Master Services Agreement
This Master Services Agreement (the "Agreement") is made and entered into as of the date of your affirmative acceptance of this Agreement (the "Effective Date") by and between TrialPay, Inc. with its principal place of business located at 900 Metro Center Blvd., Foster City, CA 94404 USA ("TrialPay") and the legal entity on whose behalf you are registering a TrialPay merchant account (the "Merchant"). Merchant hereby engages TrialPay to provide the Services referenced below pursuant to the terms and conditions set forth below.
- "Action" shall mean any User action linked to a TrialPay Offer, including without limitation any registration, form submission, offer response, payment, purchase or other action specified by the applicable TrialPay Advertiser.
- "Affiliate" shall mean a third party that provides marketing, promotional, distribution, or similar services and is eligible to receive compensation in connection with certain qualifying Transactions that are completed by a User.
- "Affiliate Fee" shall mean the fee payable by TrialPay to an Affiliate in connection with any Transaction for which the Affiliate is eligible for compensation.
- "Chargeback" shall mean the reversal of a previously authorized and processed Transaction at the direction of a Payment Organization.
- "Console" shall mean an online element of the Service that enables Merchant's representatives to manage aspects of Merchant's TrialPay account.
- "Direct Payment Services" shall mean a component of the Service and shall include services performed in connection with Users completing a Transaction by means of a direct payment method such as a credit card, collecting the amounts due from the applicable Payment Organization, and fulfilling the Direct Transaction by providing the User a License Key or otherwise making available a Product to the User. The fees for Direct Payment Services shall be 10% of the Total Transaction Value of each Direct Transaction with a minimum fee of $1.50 per Direct Transaction. These fees may be modified by TrialPay upon thirty (30) days written notice or by separate written agreement executed by both parties.
- "Offer-Based Payment Services" shall mean a component of the Service and shall include the services performed by TrialPay in connection with presenting TrialPay Offers to Users, tracking whether a User completed an Action relating to a TrialPay Offer, and confirming fulfillment of the Offer-Based Transaction.
- "Merchant Application" shall mean a website, application, or other virtual space owned or controlled by Merchant that offers Products to Users.
- "Merchant Content" shall mean any text, information, branding, or other material relating to a Product that is provided by Merchant to TrialPay for use in connection with the Service.
- "Minimum Acceptable Payment" or "MAP" shall mean the minimum payment that Merchant will accept for a User completing a TrialPay Offer, as established by Merchant in the Console. A specific MAP may be established for each Product and for specified geographic regions. With respect to a Merchant Product that is a virtual currency the MAP shall be represented as an exchange rate representing the amount of virtual currency that can be obtained by a User for each US$1 payable to Merchant.
- "Payment Organizations" shall mean the credit card associations, payment processors, payment providers, issuer banks, financial institutions, money transfer services, alternative payment platforms (such as PayPal and mobile payment services), and network organizations involved in authorizing and completing User payments to TrialPay.
- "Payout" shall mean all fees payable to Merchant hereunder.
- "Product(s)" shall mean goods or services that Merchant authorizes to be marketed, sold, and/or distributed pursuant to this Agreement as designated by Merchant in the Console.
- "Product Keys" shall mean license keys, serial codes, gift codes, vouchers, DRM keys, User login information, or other methods that enable a User to access, activate, and/or use a relevant Product in accordance with the terms under which such Product was sold or licensed to such User.
- "Refund" shall mean a credit made to a User in connection with the User's return of a Product.
- "Sales Price" shall mean the Retail Price for any Product purchased in a completed Direct Transaction less the value of any valid coupons, discounts, or Purchase Incentives redeemed by the User, and exclusive of any charges for taxes or shipping.
- "Service" shall mean TrialPay's online transaction service which enables a User to obtain a Product, including but not limited to the Direct Payment Service, the Offer-Based Payment Service, the Transactional Advertising Service and any other services provided by TrialPay hereunder as well as the related software, technology, and documentation and all data and other information collected or generated through its use. TrialPay reserves the right to expand or modify the scope of any Service provided hereunder. TrialPay further reserves the right to permit or exclude access to or use of the Service in whole or in part to any Merchant or User in its sole discretion.
- "Territory" shall mean the specific geographies and jurisdictions in which Merchant has authorized TrialPay to make available a Product to Users, as designated by Merchant from time to time in the Console.
