Master Service Agreement

This Master Service Agreement (“Master Service Agreement”, “Agreement” or “MSA”) is effective from the date of acceptance, and facilitate the rendering of Services offered by Stykite Inc. (“We”, “Our”, “Us” or “Company” or “Stykite”) to a Merchant (“You”, “Your”, “Yourself”, “User” or “Merchant”). By accessing and/or using https://stykite.com , a) You agree to be bound by this MSA and acknowledge having read the privacy policy mentioned here (“Privacy Policy”). b) You warrant to Us that You are competent to enter into this agreement as per the applicable laws c) That, if You are entering into this MSA on behalf of any entity/company or its group, Affiliate, You possess the requisite authority to bind such entities, company or its groups to this MSA. If You do not agree to this MSA, You should immediately cease using the Platform (as defined below).

The Company and the Merchant hereinafter may be individually referred to as the “Party” and collectively as the “Parties”.

PLEASE READ THIS AGREEMENT CAREFULLY. BY USING THE SERVICES OR PLATFORM OF STYKITE, YOU AGREE AND ACKNOWLEDGE TO THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT OR ANY ODER FORM EXECUTED BETWEEN BOTH THE PARTIES. IF YOU DO NOT AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS CAPTURED IN THIS MSA, PLEASE DO NOT USE THE PLATFORM OR SERVICES (AS DEFINED BELOW).

SERVICES OR PLATFORM ARE IMMEDIATELY MADE AVAILABLE TO THE MERCHANT AFTER REGISTRATION AND VERIFICATION. HENCE YOU LOSE YOUR RIGHT OF WITHDRAWAL FROM THIS AGREEMENT ONCE THE REGISTRATION HAS BEEN INITIATED UNLESS AS PROVIDED UNDER THIS AGREEMENT.

  1. Definitions and interpretation
  1. “Affiliates” means with respect to a Party, any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, directly or indirectly controlling, or is controlled by, or is under common control (where control means the ownership of a majority share of the stock, equity or voting interests of such entity or the power to elect or remove all or a majority of the directors, partners or other individuals exercising similar authority with respect to such person ) with the said Party and also those legal entities which are related parties of the concerned Party.
  2. “Account” means any accounts or instances created by or on behalf of You for access and use of the Services.
  3. "Confidential Information" shall mean for all information which a reasonable person would understand to be confidential in nature disclosed in any form and format whatsoever including electronic, written, or oral form or by any other means, and whether directly or indirectly, whether or not marked as confidential during the Subscription Term of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (b) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (c) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as demonstrated through documentary evidence (d) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving Party without the use of or reference to the Confidential Information, as demonstrated through documentary evidence.
  4. “Chargeback” means a transaction that has been successfully reversed or partially reversed. This reversal occurs at the request of an End Customer or a payment method provider, following the relevant terms and conditions agreed between the Parties in writing.
  5. "Card" means any form of credit card, debit card or pre-paid card issued by a Card issuer under a Card Scheme.
  6. "Card Scheme" means Visa Inc, MasterCard Worldwide, Cartes Bancaires, JCB, American Express, Union Pay International, Diners Club International/Discover Network or comparable bodies which provide Cards and regulate Card acceptance.
  7. “End-Customer” means Your customers which encompass any person or entities in the relevant territory who has purchased/availed Your products or services from You.
  8. “Merchant Data” means data or information inserted or uploaded or entered by the Merchant or its End Customer on the Platform while using the Service as specified under this Agreement.
  9. “Merchant Fee” means the Merchant's recommended price for the Merchants’ product/services and which is payable by the End Customer to the Merchant through the Platform.
  10. “Personal Data” means any information relating to an identified or identifiable natural person from the data provided by You in relation to the provision and use of the Services, or as outlined by the relevant data protection laws.
  11. “Plan” means the pricing plan that You choose in connection with a Subscription accessed by You.
  12. “Services” means Stykite cloud-based recurring billing platform and related products (“Platform”) and services that You are considering subscribing or have already subscribed to. Additionally, Services will also include any new services or features that Stykite may introduce as a Service in near future which You may subscribe to, and any updates to the Services, including individually and collectively, any software, APIs and documentation.
  13. “Subscription” means Your subscription to the Services through a Plan of Your choice for Your access and use of an Account. You may have multiple Subscriptions for the Services offered by Stykite, such multiple accounts will be subject to separate and distinct Plans.
  14. “Transaction Fee” means all amount due and payable by You to Company in consideration of the provision of Services.

