Terms of Service for Consumers
Last Updated: March 27, 2015
Agreement to Terms
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, or otherwise communicated them to you, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services
You may use the Services only if you are 18 years or older and capable of forming a binding contract with Minkasu and are not barred from using the Services under applicable law. By using the Services, you confirm that you are either a legal resident of the United States or a United States citizen. The Services may only be used for U.S. dollar transactions within the 50 states of the United States and the District of Columbia. The Services do not support payments in foreign currencies.
The Services and Your Information
You do not need to create a user ID and/or password with Minkasu to use the Services. If you do not have a smartphone with a fingerprint sensor, you will need however to create a PIN to use the Services via your smartphone. You will be able to use the Services to make purchases directly from certain merchants of products and services which accept Minkasu’s mobile payment services (the “Merchants”). To use the App, you must input your name, a valid credit or debit card, prepaid card or gift card with a Visa, MasterCard, American Express or Discover logo (the “Card”) and other personal information, such as your mobile telephone number, email address and billing address associated with your Card into the App. It is important that you provide us with accurate, complete and up-to-date information relating to your use of the Services and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, you won’t be able to use the Services to complete your purchases. You agree that you’ll notify us immediately of any unauthorized use of your information. You’re responsible for all activities that occur on your mobile device relating to your use of the Services, whether or not you know about them.
Sharing Your Information with Merchants
By using the Services you give Minkasu permission to share with the Merchants information regarding your purchases made via the Services. For the avoidance of doubt, we do not share your Card payment credentials, including your Card number and your Card expiration date, with the Merchants.
Accepted Cards; Financial Services Disclaimer
Minkasu allows you to make mobile payments only with US-issued Cards. We can update at any time the list of card types that you may use with the Services. You may not however, use HSA cards (Health Savings Account) with the Services, even if they have a Visa, MasterCard, American Express, or Discover logo on them. Minkasu is not a bank, and we do not offer banking services as defined by the United States Department of Treasury. In addition, Minkasu is not a payment processor; all payment processing is handled solely by the Merchants’ existing payment infrastructure including the Merchants’ own payment gateways and payment processors. Minkasu securely transmits payment credentials directly to the Merchants’ payment gateway. Minkasu also does not offer money service business (“MSB”) services as defined by the United States Department of Treasury.
By entering or scanning your Card billing information and other personal information into the Minkasu App and using the Services to complete a purchase via the Minkasu App, you authorize a charge to your Card as necessary to complete the purchase. When you make a mobile payment using the Services, Minkasu does not make any representation or verify that any of your Cards are in good standing or that the issuer of your Card will authorize or approve any purchase from a Merchant.
Any purchases you authorize through the Minkasu App may also be subject to the terms and conditions imposed by the appropriate Card network or entities that issued your Card and by the Merchant terms and conditions of sale. It is your responsibility to comply with these terms and conditions, and you are responsible for charges and fees imposed by those terms and conditions.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. By submitting Feedback to us, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Minkasu and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
Rights and Terms for App
Rights in App Granted by Minkasu
Subject to your compliance with these Terms, Minkasu grants you a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the App on a mobile device that you own or control and to run, such copy of the App solely for your own personal, non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Minkasu reserves all rights in and to the App not expressly granted to you under these Terms.
Additional Terms for App Store Apps
If you accessed or downloaded the App from the Apple Store, then you agree to use the App only: (i) on an Apple-branded product or device that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple Store Terms of Service.
If you accessed or downloaded the App from any app store or distribution platform (like the Apple Store, Google Play or the Amazon Appstore) (each, an “App Provider”), then you acknowledge and agree that:
- These Terms are concluded between you and Minkasu, and not with App Provider, and that, as between Minkasu and the App Provider, Minkasu, is solely responsible for the App.
- App Provider has no obligation to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify App Provider and App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, App Provider will have no other warranty obligation whatsoever with respect to the App.
- App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Minkasu will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms, App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third party beneficiary thereof.
- You must also comply with all applicable third-party terms of service when using the App.
