Legal Terms and Conditions
uPunchTM Service Agreement
The following are the terms and conditions (the “Terms and Conditions”) for use of the uAccept software (the “Software”) and the provision of a subscription service to be used by you for managing your uAccept Point of Sale Device or Devices (“Service(s)” or “uAccept Service(s)”). The uAccept Service is owned, operated, and provided to you by Processing Point, Inc., a California corporation (“Processing Point”) through the web site: https://trackmypos.com (the “Site”).
By completing the uAccept purchase order and enrolling to use the uAccept Service, you agree to be bound by these Terms and Conditions, the purchase order, and all payment terms, policies, practices, rules, standards, and guidelines (“Policies”) related to the Site and/or the Services, in effect from time to time (collectively, the “Agreement”).
Any reference to “you” or “your” refers to the person or entity subscribing to the Services hereunder. You agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to the use of the Service, shall be bound by, and shall abide by, these Terms and Conditions. You further agree that you are bound by these Terms and Conditions whether you are acting on your own behalf or on behalf of a third party.
By accepting the Agreement, you (a) represent and warrant that you are 18 years old or older; (b) agree to provide true, accurate, current and complete information; and (c) agree to maintain and update this information to keep it true, accurate, current, and complete. If any information provided by you is untrue, inaccurate, not current, or incomplete, Processing Point has the right to terminate your account and refuse any and all current or future use of the Service.
1. GRANT OF LICENSE. Processing Point hereby grants you a non-exclusive license to use the Service in accordance with the terms of the Agreement. You may not: (1) modify, translate, or create derivative works based on the Service or the Software, or permit other individuals to do so; (2) rent, lease, transfer, or otherwise transfer rights to the Service or the Software; (3) use a single account for multiple business entities, unless specifically authorized by Processing Point in writing; (4) provide third parties with access to your account, except for third parties specifically authorized by Processing Point; and/or (5) reverse engineer or disassemble the Service or the Software.
2. INTELLECTUAL PROPERTY. You agree that all title and copyrights, trade secrets, patents, trademarks, and other intellectual property arising out of or related to the Site, Software, and the Services are owned by Processing Point. Copyright, trade secret, and other laws protect the Software and the uAccept Services. You further agree that all data not expressly entered into the uAccept system by you is the intellectual property of and owned by Processing Point. You agree to not reverse engineer or disassemble uAccept Software.
3. FEES AND PAYMENT.
a. Fees. Fees shall be charged per month as posted on the Site or in this Agreement. The fees in effect at the time of signing or electronically agreeing to the Agreement are as follows:
|uAccept account with one POS device||$39.00 / Month|
|Additional POS device||$19.00 / Month|
|Text messaging plan (2,000 messages per month)||$19.99 / Month|
|Additional blocks of 750 messages||$9.99 / Block|
|Merchant account||1.59% + 10¢* or use your current merchant account**|
*uAccept Merchant Account: The listed rate is for qualified transactions. A monthly fee of $9.95 applies. Rates and fees may change without notice. Rate and acceptance are subject to underwriting.
**Current Merchant Account: Gateway fee of $9.95 per month plus 10¢ per gateway transaction applies.
b. Fee Changes. Processing Point reserves the right to change its fees at any time, at its sole discretion, by posting notice of the same on the Site or on www.uAccept.com, or by updating this Agreement and/or Terms and Conditions, or by notifying you by email. A fee change for subscription fees or any additional fees will go into effect at the start of the month following the announced rate change.
c. Payment. Any and all Processing Point payment policies posted on the Site or on www.uAccept.com are incorporated herein by reference. Processing Point reserves the right to change its payment policies from time to time, at its sole discretion. You agree to pay Processing Point all applicable charges to your account, in United States dollars, in accordance with the payment policy in effect at the time those charges become due. Your account will be debited with corresponding fees in accordance with the then-current rates. You agree to not charge back any of the related fees associated with your account.
d. Method of Payment. You agree and represent that all information you provide for the purpose of enrolling for the Services will be accurate, complete, and current. You expressly authorize Processing Point to debit your bank account or charge your credit card, charge card, or debit card, for any and all applicable account charges associated with your account hereunder. If payment cannot be charged to your credit/charge/debit card, for whatever reason, or if there is a charge-back for any reason, Processing Point reserves the right to either suspend or terminate your account with uAccept and the associated Services. If you provide Processing Point with a credit card, charge card, or debit card that expires during the term of this Agreement, Processing Point reserves the right to charge any renewal card issued to you as a replacement without any additional consent from you.
e. Failure to Make Payment. In the event of any failure by you to make payment, or upon any charge-back, you will be responsible for all reasonable expenses (including attorneys’ fees and costs) incurred by Processing Point in collecting such amounts, plus interest at the rate of the lesser of five percent (5%) per month or the highest rate permissible under applicable law for the actual number of days elapsed.
f. No Refunds. 100% of all fees due and paid are NON-REFUNDABLE.
g. Additional Fees. You expressly acknowledge that in addition to the monthly fees to use the uAccept Services, the following additional fees will be charged.