  1. Service(s) provided to the Merchant
  1. Company hereby referred to as merchant of record and it assumes full responsibility for provision of Services. Additionally, the Company shall bear all responsibility for provision of such Service as is reasonably borne by the merchant of record.
  2. The Company provides online recurring billing software-as-a-service platform to Merchant on Subscription basis. The Platform includes features such as:
  1. Collection of bills– Ensuring efficient collection of the Merchant Fee from End Customer for goods and services rendered by the Merchant.
  2. Taxation Management – Handling the taxation implications in relation to the collected payments which includes accurate tax calculation, proper reporting, and timely remittance of taxes to the appropriate government authorities in accordance with applicable laws.
  3. Compliance – helping the Merchant in navigating the intricate landscape of legal compliance while performing the above-mentioned points during the Term of this Agreement.
  4. Customer care services.

Some information available on the Platform is viewable without registering with Us, but to avail benefit of most Services, You must register as a member and authorize the use of the Platform.

  1. Service Implementation and Registration.
  1. Accessing User Accounts: Company shall create and provide the Merchant with Account credentials to access and use the Service in accordance with this MSA during the Term (as defined below). Merchant shall only access and use the Service through the Account issued / created by the Company. Authorized representatives of Merchant shall not share the Account credentials with any unauthorized parties. In case it is being done the same shall be at the sole risk and expenses of the Merchant. Merchant shall be liable to indemnify the Company for the violation of this clause. Merchant shall be eligible to create an Account as per the applicable laws of its country.
  2. Merchant agrees and acknowledges that the Company does not validate Your identity and authenticity of the information provided to the Company for creating Account. You shall solely be responsible for the registration of the Account. Company shall not be liable in any manner for any claims/losses arising on account of the creation of the Account and in the event if there is any claim arising out of or in relation to Your creation of Account, You shall indemnify Company, its directors for whatsoever losses it may occur.
  3. In order for the Services to be rendered by Company to You, You undertake to provide all necessary information (including personal data) and cooperation to Company in order for the implementation of Account to be satisfactory. Company shall not be liable for incomplete or unsuccessful implementations of Your Account in those cases where the lack of successful implementation is due to Your act or due to lack of cooperation from You. Where You are purchasing Services in the name of an Affiliate, then You confirm You have full legal authority to request the Services to be rendered to Affiliates.
  4. Each relevant Affiliate registered under Your Account must only access the Platform subject to its agreement with this MSA and such Affiliate accepts that the Company may enforce such terms against Affiliates directly. The Affiliate shall, if so required by the Company, accept / sign the terms of this MSA in such manner as required by the Company.
  5. You undertake to inform Company forthwith in writing of any changes of control or changes to its Affiliates’ right to use the Services and/or to benefit from the Services, or where any Affiliate registered under Your account is no longer a part of Your group of companies. In this case, the Affiliates shall immediately cease to use the Services. If the Affiliate is interested in obtaining Company Services directly, it may enter into a separate agreement with the Company.

  1. Platform License
  1. Subject to Your compliance with the MSA, Company grants You a limited, non-exclusive, non-transferable license: (i) to view, download and print any content of Platform solely for Your internal commercial purposes; and (ii) to access, modify, edit and download any content, to which You are permitted access solely for Your internal commercial purposes. You have no right to sublicense the license rights granted herein.
  2. You will not use, copy, download, adapt, modify, reproduce, duplicate, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform and Services, except as expressly permitted in the MSA. No licenses or rights are granted to You by implication or otherwise under any intellectual property rights owned or controlled by Platform, except for the licenses and rights expressly granted in the MSA. This limited license terminates automatically, without notice to You, if You breach this MSA.

  1. Transaction Fee:
  1. The Merchant shall be liable to pay to Stykite the Transaction Fee in consideration for the Services as rendered by Stykite to the Merchant ("Transaction Fee”).
  2. Stykite shall be entitled to deduct from the Merchant Fee (as collected by Stykite from the End Customer on behalf of the Merchant) the Transaction Fee. The Merchant agrees that the Transaction Fee is the amount due and payable by the Merchant to Stykite. The Merchant agrees and acknowledges that the Company shall have the right to deduct a Transaction Fee from the Merchant Fee. The Transaction Fee, as specified by the Company, will be subtracted by the Company from the Merchant Fee before remitting the balance of the Merchant Fee to the Merchant. It is clarified that the Transaction Fees are non-refundable.
  3. The calculation of the Transaction Fee shall be made in the following manner:
  1. Company Checkout Fee: 5% of the Merchant Fee plus $0.50.
  2. Company invoicing (bank transfer payment): 3.5% of the Merchant Fee
  1. For each transaction completed by the End User, Stykite shall remint to the Merchant the Merchant Fee (“Merchant Fees”) less:
  1. Any Sales Tax due under applicable laws.
  2. The Stykite Transaction Fees (as determined in the manner in Clause 5.3).
  3. Any other charges payable by the Merchant according to this Agreement.

