TERMS OF SERVICE
Last Modified: 04-08-2020
- Sub-Merchant Processing Agreement: These terms apply to if you use the payment processing services.
- Subscription Agreement: These terms apply if you access and use any of the local marketing services through the Services.
- ACH Services Agreement: These terms apply if you access and use any electronic automated clearing housing services.
- Account Registration
To activate and use our Services, you must open an account with us. If and when prompted by Banktech’s registration process to register and create a “Member” or “Customer” or “Merchant” account (an “Account”) you agree to (a) provide true, accurate, current and complete information about yourself and/or your business, and (b) maintain and update this information to keep it true, accurate, current and complete. You are fully responsible for all activity that occurs under your Account, including for any actions taken by persons to whom you have granted access to the Account. We reserve the right to change the account type, suspend or terminate the Account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
- Your License
- Revisions, Disclosures and Notices
You agree to our E-Sign Consent. We may provide disclosures and notices required by law and other information about your Account to you electronically, by posting it on our website, pushing notifications through the Services, or by emailing it to the email address listed in your Account. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered. If you wish to withdraw your consent to receiving electronic communications, contact email@example.com. If we are not able to support your request, you may need to terminate your Account.
You shall not and shall not permit any third party to:
- access or attempt to access the Services (or any part) that is not intended to be available to you;
- without Banktech’s advance written consent, use, ship or access the Services (or any part) outside or from outside of the United States;
- engage in any activity that may be in violation of regulations administered by the United States Department of the Treasury’s Office of Foreign Asset Control (31 C.F.R. Parts 500-599). Prohibited activity includes but is not limited to the provision of Services to or for the benefit of a jurisdiction, entity, or individual blocked or prohibited by relevant sanctions authorities, including but not limited to activities in Iran, Cuba, North Korea, Sudan, Syria, or the Crimean Region of the Ukraine. If found to be in apparent violation of these restrictions, your account could be terminated, and your funds could be held for an indefinite period of time;
- access or monitor any material or information on any Banktech system using any manual process or robot, spider, scraper, or other automated means;
- except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services;
- perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;
- copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from Banktech;
- use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement;
- use the Services in a way that distracts or prevents you from obeying traffic or safety laws;
- use the Services for the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm;
- use the Services for any illegal activity or goods or in any way that exposes you, other Banktech users, our partners, or Banktech to harm; or
- otherwise use the Services except as expressly allowed under these Terms.
If we reasonably suspect that your Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Account, and any of your transactions with law enforcement.
- Compatible Mobile Devices and Third-Party Carriers
You may access the Services through your tablet, or other mobile or fixed form factor identified by Banktech as compatible with and capable of accessing and/or supporting the Services (“Device”). We do not warrant that the Services will be compatible with your Device or carrier. Your use of the Services may be subject to the terms of your agreements with your Device manufacturer or your telecommunications carrier. You may not use a modified device to use the Services if the modification is contrary to the manufacturer’s software or hardware guidelines, including disabling hardware or software controls—sometimes referred to as “jail broken.” You agree that Banktech does not have any liability to you arising directly or indirectly from or otherwise concerning: (a) any termination, suspension, delay or disruption of the Service (including billing for the Service) by the Internet, any common carrier or any third party service provider; (b) any failure, disruption or malfunction of the Services, the Internet, or any communications network, facility or equipment beyond Banktech or a third party’s reasonable control; (c) your failed attempts to access the Service or to complete transactions via the Service; or (d) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by you.
When you process information that identifies or is reasonably capable of identifying an individual to Banktech in connection with the Services (including information collected by Banktech on your behalf), you agree to comply with applicable laws regarding the collection, use, disclosure, protection and retention of information. You acknowledge that you have reviewed and consent to our Privacy Notice, which explains how we collect, use and protect the personal information you provide to us.
- Your Content
The Services may include functionality for uploading or providing suggestions, recommendations, feedback, stories, photos, documents, logos, products, loyalty programs, promotions, advertisements and other materials or information (“Content”).
You will not upload or provide Content or otherwise post, transmit, distribute, or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches or infringes any duty toward or rights of any person or entity, including rights of publicity, privacy or intellectual property; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Banktech’s or its partners’ products and services, as determined by us in our sole discretion; or (f) in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose Banktech, its affiliates or its customers to harm or liability of any nature.
- Intellectual Property Infringement
We respect the intellectual property rights of others and ask you to do the same. If you believe that third-party material hosted by Banktech infringes your copyright or trademark rights, please notify us by contacting firstname.lastname@example.org . We respond to all valid notices of such infringement, and our policy is to suspend or terminate the accounts of repeat infringers.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.
You are responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or Account or any other breach of security. Notwithstanding Sections 20 and 21, in the event of any dispute between two or more parties as to account ownership, we will be the sole arbiter of such dispute in our sole discretion. Our decision (which may include termination or suspension of any Account subject to dispute) will be final and binding on all parties.
- Communication to your customers.
You must comply with applicable law, including by obtaining any legally required consent, when collecting and using customer contact details to communicate with your customers through the Services. You must promptly honor any customer opt-out. You may not use the Service to send marketing communications except to the contact information provided directly to you by the consumer and with the proper consumer choice as required by law.
