Last Updated: September 2020
1. THE PLATFORM AGREEMENT
1.1. This Platform Agreement (“Platform Agreement”), together with the Merchant Application (“Application”), form a contract between the merchant identified in the Application (“you”, “yours”, “your” or “Merchant”) and Splitit USA Inc. (“we,” “us,” “our” or “Splitit”).
1.2. This Platform Agreement, together with the Application, governs your engagement with Splitit, whereby we provide you with installment payment processing solutions and proprietary software products (“Splitit Platform”). In order to use the Splitit Platform pursuant to the elections you made in the Application, we will facilitate integration of the Splitit Platform with your existing processor, gateway and acquirer. The Splitit Platform allows you to enter into a retail installment sales contract (“Installment Agreement”) with a consumer, under which you sell consumers goods and services, and the consumer agrees to pay you for such goods and services in several Installment payments (“Installments”) which are processed through your current card processor or other card processor suggested by us (each a “Splitit Transaction”). Use of the Splitit Platform to facilitate Splitit Transactions and related services shall be referred to herein as the “Splitit Services”. Splitit will use commercially reasonable efforts to make the Splitit Services available to you during the Term of this Agreement. For the avoidance of doubt, nothing in this Agreement is intended to create a debtor/creditor relationship between you and us.
1.3. Splitit may make changes to this Platform Agreement from time to time, provided, however, that such changes will not impose additional obligations on you with respect to actions you took before the change became effective unless you specifically agree to such changes. YOU AGREE TO ACCEPT ANY CHANGES TO THIS PLATFORM AGREEMENT BY USING THE SPLITIT SERVICES AND SPLITIT PLATFORM AFTER ANY SUCH CHANGES HAVE BEEN POSTED TO THE SPLITIT WEBSITE. If Splitit makes any changes to this Platform Agreement that it deems to be material, Splitit will endeavour to inform you of such changes. You agree to review the Platform Agreement posted to our website from time to time to review any changes.
2. SERVICES WE PROVIDE TO YOU
2.1. Installment Processing
(a) Splitit Platform. The Splitit Platform allows you to obtain an authorization over the outstanding balance of the Splitit Transaction (“Authorization”) using the available credit or available balance on your customer’s Visa, MasterCard or other credit or debit card with which we operate (the “Card Networks”). The Splitit Platform periodically issues new Authorizations for the remaining balance, taking into account each payment with respect to the applicable Splitit Transaction, in accordance with the settings you agree with Splitit. You may opt to authorize Splitit Transactions without issuing Authorizations, such as debit card transactions or credit card transactions where you elect not to issue Authorizations on your customer’s presented cards, and instead collect payments by charging the debit or credit card for the amount of the Installment on or around each Installment due date (“Non-Secured Installments”).
(b) Timing of Authorizations. The Splitit Platform may begin issuing Authorizations on your customer’s cards at the time of purchase, in accordance with the settings you agree with Splitit. Unless you notify us otherwise (including during the onboarding process), we will capture the first Installment within three days of purchase. You covenant that all goods and services purchased by your customer using a Splitit Transaction will have been shipped, delivered or provided within such time frame. You shall notify us immediately, directly through the Merchant Portal or the Splitit API, as soon as you have reason to believe that this will not be the case.
2.2. Splitit Branding Assets. You agree to prominently display the Splitit name and logo anywhere that you promote, market or sell the Splitit Services, and in any event no less prominently than you display your other payment options. We may agree with you from time to time on additional promotional activities, through your website or otherwise. You may not discriminate against Splitit or discourage use of the Splitit Services in any way in favour of any other payment option that you offer.
2.3. Customer Consent. For each Splitit Transaction, you must ensure that your customer approves and signs the E-Sign Act Disclosure, Consumer Terms of Service, including the Truth in Lending Act Disclosure and the payment authorization (“Customer Forms”). By signing the Customer Forms, the customer consents to the authorization and capture of the full Splitit Transaction amount, the number and schedule of Installments, the amount captured in each Installment, and other matters set forth therein.