  1. Subscription Fee, Refund of Subscription Fee to the Merchant and Suspension of Services
  1. Subscription Fees – As and when applicable, in consideration for the Services provided by the Company as per terms and conditions of this Agreement, You may be charged the Subscription Fee based on the Plan You choose for the Services.
  2. The Subscription Fees are payable and due in full immediately upon each due date with respect to a Subscription until Your Subscription is terminated in accordance with this Agreement.
  3. You authorize Stykite to bill and automatically charge You the Subscription Fee, including for any Renewal Subscription Term (as defined below).
  4. Company reserves the right to, in accordance with the applicable legislation, charge additional costs that may arise as a result of using any payment method by the Merchant for the payment of the Subscription Fees to Stykite.
  5. You understand that You (or anyone else authorized by You) must pay this Subscription Fee in advance, and that it is Your responsibility to pursue any third-party insurance reimbursement at Your own expense, if any.
  6. All charges and Subscription Fee are exclusive of any applicable taxes payable by You where applicable from time to time. Failure by You to pay the Subscription Fee and any such other sums as and when due is a material default of this MSA.
  7. Refund of the Subscription Fee to the Merchant
  1. The Company may offer part or full refund to the Merchant of the Subscription Fees against its Services on a case-to-case basis. Such refund shall be as per the discretion of the Company.
  2. Setup charges/installation charges, if any, are not refundable under any circumstances.
  3. Merchant shall not be entitled to any refund of the monthly Subscription Fee for 1 (one) month prior to and including the agreed cancellation month.
  1. Company takes no responsibility of the amount of business, sales or benefit the Merchant derives out of the usage of the Service. The Subscription Fee is payable to the Company by the Merchant for the usage and availability of the Service itself irrespective of any actual benefit to its Service.
  2. Company reserves the right to suspend or cancel any Account or any Services where Company has reason to believe that any services or payment may be fraudulent or where the payment method is not legally valid, and/or You may not be the legal owner of such payment method, among others.
  3. Upgrades. You may upgrade and downgrade between the Plans during the Subscription Term, When You upgrade, the new Subscription Fee become immediately applicable. Upon upgrade, the new Subscription Fee for the subsisting month would be charged on a prorated basis and shall be payable in accordance with this Agreement. Subsequent months will be charged in full according to the new Subscription Fee and any credits will be adjusted appropriately.
  4. You must notify Stykite of any change in Your payment account information, either by updating Your Account or via e-mail to support@stykite.com.

  1. Refund / Chargeback to the End Customer
  1. If an agreement is reached with the End Customer to issue a refund or repay all or part of the Merchant Fee or if Stykite is required to undertake a Chargeback of any part of the fee paid by the End Customer, the payment shall not be made by You directly to the End Customer. Instead, You are required to notify the Company of the agreed-upon terms, and Company shall facilitate the necessary refund / Chargeback to the End Customer.

  1. Sales Tax and Withholding
  1. The Company also handles all sales tax collection, reporting, and remittance. Stykite shall withhold any required taxes, fees, or other amounts from the Merchant Fe if and as mandated by law.

  1. Remittance of the Merchant Fee
  1. The Merchant Fee as collected by Stykite from the End Customer for a calendar month shall, (after deduction therefrom of the Transaction Fee and other applicable charges), be remitted by Stykite to the Merchant on or before the 15th day of the following calendar month.  
  2. Reporting and currency conversion: Company reports in the Payment Currency, with individual resale data available in the End User's currency. Currency conversion is done at the mid-market rate plus a foreign exchange margin as determined by the Company. “Payment Currency” means the currency which You select for your Account, typically in USD, EUR or GBP.
  3. VAT Registration: If VAT is registered in the EU, You must inform the Company of changes in VAT registration.
  4. Transfer Charges: Company makes efforts to minimize transfer fees, but you may be charged for international transfers or currency conversion and such charges may, at the sole discretion of the Company, be deducted from the Merchant Fee as collected by Stykite from the End Customer.
  5. Refund and Chargeback Handling: If Company refunds an End User, You are obligated to reimburse the Company, including charges and fees incurred by the Company for completing such refund / Chargeback. The Company shall be entitled to deduct such charges and fees from the Merchant Fees as collected by Stykite.
  6. Credit and Company Discount: No credit is given for previously applied Company discounts in case of service level failures, and the Company discount applies to the gross amount before service-level credits.

