Merchant User License Agreement
Updated July 27, 2017
This Merchant User License Agreement (the “Agreement”) dated as of the date of acceptance by means of a click-through, is made by and among Pagato, Inc. a Delaware Corporation (“Pagato”) and the entity designated by the registration data provided herewith (“Licensee”) and applies to Licensee’s use of software downloaded from Pagato and Licensee’s use of services provided by Pagato (“Pagato Services”).
READ THIS LICENSE CAREFULLY BEFORE LOADING ANY SOFTWARE FROM PAGATO OR USING THE PAGATO SOFTWARE OR PAGATO SERVICES. BY LOADING THE PAGATO SOFTWARE OR USING THE PAGATO SERVICES, LICENSEE ACCEPTS AND AGREES TO BECOME BOUND BY THE TERMS OF THIS LICENSE.
PAGATO RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS AGREEMENT BY PROVIDING NOTICE OF CHANGES ON THE PAGATO WEBSITE. LICENSEE AGREES TO PERIODICALLY INSPECT THE PAGATO WEBSITE TO STAY INFORMED ABOUT SUCH CHANGES. LICENSEE AGREES THAT LICENSEE’S CONTINUED USE OF THE PAGATO SERVICE AFTER SUCH CHANGES ARE ANNOUNCED CONSTITUTES ACCEPTANCE OF SUCH CHANGES.
Pagato shall retain the ownership of the provided copy of Pagato software and the documentation provided therewith (referred to as a single entity, or as components, as “the Licensed Software”) which is licensed on a non-exclusive basis for use under the following conditions.
Subject to the terms hereunder, Pagato hereby grants to Licensee a limited, non-exclusive, non-transferrable, revocable license, without the right to sub-license, to install and operate the Licensed Software and to operate an account on the Pagato website and related applications solely for the benefit of Licensee and not for any third party, until the termination of this Agreement. Any rights not expressly granted hereunder are reserved. There are no implied rights of any kind. To the extent that the Licensed Software includes intellectual property rights of any third party (“Third Party Rights”), the license granted is to the extent that Pagato is able to license such Third Party Rights.
Licensee shall not (a) make copies of or further distribute the Licensed Software, including copying onto any other medium, (b) distribute, rent, sublicense, lease, resell, or assign the Licensed Software, (c) alter, modify or adapt the Licensed Software or the Pagato Services, including but not limited to, translating, decompiling, disassembling, reverse engineering, or creating derivative works, (d) export the Licensed Software without the appropriate foreign government licenses and without Pagato’s prior written approval, (e) resell, rent or otherwise provide access to the Pagato services to a third party or (f) take any action in an attempt to obtain any other Pagato user’s data, cause malfunction, crash, tamper with or otherwise impair the Pagato website and related applications, and their services. Any rights not expressly granted hereunder are reserved by Pagato.
No rights in the Licensed Software or Pagato Services are granted, whether expressly or by implication, including, without limitation, any rights in any patents, copyrights, trademarks or trade secrets embodied therein, except in connection with the permitted uses expressly described herein.
Licensee agrees to timely pay the monthly fee set out in the order form, otherwise agreed by written agreement. Licensee agrees to the Billing Policy, incorporated herein, and located here. Failure to comply with or otherwise pay fees due is a material breach of this agreement.
End Customer Personal Information
NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY LIABILITY TO THE EXTENT THAT THE SAME MAY NOT BE EXCLUDED OR LIMITED UNDER GOVERNING LAW.