- You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
General Prohibitions and Minkasu’s Enforcement Rights
You agree not to do any of the following:
- Use, display, mirror or frame the Services or any individual element within the Services, Minkasu’s name, any Minkasu trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Minkasu’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Minkasu’s computer systems, or the technical delivery systems of Minkasu’s providers;
- Attempt to probe, scan or test the vulnerability of any Minkasu system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Minkasu or any of Minkasu’s providers or any other third party (including another user) to protect the Services;
- Attempt to access or search the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Minkasu or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Minkasu trademark, logo URL or product name without Minkasu’s express written consent;
- Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Use stolen Cards or identification information;
- Violate any applicable law, rule or regulation;
- Use the Services to make payments in connection with the following businesses or business activities: (1) any illegal activity, (2) betting and gambling, including lottery tickets or casino gaming chips, (3) adult entertainment oriented products or services, (4) internet firearm or weapon sales, (4) internet cigarette or tobacco sales, (5) drug paraphernalia, (6) hate products, (7) escort services; or
- Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to refuse to process a transaction using the Services, remove or disable access to the Services, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider your use of the Services to be in violation of these Terms or if we believe that the transaction exposes you, other Minkasu users or us to fraud and other criminal acts. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law or if we suspect that the Services were used for unauthorized, illegal or criminal purpose.
Minkasu is not responsible if your mobile device or your Card is lost, stolen, destroyed or used without your permission. Minkasu will have the right to suspend or terminate the Services if a fraudulently obtained mobile device or Card is used to make purchases via the Minkasu App.
If you have an inquiry regarding a payment made with the Services or you believe there has been an error or unauthorized transaction regarding a mobile payment transaction using the Services, please contact your Card’s customer support number immediately. Please also inform Minkasu at email@example.com.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources, including but not limited to, the Merchant Sites. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. We may also suspend your access to and use of the Services if you have violated the Terms, pose an unacceptable fraud risk to Minkasu or provide any false, incomplete, inaccurate or misleading information or otherwise engage in fraudulent or illegal conduct. You may stop using the Services at any time by removing the App from your smartphone. If you delete the Minkasu App from your smartphone, the Minkasu App will no longer function. Upon any termination, discontinuation or cancellation of the Services, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions
The Services are provided “AS IS,” without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
You will indemnify and hold harmless Minkasu and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or (ii) your violation of these Terms.
Limitation of Liability
NEITHER MiNKASU NOR ANY OTHER party involved in creating, producing, or delivering the services will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES arising ouT of or in connection with thESE TERMS or from the use OF or inability to use the ServiceS, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not MINKASU has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
In no event will MINKASU’S total liability arising out of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE the ServiceS EXCEED THE AMOUNTS YOU HAVE PAID TO MINKASU FOR USE OF THE SERVICES OR TWENTY-FIVE DOLLARS ($25), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO MINKASU, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MINKASU AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Minkasu agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Minkasu are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Minkasu otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Minkasu otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Minkasu submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Minkasu will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Minkasu will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Minkasu changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Minkasu’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Minkasu in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Minkasu and you regarding the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Minkasu and you regarding the Services. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Minkasu’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Minkasu may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Minkasu under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Minkasu’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Minkasu. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact Minkasu at email@example.com or via mail at Minkasu, Inc., 860 Hillview Court, Milpitas, CA 95035.
Terms of Service for Merchants
Last Updated: April 2nd, 2015
PLEASE READ THESE MINKASU MERCHANT TERMS OF SERVICE (“TERMS”) CAREFULLY BECAUSE THEY GOVERN YOUR USE OF THE MINKASU SERVICES, UNLESS YOU, AS A MERCHANT, AND MINKASU, INC. (“MINKASU”) HAVE SIGNED A SEPARATE AGREEMENT REGARDING USE OF THE MINKASU SERVICES. YOU WILL BE REFERRED TO AS A “MERCHANT” IN THESE TERMS.
By, integrating Minkasu’s mobile payment solution and related services (the “Mobile Payment Services”) into Merchant’s Service (defined below), and using any software provided by Minkasu, to facilitate Merchant’s offering of the Mobile Payment Services to Consumers (defined below), Merchant is indicating that Merchant has read, understands and agrees to be bound by these Terms. If Merchant does not agree to be bound by these Terms, then Merchant has no right to use the Services. Minkasu’s Mobile Payment Services and Software, the Minkasu API and the Minkasu SDK, are collectively called the “Services.”
- “Card” means a valid credit or debit card, prepaid card or gift card with a Visa, MasterCard, American Express or Discover logo used by Consumers to make payments using the Mobile Payment Services, excluding Health Savings Account cards, even if they include a Visa, MasterCard, American Express, or Discover logo.