  1. Set Off
  1. Authorization for Set-Off: Without affecting any other rights or remedies, the Merchant grants authorization for Company to set off, by any means, the entire or partial amount of the Merchant's liability under this MSA (including the Transaction Fees and the fees payable in relation to the currency conversion as incurred by the Company and all other fees and charges as payable by the Merchant to Stykite) against any funds, sums, or other amounts that may be payable by Stykite to the Merchant. This includes, but is not limited to:
  1. Liability for refunds to the End Customer and Chargebacks;
  2. Fines issued for non-compliance with Payment Scheme Rules. "Payment Scheme Rules" means the collective set of by-laws, rules, regulations, operating regulations, procedures and/or waivers issued by the Card Schemes, as amended and/or supplemented from time to time;
  3. Breach of acceptable use policy (as applicable);
  4. Fraudulent or illegal use of Services; or
  5. Other liabilities and charges as outlined in this Agreement.
  1. Execution of Set-Off: The Merchant agrees that Company may exercise the right of set-off at any time, without further notice, irrespective of the nature of the liability (present or future, liquidated or unliquidated, actual or contingent). If the liability is expressed in different currencies, Company may convert it at a market exchange rate for the purpose of set-off. If set-off does not fully cover the liability, the Merchant must promptly pay the outstanding amount.
  2. Insufficient Funds: In the event of insufficient funds in Company’s sole discretion to cover potential refunds, chargebacks, charges against the Account, or other liabilities, the Merchant agrees to either replenish Company's funds or allow Company to exercise the right of set-off under clause 10.1. This can occur at any time without prior notice to the Merchant. If the liability is in different currencies, Company may convert it at a market exchange rate for the purpose of set-off and the costs involved in such conversion shall be borne by the Merchant and shall be paid by the Merchant to the Company or the Company may exercise its right of set-off against in relation to such costs. If set-off falls short, the Merchant must immediately pay the shortfall.
  3. Fraudulent or Illegal Activities: Company is not obligated to remit to the Merchant the Merchant Fee associated with activities or products it deems, at its sole discretion, to be fraudulent or illegal under any relevant law or regulation. Company reserves the right to suspend the Account, retain  Merchant Fee, or terminate the Agreement if:
  1. Company determines, at its sole discretion, that the Merchant poses a significant fraud risk or is associated with any other illegal activity;
  2. Compliance with applicable law or Payment Scheme Rules requires such action; or
  3. Company is entitled to do so under the terms of this Agreement.

  1. Representation & Warranties
  1. Each Party represents and warrants to the other Party as follows:
  1. It has full power and authority necessary to enter into this Agreement and is not prohibited from entering into this Agreement either under law or otherwise and during the continuance of this Agreement will continue to have full capacity, power and authority to carry out and perform all its duties and obligations as contemplated herein and has already taken and will continue to take all necessary and further actions (including but without limitations the obtaining of necessary approval/consents in all applicable jurisdictions) to authorize the execution, delivery and performance of this Agreement.
  2. This Agreement will be duly authorized, executed respectively by it and upon execution and by the Parties, it will be its legal, valid, and binding obligation and enforceable in accordance with its terms.
  3. There are no known pending actions, suits or proceedings, existing, threatened, anticipated, or pending against it which may prejudicially affect the due performance or enforceability of this Agreement or any obligation, act, omission or transactions contemplated hereunder, respectively.
  4. it shall all times comply with all applicable laws, regulations, government, and other regulatory approvals as required to provide/avail the Services under this Agreement.
  1. Company further represents and warranties that:
  1. It has the necessary skill, knowledge, experience, expertise, and capability to perform its obligations in accordance with the terms of this Agreement.
  2. It has complied with and has necessary permission/licenses/authorizations under the central, state and local authorities and obtained all required permissions/licenses for carrying out its obligation under this Agreement.
  1. You further represent and warrant that:
  1. You are solely responsible for:
  1. Your (including Your End-Customers') access and use of the Services in compliance with this Agreement, applicable law and TOS;
  2. providing Stykite with and keeping current, complete and accurate registration and Account information;
  3. maintaining the confidentiality of unique login information, credentials and passwords associated with Your Account, and the privacy and security of Your Account;
  4. all activities that occur within Your Account and notifying Stykite immediately of any unauthorized access or use of Your Account, log-in information, credentials or passwords, or any unauthorized activity in Your Account;
  5. ensuring that Your use of the Services to store, process and transmit Merchant Data is compliance with applicable laws and regulations, including applicable data protection laws;
  6. immediately ceasing use of the Services for a prohibited activity or purpose if Stykite informs You that a specified activity or purpose is prohibited with respect to the Services;
  7. the accuracy, quality and legality of Merchant Data, the means by which You acquired Merchant Data and Your use of Merchant Data with the Services or Other Services; and
  8. determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes.
  1. You have expressly taken the consent of the End Customer for the direct processing of payment through the Stykite’s Platform.  
  1. Your Conduct while using the Services: You agree not to (i) use the Services or permit the Services to be used to perform any billing, processing of data, or any related services for any third party, or otherwise license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than End Customer in furtherance of Your internal business purposes as expressly permitted by this Agreement; (ii) use or permit the use of the Services or any software, hardware, application or process in a manner that interferes, disrupts, or otherwise breaches the security, integrity, policies or procedures of the Services, or any servers, systems or networks connected to the Services, or harasses or interferes with Stykite’s other customers’ use and enjoyment of the Services; (iii) or attempt to decipher, decompile, reverse engineer, disassemble, reproduce, copy or otherwise access or discover or attempt to derive the source code or underlying program of any software making up the Services or gain unauthorized access to the Services or Stykite’s other customers’ accounts, servers, systems or networks; (iv) falsely imply any sponsorship or association with Stykite; (v) remove, modify, infringe upon, or misuse any trademarks, trade names, service marks, service names, logos or brands, copyright or other proprietary notices on the Services, or add any other markings or notices to the Services; (vi) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, discriminatory or promotes any financial exploitation or a criminal activity; (vii) modify, port, adapt, translate or create any derivative work based upon the Services or use the Services to evaluate its functionality or performance for competitive purposes, including for developing any similar application, product or service; (viii) use the Services to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, worms or cancelbots or any other similar harmful software (“Malicious Software”); (xi) use the Services for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, pyramid schemes, or sending electronic communications (including unsolicited e-mails) in violation of applicable law; (x) use or attempt to use the Services in violation of applicable laws and regulations, or in violation of third party rights, this Agreement.