2.4. Customer Forms. You understand that the Consumer Terms of Service and other Customer Forms are contracts entered into between the Merchant and the consumer. Merchant is solely responsible for fulfilling all obligations of such Customer Forms, and agrees to comply with all applicable laws governing such Customer Forms and the Splitit Transactions to which they pertain. Splitit is not a party to the Customer Forms and disclaims all responsibility for Merchant’s compliance with the same.
2.5. Merchant Recordkeeping. For each Splitit Transaction, you must retain confirmation of purchase and (if relevant) proof of shipment or receipt by customer for as long as required by your Card Network, in each case, as may be required by the Merchant Acquirer. Such records may be in electronic form.
2.6. Anti-Fraud. You agree that you bear sole responsibility for any fraudulent activities or chargebacks associated with Splitit Transactions. We may, at our discretion, employ fraud detection technologies or other preventive tools in connection with the Splitit Services, which are designed to provide us with increased transaction screening and fraud detection capabilities.
2.7. Splitit Liability. Except as provided in Section 4.4, in any event in which you are unable to collect an amount owed you by a customer, which (i) directly results from a failure by the Splitit Platform to secure an Authorization, to issue a new Authorization or to submit a capture against an existing Authorization, and (ii) you have made your best effort to collect the amount owed you by your customer over a period of at least 90 days, then we will be responsible to pay you the amount owed you as a direct result of any such failures; provided, however, that you assign to us all of your rights to collect said amount directly from your customer. We shall not be liable toward you for any amount you are able to collect from your customers. Notwithstanding the foregoing, Splitit shall have liability for uncollected amount in respect of Non-Secured Installments meeting the underwriting guidelines. For further details, discuss with a Splitit representative.
3. FEES AND PAYMENT TERMS
3.1. Consumer Fees and Expenses. Each party agrees that it will never charge consumers any time-price differential, interest rate on outstanding transaction amounts, fees (including, but not limited to, service fees, late fees, credit card surcharges and convenience fees) or penalties in connection with Splitit Transactions, except as expressly set forth in the Consumer Forms. Each Party will accept payments from consumers only as expressly permitted by the Consumer Forms.
3.2. Fee Schedule. The Merchant agrees to pay Splitit the fees set forth in the Application (“Fee Schedule”) in connection with each Splitit Transaction, which is incorporated by reference into this Platform Agreement (the “Fees”), including value added tax or any similar taxes required by law in connection with the Splitit Services. Fees shall be due on the date each Splitit Transaction is created and are payable in accordance with the terms of this Platform Agreement. We reserve the right to modify the Fee Schedule at any time by providing thirty (30) days prior written notice.
3.3. Payment Terms. Merchant hereby authorizes Splitit or its service provider to make regularly scheduled charges to Merchant’s checking account, debit card, or other accepted payment instrument identified by the Merchant (“Merchant Account”) for all Fees and other amounts owed to Splitit under this Platform Agreement. The Merchant Account will be charged on or after each payment date in the amount indicated on each monthly invoice. Fees will be payable monthly in arrears, subject to rights of setoff contained herein, including in connection with chargebacks and refunds. Merchant understands that the payment may be charged to the Merchant Account as soon as the transaction is initiated by Splitit on or after each payment date.
Merchant understands and agrees that Splitit may not provide prior notice of each transaction unless required by law. In the event any payment charge or transaction is rejected for insufficient funds (NSF) or any other reason, Merchant understands that Splitit may, at its discretion, retry the transaction up to two additional times, unless prohibited by law. Merchant agrees that Splitit may charge a $15.00 fee each time a transaction or attempt is returned unpaid, and authorizes Splitit to collect that fee by initiating an additional charge to the Merchant Account for the amount of the fee, on or after the date the fee is incurred. Merchant understands that this authorization will remain in effect until Merchant cancels it in writing, and Merchant agrees to notify Splitit in writing of any changes in the Merchant Account information or termination of this authorization at least 15 days prior to the next payment due date. If you terminate this authorization, Splitit may require you to authorize payments using another Merchant Account. If any payment date falls on a weekend or holiday, Merchant understands and agrees that payments may be executed on the next business day.