|Bitcoin Plan||$9.99 / Month; processing rate of 25¢ / transaction; 1% conversion fee*|
*Conversion fee for exchanging bitcoin into dollars
4. REPRESENTATIONS AND WARRANTIES. You represent and warrant (i) that you have sufficient authority to enter into the Agreement; (ii) that you will at all times be in compliance with all applicable laws; (iii) that you shall not be in violation of any obligation, contract, or agreement by entering into the Agreement, by performing your obligations under the Agreement or by authorizing and permitting Processing Point to perform and offer the Services hereunder; (iv) that you shall comply not only with these Terms and Conditions, but also with any other terms and conditions and Policies of the Agreement, as amended from time to time; and (v) that all information provided by you is truthful, accurate, and complete, and is not misleading in any way.
a. Your Obligation to Indemnify. You hereby agree to indemnify and hold Processing Point and its officers, directors, and personnel harmless from any fees, liabilities, claims, demands, losses, damages, costs, or penalties arising out of (a) a breach of any representations and warranties by you; (b) a breach of the Agreement by you; (c) your business practices and/or advertising practices; and/or (d) your use or misuse of the Site, Services, and/or Software.
b. Conditions. The foregoing indemnification obligations are conditioned on the indemnified party: (a) giving the indemnifying party prompt written notice of the relevant claim; (b) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim; and (c) giving the indemnifying party the right to control the defense and settlement of such claim, except that the indemnifying party shall not enter any settlement that affects the indemnified party’s rights or interest without the indemnified party’s prior written approval.
c. Costs of Defense. The indemnifying party shall pay any and all costs, expenses, damages, and reasonable attorneys’ fees and reasonable expert witness fees awarded against the indemnified party and all reasonable attorneys’ fees, costs, expenses, and reasonable expert witness fees incurred by the indemnified party in connection with or arising from any such claim, suit, or proceeding.
6. TERM. The initial term period of this Agreement and renewal term periods (collectively referred to herein as the “Term”) shall be on a month-to-month basis. This Agreement shall automatically renew at the renewal rates applicable at the start of each Term Period.
a. Your Right To Terminate. You may terminate this Agreement at any time and for any reason by logging on to your account on the Site and canceling the Services. Processing Point does not refund the fees or prorate any fees should you cancel the Services prior to the end of the Term. Once your account has been terminated, you will no longer be able to access the information previously stored on your account.
b. Processing Point’s Right To Terminate.
i. Processing Point may terminate the Agreement, at its sole discretion, in advance of any renewal Term by providing written notice to you of its intention not to renew. Processing Point may terminate your month-to-month Term upon fourteen (14) days written email notice to you prior to the end of the current month.
ii. In addition, notwithstanding anything contained in the Agreement to the contrary, Processing Point may, at its sole discretion, immediately terminate the Agreement at any time during any Term, and discontinue your participation in the Service, if Processing Point believes that your conduct may be harmful to its business. Reasons for such termination may include, but are not limited to the following: (i) failure to make payment in accordance with Processing Point’s terms, (ii) if Processing Point believes that you may be competitive with Processing Point or intend to develop a competitive service to the uAccept Services, (iii) if Processing Point believes that you have violated this Agreement or other policies or guidelines of Processing Point, and/or (iv) if Processing Point believes your conduct may be harmful to others who participate in the Service. If Processing Point terminates under this Section 7b.ii, Processing Point’s termination shall be effective immediately, and the notice provisions described in Section 7b.i shall not apply.
iii. All decisions made by Processing Point in this matter shall be final and neither Processing Point nor its licensees (or distributors) shall have any liability with respect to such decisions.
c. Effect of Termination. Upon termination, you will no longer be able to access your account. Regardless of which party terminates this Agreement, you shall be responsible for all charges incurred up to and through the date of termination and such charges shall be due and payable immediately. Upon any termination, Processing Point reserves the right to delete any and all information in your account, at Processing Point’s discretion, and it will no longer be accessible by you.
8. NON-COMPETE. You agree that during the term of this Agreement and for one year thereafter, you will not develop a competing service to uAccept. You understand that violation of this clause is grounds for immediate termination of the Agreement by Processing Point with no liability on the part of Processing Point; and further, you understand that Processing Point may seek equitable relief to stop the violation and competing activity as well as any other relief available under the law.
9. MODIFICATIONS. Processing Point may modify this Agreement, including these Terms and Conditions and all applicable rates from time to time, at its sole discretion. Any changes will be emailed to you and/or posted on the Site by Processing Point no fewer than 14 days prior to implementation of changes to this Agreement. The changes to the Terms and Conditions will also be posted at the Legal tab of the following web site: https://uAccept.com. Any use of the Service and/or Site after modifications shall be deemed to be continued acceptance of this Agreement, including its amendments and modifications. No conditions other than those set forth in this Agreement shall be binding on Processing Point unless Processing Point expressly agrees in writing signed by an authorized representative of Processing Point. Processing Point reserves the right to discontinue offering the Services and/or Site at any time.
10. TECHNICAL SUPPORT. Processing Point will supply technical support via phone and email at such times and through such numbers as listed on the Site or on www.uAccept.ca as it pertains to the uAccept Services.
