or contractors notify Billfold in writing (which may be given by email or other electronic means) of the amount of sales tax to be collected for the sale of goods and/or services at the Event. Company understands that this information is needed in order for Billfold to input into its payment systems the percentages to be collected for sales tax. Company will release and hold harmless Billfold for failure of Company or the concessionaires to collect the proper amount of sales tax if Billfold was not properly notified as provided herein.
6.4. Returns. Pursuant to applicable Law (including the Internal Revenue Code), Billfold may be required to file periodic returns with taxing authorities in relation to your Company’s of the Services. Company acknowledges and confirms that Billfold will report the total amount of payments Company receives as required by the Internal Revenue Service. Billfold also may, but is not obliged to, electronically send Company tax-related information (including, when Company provides Billfold its tax identification number, a Form 1099-K).
7.1. Equipment. Certain aspects of the Service require use of Billfold’s proprietary equipment. Equipment may be leased or purchased pursuant to a purchase order and Section 9 of these Terms. In the event that any equipment leasing structure is entered into by Company and Billfold, and provided Company complies with all the terms and conditions herein, Billfold grants Company a limited, non-exclusive, non-transferable, non-assignable, non-sublicenseable license to use the leased equipment identified in the master addendum or any Event Addendum solely in connection with the Services as provided herein (“Equipment”). The Equipment may not be used for any other purpose.
7.2. Equipment Loan. In the event of an equipment leasing structure being extant, no rights are granted by Billfold in or to the Company except as expressly granted herein. Company acknowledges that the Equipment is loaned, and Billfold retains all right, title and interest to the Equipment, the Equipment design and Documentation, and the intellectual property rights therein and thereto (including without limitation, all patent rights, design rights, copyrights and trade secret rights). Company agrees not to (i) disassemble, decompile, modify, copy or reverse engineer the Equipment or any software embodied therein or otherwise attempt to derive or obtain any source code, structure, algorithms, process, technique, technology, know how or ideas underlying or contained in the Equipment, (ii) sell, license, rent, or transfer the Equipment to any third party, (iii) offer to others the use of the Equipment or any portion thereof, or (iv) move the Equipment to a different location than that specified in the Event Addendum.
7.3. Risk of Loss. As regards any leased equipment, Company is responsible for any loss or damage to the Equipment apart from reasonable wear and tear. Risk of loss in the Equipment shall pass from Billfold to Company upon Billfold’s installation of the Equipment.
7.4. Equipment Return. All Equipment subject to a leasing structure must be made available to Billfold for pickup by the return date specified in the Event Addendum, and Company acknowledges and confirms that Billfold may, upon 5 days’ prior written notice, and at Company’s expense, repossess such Equipment without liability to you in the event Company fails to make the Equipment available to Billfold on the return date. In such an event, Company agrees to assemble all Equipment so that Billfold may repossess such Equipment without a breach of the peace and without objection.
8.1. Ownership. In the event that an equipment purchase agreement is entered into by Company and Billfold for the purchase of any equipment including Point of Sale (POS) hardware, such purchase of equipment shall be subject to this Section 8 as well as to the terms provided in a related purchase order or similar document (each a “Purchase Order”). To the extent that these Terms conflict with the express language in a Purchase Order, the terms provided in the Purchase Order shall prevail. The Purchase Order shall outline the specific terms relating to the purchase of the equipment, such as, for example, unit-type, price, quantity and whether such equipment is in new or used condition. Ownership of the purchased equipment will pass to the Company upon full payment of the equipment.
8.2. Warranty. Billfold warrants that the purchased equipment will be free from defects in materials and workmanship under normal and intended use for a period of one (1) year from the date of purchase or replacement (“Warranty Period”). This warranty does not cover damages caused by accident, misuse, abuse, or improper care. All warranties, representations and obligations of Billfold under these Terms are not transferable, notwithstanding anything to the contrary in these Terms.
8.2.1. Replacing Equipment under Warranty. If equipment under warranty is malfunctioning, Company may request an equipment replacement or repair by contacting the Billfold Support Team.
