IATS, LLC Application Services Agreement Terms & Conditions
Updated July 20, 2017
IATS, LLC ("IATS") operates the “Brickwork” credit and direct debit/ACH processing service (the "Service") through the Salesforce platform. The following Terms and Conditions, any order form or enrollment page by which Customer subscribes for the Service (an "Enrollment Form"), and any additional documents specifically incorporated thereby set forth the entire agreement regarding the use of the Service between each customer of the Service (each, a "Customer") and IATS (collectively, this "Agreement"). By clicking the "I Accept" button displayed as part of the installation process, or installing or using the Brickwork software in any manner, Customer agrees to the provisions of this Agreement.
1 Provision of Service.
1.1 Service. IATS will provide the Service to Customer as described on each Enrollment Form and at http://home.iatspayments.com/accept-payments/salesforce/. Customer recognizes and agrees that the Service is not a stand-alone service. Rather, the Service runs within Salesforce and connects directly to one or more payment gateways or processors. Accordingly, Customer recognizes and agrees that IATS will be unable to provide the Service, and will have no liability to Customer, if Salesforce or any payment gateway or processor to which it connects is unavailable for any reason. IATS is not responsible or liable for any nonperformance of Service arising from planned or unplanned downtime of Salesforce or payment gateways or processors.
1.2 Handling of Customer Data. The Service does not collect or store any of the information or data that is retrieved from Customer’s Salesforce.com account during the course of processing a payment transaction. Customer agrees that the security of any such data is not the responsibility of IATS.
2 Intellectual Property.
2.1 IATS’ IP. IATS retains all right, title, and interest in and to the Service and all software used to provide the Service, including without limitation all updates, modifications, and customizations, all software or other assets created through setup or configuration, and all text, photographs, illustrations, designs, logos, trademarks and other content reproduced through the Service, whether provided by IATS, Salesforce, or any other third party, used to provide the Service or presented through the Service (collectively, "Materials"). Customer recognizes and agrees that: (a) the Materials are the property of IATS or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (b) Customer does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Customer's use of the Service. This Agreement does not grant Customer any intellectual property rights in or to the Service or any of its components.
2.2 Acceptable Use. Customer agrees that it will not, and will not encourage or assist any third party to:
(a) use the Service to harm others or damage, disable, overburden, or impair the Service (or any network connected to the Service), for example, by using the Service to harm, threaten, or harass another person, organization, or IATS and/or to build a similar service or website.
(b) resell or redistribute the Service or any part of it without IATS’ written authorization; use any unauthorized means to modify, reroute, or gain access to the Service or attempt to carry out these activities; or use any automated process or Service (such as a bot, a spider, or periodic caching of information stored by IATS) to access or use the Service;
(c) remove, obscure or alter any proprietary rights notice pertaining to the Service, or reverse engineer, disassemble or decompile, modify, alter, tamper with, or repair the software, or otherwise create derivative works of the software, used to provide or access the Service;
(d) use the Service to engage in any activity other than that for which the Service is specifically intended, including without limitation: (i) engage in any unlawful or fraudulent activity, phishing schemes, forgery or other similar falsification or manipulation of data; (ii) send junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) engage in or assist in a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs; or (iv) abuse, harass, stalk or otherwise violate the legal rights of a third party;
(e) access or attempt to access IATS' other accounts, computer systems or networks;
(f) share passwords or other access information or devices or otherwise authorize any third party to access or use the Service.
2.3 Customer Data. Customer retains all right, title and interest in and to the information and data relating to its customers (“Customer Data”). Customer is solely responsible for Customer Data, including without limitation the accuracy, quality, integrity, legality, reliability, security and appropriateness of Customer Data, and any intellectual property ownership or right to use Customer Data. IATS is not responsible for the deletion, alteration, or loss of, or failure to store, any Customer Data. Customer hereby agrees to take all measures necessary to protect and encrypt sensitive Customer Data in accordance with local, state/provincial and federal/national laws, including the routine deletion of sensitive cardholder payment data. Customer is solely responsible for determining whether it is required to seek PCI compliance or other security certification measures, and for obtaining and maintaining such certification. Customer recognizes and agrees that: (a) IATS does not own or have access to Customer Data in the ordinary course of its business; (b) Salesforce provides a tool that permits Customer to allow IATS to log in to the Service as Customer in order to provide support services; and (c) if Customer provides such access to IATS, IATS will be able to view Customer Data. IATS will use all such Customer Data, if at all, only in order to provide support. Customer Data received pursuant to this Section 2.3 is Customer's Confidential Information (as defined below) and IATS is bound by the obligations set out herein in regard to all such information. Except as set forth in the preceding sentence, IATS will have no responsibility or liability for any exposure, disclosure, or loss of Customer Data, or for any loss arising out of or related to Customer Data. Customer hereby grants to IATS all licenses and rights in and to Customer Data necessary for IATS to provide the Service to Customer or as required by law. Customer is responsible for providing all Customer Data required for the proper operation of the Service.
3.1 Indemnification. Customer will indemnify, defend, and hold harmless IATS, as well as its licensors parents, subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents (collectively the "IATS Parties") from and against any and all losses, claims, suits, actions, liabilities, costs, and expenses (including taxes, fees, fines, penalties, interest, expenses of investigation, and attorneys' fees and disbursements) arising out of or related to Customer's use of the Service, including without limitation: (a) claims that IATS' processing, management, or use of Customer Data violates any contract or any law, rule, or regulation in any jurisdiction; and (b) claims by Customer's own customers or its employees, users, business partners, or affiliates.