- "Total Transaction Value" shall mean the total amount charged to a User in connection with a Direct Transaction, inclusive of taxes, shipping, and other charges.
- "Transaction" shall mean the occurrence of either (i) a User completing a purchase of a Product using the Direct Payment Service made available by TrialPay hereunder and TrialPay collecting the applicable funds from the Payment Organization in connection with the User's purchase (each a "Direct Transaction"); or (ii) a User obtaining a Product by means of the Offer-Based Payment Service made available by TrialPay hereunder by completing an TrialPay Offer, taking all actions and meeting all requirements established by the applicable TrialPay Advertiser with respect to such TrialPay Offer, and TrialPay collecting the applicable funds from the TrialPay Advertiser in connection with the User's actions (each a "Offer-Based Transaction"). Any instance of User Fraud, cancellation, invalidity, lack of documentation, or non-payment are expressly excluded from constituting a Transaction.
- "Transaction Data" shall mean the following data, if available, with respect to each Transaction: User's designated name, email, zip code and country of origin, order number, Sales Price, Transaction date, Product identification, and Affiliate identification (if any), but specifically excluding a User's payment card account number, expiration date, security code, bank account information, PIN code, or other payment method details.
- "TrialPay Advertiser" shall mean any individual or entity providing a TrialPay Offer.
- "TrialPay Content" shall mean text, information, branding, and other material provided by TrialPay to Merchant for use solely in connection with the Service.
- "TrialPay Offer" shall mean an offer from a TrialPay Advertiser relating to products, services, or payment methods that is made available to Users through the Service.
- "User" shall mean any individual or entity engaging with the Service.
2. Offer-Based Payment Service.
- Implementation. Throughout the term of this Agreement, Merchant has the right to include the Offer-Based Payment Service as a payment option for Product(s) in accordance with the terms of this Agreement and in a manner approved by TrialPay. The Offer-Based Payment Service payment option will include an html link to a website that includes one or more TrialPay Offers that a User may complete in order to obtain a Product from Merchant. TrialPay will provide Merchant with the TrialPay Content to enable Merchant to make the Offer-Based Payment Service available to Users as a payment option pursuant to the terms of this Agreement. Subject to the terms of this Agreement, Merchant may only display the TrialPay Content (i) in connection with offering the Offer-Based Payment Service as a means for Users to obtain Product(s) and (ii) in a manner approved by TrialPay.
- Product Information. Merchant shall be responsible for maintaining through the Console a current list of Products for which TrialPay will provide the Offer-Based Payment Service. Merchant is solely responsible for ensuring that all information relating to the Product(s) set forth in the Console is accurate and current. Merchant shall establish the MAP for each Product by means of the Console. TrialPay is solely responsible for selecting and offering to Users the specific TrialPay Offers.
- Payout to Merchant. Subject to the terms of this Agreement, TrialPay will pay Merchant at least the amount listed in the MAP for the relevant Product distributed in a Offer-Based Transaction, provided that TrialPay shall be entitled to offset against any amounts owed to Merchant (i) any Affiliate Fees payable to an Affiliate in connection with the Transaction; and (ii) any amounts for Transactions for which the relevant TrialPay Advertiser has defaulted with respect to its payment obligation to TrialPay.
3. Direct Payment Service.
- Appointment. For the Term of this Agreement Merchant appoints TrialPay as an independent, non-exclusive, reseller of the Product(s) by means of the Direct Payment Service to Users in the Territory ("Authorized Reseller"). Title to Product is reserved by Merchant until TrialPay's sale of the applicable Product to a User. Upon such sale TrialPay shall assume title for the Product and responsibility for delivery of the applicable Product to User. TrialPay may sell to Users, as authorized under this Agreement, either directly from TrialPay or through subsidiaries of TrialPay pursuant to an inter-company agreement between TrialPay and such subsidiary.
- Implementation. Merchant or an authorized Affiliate shall obtain from TrialPay a product-specific html link, "Buy Now" button, or functionally equivalent technology designed to take a User directly to the TrialPay Direct Payment Service in order to purchase a Product. Merchant agrees to place or publish such link, button, or other technology only as mutually agreed upon by the parties.
- Merchant Product Information. Merchant shall be responsible for maintaining through the Console a current list of Products for which TrialPay will serve as an Authorized Reseller and perform the Direct Payment Services. Merchant is solely responsible for ensuring that all information relating to the Product(s) set forth in the Console is accurate and current. Merchant shall establish a Retail Price for each Product by means of the Console. TrialPay is solely responsible for setting and offering to Users the price for a specific Product, provided that the Retail Price designated by Merchant for the Product shall serve as the basis for determining the Sales Price due to Merchant in connection with the sale of such Product.