To process a hardware/equipment replacement Billfold may request the following:
(i) Validation of troubleshooting steps taken to confirm that the hardware is broken/malfunctioning;
(ii) The serial number of the hardware (except for stands which don't have serial numbers)
Equipment replaced pursuant to the warranty may only be made for an item of the same exact model number. If a different item is requested, a return must be processed and the new item purchased.Following the validation described above, and provided that Company is not in default with respect to any of the Terms or its payment obligations, the replacement hardware will be shipped out promptly to mitigate business disruption for the customer.A shipping label for the hardware being returned will be emailed to Company within 72 business hours of its request. The Company must use this label to return the malfunctioning hardware.If Company does not ship the hardware out within 45 days of receiving the return label, the Company will be charged 100% of the retail value of the hardware that was shipped out to them in advance.
8.3. Equipment Upgrades. Being as it is in the economic and commercial interests of both parties to have the best possible hardware deployed, Billfold may, at its discretion, opt (but only with the consent of Company) to replace existing hardware with hardware that may provide improved results for the Company, subject to any upgrade fees outlined in a relevant addendum. A new Warranty Period will apply to equipment replaced pursuant to this paragraph. All equipment replaced pursuant to this paragraph shall be promptly returned to Billfold pursuant to Billfold’s directions. Title to the replaced equipment shall pass to Billfold upon Company’s receipt of the upgraded equipment.
8.4. Limitation of Liability. Without limiting any other limitation of liability provision provided in these Terms, Billfold shall not be liable for any indirect, incidental, special, or consequential damages arising out of or in connection with the use of any purchased or leased equipment, including but not limited to loss of profits, loss of business, or other economic loss. Notwithstanding anything to the contrary in these Terms, Billfold’s total liability arising out of or in connection with the use of any equipment purchased or leased by Company shall not exceed the amount paid by the Company for the purchase or lease (as the case may be) of such equipment.
8.5. Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.6. Support and Maintenance. Billfold will provide Company support for the equipment during the term provided that the equipment is being utilized in connection with the Services. Billfold may also offer additional support and maintenance services for an additional fee.
8.7. Intellectual Property. The equipment (including POS hardware) and all associated software are protected by intellectual property laws. The Company shall not copy, reverse engineer, modify, or distribute the equipment or associated software without the express written permission of Billfold.
Company acknowledges that Billfold will have no liability whatsoever for any delays or failure to perform any Services which result from Company’s (or Company‘s affiliates) failure to comply with the Technical Rider, and Company agrees to pay Billfold at Billfold’s standard rates for any additional Services required beyond those set forth in the Event Addendum as a result thereof.
10.1. Ownership. As between Company and Billfold, Billfold exclusively owns all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property rights in or to the Services (collectively, “Billfold IP”).
10.2. License Grant. Subject to sections 10.3 and 10.4 and provided Company complies with all the terms and conditions herein, Billfold grants Company a limited, non-exclusive, non-transferable, non-assignable, non-sublicenseable license to use the Billfold IP in the Services as permitted in these Terms. Any rights to the Billfold IP not expressly granted in these Terms are reserved. Company may not disassemble, decompile, modify, copy or reverse engineer any Billfold IP, and you may not remove or in any manner alter the copyright, trademark, or other proprietary rights notices to any elements of the Services.
10.3. Billfold Trademarks. The trademarks, logos, taglines, and Service marks displayed on Billfold’s website and Services (collectively, the “Trademarks”) are registered and unregistered Trademarks of Billfold and others. The Trademarks may not be used in any advertising or publicity, or otherwise to indicate Billfold’s sponsorship of or affiliation with any product, service, event, or organization without Billfold’s prior express written permission. Notwithstanding the foregoing, Billfold may Company’s logos, name, and any trade names to indicate in its promotional materials that you are a client of Billfold.
10.4. Billfold “Engage” Exclusion. Billfold’s proprietary advertising service “Engage” enablesCompany to advertise on Billfold Assets. “Billfold Assets” for purposes of this Section means any and all advertising space available on or in any Billfold systems, technology, hardware, software or assets, including, without limitation, (i) wristbands, (ii) POS ad space/screens; (iii) activation and top-up stations, (iv) pre-event registration webpages or web applications, (v) email or other electronic receipts or correspondence, and (vi) any form of advertising enabled by the foregoing. Notwithstanding anything to the contrary in these Terms, Company shall have no right or license to advertise on Billfold Assets or otherwise utilize the Engage services unless and until it has entered into a separate agreement or addendum with Billfold directly covering the Engage services (and “Engage Agreement”). Unless an Engage Agreement has been executed by Billfold and the Company, Billfold Assets shall, at Billfold’s discretion, display only Billfold branding and the Billfold Assets will not be enabled for any advertising or marketing purposes by the Company or any third party. Unless otherwise agreed by way of an addendum or other written agreement between Company and Billfold, Billfold may not feature third party ads on the Billfold Assets even if Company declined to activate the Engage services. Any unauthorized use of Billfold Engage products shall constitute a breach of these Terms.