11. POINT OF SALE DEVICE DATA.
a. Storage. The Point of Sale Device data for uAccept will be hosted on Processing Point servers, unless otherwise agreed. Processing Point does not warrant that your use of the Services will be uninterrupted or that the operation of the Services will be error-free or secure. In addition, the security mechanisms implemented by Processing Point have inherent limitations, and you must determine whether the Service sufficiently meets your requirements. While Processing Point will make every reasonable effort to protect and back up data on a regular basis, Processing Point is not responsible for your data residing on Processing Point servers. You are responsible for backing up and exporting your Point of Sale Device data.
b. Your Data. Your data consists of the information input into your uAccept Account by you and the information deposited into the uAccept Account from your uAccept Point of Sale Device. Processing Point will not use your data except directly in furtherance of the purposes of this Agreement. Processing Point will not disclose your data to any third party unless directed by you, or unless (a) such disclosure is made by Processing Point in response to a court order, and provided that Processing Point has given you reasonable notice of such court order, or (b) is in aggregate non-personally identifiable form. All data that is not your data belongs to Processing Point (collectively “Processing Point’s Data”). You agree that Processing Point owns all Processing Point’s Data.
12. DISCLAIMER OF WARRANTIES. You agree that your use of the Site and/or Services and/or Software is at your own risk. The Site and/or Services and/or Software are available on an “as is” basis, without warranty of any kind, express or implied, including but not limited to implied warranties of performance, merchantability, fitness for a particular purpose or accuracy, or implied warranties arising from course of performance or course of conduct, and Processing Point disclaims any warranty regarding the availability, accuracy, or content of the Site, Services, and/or information, products, or services available through the Site and/or Services, or any economic benefit you may gain from use of the Site and/or Services. Some states do not allow exclusion of an implied warranty, so this disclaimer may not apply to you.
13. APPLICABLE LAW AND STATUTE OF LIMITATIONS. The Site and affiliated sites are controlled by Processing Point from our offices within the Province of British Columbia, Canada. Our Site, affiliated sites, and Services can be accessed from all Canadian Provinces, as well as from other countries around the world. As each of these places has laws that may differ from those of British columbia, by accessing the Site, affiliated sites, and Services, both of us agree that the statutes and laws of the Province of British Columbia, without regard to its conflict of law principles, will apply to all matters arising out of and use of the Site, affiliated sites, Services, and the Agreement.
Any cause of action brought by you against Processing Point, its officers, directors, and personnel must be instituted within one (1) year after the cause of action arises or be deemed forever waived and barred.
14. FORUM SELECTION. Any legal action, arbitration, or court proceeding arising out of or related to this Agreement (including these Terms and Conditions), Site, Services, and Software shall be commenced and maintained in a court located in British Columbia.
15. ATTORNEY FEES. In any litigation, or other proceeding arising out of or related to this Agreement (including these Terms and Conditions), Site, Services, or Software (whether in contract, tort, or both), Processing Point shall be entitled to recover its reasonable attorney fees, costs, and expenses if it is the prevailing party.
16. SEVERABILITY. If any provision of the Agreement (including these Terms and Conditions) is held invalid or unenforceable, the remainder of the Agreement (including these Terms and Conditions) shall nevertheless remain in full force and effect.
17. LIMITATION ON LIABILITY. You agree that Processing Point will not be liable for any consequential, incidental, indirect, special, punitive, or exemplary damages of any kind, including without limitation any loss of use, loss of business, or loss of profit or revenue, arising out of or in connection with this agreement, regardless of the form of action, whether in contract or tort (including negligence, strict liability, or otherwise), even if Processing Point has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy. Processing Point’s total cumulative liability, regardless of the form of action, will not exceed an amount equal to all amounts actually realized by Processing Point from you during the one (1) month period immediately preceding any such liability. You acknowledge that these limitations are reasonable, that they are an essential element hereof, and that absent such limitations, Processing Point would not enter into this agreement.
18. FORCE MAJEURE. In addition to any excuse provided by applicable law, Processing Point shall be excused from liability for non-delivery or delay in delivery of the Services and any other services available through the Site arising from any event beyond Processing Point’s reasonable control, whether or not foreseeable by either party, including but not limited to: labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond Processing Point’s reasonable control, whether or not similar to those which are enumerated above.
19. NO ASSIGNMENT OR RESALE. You may not resell, assign, or transfer any of your rights under this Agreement, and if you attempt to resell, assign, or transfer its rights, Processing Point may immediately terminate this Agreement without liability to Processing Point.
20. HEADINGS AND REFERENCES. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph. The content in other Web sites specifically referenced in this Agreement, such as URLs, is incorporated by this reference as though fully stated in this Agreement.
21. ENTIRE AGREEMENT. The Agreement constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between the parties.
22. SURVIVAL. Notwithstanding the termination and/or expiration of the Agreement, it is agreed that those rights and obligations which by their nature are intended to survive such termination and/or expiration shall survive including, but not limited to the terms of Sections 2, 3, 4, 5, 7(c), 8, 11, 12, 13, 14, 15, 16, and 17.
© 2014 Processing Point, Inc.
All Rights Reserved.