3.4. Non-Payment of Fees. Any Fees, or other amounts you owe us under this Platform Agreement, which are not paid in a timely manner will be subject to interest at an annual rate of 6%, starting as of the date the payment of each such amount was due, until all such Fees are paid in full. Notwithstanding the foregoing, we reserve the right to suspend or cancel your service if any Fees remain unpaid for more than five (5) business days after falling due.
4. CARD NETWORKS; RULES AND REGULATIONS
4.1. Compliance with Visa and MasterCard. By signing this Platform Agreement, you confirm that you are and will remain in full compliance with the operating regulations and rules issued by the Card Networks (the “Rules”).
4.2. Refunds. If you agree to issue any customer a refund, you must notify us immediately and Splitit will cancel the remaining Installments under the Splitit Transaction and reasonably cooperate with you and your processor, gateway and acquirer to facilitate such refund. If you notify us of a partial refund, we will update the transaction amount in the Splitit Platform. You are solely responsible for issuing refunds of any amount that has already been paid by your customer in previous Installments. For the avoidance of doubt, you shall also be responsible for all Fees incurred from the date of the Splitit Transaction, which are non refundable, and shall be considered fully earned by Splitit on the date of the Splitit Transaction.
4.3. Chargebacks. Although the Splitit Services can be used to obtain Authorizations for the full amount of the Splitit Transaction, this does not guarantee actual payment, and the relevant Splitit Transaction, or any single Installment, may be returned or charged back to you, like any other transaction. In the event of a chargeback, you undertake to promptly resolve the chargeback with your processor. In the event that you are a Splitit Payments Merchant, we will work with you to respond to this chargeback in accordance with your instructions and you will provide us any assistance required in order to take any actions with respect to the chargeback. If we receive notice of any such chargeback, we will notify you accordingly and reserve the right to terminate the Authorization and all activities regarding the relevant Splitit Transaction. Notwithstanding anything herein to the contrary, you shall be liable to us for any chargeback initiated by your customers and you shall indemnify and hold us harmless for any damage, loss, cost or liability relating to, or resulting from, any such chargeback.
4.4. Effect of Chargebacks. In the event of a chargeback, we will be unable to maintain Authorizations on the affected Splitit Transactions during the chargeback processing. Therefore, even if you succeed in opposing the chargeback, we cannot guarantee processing of the remaining Installments and take no liability pursuant to Section 2.7. In this scenario, Merchant hereby acknowledges and agrees that any recourse available to the consumer by Merchant will be solely based on the terms of the Installment Agreement. For the avoidance of doubt, you shall also be responsible for all Fees incurred from the date of the Splitit Transaction, which are non refundable, and shall be considered fully earned by Splitit on the date of the Splitit Transaction.
5. FINANCIAL AND OTHER INFORMATION; PROTECTIVE ACTIONS
5.1. Financial and Other Information
(a) Financial Records. You shall provide Splitit with all financial information reasonably requested by or on behalf of Splitit in order to process your Application, in connection with a periodic review of your account with us, and to collect any amounts you owe us under this Platform Agreement, including “know your customer” and “anti-money laundering” information, financial statements, processing statements, bank accounts statements, and others. Splitit may also require such information with respect to the owners or other principals of the Merchant.
(b) Credit Report Authorization. You hereby authorize and direct us to obtain credit reports about the Merchant from a credit bureau or other reporting agency in connection with processing your Application, in connection with a periodic review of your account, and to collect any amounts you owe us under this Platform Agreement. You hereby agree that this authorization shall remain valid for the duration of the term of this Platform Agreement. You understand and agree that Splitit may also require the owner(s), shareholders, officers, directors, and/or other principals of the Merchants to authorize Splitit to obtain a consumer report about them from a consumer reporting agency. Merchant agrees to use reasonable best efforts to cause such individuals to give written instructions to Splitit to obtain such consumer reports. Any failure of a principal to provide such written instructions that may be reasonably requested by Splitit may result in the termination or suspension of the Splitit Services.