10.5. Data Ownership and Usage. For the purposes of this Section 10.5, "data" refers to any and all information, records, and details collected or received by Billfold about individuals attending or registering for Events, including information collected or obtained in the course of providing payment systems and POS or cashless payment services at or in relation to the Event. This encompasses, but is not limited to, individual user information such as names, contact details, payment information, transaction histories, and any other personal identification or usage information of attendees, participants, or registrants of the Event.
(a) Billfold shall be the exclusive owner, and shall retain exclusive ownership, of all data and information collected in connection with the services it provides at or in relation to any Event. This encompasses data concerning users who register for, attend, or participate in such Event, and includes but is not limited to, personal identification information, payment details, and transaction histories. Billfold will have the right to utilize and share such information subject to its privacy policy and applicable law.
(b) Although Company may have access to certain data and information collected by Billfold (through specified dashboards or other interfaces provided by Billfold, for example), such access shall be subject to applicable law and to Company’s agreement that it shall keep such information confidential as required by law. Such access is granted for operational necessities and facilitation of the Event and does not confer any ownership rights or use rights to the Company. In addition, Billfold shall have the right to anonymize or aggregate data before sharing such data with Company. The Company acknowledges and agrees that all accessed data collected by Billfold or through the Billfold systems or website(s) remains the sole property of Billfold.
(c) Any utilization of the data by Company, outside of the operational necessities of the Event, requires explicit written authorization from Billfold. Unauthorized use, sharing, or sale of this data is strictly prohibited. Company must exercise utmost diligence and care in handling the data, ensuring compliance with all applicable privacy laws and regulations.
(d) In the event of any unauthorized use, sharing, or sale of the data by the Company or its agents, the Company agrees to indemnify and hold harmless Billfold against any and all liabilities, losses, or expenses arising from such actions. This indemnification includes, but is not limited to, legal fees, settlement costs, and damages awarded against Billfold. Furthermore, this indemnification obligation is in addition to, and not in lieu of, any other indemnification provisions set forth in these Terms, and shall not limit or reduce any other rights to indemnification otherwise available to Billfold under these Terms or applicable law.
Confidential Information includes all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether of a technical, business, or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information does not include information that: (a) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with these Terms; (b) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (c) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (d) is or becomes part of the public domain through no act or omission of the Receiving Party. Each Receiving Party will (a) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under these Terms; (b) not disclose the Disclosing Party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with these Terms and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained herein; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If a Receiving Party is required by law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by law) of such requirement to the Disclosing Party before such disclosure and assist the Disclosing Party in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 15 will survive termination of these Terms until the expiration of three (3) years from the date of last disclosure. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under these Terms remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act.
12.1. Term. These Terms are effective as of the Effective Date, and they will remain in effect until terminated in accordance with the provisions herein.
12.2. Termination of TOS and Master Addendums. Company may terminate these Terms (and all Master Addendums hereunder) {annually} upon the anniversary of the Effective date for any reason, by providing written notice of termination no later than 10 business days before each such anniversary, and such notice shall be effective upon Billfold’s receipt thereof if sent in accordance with the notice provisions herein. Billfold may terminate these Terms (and all Master and Event Addendums hereunder) and close any Company Accounts upon notice to Company if Company is in breach of any of its obligations hereunder by providing written notice of termination, and such notice shall be effective upon Company’s receipt thereof if sent in accordance with the notice provisions herein.
12.2.1. Termination of Event Addendums. Company may terminate any Event Addendum at any time for any reason, subject to the provisions of the Effect of Termination, Refunds and Obligations on Termination sections below (12.5, 12.5.1 and 12.5.2 respectively).
12.3. Termination for Insolvency. Either party may terminate these Terms (and all Addendums hereunder) if a party becomes insolvent, makes a general assignment for the benefit of creditors, has a receiver appointed or has a petition in bankruptcy (or similar insolvency or re-organization proceeding) filed for or against it (the “Bankrupt Party”), and, without the other party’s express written agreement, these Terms may not be assumed or assigned in any bankruptcy or similar proceeding involving the Bankrupt Party. For purposes of enforcing this Section under U.S. law, applicable non-bankruptcy law excuses Billfold from accepting performance from any entity other than you as provided in the U.S. Bankruptcy Code, 11 U.S.C. §§365(c)(1)(A) and 365(e)(2)(A). Further, the Bankrupt Party agrees that a “reasonable period” for the Bankrupt Party to determine whether to seek assumption of these terms or to reject it in bankruptcy under U.S. law, will not exceed 60 days from the filing of the bankruptcy petition, and that it is reasonable for the other party to receive adequate assurance of future performance by the Bankrupt Party in such 60 day period.