- “Consumer” means an individual who uses a Minkasu end-user mobile application on his or her smartphone to pay for Products via the Mobile Payment Services.
- “Hosted eCommerce Solution Provider” means a provider of a hosted ecommerce software solution and services, such as Shopify.
- “Intellectual Property Rights” means copyrights, patents, trademarks, trade secrets (including without limitation confidential information) and all other intellectual property or proprietary rights (whether registered or not) and equivalents or similar forms of protection existing anywhere in the world.
- “Marks” means the trademarks, service marks or logos owned by Minkasu or Merchant.
- “Merchant’s Service” means Merchant’s websites, mobile applications and Merchant’s point of sale devices at Merchant’s physical stores, via which Consumers can purchase Products.
- “Minkasu API” means the application programmer interface for the Mobile Payment Services, as provided or otherwise made available by Minkasu to Merchant.
- “Minkasu SDK” means the software development kit for integration of the Mobile Payment Services into Merchant’s Service.
- “Packaged eCommerce Solution Provider” means a provider of an ecommerce software package and services, such as Magento, Open Cart and Presta Cart.
- “Payment Transaction” means the processing of a payment which results in the charging of the purchase amount to a Consumer’s Card and the issuance of funds to a Merchant’s settlement account.
- “Products” means any of Merchant’s digital or physical merchandise, goods, or services that a Consumer may purchase using the Mobile Payment Services.
- “Software” means the object-code or source-code (if applicable) version of any software including, but not limited to, extensions and plug-ins provided to Merchant by Minkasu for access to and use of the Mobile Payment Services together with any error corrections, modifications, updates, upgrades and bug fixes related thereto delivered by Minkasu to Merchant pursuant to these Terms, excluding the Minkasu API and Minkasu SDK.
- Use of the Services.
- In order to make the Mobile Payment Services available to Consumers via Merchant’s Service, Merchant will use and leverage the Software, the Minkasu API or the Minkasu SDK, depending on the functionalities required and mutually agreed to between Merchant and Minkasu. If Merchant uses a Hosted eCommerce Solution Provider or Packaged eCommerce Solution Provider, then the Software will be provided through the Hosted eCommerce Solution Provider or Packaged eCommerce Solution Provider. Otherwise, Merchant will access the Software or Minkasu API or Minkasu SDK directly from Minkasu. The Mobile Payment Services only operate with US-issued Cards and only allow Card payments which have been authorized by the applicable Card issuer. Minkasu may remove or add Cards that are acceptable at any time without prior notice. As between Merchant and Minkasu, Minkasu exclusively owns all right, title, and interest and other proprietary rights in and to the Services and all Intellectual Property Rights therein.
- License Grants.
- Software. Subject to these Terms, Minkasu grants to Merchant a non-exclusive, non-transferable, revocable, non-sublicensable right and license in the United States of America (“US”) only, during the Term (as defined below), to use, execute, and reproduce the Software solely to the extent necessary to integrate the Software into Merchant’s Service for the purpose of enabling Consumers to complete purchases of Products from Merchant using their smartphones via the Mobile Payment Services. Merchant agrees to update and upgrade to the most current Software version necessary to operate the Mobile Payment Services as made available by Minkasu.
- Minkasu API. Subject to these Terms, Minkasu grants to Merchant a non-exclusive, non-transferable, revocable, non-sublicensable right and license in the US only, during the Term to access and use the Minkasu API, for purposes of utilizing or integrating the Mobile Payment Services into Merchant’s Service. The Minkasu API is available for up to an average of 2 requests per second per Merchant with the option for a maximum burst of 40 requests per Merchant at once. To keep the Minkasu API available for other merchants to use, Minkasu reserves the right, but is not obligated, to temporarily reduce the number of requests via the Minkasu API that Merchant may make, or Minkasu may temporarily suspend Merchant’s access to the Minkasu API. Merchant agrees to monitor the number of requests Merchant is making and notify Minkasu immediately by emailing Minkasu at firstname.lastname@example.org if Merchant’s use of the Minkasu API exceeds an average of 2 requests per second per Merchant or a maximum burst of 40 requests per Merchant at once so Minkasu can take appropriate measures if necessary. Merchant acknowledges that Minkasu may temporarily limit Merchant’s ability to access or communicate with the Minkasu API if Merchant’s use of the Minkasu API would result in degradation or inaccessibility of the Minkasu API for other merchants.