(c) Books and Records. You agree to maintain all records required (i) by your processor, in accordance with the Rules, (ii) by law, or (iii) by Splitit, as requested by us in writing.
(d) Ongoing Review. We reserve the right to reassess your eligibility for use of any of the Splitit Services from time to time. This may include obtaining updated financial records, credit report authorizations or other business information as reasonably required regarding your financial condition.
(e) Release and Exchange of Financial Information. You hereby authorize us to release your financial information to your processor or Card Network or other financial/insurance institutions that reasonably request such information. We take no responsibility for this exchange of information and you will not have any claim against us in this regard.
5.2. Protective Actions. If we determine that your account receives, or is likely to receive, a disproportionately high number of customer disputes, chargebacks or similar complaints or claims (collectively “Risk Factors”), we may take certain actions in connection with your account and/or use of the Splitit Services in order to secure the performance of your obligations under this Platform Agreement, including the following:
(a) Refusal of New Splitit Transactions. We may temporarily or permanently refuse to provide Splitit Services for future transactions. Subject to the terms of this Platform Agreement, we will continue to provide Authorization for current Splitit Transactions until payment of the final Installment on account of each Splitit Transaction. You agree to pay all of our Fees during such a period.
(b) Setoff. In the event that you default in payment of the Fees to us, we retain a right of setoff and may apply any of your deposit balances or amounts we owe you toward the payment of amounts you owe us under this Platform Agreement. This setoff right does not limit any other right we may have under applicable law.
6. INTELLECTUAL PROPERTY
6.1. Grant of Non-Exclusive License. The Splitit Platform is protected by patent number 8290864, issued by the United States Patent and Trademark Office on July 4, 2013, and is subject to WIPO application number WO/2014/053920 published on October 4, 2014, as well as to additional pending patent applications. Subject to the terms of this Platform Agreement, Splitit hereby grants Merchant a non-exclusive right to access and use the Splitit Services during the Term. Merchant acknowledges that Splitit may change, deprecate or republish APIs for the Splitit Services or feature of the Splitit Services from time to time, and that it is Merchant’s responsibility to ensure that calls or requests Customer makes to the Services are compatible with then-current APIs for the Services.
6.2. License Restrictions. Merchant will not, and will not permit any third party to, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Splitit Services (except to the extent such restrictions are contrary to applicable law); modify, translate, or create derivative works based on the Splitit Services (except to the extent expressly permitted by Splitit); use the Splitit Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
6.3. Ownership. Your use of the Splitit Platform does not grant you any right of ownership over any aspect of the Splitit Platform. We retain all ownership rights over all aspects of the Splitit Platform. You may not share your use of the Splitit Platform with anyone, or copy, modify, translate, reverse engineer, tamper with, create any derivative work or otherwise attempt to discover the source code or trade secrets from the Splitit Platform.
6.4. Use of Splitit Platform. Your right to use the Splitit Platform is limited to the usage rights expressly granted by Splitit, and such right is specifically restricted to the Splitit Services. Splitit’s suppliers and vendors are intended third-party beneficiaries of this Platform Agreement to the extent of any its terms pertain to their ownership rights. Such suppliers may enforce such terms directly against you.
6.5. Use of Trademarks. You may not act in a manner that is inconsistent with, or that in any way challenges, our ownership of the Splitit Platform, our trademarks and associated registrations. You may not use the Splitit Platform or our trademarks in any way other than as a licensee, and you may not assist a third party in using the Splitit Platform in any way without prior written consent from Splitit.
6.6. Compliance with Laws. You will comply, at your own expense, with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction over you and your business. You will comply with all material terms of the policies, procedures and guidelines of Splitit governing the Splitit Services. You may not use the Splitit Platform in any way that may cause us to be subject to investigation, prosecution or legal action. We reserve the right to amend, modify or change our policies, procedures and guidelines, and you must comply fully with all of them in their then current form.