3.2 IP Remedies. In the event of any third party claim that the Service, as provided, infringes a patent, copyright or trademark, IATS shall, at its sole option and expense and as Customer's exclusive remedy: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Customer's access to the Service. IATS will have no liability to Customer for any infringement action that arises out of a breach of the terms and conditions of this Agreement by Customer or out of the use of the Service (i) after it has been modified by Customer or a third party without IATS' prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by IATS where the combination is the basis for the infringing activity. THIS SECTION SETS FORTH THE ENTIRE OBLIGATION OF IATS AND CUSTOMER'S EXCLUSIVE REMEDY FOR ANY ALLEGED OR ACTUAL INFRINGEMENT OF INTELLECTUAL PROPERTY.
3.3 Disclaimers. Except for the express warranties specified in Section 3.2 above, THE SERVICE IS PROVIDED "AS IS" AND AS AVAILABLE, AND IATS MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing: (a) IATS does not warrant that the Service will perform without error or immaterial interruption; and (b) IATS does not warrant the security or protection of any Customer Data.
3.4 Limitation of Liability. WITH REGARD TO LIABILITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT: (a) IATS' AGGREGATE, CUMULATIVE LIABILITY, AND THAT OF THE IATS PARTIES, IS AND WILL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO IATS PURSUANT TO THIS AGREEMENT DURING THE TWELVE MONTHS BEFORE THE EVENT GIVING RISE TO THE LIABILITY; AND (b) NEITHER IATS NOR THE IATS PARTIES IS OR WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES.THE LIABILITIES LIMITED BY THIS SECTION APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF THE PARTY TO BE CHARGED IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section, IATS' and the IATS Parties' liability will be limited to the maximum extent permissible by law.
4 Confidential Information.
4.1 "Confidential Information" (a) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which is marked or otherwise designated "confidential," including, without limitation, algorithms, business plans, customer lists, customer names, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets or any other information; and (b) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the materials described in Subsection 4.1(a). Information disclosed orally shall be considered Confidential Information only if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information of a third party that is in the possession of one of the parties and is disclosed to the other party under this Agreement. Confidential Information includes, without limitation, documentation, specifications, pricing, disclosures in connection with the Service and the terms and conditions of this Agreement. Confidential Information shall remain the sole property of the disclosing party or its licensors.
4.2 Nondisclosure. Information and materials will not be considered as Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (a) lawfully available to the public through no act or omission of the receiving party; (b) in the receiving party's lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (c) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) independently developed by the receiving party. The parties agree, both during the term of this Agreement and for a period of five (5) years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each other's Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and consultants performing services for the benefit of the receiving party who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section 4.2 shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.
5 Term and Termination.
5.1 Term & Renewal. Except as otherwise set forth on an Enrollment Form and below, the initial term of this Agreement is 1 year. The term will automatically renew for additional 6-month renewal terms unless terminated as provided in this Agreement.
5.2 Termination for Convenience. Either party may terminate this Agreement at any time for any reason and without notice.
5.3 Effects of Termination. The following provisions will survive termination of this Agreement: (a) Sections 3-4 and 6.8 of this Agreement; and (b) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
6.1 Right to Do Business. Each party warrants that (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement; and (b) that the person executing this Agreement on behalf of such party has been authorized to execute this Agreement and bind such party to its terms.
6.2 Integration; Severability. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof. If any provision of this Agreement is adjudicated invalid or unenforceable, the remaining provisions will remain in effect and the Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. This Agreement shall supersede the terms of any purchase order or other business form.
6.3 Notices. Every notice or other communication required or contemplated by this Agreement by either party shall be delivered to the other party by: (a) personal delivery; (b) postage prepaid, return receipt requested, registered or certified mail; (c) internationally recognized express courier, such as Federal Express, UPS or DHL; or (d) email with a confirmation copy sent simultaneously by postal mail. IATS may also provide notices through the email address provided on the applicable Enrollment Form or such alternative email address as Customer may provide. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given. Notices to Customer shall be addressed to the addressed provided by Customer on any Enrollment Form. Notices to IATS shall be addressed as follows:
IATS Payments Attn: Vice President – Operations 1188 West Georgia Street, Suite 600 Vancouver, BC Canada V6E 4A2
With a copy to:
IATS, LLC Attn: General Counsel 100 Throckmorton Street, Suite 1800 Fort Worth, Texas 76102 firstname.lastname@example.org
6.4 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may bind the other in any way.
6.5 No Waiver. A party will not be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (a) by a duly authorized representative of the party and (b) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
6.6 Force Majeure. Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for Customer’s payment obligations hereunder, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.
6.7 Assignment & Successors. This Agreement shall not be assignable by Customer without the written consent of IATS. Any purported assignment in violation of this Section is void. Upon assignment, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties, their legal representatives, assignees and successors in interest.
6.8 Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Texas, without reference to such State's principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts in Fort Worth, Tarrant County, Texas. In the event of any action or proceeding between the parties, whether by suit or arbitration, as to their rights and obligations under this Agreement, each party will bear its own costs incurred in connection therewith, including attorney's fees.