- Minkasu SDK. Subject to these Terms, Minkasu grants to Merchant a non-exclusive, non-transferable, revocable, non-sublicensable right and license in the US only, during the Term to install and use the Minkasu SDK for the sole purpose of integrating the Mobile Payment Services into the Merchant’s Service.
- Restrictions. Except as expressly authorized in these Terms or by applicable law, Merchant (i) will not copy or modify the Software, the Minkasu SDK or the Minkasu API, in whole or in part, (ii) will not lease, lend, sublicense or rent the Software, the Minkasu SDK or the Minkasu API, use the Software, the Minkasu SDK or the Minkasu API to provide service bureau, time sharing, rental, application services provider, hosting or other computer services to third parties, or otherwise make the functionality of the Software, the Minkasu SDK or the Minkasu API available to third parties, and (iii) is expressly prohibited from using the Software, the Minkasu SDK or the Minkasu API for any purpose other than integration of the Mobile Payment Services into Merchant’s Service. Merchant acknowledges that the Software, the Minkasu SDK or the Minkasu API constitute and contain trade secrets of Minkasu and its licensors, and in order to protect such trade secrets and other interests that Minkasu and its licensors may have in the Software, the Minkasu SDK or the Minkasu API, Merchant agrees not to disassemble, decompile or reverse engineer the Software, the Minkasu SDK or the Minkasu API nor permit any third party to do so, except to the extent such restrictions are prohibited by law. Minkasu reserves all rights in and to the Software, the Minkasu SDK or the Minkasu API that are not expressly granted to Merchant under these Terms.
- Trademark License.
- Minkasu Marks. Subject to these Terms, Minkasu hereby grants Merchant a non-exclusive, non-transferable, revocable, non-sublicensable license to use the Minkasu Marks in the US during the Term solely to promote and in connection with Merchant’s use and exercise of Merchant’s rights with respect to the Mobile Payment Services and for no other purpose. Any use by Merchant of the Minkasu Marks and goodwill derived therefrom inures solely to the benefit of Minkasu.
- Merchant Marks. Subject to these Terms, Merchant hereby grants to Minkasu a non-exclusive, non-transferable, revocable, royalty-free license to use the Merchant Marks in the US during the Term solely to identify Merchant as a customer of Minkasu, and to promote the Mobile Payment Services. Any use by Minkasu of the Merchant Marks and goodwill derived therefrom inures solely to the benefit of Merchant.
- Merchant’s Responsibilities.
- Information Provided by Merchant. Merchant agrees to provide current, complete and accurate registration information to Minkasu to use the Services, including Merchant’s business’ true and accurate name, postal address, phone number, email address, Merchant’s payment gateway login or token information and any other information needed by Minkasu that is requested by Minkasu to enable the Mobile Payment Services (collectively, the “Merchant Information”). Merchant will maintain and promptly update the Merchant Information during the Term.
- Maintenance and Transaction Information. Merchant is responsible for establishing, hosting and maintaining the Merchant’s Service and fulfilling all orders for Products placed by Consumers via the Mobile Payment Services. Merchant should be able to access its Merchant transaction history through its payment gateway, including, but not limited to, the dates of transaction and the amounts paid by Consumers for the Products (the “Transaction Information”), if the payment gateway makes such Transaction Information available to Merchant. The Transaction Information that Merchant can access may vary depending on Merchant’s payment gateway. Merchant is responsible for reviewing Merchant’s Transaction Information on a regular basis and notifying Minkasu promptly of suspected unauthorized activity.
- Authorization to Conduct Business in the US. Merchant agrees that Merchant is a business entity authorized to conduct business in all applicable state(s) within the US. The Services may only be used for business purposes in the US. Merchant will not export the Mobile Payment Services, the Software, the Minkasu SDK, or the Minkasu API, directly or indirectly, and Merchant acknowledges that the Services may be subject to export restrictions imposed by US law.
- Card Issuers’ Rules. Merchant is solely responsible for complying with all applicable bylaws, rules, and regulations of the Card issuers, which amend their rules and regulations from time to time. Merchant agrees that Minkasu may be required to change these Terms in connection with amendments to such rules and regulations.