  1. Platform Support And Performance
  1. Scheduled maintenance and downtime: Company may have scheduled downtime for maintenance of the Platform. The Merchant will be informed to the extent practicable in respect of any scheduled downtime, via e-mail. Company shall not be held liable to the Merchant in any manner for such scheduled or unscheduled downtime.
  2. Company agrees to provide maintenance support services of the Platform for the Term of this Agreement at no additional cost. Maintenance support services include updates, patching, bug fixing, and error resolution to ensure the smooth functioning of the Platform during the Term of this Agreement. After the expiration of the Subscription Term of this Agreement, if the Merchant wishes to continue receiving maintenance support services, both the Parties shall enter into a separate Annual Maintenance Contract (“AMC”) to define the terms and conditions of the ongoing support. The terms of the AMC shall provide the service levels, response times, and fees, which shall be mutually agreed upon at a later stage, based on the Merchant's requirements and the prevailing business conditions.
  3. During the maintenance support period, Merchant shall make reasonable efforts to provide timely resolutions to issues. However, any major upgrades or enhancements to the Platform shall be considered outside the scope of the initial maintenance support services and may be subject to additional charges, as agreed upon in the AMC between the Parties. It is however clarified that the maintenance support provided by Company is contingent upon the Merchant's compliance with the terms and conditions of this Agreement, including adherence to the licensing and usage terms. Failure to comply with the Agreement may result in the termination or suspension of maintenance support services by the Company.
  4. Monitoring Rights: Company shall monitor the Merchant’s use of the Services and reserves the right to cancel, suspend or terminate, without prior notice, the provision of Services or any part thereof, if it discovers or suspects a violation of applicable law or any terms of the Agreement.

  1. Term and Termination
  1. Term and Termination.
  1. A Subscription is valid for a period as mentioned in the Plan commencing from date of acceptance of this Agreement set (“Subscription Term”) and shall renew automatically for the same period (“Renewal Subscription Term”) unless terminated earlier by either Party in accordance with this Agreement. For the purposes of this Agreement, “Term” shall mean the Subscription Term and any Renewal Subscription Term(s) if this Agreement has not been terminated as per the provision of this Agreement.
  2. To discontinue renewal of or otherwise modify a Subscription, either Party must notify the other Party in writing 7 (seven) days prior to the expiration of the subsisting Subscription Term.
  3. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party breaches any material provision hereof and fails within thirty (30) days after receipt of notice of default to correct such default or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion.
  4. Either Party may also terminate the Agreement if the other becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition of bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) days.
  5. Termination for convenience: Company may terminate this Agreement by giving Merchant written notice at least thirty (30) days prior to such termination. Merchant may terminate this Agreement by canceling the Plan and such cancellation shall be effective immediately.
  6. Fee payable on termination: On termination, the refund policies as detailed in this Agreement shall be applicable.
  1. Effects of termination of a Subscription.
  1. Upon any termination of a Subscription, all rights granted to You hereunder will immediately cease. Stykite shall not be liable to You or any other third party for suspension or termination of Your Subscription if done in accordance with this Agreement.
  2. Unless otherwise agreed between the Parties in writing, termination of this Agreement shall mean automatic termination of all Subscriptions associated with this Agreement. This Agreement shall automatically terminate when all associated Subscriptions expire or are terminated and Your payment obligations thereunder are fulfilled.
  3. Data export following termination or expiration of a Subscription, Stykite will retain that Account’s Merchant Data for compliance of applicable laws, or as necessary to protect, defend or establish Stykite’s rights, or defend against potential claims.
  4. In the event of termination, the Merchant shall pay for all Services and all amounts and charges as payable by the Merchant to the Company pursuant to this Agreement for the period up to the date of termination.

