Additional Terms to Capchase Pay Agreement
Last updated: April 11th, 2023
1. Representations.
Each party represents and warrants that: (a) it is duly formed, validly existing, and in good standing under the laws of its state of incorporation or formation; (b) it has the right, power and authority to enter into this Agreement; (c) this Agreement has been duly and validly executed and delivered and constitutes legal, valid and binding obligations of each party; (d) it shall comply at all times with all applicable laws, rules and regulations in connection with carrying out its obligations contained herein. You further represent that if you are domiciled in the United States, you are not domiciled in North Dakota, South Dakota, or Vermont.
2. Disputes with Vendor.
If you are not satisfied with the services you receive from Vendor, you will make good faith efforts to resolve any issues directly with Vendor. Capchase shall not be responsible or liable in respect of any disputes. Disputes with the vendor do not relieve you from your payment obligation for this prepayment and repayment obligations.
3. Governing Law; Disputes.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York notwithstanding any conflict of law rules. Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, shall be determined by final and binding arbitration before one arbitrator. The place of arbitration shall be in New York, New York. The arbitration shall be administered by Judicial Arbitration and Mediation Services pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the “Expedited Procedures” described therein. Judgment on the award may be entered by any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. If for any reason this arbitration clause is deemed inapplicable or invalid, both Vendor and Capchase waive, to the fullest extent allowed by law, any claims to recover punitive or exemplary damages and any right to pursue any claims on a class or consolidated basis or in a representative capacity.
4. Confidentiality; Uses of Data.
(a) Confidential Information. In connection with this Agreement, a party (the “Receiving Party”) may receive or have access to confidential or proprietary information of the other party or its affiliates (the “Disclosing Party”), whether received or disclosed by such parties or their respective personnel, representatives, or other agents (collectively “Representatives”). As used in this Agreement, “Confidential Information” means any proprietary information, technical data, demographic information, trade secrets or know-how, including but not limited to research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by either party either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment but excludes any such information that: (i) was lawfully in a party’s possession before receiving it from the other party; (ii) is rightfully received from a third party without restriction and, to such party’s knowledge, without a breach of this Agreement; (iii) is or becomes generally available to the public other than through a violation of this Agreement; or (iv) was or is independently developed without use of or reference to the Confidential Information.
(b) Obligations of the Receiving Party. The Receiving Party will: (i) keep the Confidential Information of the Disclosing Party confidential and not use or copy such Confidential Information other than as expressly authorized by the Disclosing Party and as permitted under this Agreement; (ii) protect the Confidential Information of the Disclosing Party from unauthorized use disclosure by using at least the same degree of care as the Receiving Party employs to avoid such unauthorized use or disclosure, but in no event any less than reasonable care; (iii) limit access to Confidential Information to those of its Representatives who need such access for purposes consistent with this Agreement and shall be responsible for any breach of this Section 9 by such Representatives. It is understood that each party’s Confidential Information shall remain the sole property of such party. In the event that the Receiving Party or any of its Representatives become legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any Confidential Information of the Disclosing Party, the Receiving Party will, to the extent legally permissible, provide the Disclosing Party with notice of such circumstances and will limit such disclosure to only what, legal counsel for the Receiving Party advises, is specifically required by the law, rule, regulation, subpoena, or similar court process. The terms and conditions of this Agreement shall be considered Confidential Information as to both parties.
(c) Use of the Platform. Company will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to Capchase's products, including, without limitation, the Capchase platform; or (ii) modify, translate or create derivative works of Capchase's products and services provided hereunder, including, without limitation, the Capchase platform.
5. Miscellaneous.
You may not assign this agreement without Capchase’s prior written consent. The failure of any party to enforce any of the terms and conditions of the Agreement shall not constitute a waiver of that party’s right thereafter to enforce each and every term and condition of this Agreement. This Agreement constitutes the entire understanding and contract between the parties and supersedes all prior agreements (including any prior agreement entered into between the parties), understandings, arrangements, commitments or representations, oral or written, between the parties with respect to the subject matter hereof. This Agreement may be executed in two or more counterparts, each of which shall be an original instrument, but all of which shall constitute one and the same agreement. This Agreement may not be amended or modified except by a writing executed by the duly authorized representatives of both parties. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. The words “execution,” “signed,” “signature” and words of like import shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature or the use of a paper-based recordkeeping systems, as the case may be, to the extent and as provided for in any applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act.
6. Disclosures.
- Capchase is not the seller of any goods or services.
- Disputes for non-delivery or quality of any goods or services will not be available in relation to the goods or services purchased from the Vendor.
- A cardholder’s issuer may charge interest, or other charges, in line with the terms and conditions of the agreement between the cardholder and the issuer.