- Coupons and Discounts. Merchant may create coupons or make available coupons and discounts to Users for redemption by the User with respect to Transactions involving the Products. When redeemed by a User TrialPay shall apply such coupons or discounts to reduce the Sales Price of the applicable Product or Transaction.
- Charges to the User. TrialPay will charge the User's designated payment method for the Total Transaction Value for all items selected by User in a Direct Transaction. TrialPay shall select the format to be used to identify the Merchant of Record for all Direct Transactions involving the Product. TrialPay has the right to change from time to time the payment methods available for the purchase of a specific Product in a specific Territory.
- Recurring Billing. Merchant may elect to conduct recurring billing of Users for a specific Product. The content and timing of User communication relating to recurring charges for a Product shall be determined by TrialPay. Merchant expressly acknowledges and agrees that, based on rules of the Payment Organizations and applicable law, TrialPay may be restricted from undertaking certain forms of recurring billing and will be prohibited from transferring certain User information to Merchant or any third party.
- Payout to Merchant. The charges and fees for the Direct Payment Services are set forth above. Unless otherwise agreed in writing by the parties, the Payout to Merchant with respect to Direct Transactions shall be the aggregate Sales Price of the Direct Transactions net of any (i) TrialPay fees for the Direct Payment Services set forth above; (ii) taxes TrialPay is obliged to remit in connection with sales of the Product; (iii) authorized User returns, cancellations, and Chargebacks; (iv) Payment Organization fees paid by TrialPay such as fees for Chargebacks and Refunds; (v) any applicable Affiliate Fees; and (vi) offsets of any amounts owed by Merchant to TrialPay or its affiliates, whether under this Agreement or any other agreement.
4. Additional Services.
- Mobile SDK. Use of the TrialPay Service in connection with a Merchant Application or Product made available to Users of mobile devices may require Merchant to access and use the TrialPay Mobile Software Development Kit ("Mobile SDK"). All use of the SDK is subject to the then-current version of the Mobile SDK License available at www.trialpay.com/legal/.
- Purchase Incentives. "Purchase Incentive" shall mean a third party item offered to a User for the purpose of incentivizing the User to complete a Transaction. The inventory of available Purchase Incentives will change from time to time and TrialPay shall provide Merchant periodic notice of available Purchase Incentives and the cost to Merchant associated with each available Purchase Incentive. Merchant may elect to have one or more Purchase Incentives displayed to Users in connection with Transactions involving a Product. The cost of such Purchase Incentive (if any) shall be deducted from the amount payable to Merchant for the applicable Transaction.
- Sponsored Discounts. "Sponsored Discount" shall mean a TrialPay Offer that would provide a discount on the purchase of a Product upon the User completing an Action specified by a TrialPay Advertiser. The inventory of available Sponsored Discounts will change from time to time and TrialPay shall provide Merchant periodic notice of available Purchase Incentives. Merchant may elect to have one or more Sponsored Discounts displayed to Users in connection with Transactions involving a Product. For any Product sold by means of a Sponsored Discount Merchant shall receive a Payout based upon the Retail Price of the Product, not the discounted price charged to the User after application of the Sponsored Discount.
- Add-On Products. "Add-On Product" shall mean an item or service offered by TrialPay that is ancillary to and marketed in conjunction with a Product, including but not limited to: a backup copy of a Product on physical media such as CD or DVD; an extended download service that enables a User to re-download a copy of a Product following initial download; an extended warranty service providing a product warranty of longer duration and/or different scope than is offered by Merchant; an extended support service providing product support of longer duration and/or different scope than is offered by Merchant; and/or a registration service that enables a User to store and retrieve the Product Key to a Product. Merchant hereby authorizes TrialPay to produce, market, and sell Add-On Products to Users in connection with any Transaction involving a Product. TrialPay shall make a payment to Merchant equal to 50% of the net profit obtained by TrialPay from its sale of any Add-On Products.