- Customer Service for Consumers. Merchant is solely responsible for all customer service policies and issues relating to Products, including pricing, order fulfillment, cancellations, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with Products and Merchant’s personnel, policies or processes and Minkasu has no obligations in this regard. In performing customer service, Merchant will always present itself as a separate entity from Minkasu.
- Authorization. Merchant authorizes Minkasu to use Merchant’s payment gateway login or token information to send the Transaction Information to Merchant’s payment gateway, or if Merchant is using a Hosted eCommerce Solution Provider, to send Merchant’s Transaction Information to the Hosted Ecommerce Solution Provider for further payment processing on Merchant’s behalf. Once Merchant’s payment processor authorizes the transaction, Minkasu’s obligations to Merchant are satisfied.
- Transaction Support. Merchant agrees to provide commercially reasonable support to Minkasu to remedy (a) any suspected fraudulent activity, (b) chargebacks or (c) as requested for any transactions that require resolution.
- Prohibited Business Transactions. Merchant agrees that Merchant will not accept payments via the Mobile Payment Services in connection with the following business activities: (1) any illegal activity, (2) betting and gambling, including lottery tickets or casino gaming chips, (3) adult entertainment oriented products or services, (4) internet firearm or weapon sales, (4) internet cigarette or tobacco sales, (5) drug paraphernalia, (6) hate or harmful products or (7) escort services.
- Refunds and Chargebacks. By using the Services, Merchant agrees to process returns of, and provide refunds and adjustments for, Merchant’s Products purchased via the Mobile Payment Services in accordance with the applicable Card issuer rules and applicable law and Merchant’s return or cancellation policy which will be made available to Consumers by Merchant as required by law. The amount of the refund or adjustment must include any associated Taxes (defined below) required to be refunded. If Merchant accepts returns and is making an uneven exchange of Product (e.g., the sales price is not the same), Merchant must issue a credit for the total value of the Product being returned and complete a new sale for any new Product. Merchant authorizes Minkasu to access Merchant’s payment gateway information to credit the Consumer’s Card. Minkasu does not process chargebacks or reversals for transactions made via the Mobile Payment Services but will provide commercially reasonable assistance to Merchants to resolve chargeback or reversal issues by sharing, to the extent possible, Transaction Information requested by Merchants.
- Merchant acknowledges and agrees that:
- Minkasu is not a bank, and does not offer banking services as defined by the United States Department of Treasury;
- Minkasu is not a payment processor; it acts as an intermediary between Merchant and Merchant’s existing payment infrastructure including Merchant’s own payment gateway and payment processor;
- Minkasu collects the Consumer payment information and sends it to Merchant’s payment gateway using the payment gateway login or token information Merchant provided, or, if Merchant is using a Hosted ecommerce Solution Provider, directly to the Hosted eCommerce Solution Provider;
- Minkasu does not offer money service business services as defined by the United States Department of Treasury;
- Minkasu is not a Consumer or a seller in connection with any payment transaction;
- Minkasu is not responsible for and does not control any aspect of the Merchant’s Service or Products or the description of the Products; and
- Minkasu will not be responsible for a payment transaction that does not go through the Services due to (a) Consumer’s decision to cancel the payment transaction before the check-out process is complete or (b) a rejection of the payment transaction by Merchant’s payment gateway.
- Unauthorized or Illegal Use. Minkasu may decide to refuse to process a Consumer’s transaction via the Mobile Payment Services if Minkasu believes that the transaction is in violation of these Terms, or that it exposes Merchant, other Minkasu merchants and Consumers, or Minkasu to fraud and other criminal acts. If Minkasu reasonably suspects that Merchant used the Services for unauthorized, illegal, or criminal purposes, including, without limitation, knowingly accepting payments from stolen Cards, Merchant gives Minkasu express authorization to share information about Merchant, Merchant’s use of the Services, and any of Merchant’s transactions with law enforcement.
- Service Fees. Minkasu currently offers Merchant the Services free of charge. Minkasu reserves the right to charge fees (the “Fees”) for the Services in the future. Before charging such Fees, Minkasu will communicate the financial terms of such Fees to Merchant. If Merchant does not agree to pay the Fees, Merchant will be not be able to continue using the Services and Minkasu will terminate these Terms and Merchant’s access to the Services. At that time, Merchant will be required to remove and un-install all Services from Merchant’s Service.