  1. Confidentiality
  1. Confidential & Proprietary Information- For the purposes of this Section, either Party receiving Confidential & Proprietary Information (as defined below) shall be the “Recipient” / “Receiving Party” or the Party disclosing such information shall be the “Discloser” / “Disclosing Party”.
  2. Acknowledgment: Merchant hereby acknowledges that the Service (including any documentation, source code, translations, compilations, partial copies and derivative works) contains confidential and Proprietary Information belonging exclusively to Company, and Company hereby acknowledges that Merchant Data contains confidential and proprietary information belonging exclusively to Merchant or relating to its affairs (in each case, “Proprietary Information”).
  3. Covenant: Recipient hereby agrees that during the Term and at all times thereafter it shall not use, commercialize or disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel having a “need to know'' basis (and who themselves are bound by similar nondisclosure restrictions), and to such other recipients as the Discloser may approve in writing; provided that all such recipients shall have first executed a confidentiality agreement in a form acceptable to Discloser. Recipient shall not: (i) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend, or (ii) de-compile, disassemble or reverse engineer the Confidential & Proprietary Information (and any information derived in violation of such covenant shall automatically be deemed Confidential & Proprietary Information owned exclusively by the Discloser). Recipient shall use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information, but in no event shall less than the appropriate due diligence and care be exercised. Upon termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof.
  4. Injunctive Relief: Recipient acknowledges that violation of the provisions of this clause would cause irreparable harm to Discloser not adequately compensated by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions. Each of the Parties will protect the other’s Confidential & Proprietary Information from unauthorized access, use or  disclosure in the same manner as each of the Parties protects its own confidential information, and in any event, no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each of the Parties may use the other’s Confidential & Proprietary  Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. For purposes of this Agreement, in addition to the terms and conditions mentioned in this Agreement, Your Confidential Information includes Merchant Data, and Stykite Confidential Information includes the Services, and the contents of this Agreement or any other agreement executed between the Parties.
  5. The receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or a court or other judicial or administrative body. The receiving Party shall notify the disclosing Party of such compelled disclosure in writing (to the extent legally permitted). The receiving Party will take reasonable measures to protect the Confidential Information from undue disclosure as if it were the Party’s own confidential information being requested. Any information so disclosed by the disclosing Party shall be subject to the provisions of this clause.
  6. Subject to the terms of this Agreement, the Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon termination of the relevant Subscription(s) and/or Term of this Agreement. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations mentioned under this Section.
  7. All confidentiality obligations shall remain in force and effect for the Term and shall survive the expiration and/or termination of this Agreement for one (1) year. The provisions of this Section shall supersede any non-disclosure agreement between the Parties entered prior to these Terms that would purport to address the confidentiality of Confidential Information and such agreement shall have no further force or effect with respect to Confidential Information.

  1. Intellectual Property Rights
  1. “Intellectual Property” shall means and includes Company’s patents, inventions (whether patentable or not), utility models, trademarks, service marks, algorithms, code-bases, logos, trade names, domain names, database rights, design rights, rights in know-how, trade secrets, copyrights, moral rights and any other intellectual property rights (including rights in computer software), in each case whether registered or unregistered and including applications for the registration or grant of any such rights and any and all forms of protection having equivalent or similar effect in the world and all other intellectual property rights of a similar or corresponding character which may now or in the future subsist in any part of the software developed by Company (including pursuant to this Agreement);
  2. Company retains all rights, and interest of the Intellectual Property rights in and to the Platform and the Services including upgrades, feedback from Merchant, copies, improvements, enhancement, derivatives works and modifications thereof and in any depersonalized, aggregate data, information or analysis derived from Merchant Data.
  3. The Merchant’s right to use the Platform is limited to those expressly granted under this Agreement. No other rights with respect to the Platform or upgrades or any related Intellectual Property rights granted or implied.
  4. Notwithstanding anything to the contrary contained in this Agreement, Company shall have no liability for a claim of infringement arising from:
  1. Any third-party software;
  2. The use of the Platform in a manner not permitted or contemplated hereunder or approved by the Company.