- Cross-Sales of Third Party Products. "Cross-Sale" shall mean a User's purchase of a third party product in connection with a Transaction in which the Merchant Product was the first item selected by the User. The inventory of available Cross-Sale items will change from time to time and TrialPay shall provide Merchant periodic notice of available Cross-Sale items. Merchant may elect to have one or more Cross-Sale items displayed to Users in connection with Transactions involving a Product. Merchant shall receive a payment equal to 50% of TrialPay's net profit from each Cross-Sale.
- Special Multi-Product Promotional Bundles. "Multi-Product Promotional Bundle" shall mean a pre-defined package of multiple items sold as a single unit that is generally available for a limited time or a limited number of units. With the consent of Merchant, TrialPay may include one or more Merchant Products in a Multi-Product Promotional Bundle. The parties shall establish specific financial terms for each Transaction involving a Multi-Product Promotional Bundle and these financial terms shall serve as the sole compensation to Merchant in connection with any sales of the applicable Multi-Product Promotional Bundle.
- Other Transactional Advertising. Provided this imposes no cost or expense on Merchant, Merchant hereby authorizes TrialPay to present and deliver incentives, coupons, and other special offers to Users in advance of Transactions and following the completion of Transactions. Implementation of any other forms of transactional advertising shall require the mutual agreement of TrialPay and Merchant (which agreement may be by email). Notwithstanding anything to the contrary set forth in this Agreement, certain incentives, coupons, and other special offers will not be subject to a MAP.
5. Affiliate Program.
- Activation. Merchant may elect by means of the Console or other notice to TrialPay whether to participate in TrialPay's Affiliate program with respect to one or more TrialPay Affiliates. Under the TrialPay Affiliate program, an Affiliate may promote Transactions involving the Products in return for payment of an Affiliate Fee to Affiliate in connection with such Transactions.
- Super Affiliates. TrialPay shall identify to Merchant a class of Affiliates as Super Affiliates. Merchant may elect, in its sole discretion, whether or not to invite a Super Affiliate to promote Transactions involving its Product(s). Super Affiliates shall have the authority to establish the Affiliate Fee and other terms applicable to Transactions on which the Affiliate shall be paid an Affiliate Fee. The default Affiliate Fee payable to a Super Affiliate shall be thirty percent (30%) of the Sales Price of a Product unless a Super Affiliate and Merchant establish and communicate to TrialPay a different percentage.
- Standard Affiliates. Merchant may establish the Affiliate Fee payable to any Affiliate other than a Super Affiliate in connection with a Transaction involving a Product. Merchant shall maintain an accurate and current list of authorized Affiliates and corresponding Affiliate Fees in the Console.
- Payment of Affiliate Fees. Affiliate Fees shall be paid directly by TrialPay to the applicable Affiliate. Any Affiliate Fees paid or payable to an Affiliate shall be deducted from the amounts otherwise due to Merchant. TrialPay's business records shall serve as the sole basis for determining whether an Affiliate is eligible for an Affiliate Fee on any given Transaction. Merchant agrees that TrialPay may rely in good faith on any communication from a representative of an Affiliate setting forth the Transactions on which Affiliate should be paid an Affiliate Fee and the method for calculation of such Affiliate Fee. In the event TrialPay receives notice of a dispute between Merchant and an Affiliate with respect to an Affiliate Fee than TrialPay may withhold all payments to both Merchant and the applicable Affiliate until such times as the dispute is resolved to TrialPay's reasonable satisfaction.
- Program Integrity. The identity, programs, and terms offered by each Affiliate are the Confidential Information of TrialPay. Each Affiliate has entered into a binding contractual relationship with TrialPay relating thereto. Merchant shall not bypass or circumvent the TrialPay Affiliate program by recruiting a TrialPay Affiliate to join a third party affiliate program in which Merchant also participates or intends to participate.
- General. Each party agrees that, in any activity conducted pursuant to this Agreement, it will act in full compliance with all applicable local, state, national and international laws, rules, and regulations.
- PCI Compliance. The parties acknowledge and agree that rules and procedures of the Payment Organizations are subject to frequent change and that any such changes may require a change to each party's respective obligations under this Agreement. The parties will use commercially reasonable efforts to comply with applicable requirements of the Payment Card Industry Data Security Standard ("PCI-DSS"). Upon Merchant's written request TrialPay will provide Merchant documentation relating to its PCI-DSS compliance status in the current and most recent calendar period. The parties agree to work in good faith to identify, investigate, and resolve any information security breach arising from or relating to the Service. In connection with any duly authorized investigation or audit of TrialPay by a Payment Organization, it may be necessary for third parties to inspect TrialPay and/or Merchant's premises, networks, records, and practices. Merchant hereby agrees to accommodate such inspections provided Merchant is given reasonable advance notice and any such inspection is conducted during normal business hours and at no direct cost to Merchant.