- Taxes. Merchant is responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with Merchant’s use of the Services (“Taxes”). Merchant is solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. Minkasu is not obligated to, nor will Minkasu determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Minkasu specifically disclaims any liability for Taxes.
- Confidential Information. “Confidential Information” means information in connection with the performance of these Terms disclosed by one party to the other party during the Term, including, without limitation, Transaction Information, Consumers’ personally identifiable information, the Software, the Minkasu API, the Minkasu SDK, business information, including operations, planning, marketing and promotion plans and products, technical information including research, development, procedures, data, designs and know-how. Each party agrees not to use or disclose any Confidential Information of the other party except as necessary for the performance of these Terms. Each party agrees that it will hold the Confidential Information in strict confidence and will not make any disclosure of the Confidential Information to anyone without the express written consent of the disclosing party, except to employees of the receiving party who have a bona fide need to know such Confidential Information for the performance of these Terms, or to other agents of the receiving party, in each case who have executed a confidentiality agreement with the receiving party. The obligations and restrictions set forth in this Section 9 will remain in effect for five (5) years following the termination or expiration of these Terms.
- Exclusions. The obligations in Section 9.1 above will not apply to the extent the Confidential Information: (a) was already rightfully known by the receiving party without confidentiality obligation at the time of its receipt of the Confidential Information; (b) is or becomes generally available to the public other than by means of the receiving party’s breach of its obligations under these Terms; (c) is independently obtained from a third party without restriction on use or disclosure; or (d) is independently developed by or on behalf of the receiving party without use of or reliance on the Confidential Information. In addition, the receiving party may disclose Confidential Information pursuant to applicable law or regulation or by operation of law, provided that the receiving party may disclose only such information as is legally required, and provided further that the receiving party will provide reasonable notice to the disclosing party of such requirement and a reasonable opportunity to object to such disclosure.
- No Warranties. Minkasu does not warrant that the Services will meet Merchant’s requirements, that the Services will operate in the combinations that Merchant may select for use, that the operation of the Services is error-free or uninterrupted or that all errors will be corrected. The Services are provided “AS IS” without warranty of any kind and EXCEPT AS EXPRESSLY PROVIDED HEREIN, MINKASU DOES NOT MAKE ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND MINKASU SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
- Mutual Indemnification.
- Indemnification by Minkasu. We will defend Merchant against any claim, demand, suit, or proceeding (“Claim”) made or brought against Merchant by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the US copyright rights of a third party, and will indemnify Merchant for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Merchant in connection with any such Claim; provided that Merchant: (i) promptly gives Minkasu written notice of the Claim; (ii) gives Minkasu sole control of the defense and settlement of the Claim (provided that Minkasu may not settle any Claim unless the settlement unconditionally releases Merchant of all liability); and (iii) provides Minkasu with all reasonable assistance, at Minkasu’s expense. Minkasu will have no obligation to defend or indemnify Merchant to the extent that a Claim is based on: (a) modification of the Services by anyone other than Minkasu or its designee; (b) combination, operation or use of the Services with Merchant’s or a third party’s applications, software or systems, unless the foregoing were furnished by Minkasu; or (c) use of the Services other than in accordance with these Terms.
- Indemnification by Merchant. Merchant will defend Minkasu against any Claim made or brought against Minkasu by a third party in connection with Merchant’s use of the Services, including, but not limited to, allegations that Merchant’s use of the Services and the Software breaches these Terms, infringes or misappropriates the Intellectual Property Rights of a third party or violates any privacy rights or applicable law, and will indemnify Minkasu for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Minkasu in connection with any such Claim; provided that Minkasu: (a) promptly gives Merchant written notice of the Claim; (b) gives Merchant sole control of the defense and settlement of the Claim (provided that Merchant may not settle any Claim unless the settlement unconditionally releases Minkasu of all liability); and (c) provides Merchant with all reasonable assistance, at Merchant’s expense.
- Limitation of Liability. NEITHER MINKASU NOR ITS LICENSORS WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OR OPERATION OF THE SERVICES INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY LOSS OF DATA, REVENUE, PROFITS, OR FOR THE COST OF PROCURING SUBSTITUTE SERVICES, OR FOR THE LOSS OF USE OF ANY SERVICES, OR FOR ANY INTERRUPTION OF BUSINESS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MINKASU’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, EXCEED THE TOTAL fees paid by MERCHANT TO MINKASU IN THE TWELVE-MONTH PERIOD PRECEEDING THE date a CLAIM OR ACTION for liability arises hereunder OR ONE HUNDRED DOLLARS ($100) IF NO SUCH FEES HAVE BEEN PAID OR ARE PAYABLE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
- Term and Termination.