6.7. Splitit Platform Service and Maintenance. You will promptly notify us of, and assist us in diagnosing, any failure or other impediment to your use of the Splitit Platform, whereupon we will use commercially reasonable efforts to repair the failure or otherwise arrange for the necessary maintenance. We cannot guarantee that any such repair or maintenance efforts will be successful. If our repair efforts are not successful within 24 hours you may terminate this Platform Agreement in accordance with section 8 below. Your right to terminate constitutes your only remedy, and our only liability, for any interruptions, outages or others delays in the Splitit Services or Splitit Platform.
6.8. Use of Merchant Promotional Materials. You will make your logos, button links, text links and other graphic material available to us for display and use on our website, promotional materials, social media channels and Australian Stock Exchange reporting materials (the “Promotional Materials”). For the duration of the term of this Platform Agreement, you grant us a non-exclusive, worldwide, royalty-free license to use your intellectual property for the purpose of displaying the Promotional Materials on our website, promotional materials, social media channels and Australian Stock Exchange reporting materials.
By entering into this Platform Agreement and using the Splitit Services, you acknowledge that we will provide you with certain proprietary and highly sensitive information. For the avoidance of doubt, this provision shall cover all services and information provided to you by Splitit or its affiliates in connection with the Splitit Services and ancillary services.
7.1. Definition. “Confidential Information” means any information disclosed, provided or made available directly or indirectly by us to you in any form, for the purpose of evaluating, executing, or providing administrative services with respect to a Splitit Transaction, including proprietary information, marketing techniques and know-how, data compilations, analyses, projections, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents and formulae related to the current, future and proposed products and services of Splitit.
7.2. Exclusions. Confidential Information does not include any information that (i) was in the public domain prior to our disclosure to you; (ii) becomes publicly known independent of any action by you; (iii) you can prove was already in your possession at the time of disclosure; or (iv) was obtained by you from a third party without a breach of such third party’s obligations of confidentiality.
7.3. Non-use and Non-disclosure. You will not use any of our Confidential Information for any purpose other than for the purpose of your engagement with Splitit as governed by this Platform Agreement.
7.4. Required Disclosure. In the event that you are required by law, governmental or regulatory authority, or by a court of competent jurisdiction to disclose any Confidential Information, you will inform us immediately so that we may seek an appropriate protective order or waive your compliance obligations with the provisions of this Platform Agreement, in our sole discretion. In cases where we seek a protective order, you will cooperate with us in order to obtain such order. If we fail to obtain a protective order or you do not receive from us a waiver of your confidentiality obligations, and yet you remain, in the opinion of your legal counsel, legally compelled to disclose Confidential Information, you may disclose only that Confidential Information you are legally required to disclose, provided that you use commercially reasonable efforts to obtain assurances that such Confidential Information will be kept confidential and that you notify us in writing of its scope and content.
7.5. Maintaining Confidentiality. You shall protect the confidentiality of the Confidential Information, taking at least the degree of care that you take to protect your own confidential information. You shall only share Confidential Information with employees and representatives who are subject to confidentiality and non-disclosure requirements with respect to you and information you receive from third parties.
7.6. Return of Materials. Upon our written request, you shall return or destroy all documents or media containing or constituting Confidential Information.
7.7. Remedies. You agree that monetary damages are an insufficient remedy for any breach or threatened breach of this section 7, and therefore we are entitled to specific performance and injunctive or other equitable relief in the case of any such breach or threatened breach, and you agree to waive any requirement for the security or posting of any bond in connection with such relief. Such remedy is not the exclusive remedy for breach of this Section 7.7, but is in addition to any other remedy available to us.
8. REPRESENTATIONS AND WARRANTIES
8.1. Merchant. You represent and warrant that:
(a) Valid and Binding. Each Installment Agreement constitutes legal, valid and binding obligations of the relevant customer in accordance with the terms of the Installment Agreement, subject to equitable principles and the effect of insolvency laws generally.
(b) Lawful business. You are engaged in a lawful business and are licensed to conduct your business under the laws of all jurisdictions in which you conduct business. You further represent and warrant that all your statements in this Platform Agreement and related documents are true, accurate and complete.