- Export Compliance. For each Product identified in the Console Merchant shall advise TrialPay in writing of the specific export and import classification of each Product under any export or import regulations applicable to the Product in the designated Territory. If no such information is provided by Merchant then Merchant thereby represents and warrants to TrialPay that no import or export restrictions apply with respect to distribution of the Product in the applicable Territory. Merchant shall promptly notify TrialPay of any changes to the export or import classification of a Product or of any modifications to a Product that may affect such classification. If required Merchant, and not TrialPay, shall be responsible for applying for, obtaining, and complying with any necessary import or export licenses with respect to any distribution of Product to a User hereunder. Any information provided pursuant to this Section shall be submitted by email to email@example.com.
- Digital Goods Fulfillment. At Merchant's election, TrialPay will assume responsibility for fulfillment for Transactions involving Products that are digital goods. This may be achieved by delivering a Product Key to the User, a link from which the Product can be downloaded, an order confirmation email with instructions for accessing the applicable Product, or any equivalent delivery method. If Merchant elects to have TrialPay distribute Products Keys to Users for a given Product, Merchant will make such Product Keys available as requested by TrialPay. Merchant represents and warrants that all Product Keys provided to TrialPay shall enable the applicable User to activate and use the relevant Product in accordance with the terms under which such Product was sold. At its option, Merchant may perform fulfillment for digital goods by electing this in the Console, provided Merchant then (i) must reliably fulfill all User orders upon receipt of a Transaction confirmation from TrialPay and (ii) must provide TrialPay confirmation of fulfillment contemporaneously with actual fulfillment in an electronic format designated by TrialPay.
- Physical Goods Fulfillment. With the exception of Add-On Products, TrialPay's standard policy is to make any fulfillment of physical goods the sole responsibility of Merchant. In this regard, TrialPay will inform Merchant if the charges relating to a Transaction have been authorized by the applicable Payment Organization or TrialPay Advertiser and then Merchant (a) must provide TrialPay confirmation of fulfillment contemporaneously with actual fulfillment in an electronic format designated by TrialPay; and (b) must maintain accurate and reliable records relating to proof of delivery for any Product orders it has responsibility to fulfill. TrialPay shall assume responsibility for fulfillment of User orders for physical goods only by separate agreement signed by both parties setting forth the terms and pricing for such services.
- Partial Shipments. TrialPay reserves the right to make partial shipments in connection with fulfillment of any Transaction and separately charge the User in connection with any such partial shipment.
8. Returns, Refunds, and Chargebacks.
- Returns. Merchant shall provide TrialPay and make publicly available a fair, reasonable, and clear policy relating to a User's right to return Products and receive a Refund of the price paid for the Product ("Return Policy"). Merchant shall notify TrialPay of any change to the Return Policy at least thirty (30) days prior to such change taking effect. If Merchant does not provide TrialPay notice of the Return Policy applicable to the Products, TrialPay may inform Users that a Product may be returned for any reason for a full Refund within thirty (30) days of the date of Transaction.
- Refunds. TrialPay and Merchant shall undertake commercially reasonable efforts to make a decision on any User's Refund request within three days of receiving the User's request. Merchant may unilaterally issue Refunds at any time and for any reason through the Console and TrialPay shall promptly process such Refunds. TrialPay is authorized to issue a Refund to the User for any reason within ninety (90) days of the User's receipt of the applicable Product and for any reason at any time if TrialPay in its sole discretion determines that the denial of a Refund request would result in a Chargeback. TrialPay shall bear no payment obligation to Merchant with respect to any Product for which a Refund is granted to a User.
- Chargebacks. When informed of a Chargeback, TrialPay will use commercially reasonable efforts (as determined relative to the Total Transaction Value at issue) to resolve the issue in Merchant's favor provided that, in connection with the Chargeback, Merchant has provided TrialPay all documentation and records relevant to resolving the matter. All risks and costs of Chargebacks reside solely with Merchant. Merchant acknowledges and agrees it is bound by the rules and decisions of the applicable Payment Organizations with regard to any Chargeback. TrialPay shall bear no payment obligation to Merchant with respect to any Product for which a Chargeback is made. Furthermore, in addition to any costs or fees imposed by the Payment Organizations in connection with a Chargeback, Merchant shall be assessed the following TrialPay service fee for each Chargeback determined on the basis of the number of Chargebacks that month as a percentage of total Direct Transactions that month (the "Chargeback Rate"): $15 per Chargeback if either the Chargeback Rate is .5% or less or the total number of Chargebacks is less than five (5); $30 per Chargeback if the Chargeback Rate is more than .5% and less than 1.0%; and $60 per Chargeback if the Chargeback Rate is 1.0% or above.