 

  1. Data Security and Data Privacy
  1. Security of Merchant Data. The Company agrees to deploy several methods to prevent unauthorized content viewing, copying, accessing and remains committed to Merchant’s security and confidentiality. The Company undertakes and warrants to process and store the data in accordance with applicable laws.
  2. Data Privacy.
  1. You understand that the sub-processors shall process Merchant Data (a) in accordance with this terms, applicable data protection laws, the Privacy Policy (to the extent applicable), (b) as otherwise authorized by You; and (c) as required for compliance with applicable law. You acknowledge and agree that sub-processors may also process information about You, Your Subscription and Account and End-Customers, including Merchant Data, to (i) provide the Services and perform its obligations under these Terms, including, without limitation, to respond to Your support requests; (ii) demonstrate new features, products, and services (iii) comply with the law or respond to lawful requests or legal process; (iv) professionals and advisors in order to protect Your customers’ or partners’ rights or property; and (v) act on a good faith belief that such disclosure is necessary to protect the personal safety or avoid violation of applicable law or regulation.
  2. You represent and warrant that You have the necessary consents, permissions, authorizations and right to allow Stykite to process and transfer Merchant Data in accordance with the terms of this Agreement, the Privacy Policy (to the extent applicable), including processing and transfer of Merchant Data in and to United States and other countries which may have different privacy laws from Your country of residence or establishment. You understand that it shall be Your responsibility to inform the End-Customers (including on Stykite’s behalf, as applicable) about the processing of their Personal Data in accordance with the terms of this Agreement, the Privacy Policy (to the extent applicable), and, where required, obtain necessary consent or authorization for Your or Stykite use of any Personal Data that You provide Stykite or is collected as part of Your use of the Services.

  1. Disclaimer of Warranties

WE WARRANT THAT THE SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION PROVIDED TO YOU. SAVE THE FOREGOING WARRANTY, THE SERVICES AND ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND STYKITE, ON BEHALF OF OURSELVES, DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

YOU ACKNOWLEDGE THAT STYKITE, DOES NOT WARRANT THAT ACCESS TO THE SERVICES WHICH ARE PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND STYKITE CONTROL, WILL BE ERROR-FREE, UNINTERRUPTED, TIMELY, SECURE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, WILL MEET YOUR QUALITY AND PERFORMANCE REQUIREMENTS, OR WILL BE CORRECTED FOR ANY DEFECTS WITHIN A STIPULATED PERIOD PURSUANT TO ANY SERVICE LEVEL AGREEMENT. STYKITE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ‘OTHER SERVICES’ (INCLUDING ANY PAYMENT GATEWAY SERVICE PROVIDER) OR ‘THIRD-PARTY CONTENT’. NOTWITHSTANDING ANY SECURITY OR OTHER MEASURE THAT MAY BE PROVIDED BY STYKITE, YOU ASSUME THE ENTIRE RISK OF AND SHALL NOT HOLD STYKITE RESPONSIBLE FOR ANY ALTERATION, COMPROMISE, CORRUPTION OR LOSS OF MERCHANT DATA, EXCEPT TO THE EXTENT CAUSED BY OUR WILLFUL BREACH OF THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE AND AGREE THAT STYKITE (I) ARE NOT A BANK OR OTHER CHARTERED DEPOSITORY INSTITUTION; (II) WILL NOT HOLD ANY SUM OF AMOUNT FOR YOU AND/OR END-CUSTOMERS; AND (III) DO NOT PROVIDE, AND ARE NOT RESPONSIBLE FOR, ANY LEGAL OR ACCOUNTING ADVICE AS WE ARE NOT A LAW FIRM OR AN ACCOUNTING FIRM. ACCORDINGLY, YOU AGREE THAT STYKITE WILL NOT BE RESPONSIBLE FOR YOUR COMPLIANCE WITH ANY APPLICABLE LAWS OR ANY AMOUNTS RELATED TO ANY CARD OR PAYMENT TRANSACTIONS.