12.4. Suspension. In addition to Billfolds right to terminate, Billfold may, in its sole discretion, immediately suspend all or part of Company’s use of the Services if Billfold believes Company is in breach of any of its obligations under these Terms.
12.5. Effect of Termination.
12.5.1. Refunds. Billfold understands that unforeseen events may arise that force Company to terminate an Event Addendum ( but not a Master Addendum), and Billfold believes in doing right by its customers. If Company provides Billfold written notice of termination for convenience at least 180 days prior to the Event start date in the applicable Event Addendum, Company will have no liability to Billfold for the Fees due thereunder, and Billfold will refund any deposits received. If Company provides written notice of termination for convenience 21 to 180 days prior to the Event start date in the applicable Event Addendum, Company will remain liable to Billfold for fifty percent (50%) of the Fees due thereunder. If Company provides written notice of termination for convenience within 21 days of the Event start date in the applicable Event Addendum, Company will remain liable for the entire amount of the applicable Event Addendum. No seperate refunds (beyond those covered by the applicable Event addendum termination refunds) shall be applicable in the event of the termination of a Master Addendum.
12.5.2. Obligations on Termination. Company understands and agrees that upon termination of these Terms (i) all licenses granted hereunder automatically terminate; (ii) Billfold reserves the right (but has no obligation) to delete all Account Data stored on its servers; (iii) Billfold will not be liable to Company for compensation, reimbursement, or damages related to Company’s use of the Services, or any termination of the Services or deletion of Account Data; and (iv) Company still liable to Billfold for any Fees or Fines, or other financial obligation incurred by Company or through Company’s use of the Services prior to termination. Additionally, upon termination, Company agrees to immediately (i) complete all pending Transactions, (ii) stop accepting new Transactions, and (iii) make any Equipment in your possession immediately available for Billfold to collect. All Billfold equipment (other than equipment purchased by Company) shall be promptly returned to Billfold upon termination for any reason.
Company warrants and represents that: (i) it is eligible to register and use the Services and has the authority to execute and perform the obligations required by these Terms; (ii) it will at all times comply Billfold’s Acceptable Use Policy; (iii) it will comply with these Terms all Laws applicable to your business and use of the Services; and (iv) Billfold is not responsible for or liable to Company for Charges that are later the subject of a Dispute, Refund, or Reversal, are submitted without authorization or in error, or violate any Law.
THE SERVICES AND EQUIPMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES (EXCEPT FOR EXPRESS WARRANTIES PROVIDED HEREIN), INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY, OR ANY OTHER TYPE OF WARRANTY OR GUARANTEE. NO DATA, DOCUMENTATION OR ANY OTHER INFORMATION PROVIDED BY BILLFOLD OR OBTAINED BY COMPANY FROM OR THROUGH THE SERVICES CREATES OR IMPLIES ANY WARRANTY FROM BILLFOLD TO COMPANY. BILLFOLD SPECIFICALLY DISCLAIMS ANY KNOWLEDGE OF, AND DOES NOT GUARANTEE: (A) THE ACCURACY, RELIABILITY, OR CORRECTNESS OF THE SERVICES; (B) THAT THE SERVICES WILL MEET YOUR SPECIFIC BUSINESS NEEDS OR REQUIREMENTS; (C) THAT THE SERVICES WILL FUNCTION IN AN UNINTERRUPTED MANNER; OR (D) THAT BILLFOLD WILL CORRECT ANY DEFECTS OR ERRORS IN THE SERVICE.
15.1. Indemnification Obligation. Company agrees to defend, indemnify, and hold harmless Billfold and its officers, directors, employees and subsidiaries from and against any claims, suits, demands, losses, liabilities, damages, actions, or proceedings (and all associated costs, including settlement costs and reasonable attorneys’ fees) asserted by a third party (each, a “Claim”) arising out of or in connection with (i) Company’s use of the Services, (ii) Company’s breach of any obligation under these Terms, (iii) any Fees, Fines, Disputes, Refunds, Reversals, Returns, or any other liability Billfold incurs that results from Company’s use of the Service, and (iv) any contractual or other relationships between Company and a third party.