9. Reserve Account.
TrialPay may hold funds otherwise due to Merchant upon TrialPay's good faith determination that there have been unfulfilled commitments relating to the Product, any unauthorized, improper, fraudulent, suspicious or questionable Transaction originating from Merchant or relating to a Product, or other additional liabilities anticipated under this Agreement or applicable law ("Reserve Account"). Without limiting the generality of the foregoing, the parties agree that upon termination of this Agreement for any reason, TrialPay may retain a Reserve Account for a period of 120 days equal to 10% of the Payout to Merchant in the ninety (90) days prior to such termination. Merchant agrees that any amounts TrialPay places in a Reserve Account shall not bear interest and may be commingled with other funds and need not be maintained in a separate account.
10. User Support.
TrialPay assumes responsibility only for responding to User inquiries relating to Transactions made by means of the Service. Merchant is solely responsible for all User inquiries relating to product and technical support for the Product. If TrialPay re-directs a User's product or technical support issue to Merchant then Merchant must provide prompt, reasonable, and effective support to the User, with a target response time of one (1) business day for all User inquiries. Merchant is solely responsible for the full satisfaction of all User claims relating to a Product and shall promptly and effectively resolve any warranty, product liability, or other claims that may be made by Users with respect to a Product. TrialPay may issue Product to a User on the basis of documentation or information submitted by such User, even if ultimately this documentation or information cannot be confirmed and does not represent a Transaction for which Merchant is paid. If in any calendar month the number of User inquiries received by TrialPay as a percentage of the total number of Transactions involving a Product ("Inquiry Rate") is greater than 5% than TrialPay may provide Merchant a warning notice and, upon receipt of that notice, Merchant shall take all reasonable measures to reduce the number of User inquiries. If the Inquiry Rate exceeds 10% for two consecutive months than TrialPay may impose a service fee equal to 4% of the Payout to Merchant in each month until the Inquiry Rate remains below 10% for two consecutive calendar months.
11. User Fraud.
The parties will undertake diligent efforts to detect, prevent, and resolve any attempted Transactions generated by any person, bot, automated program or similar device that involve early cancellation by the User or are considered fraudulent, invalid, unauthorized, illegal, lacking sufficient documentation, or otherwise not bona-fide as reasonably determined by TrialPay, Merchant, or the applicable TrialPay Advertiser or Payment Organization ("User Fraud"). TrialPay reserves the right not to provide a Service to a specific User or Merchant Application if TrialPay determines that the actual User Fraud relating to such User or Merchant Application is excessive.
- Reporting. Merchant may log in to the Console to monitor summary information relating to completed Transactions. Merchant also may register for notifications and scheduled reports through the Console and such reports will be made available in electronic form to Merchant's designated contacts.
- Data Reconciliation. Merchant acknowledges and agrees that any Transaction Data accessed by means of the Console is preliminary and subject to change and that definitive data shall be supplied by TrialPay only in connection with Payouts made to Merchant.
13. Payout to Merchant.
- Currency. All Payouts to Merchant shall be made in U.S. dollars sent by TrialPay to Merchant's designated account.
- Schedule. As a matter of business practice, TrialPay uses reasonable efforts to make a Payout to Merchant within thirty (30) days after the end of each calendar month for Transactions occurring during the immediately preceding month, but reserves the right to extend this payment period ninety (90) days to account for settlement and collection activity for amounts due from TrialPay Advertisers or Payment Organizations outside the United States and from operators of alternative payment methods such as mobile payment services. Notwithstanding the foregoing, TrialPay will not pay or be required to pay any Payout until the amount payable reaches or exceeds one hundred dollars ($100.00).
- User Fraud Exceptions. TrialPay may withhold payment to Merchant (i) in connection with any claim, complaint, or other allegation that a Transaction may involve User Fraud until such claim, complaint or allegation is resolved to TrialPay's full satisfaction; and/or (ii) indefinitely, if TrialPay determines that Transaction involves User Fraud.