- Consent to Communication from Banktech
You agree that Banktech, its affiliates and third party subcontractors and/or agents, may use in addition to any live agent calls, text messages, e-mails, an automatic telephone dialing system, an artificial or pre-recorded voice or both to contact you at the telephone number(s) or e-mail address you have provided, and or may leave a detailed voice mail if you are unable to be reached, even if the number provided is a cellular or wireless number or if you have previously registered on a Do Not Call list or requested not to be contacted for solicitation purposes
Such communications may include, but are not limited to requests for secondary authentication, receipts, reminders, notifications regarding updates to your account or account support, and marketing or promotional communications. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE SERVICES. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you.
You may opt-out of receiving promotional email communications we send to you by following the unsubscribe options on such emails. You may opt out of any promotional phone calls by informing the caller that you would not like to receive future promotional calls. You may only opt-out of text messages from Banktech by replying STOP. You acknowledge that opting out of receiving communications may impact your use of the Services.
- Paid Services
Banktech offers Local Marketing Services, as defined in the Subscription Agreement, on a subscription basis, (the “Paid Services”). Local Marketing Services may subject you to recurring fees and/or terms. By signing up for a Subscription Service, including after any free trial period, you agree to pay us the subscription fee and any applicable taxes as set forth in your subscription and order confirmation email (“Subscription Fee”). By using Paid Services, you agree to pay the fees and any taxes incurred (“the “Paid Service Fees”).
Paid Service Fees may be paid by debit card, credit card, or automated clearing house debit to the bank account you provide to us. If you link a debit or credit card to your account, you authorize us to collect Paid Service Fees by debit from your linked debit card or charge to your linked credit card. Regardless of payment device, we reserve the right to collect Paid Service Fees by deduction from your transaction proceeds, any of your funds that are in your Account or your linked bank account.
Unless otherwise provided in a Subscription Agreement, Subscription Fees will be charged on the initial subscription day, and within seven days of each mensiversary thereafter until cancelled. You may cancel a Subscription Service at any time from your Banktech account. If you cancel a Paid Service, you will continue to have access to that Paid Service through the end of your then current billing period, but you will not be entitled to a refund or credit for any Subscription Fee already due or paid. We reserve the right to change our Subscription Fee upon thirty (30) days’ advance notice. Your continued use of Paid Services after notice of a change to our Subscription Fee will constitute your agreement to such changes.
- Modification and Termination
- Effect of Termination
You may submit comments or ideas about the Services (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary, confidentiality or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
You will indemnify, defend, and hold us, our processors, our sponsor bank and our processors harmless (and our respective employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, fines, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) any transaction submitted by you through the Services (including without limitation the accuracy of any product or service information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (e) your violation of any law, rule or regulation of the United States or any other country; (f) your use of any personal information obtained in connection with your use of the Services or the Device, or any application used on the Device; and (g) the activities under your Account, or any other party’s access and/or use of the Services or Device with your unique name, API key, password or other appropriate security code; (h) your failure to maintain reasonable security in connection with the use of the Services or the Device;(i) any data breach, information security incident, or similar, arising from your action or inaction; and (j) any other party’s access and/or use of the Services with your user names, password and any other sign on credentials/access controls for the Services or any software provided or approved by Banktech to authenticate access to, and use of, the Services and any software.
- Representations and Warranties
- No Warranties
THE USE OF “BANKTECH” IN SECTIONS 17 AND 18 MEANS BANKTECH, ITS PROCESSORS, ITS SUPPLIERS, THIRD PARTY PROVIDERS AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES).
THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, BANKTECH SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
BANKTECH DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Banktech does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party. Banktech does not have control of, or liability for, goods or services that are paid for using the Services.
- Limitations of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BANKTECH OR ITS AFFILIATES OR ANY OF BANKTECH’S OR ITS’ AFFILIATES RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, FINES, PENALTIES, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE, EACH OF WHICH IS EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES WILL BANKTECH BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF BANKTECH OR ITS AFFILIATES OR ANY OF BANKTECH’S OR ITS’ AFFILIATES RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS IS LIMITED TO THE LESSER OF (A) THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) $500.
THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
- Third Party Products
All third-party hardware and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. BANKTECH MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
- Binding Individual Arbitration
By using our Services, you unconditionally consent and agree that: (1) any Dispute (whether in contract, tort, or otherwise) you may have against Banktech and each of their respective members, officers, directors and employees (all such individuals and entities collectively referred to herein as the “Banktech Entities“) arising out of, relating to, or connected in any way with the Services or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a sole arbitrator in accordance with the rules of JAMS; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) the arbitration shall be held in Dallas, Texas; (4) the arbitrator’s decision shall be controlled by the terms and conditions of this Notice and any of the other agreements referenced herein that the applicable user may have entered into in connection with the Services; (5) the arbitrator shall apply Texas law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (6) THERE SHALL BE NO AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS, ARBITRATION CAN DECIDE ONLY YOUR AND/OR THE APPLICABLE BANKTECH ENTITY’S INDIVIDUAL CLAIMS; THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED; (7) the arbitrator shall not have the power to award punitive damages against you or any Banktech Entity; (8) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Banktech Entity exceed $125 USD, and you are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, Banktech agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Banktech will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (9) with the exception of subpart (6) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (6) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor Banktech shall be entitled to arbitrate their dispute. For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com.
- Governing Law
- Limitation on Time to Initiate a Dispute
Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
- Third Party Services and Links to Other Websites
- Third-Party Beneficiaries
- Other Provisions