- Term. These Terms begin on the date that Merchant first accepts them and, unless terminated earlier in accordance with these Terms, continue until terminated in accordance with the termination provisions in these Terms (such period, the “Term”).
- Termination for Cause. Minkasu may suspend Merchant’s access to and use of the Services if Merchant has violated the Terms, poses an unacceptable fraud risk to Minkasu or provides any false, incomplete, inaccurate or misleading information or otherwise engages in fraudulent or illegal conduct.
- Termination for Convenience. Minkasu may terminate Merchant’s access to and use of the Services, at its sole discretion, at any time and without notice to Merchant. Merchant may stop using the Services at any time by uninstalling the Services from Merchant’s Service. If Merchant is using a Hosted eCommerce Solution Provider, Merchant can remove the Services by turning off the Minkasu feature. All other Merchants can stop using the Services by turning off the Minkasu feature on their site and by emailing Minkasu at email@example.com to deactivate their Minkasu account.
- Surviving Provisions. Sections 1, 3.4, 4, 9, 10, 11, 12, 13.4, 14 and 15 will survive any termination, discontinuation or cancellation of the Services.
- Changes to Terms or Services. Minkasu may modify these Terms from time to time. Minkasu will let Merchant know of such modification either by posting the modified Terms on the Site or through other communications to Merchant. It is important that Merchant reviews the modified Terms because if Merchant continues to use the Services after Minkasu has informed Merchant that the Terms have been modified, Merchant is indicating to Minkasu that Merchant agrees to be bound by the modified Terms. If Merchant does not want to be bound by the modified Terms then Merchant should not use the Services any more. Minkasu is always striving to make the Services better and because the Services are evolving over time, Minkasu may change or discontinue all or any part of the Services. This change may happen at any time and without notice.
- General Terms.
- Assignment. Merchant may not assign these Terms, by operation of law or otherwise, without Minkasu’s prior written consent. Subject to the foregoing, these Terms will bind and benefit the parties and their respective successors and assigns. Minkasu may freely assign these Terms, at any time, in its sole discretion.
- Insurance. Please note that it is Merchant’s responsibility to maintain at Merchant’s expense any applicable insurance coverage.
- Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of California, excluding its body of law controlling conflict of laws. Any legal action or proceeding arising under these Terms will be brought exclusively in the federal or state courts located in the Santa Clara County in the Northern District of California and the parties irrevocably consent to such personal jurisdiction and venue.
- Notices. All notices and other communications hereunder will be in writing, and will be deemed to have been duly given: (i) if delivered by overnight service delivery, (ii) by certified mail or (iii) by email, and in each instance will be deemed effective on receipt demonstrated by reasonable proof of delivery. All such notices and other communications will be sent to the address as may be specified by either party to the other party in accordance with this Section.
- Compliance with Laws. In its performance under these Terms, Merchant will comply with all applicable laws, now or hereafter in effect, relating to Merchant’s use of the Services.
- Relationship of the Parties. Nothing in these Terms will be construed to create a partnership, joint venture, employment or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
- No Third Party Beneficiaries. These Terms are for the mutual and exclusive benefit of the parties hereto and will not be deemed to be for the direct or indirect benefit of any third parties.
- No Waiver. Non-exclusive Remedies. The failure by either party to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. Except as expressly stated in these Terms, the exercise by either party of any remedy under these Terms will not be exclusive and will not prejudice any other remedies to which it may be entitled under these Terms or at law or in equity.
- Severability. If any provision of these Terms is found invalid or unenforceable, that provision will be replaced with a valid and enforceable clause intended to effect the parties’ original intent to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
- Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder due to events beyond its reasonable control, including without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
- Entire Agreement. These Terms are the entire and exclusive agreement between the parties with respect to its subject matter and such agreement supersedes all prior communications, proposals, representations, agreements and understandings, whether written or oral, relating to its subject matter, unless Merchant and Minkasu have executed a separate agreement. No modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and either signed or accepted electronically by a duly authorized representative of each party.