15.2. Indemnification Process Billfold shall promptly notify Company of any applicable Claim upon becoming aware of it and will permit Company, at Company’s sole cost and expense, to control the defense and disposition of such Claim (including, all decisions to litigate and/or settle or appeal, subject to Billfold’s consent for any settlement imposing any obligation on Billfold). Billfold shall reasonably cooperate in the defense thereof. Billfold may, at its option and expense, retain its own counsel to participate in any proceeding. Company shall promptly advise Billfold of any significant events occurring in such actions, including but not limited to any issues that could affect Billfold’s interests or situations where Company and Billfold may potentially have adverse interests (such as issues relating to discovery from Billfold).
16.1. Waiver of Damages. WITH THE EXCEPTION OF A BREACH OF SECTIONS 10 AND 11, NEITHER PARTY SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES (WHETHER OR NOT A PARTY WAS SPECIFICALLY INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF BUSINESS (DIRECT AND INDIRECT), PERSONAL INJURY, OR PROPERTY DAMAGE OR FOR ANY OTHER DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THE SERVICES, EVEN IF SUCH DAMAGES ARE FORSEEABLE.
16.2. Limitation on Amount of Liability. UNDER NO CIRCUMSTANCES WILL BILLFOLD’S COLLECTIVE TOTAL LIABILITY ARISING OUT THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO BILLFOLD UNDER THIS AGREEMENT IN THE {SIX (6) MONTHS} IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
16.3. Basis of the Bargain. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR WIAVER OF DAMAGES ALLOCATES THE RISKS OF THESE TERMS BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OFFERED, AND AS SUCH IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. IF ANY LIMITATION OF LIABILITY IN THESE TERMS IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE LIMITATIONS IN THESE TERMS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Company acknowledges and confirms that Billfold may modify the Services at any time and for any reason.
18.1. Entire Agreement. These Terms, together with any Event Addenda, contains the entire agreement between the parties and supersedes all previous agreements or representations, whether written or oral, between the parties regarding the subject matter of these Terms.
18.2. Unenforceability. If any provision of these Terms are found by a court of competent jurisdiction or other valid tribunal to be invalid or otherwise unenforceable, the invalid or unenforceable provision shall be deemed amended to remove such provision, and the remaining Terms will be construed to give maximum effect to the intention of the parties at the time of formation. If the invalidity or unenforceability of any provision makes a fundamental purpose of these Terms ineffective in the determination of the party asserting its validity or enforceability, that party may immediately terminate these Terms upon written notice.
18.3. Waiver. No provision of these Terms will be deemed modified by any course of dealing or conduct, any act or failure to act on the part of Billfold or its agents, or by Billfold’s failure to object to any acts or omissions which may violate these Terms. No failure to object to any event of default committed by either party in one instance will constitute a waiver or license to commit or continue events of default in other or like instances.
18.4. Dispute Resolution. These Terms will be construed according to the substantive law, but not the choice of law rules, of the State of New York and of applicable federal law of the United States. If any dispute arises under these Terms, the venue for such dispute will be in the New York City Superior Courts and the Federal District Court located in New York City, New York, and the parties hereby submit to the jurisdiction of such courts. Notwithstanding the foregoing, this Section will not preclude either party from seeking equitable relief in any court of competent jurisdiction. Any judgment issued by a court or other tribunal may be enforced to the fullest extent of the law in the country where a party resides, is located or owns assets.
18.5. Attorney Fees. In any action brought to resolve a dispute under these Terms, the prevailing party will be entitled to recover from the other party all costs and expenses incurred in that action or any appeal therefrom, including but not limited to court or arbitration costs and fees, all reasonable attorneys’ fees and other related costs.
18.6. Assignment. The rights granted to Company under these Terms are personal and may not be assigned, sublicensed or otherwise transferred without Billfold’s prior written consent. Any assignment without Billfold’s consent (provided Billfold will not unreasonably withhold consent) shall be void and shall automatically terminate these Terms. Billfold may terminate these Terms upon notice, at its option, in the event of a Change of Control of Company’s business.
18.7. Notices. All notices to Billfold must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested), electronic mail, or as otherwise specified by Billfold. Legal notices to Billfold must be sent to legal@billfoldpos.com.Notices to Company will be sent to the email address on file in Company’s Account and are deemed effective when sent or posted.