- Invoice and Offset Right. TrialPay may invoice Merchant for, or offset against any amounts TrialPay owes to Merchant, whether under this Agreement or otherwise, any amounts for which TrialPay is not obligated to pay a Payout pursuant to the Agreement or for which TrialPay is authorized to charge a service fee pursuant to the Agreement. Any invoices issued to Merchant shall be payable thirty (30) days from receipt of the invoice.
14. Representations and Warranties.
- Each Merchant Application and Product complies with all applicable laws and regulations;
- Merchant has full authority to authorize TrialPay to market, distribute, and sell the Product to Users as contemplated by this Agreement;
- All information provided by Merchant during the registration process shall be accurate and correct at the time it is provided by Merchant and all information provided by Merchant in the Console shall remain accurate and correct throughout the Term of this Agreement;
- Any descriptions of Products provided by Merchant and disclosures or notices provided to Users relating thereto shall be accurate and correct, and are not in violation of, and will not violate, any applicable laws or regulations, including but not limited to laws and regulations concerning false and deceptive advertising claims or other forms of consumer protection;
- Merchant shall immediately notify TrialPay in writing if Merchant has any reason to believe that any of the foregoing representations or warranties cease to be true.
15. Proprietary Rights.
- License; Use of Trademarks. Merchant hereby grants TrialPay the non exclusive right and license to use Merchant's trademarks, service marks and trade names in connection with the Service. Each party shall retain all right, title and interest (subject to the licenses granted herein) in and to its content, logos, trademarks, service marks, trade names and other intellectual property rights. Each party's use of the other party's trademarks and service marks will be in accordance with the other party's trademark guidelines (that may be provided from time to time), and all goodwill associated with each party's use of the other party's trademarks and service marks shall inure solely to the benefit of the respective owner. Each party shall reproduce all proprietary name, trademark, service mark, patent, and copyright notices present in the other party's materials, products, and documents, without modification or alteration.
- TrialPay Ownership. As between TrialPay and Merchant, TrialPay owns and retains all rights, title, and interest in and to the Service (except for any Merchant Content or TrialPay Offers included therein), including but not limited to all software, intellectual property rights, information, and data related thereto, including any usage data and compilations thereof. Except as expressly stated herein, TrialPay does not grant to Merchant any license, express or implied, to the Service.
- Merchant Ownership. As between TrialPay and Merchant, Merchant owns and retains all rights, title, and interest in and to the Product(s) and the Merchant Application (except for any TrialPay Offers or TrialPay Content included therein), including but not limited to all software, intellectual property rights, information, and data related thereto, including any usage data and compilations thereof. Except as expressly stated herein, Merchant does not grant to TrialPay any license, express or implied, to the Products or the Merchant Application.
Either party may refer publicly to the existence of this Agreement and the type of services provided hereunder, but the specific terms of this Agreement shall be deemed the confidential information of both parties. At either party's request, the parties shall issue a press release or other announcement of this Agreement, subject to mutual agreement on the content of any such announcement.
17. Restricted Items List.
TrialPay has developed policies to ensure overall quality of the Service and a positive experience for Users. As a result, Merchant may not offer by means of the Service any item on the Restricted Items Policy available at www.trialpay.com/legal/restricted/ (the "Policy"). TrialPay reserves the right to expand or edit the Policy at any time. TrialPay will exercise its sole discretion in the interpretation and enforcement of the Policy in conjunction with this Agreement. Products not listed in the Policy may still be restricted upon notice to Merchant.
18. Third Party Content.
Merchant acknowledges and agrees that TrialPay Offers may include links to other websites or resources and that TrialPay has no control over (and is merely a passive conduit with respect to) any such links to websites or other resources that may be submitted or published by a TrialPay Advertiser or other third party. TrialPay is not responsible for the availability of such third party websites or resources and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such third party websites or resources. Merchant acknowledges and agrees that TrialPay shall have no responsibility or liability whatsoever for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods or services available on or through any such third party website or resource. All correspondence or business dealings with, or participation in promotions of, TrialPay Advertisers found on or through any TrialPay Offer, including payment and delivery of related goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between the applicable User and the applicable TrialPay Advertiser.