LICENSEE AGREES THAT THE LICENSED SOFTWARE AND PAGATO SERVICES ARE PROVIDED “AS IS.” WITHOUT ANY WARRANTY EXPRESS OR IMPLIED AND WHETHER AS TO MERCHANTABILITY, FITNESS FOR PURPOSE OR INFRINGEMENT. NO WARRANTY OR REPRESENTATION IS GIVEN, AND/OR ANY LIABILITY IS ACCEPTED, BY PAGATO IN RELATION TO THIRD PARTY RIGHTS. ANY USE OF THE LICENSED SOFTWARE AND PAGATO SERVICES IS AT LICENSEE’S SOLE AND ABSOLUTE RISK. IN NO EVENT, WILL PAGATO OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS (“PAGATO PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR THE PAGATO SERVICES, ERRORS IN OR LOSS OF ANY DATA. SPECIFICALLY, PAGATO IS NOT RESPONSIBLE FOR ANY COSTS INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF USE OF THE LICENSED SOFTWARE OR PAGATO SERVICES, LOSS OF DATA, THE COSTS OF RECOVERING DATA, ANY CLAIMS BY THIRD PARTIES, OR FOR ANY OTHER SIMILAR COSTS. PAGATO MAKES NO WARRANTY OF ANY KIND AS TO THE SUITABILITY OR ADEQUACY OF THE LICENSED SOFTWARE OR PAGATO SERVICES FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GIVEN THAT LICENSEE IS IN A BETTER POSITION THAN PAGATO TO FORESEE AND EVALUATE ANY POTENTIAL DAMAGE OR LOSS WHICH LICENSEE MAY SUFFER IN CONNECTION WITH THE USE OF THE LICENSED SOFTWARE AND/OR THE PAGATO SERVICES AND THAT PAGATO CANNOT ADEQUATELY INSURE ITS POTENTIAL LIABILITY TO LICENSEE, LICENSEE ACKNOWLEDGES AND AGREES THAT THE EXCLUSIONS AND LIMITATIONS CONTAINED HEREIN ARE REASONABLE. TO THE EXTENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT WITH JURISDICTION TO BE UNREASONABLE, PAGATO’S AGGREGATE LIABILITY SHALL NOT EXCEED $100. LICENSEE SHALL ACT AT ALL TIMES TO MITIGATE ANY LIABILITY.
LICENSEE ACKNOWLEDGES AND AGREES THAT SHARING OF ITS ACCOUNT INFORMATION, LOGIN INFORMATION OR PASSWORDS SHALL BE AT ITS SOLE AND ABSOLUTE RISK AND THAT PAGATO SHALL NOT BE LIABLE FOR ANY DAMAGE ARISING AS A RESULT OF SUCH SHARING.
Some countries do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Licensee may terminate this license at any time unless you have agreed to a longer purchase commitment period. Pagato, in its sole discretion, has the right to suspend or terminate this license and your account and refuse any and all current or future use of the Pagato Services for any reason at any time. Licensee’s duties to (i) pay amounts due and payable, (ii) refrain from any kind of reverse engineering or other act in violation of this agreement or (iii) indemnify Pagato and the Pagato Parties shall survive termination of this Agreement. Upon termination Licensee will destroy all copies of the Licensed Software and documentation onto which the Licensed Software or documentation has been installed. Upon termination Pagato shall terminate the Licensee’s access to their Pagato account, the account itself and the data residing therein. LICENSEE MUST EXPORT THEIR ACCOUNT DATA PRIOR TO TERMINATION OF THE PAGATO SERVICE. PAGATO SHALL NOT BE RESPONSIBLE FOR LICENSEE ACCOUNT DATA AFTER TERMINATION. In addition, Pagato reserves the right and Licensee acknowledges such right for Pagato to terminate service of Licensee’s account on 30 days’ notice if Pagato determines in its sole discretion that it is not capable of fully meeting the apparent requirements of Licensee.
Licensee agrees that the Licensed Software and the operation of the Pagato Services and its processes are the confidential information of Pagato and agrees not to disclose such software or such operation and processes to any third party. Licensee agrees that breach of this duty of confidentiality shall cause irreparable harm for which monetary damages would be difficult to quantify or insufficient and therefore Pagato shall be entitled to immediate injunctive relief in the event of breach without an obligation of posting bond.
Pagato reserves the right to amend these Terms and Conditions at any time in Pagato’s sole discretion.
The Licensee represents and warrants that it has the due right and power to enter into this Agreement, entering into this Agreement will not cause the breach of any agreement Licensee has with a third party and that all of the registration information provided to Pagato is accurate in all respects.
Choice of Law and Forum
This Agreement shall be construed under the laws of the State of New York, U.S.A. as applied to contracts performed entirely within the state. Any dispute arising under this Agreement shall be exclusively heard in the state or federal courts residing in New York County, New York, U.S.A. Each party hereto consents to the jurisdiction of such courts with regard to matters arising in connection with this Agreement and waives any claim it has that such a forum is inconvenient.