18.8. Independent Parties. Nothing in these Terms serves to establish a partnership, joint venture, or other agency relationship between the parties. Each party an independent contractor, and unless otherwise set forth herein, neither party is the agent or representative of the other party, and neither party has authority to assume obligations or make representations on behalf of the other.
18.9. Equitable Relief. Any actual or threatened violation by a party of Section 8, or an actual or threatened violation by you of your obligations related to Billfold IP will irreparably injure the other party and monetary damages would not be an adequate remedy. In such event, the non-breaching party may elect to seek equitable relief, including injunctive relief or specific performance, in any court or forum of competent jurisdiction, in addition to pursuing any other legal remedies.
18.10. Survival. Sections 3.7, 3.8, 3.10, 4, 6, 8, 9, 10.5, 11-14 and 16 shall survive the termination of these Terms for any reason.
18.11 Force Majeure. Neither party will be liable for any delays or failures to perform which are the result of any event over which the respective party has no reasonable control. However, nothing in this Section will affect or excuse Company’s obligation to pay Fees, Fines, Disputes, Refunds, Reversals, or Returns as due hereunder. Notwithstanding the above, either party may terminate these Terms in the event a force majeure event continues or is likely to continue for 15 days or more.
19.1. “Account” means Company’s customer account.
19.2. "Account Data" means content (i) collected by Billfold in connection with the Account (e.g. registration information, financial institution information, payment information, etc.), and (ii) sale and Transaction data collected by Billfold.
19.3. “Law” means any federal, state and foreign laws, rules and regulations that relate to a party’s obligations under these Terms.
19.4. “Billfold Materials” means the Billfold IP, Equipment, Documentation, visual interfaces, graphics, design, templates, compilation, computer code, and all other elements of the Service.
19.5. “Control” means control of greater than fifty percent of the voting rights or equity interests of a party.
19.6. “Customer” means an individual Company permits to use the Service to purchase goods and/or services through the Service.
19.7. “Charge” means a credit or debit instruction to capture funds from an account with a bank or other financial institution in connection with a Transaction.
19.8. “Documentation” means the Billfold’s user guides, support guidelines, technical materials and any other documentation Billfold makes available to you for use with the Services.
19.9. “Dispute” means an instruction initiated by a Customer for the return of funds for an existing Charge (including a chargeback or dispute on a payment card network; and disputes on the Automated Clearinghouse (ACH) network).
19.10. “Fine” means any fines, levies, or other charges imposed by us, a Payment Method Provider or a Payment Method Acquirer, caused by your violation of Laws, these Terms, or as permitted by the applicable Payment Method Rules.
19.11. “Payment Method” means a payment method (e.g. credit card) that Billfold accepts as part of the Services.
19.12. “Payment Method Acquirer” means a financial institution that is authorized to accept Charges from Customers, and route these Charges to the Payment Method Provider.
19.13. “Payment Method Provider” means the provider of a Payment Method, such as Visa, Mastercard, Discover, and American Express.
19.14. “Payment Method Rules” means the guidelines, bylaws, rules, and regulations imposed by the Payment Method Providers and Payment Method Acquirers that operate Payment Methods supported by Billfold (including the payment card network operating rules (“Network Rules”) for the Visa, Mastercard, Discover and American Express networks; and the NACHA operating rules that apply to the ACH network.
19.15. “Refund” means an instruction initiated by Company to return funds to a Customer for an existing Charge.
19.16. “Reserve Account” means the account where Billfold holds funds in the amount set forth in the Event Addendum to cover against chargebacks and Customer Disputes.
19.17. “Return” means an instruction initiated by Company, a Customer, a Payment Method Provider or a Payment Method Acquirer to return funds unrelated to an existing Charge.
19.18. “Reversal” means an instruction initiated by a Payment Method Provider, a Payment Method Acquirer or Billfold to return funds for an existing Charge. Reversals may result from (i) invalidation of a charge by a Payment Method Provider or a Payment Method Acquirer; (ii) funds settled to Company in error or without authorization; and (iii) submission of a Charge in violation of the applicable Payment Method Rules, or where submission of the Charge or Company’s use of Payment Processing Services violates these Terms.
19.19. “Settlement Account” the account(s) Company designate into which Billfold, together with its affiliates, will transfer funds due you in connections with settled Transactions.
19.20. “Transaction” means a purchase, sale, or other transaction with a Customer.