Merchant shall indemnify, defend, and hold harmless TrialPay and its representatives, successors and permitted assigns from and against any and all claims, losses, expenses, damages, liabilities and costs, including attorneys' fees, arising out of or relating to: (a) the violation of any patent, copyright, trademark, trade secret, or other intellectual property or property right of any third party by Merchant or any Product, Merchant Application, or Merchant Content, or any use thereof; (b) violation of any applicable laws, rules and regulations by Merchant or any Product, Merchant Application, or Merchant Content or any use thereof; or (c) any breach of a representation, warranty or covenant of Merchant contained in this Agreement.
20. Disclaimer of Warranty.
TRIALPAY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, AND FULLY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, TRIALPAY DOES NOT WARRANT ANY RESULTS FROM THE USE OF THE SERVICE, THAT USE OF THE SERVICE WILL BE CONSISTENT WITH ANYMERCHANT AGREEMENTS WITH ANY OTHER PARTIES, OR THAT USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.
21. Liability Limits.
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, TRIALPAY SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, STATUTE, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE FEES CHARGED BY TRIALPAY FOR THE SERVICES PROVIDED HEREUNDER IN THE PRECEDING SIX MONTHS; (II) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES; (IV) INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) ANY MATTER BEYOND TRIALPAY'S REASONABLE CONTROL. The parties further acknowledge and agree that TrialPay will not be liable to Merchant for any claim, loss, billing error, damage, or expense arising out of or relating to this Agreement and the Services provided hereunder which is not reported in writing by Merchant to TrialPay within sixty (60) days of the occurrence of the applicable event. Merchant expressly waives any claim not brought within this time limit.
Any technical, financial, business or other information provided by one party to the other party and designated as confidential or proprietary ("Confidential Information") shall be held in confidence and not disclosed by the receiving party and shall not be used except to the extent necessary to carry out the receiving party's obligations hereunder. This obligation will not apply to information that (a) is generally and freely publicly available through no fault of the receiving party, (b) the receiving party otherwise rightfully obtains from third parties without restriction, or (c) is independently developed by employees of the receiving party with no knowledge of or access to such information.
23. Effective Date; Term and Termination.
This Agreement is entered into on the Effective Date and will remain in effect until terminated by either party pursuant to its terms. In the event of a party's breach of the Agreement then this Agreement may be terminated by the other party immediately upon written notice. Furthermore, this Agreement and/or any Service provided hereunder may be terminated by either party at any time and for any reason upon thirty (30) days written notice. Termination is not an exclusive remedy for breach of this Agreement and all other remedies will be available whether or not termination occurs. Neither party shall be liable to the other party for any damage, loss or expense suffered by the other party as a result of termination of this Agreement in accordance with its terms. The following Sections of this Agreement shall survive termination for any reason: 1, 9, 15(b), 15(c), and 18-24.
Neither party may assign its rights or obligations under this Agreement without the consent of the other party, except that TrialPay may assign its rights and obligations hereunder to an affiliate or to a successor to all or substantially all of its business or assets. Merchant recognizes and agrees that aspects of the Services will be provided by entities other than TrialPay. Merchant understands and agrees that the User's personal information and Transaction Data may be obtained and accessed by Payment Organizations, Affiliates, and TrialPay Advertisers in addition to TrialPay. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of California (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods). The sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in California and each party consents to the jurisdiction of such courts with respect to any such action. In any action or proceeding arising out of this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. This Agreement supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement, and all past dealing or industry custom. By using the Service in any manner Merchant unconditionally consents to be bound by TrialPay.com website Terms & Conditions set forth at www.trialpay.com/legal/terms/ (the "Website Terms"), provided that in the event of a conflict between the Website Terms and this Agreement then the terms of this Agreement shall prevail. TrialPay reserves the right to amend or modify this Agreement upon thirty (30) days advance notice to Merchant. Any notice given to Merchant hereunder may either be provided in writing to Merchant's principal place of business, by e-mail to Merchant's then-current designated point of contact as listed in the Console, or by posting a notice to the Console; any use of the Service by Merchant following the expiration of any applicable notice period shall constitute acknowledgement of Merchant's receipt of and consent to the matters so notified to Merchant. All notices under this Agreement to TrialPay shall be in writing, and shall be deemed given when personally delivered or three days after being sent by registered U.S. mail or reputable overnight courier to TrialPay's principal place of business. Except as expressly set forth herein, no changes, modifications, or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties.
TrialPay Master Services Agreement (April 10, 2014)