  1. Indemnity.
  1. Merchant shall defend, indemnify and hold the Company, its directors, officers, employees (“Indemnified Parties”) harmless from any damages or claim (including attorney fees and liquidated damages) that Merchant violated or that Merchant Data or Merchant’s use of the Service harms any person, violates any law or infringes any Intellectual Property rights or any third party intellectual property rights; provided that Merchant is given prompt notice of the claim and sole control over the defense and any settlement of any third party claim (except Merchant shall not enter into any settlement prejudicial to the Indemnified Parties without Merchant’s consent). Additionally, Merchant shall defend, indemnify and hold the Indemnified Parties harmless, in the event Merchant, its representatives including its End Customer are in breach of the terms of this Agreement.

  1. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, ITS RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, COVER, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF COMPANY, ITS RESPECTIVE AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS RELATING TO THE SERVICES, USE THEREOF AND THE TERMS OF THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TRANSATION FEE PAID OR PAYABLE BY YOU IN THE 2 (TWO) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, IN CONNECTION WITH THE SUBSCRIPTION TO WHICH THE CLAIM RELATES. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS TO US FOR THE SERVICES. NO CLAIM MAY BE PURSUED BY YOU MORE THAN ONE (1) YEAR AFTER THE FACTS GIVING RISE TO SUCH CLAIM HAVE ARISEN.

THIS LIABILITY LIMITATION FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS DO NOT FULLY COMPENSATE YOU FOR ANY LOSS OR ARE FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

  1. Survival
  1. The termination and/or expiration of this Agreement shall not affect any rights or obligations that, by their nature, should survive such termination or expiration including but not limited to, any provision related to confidentiality, intellectual property right, indemnification, and payment. Such provision shall continue to be binding upon the Parties and shall remain in full force and effect after the termination or expiration of this Agreement.

  1. MISCELLANEOUS
  1. If You are not satisfied with the Services provided to You, You may write about Your grievance along with detailed reasons for Your non-satisfaction to support@stykite.com. We assure You that Your grievance will be processed objectively.
  2. The Parties are independent contractors. Nothing in this Agreement shall be deemed to constitute a partnership, joint venture, employment or franchise between the Parties, nor constitute any Party as the agent of the other Party for any purpose or entitle any Party to commit or bind the other Party in any manner.
  3. Notices- Any notice, demand, request, consent, approval or other communication given or made, or required to be given or made hereunder shall be in writing properly addressed and shall be hand-delivered or sent by prepaid recorded delivery or registered post and by air mail if crossing an international border or electronic exchange (e-mail) addressed to the Company at support@stykite.com.
  4. Entire Agreement– This Agreement and TOS constitutes the entire understanding and agreement between the Parties with respect to the subject matter hereof and supersedes and cancels all prior agreements, express or implied, written or oral with respect to the subject matter hereof.
  5. Severability and Waiver. In the event any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver (express or implied) by any Party of any right under this Agreement shall not constitute a waiver of any other or subsequent default or breach.
  6. Amendments: This Agreement shall not be amended, altered or modified or any provision herein shall not be waived except by an instrument in writing expressly referring to this Agreement and signed by the duly authorized representatives of both the Parties, and no verbal Agreement or conduct of any nature relating to the subject matter hereof or to the relationship between the Parties shall be considered valid and enforceable.
  7. Severability: If any part, term or provision of this Agreement being of a fundamental nature, is held illegal or unenforceable, the validity or enforceability or the remainder of this Agreement shall not be affected if such part, term or provision is severable from the rest of this Agreement without altering the essence of this Agreement and shall be in full force and be capable of enforcement If such part, term or provision is not so severable, then the Parties shall negotiate in good faith in order to agree to the terms of a mutually satisfactory provision achieving as nearly as possible the same commercial effect, to be substituted for the provision so found to be invalid, illegal or unenforceable.
  8. Waiver: Failure of either Party at any time to require performance of any provision of this Agreement shall not affect the right to require full performance thereof at any time thereafter, and the waiver by any Party of a breach of any provision shall not be taken to be a waiver of any subsequent breach thereof or as nullifying the effectiveness of such provision. Further no such waiver shall be construed as such unless the party waiving its right agrees to do so in writing.
  9. Force Majeure: Neither Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including but not limited to acts of god, government restrictions (including the denial or cancellation of any export of other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected (including mechanical, electronic, or communications failure).
  10. General terms: Each Party shall, at its own expense, make, obtain, and maintain in force, at all times, during the Term of this Agreement, all applicable filings, legal compliances, registrations, reports, licenses, permits and authorizations as required under applicable laws and which are necessary to perform its obligation under this Agreement.
  11. Governing Law. This Agreement shall be governed and construed in accordance with the laws of Delaware, United States of America in relation to any legal action or proceedings to enforce this Agreement. The Parties irrevocably submit to the exclusive jurisdiction of any competent courts situated at Delaware, United States of America and waive any objection to such proceedings on grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum.

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