(c) Compliance with Applicable Laws. You will comply with all applicable laws, rules and regulations applicable to you and your business, including, where applicable, RISAs, and all laws prohibiting or limiting the imposition of surcharges, late payment or other fees on consumers with respect to Splitit Transactions. You will comply with all material terms of the then-current Splitit policies, procedures and guidelines governing the Splitit Services, and the terms of all Installment Agreements. Although Splitit has no obligation to monitor Merchant’s use of the Splitit Services, Splitit may do so and may prohibit any use of the Splitit Services it believes may be in violation of the foregoing.
(d) Accurate Information. All information you provided in connection with the Application is true, correct and not misleading. You are providing information to Splitit in connection with utilizing the Splitit Services for your own purposes and not for anyone other than yourself or on behalf of another Person. You are solely responsible for all data, information, text, content and other materials that are uploaded, posted, delivered, or otherwise transmitted or stored on or behalf of Merchant or in connection with or relating to the Service, including any information provided by a customer of Merchant. Merchant warrants that (a) it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Splitit to use the same as contemplated hereunder, and (b) none of the information the Merchant may provide will (i) violate, misappropriate or infringe any rights of any third party, (ii) will defame or invade the rights of privacy or publicity any rights of any third party, or (iii) is designed for use in any illegal activity or promote illegal activities, including, without limitation, in a manner that might be malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
(e) Spam or interference. You will not use any device, software, routine or other technology that is intended to damage or interfere with the Splitit Services, to overload the Splitit Platform infrastructure or otherwise intercept data or personal information from the Splitit Platform.
(f) Splitit Transactions. In connection with each Splitit Transaction, you represent that it is a bona fide sale to an authorized cardholder by you for the amount shown on the invoice, which accurately describes the goods and services sold and constitutes the binding obligation of the cardholder, free from any demand, setoff or other adverse claim. You will fulfil all of your obligations to the cardholder and resolve any consumer dispute or complaint directly with the cardholder.
(g) Taxes. It is your responsibility to determine what, if any, taxes apply in connection with your use of the Splitit Services and Splitit Platform, including to collect, report and remit the correct tax to the appropriate tax authorities. We will cooperate with you with respect to audits and other inquiries, filings, reports, etc., insofar as they relate to the activities or transactions performed under this Platform Agreement.
(h) Licenses, Registrations, Permits. You represent and warrant that you have obtained all licenses, permits and registrations, if applicable, required to offer or enter into Installment Agreements in each state where you will conduct business using the Splitit Services, and you covenant that you will maintain such licenses, permits and registrations in good standing, and comply with all applicable laws governing such licenses, permits, and registrations, at all times during the term of this Platform Agreement and the term of any Installment Agreement you enter into using the Splitit Services.
8.2. Splitit. We represent and warrant that the Splitit Services will substantially conform to all applicable laws and regulations and will be provided in a timely and commercially reasonable manner. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH HEREIN, THE SPLITIT SERVICES ARE PROVIDED “AS-IS”, AND SPLITIT HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR, NON-INFRINGEMENT, PURPOSE AND TITLE. Splitit does not make any warranty as to the results that may be obtained from use of the Splitit Services.
9. DATA SECURITY
9.1 Data Usage
(a) By Merchant. You agree to use all personal, financial, card or Splitit Transaction information obtained from a cardholder in connection with a Splitit Transaction (“Card Data”) solely for the purpose of processing a Splitit Transaction with that cardholder. You are responsible for securing data in your possession or control, including through on your website. Any disclosure, transfer or use of Card Data and other personal data in connection with the Splitit Services is governed by the Data Protection Addendum (the “DPA”).
(b) By Splitit. We will collect, retain, use and share information and Card Data in accordance with the DPA, the Data Protection Act 1998 and all ancillary rules and regulations, the European Union Data Protection Directive (95/46/EC), and all other applicable laws and regulations relating to data protection, as amended from time to time, and in compliance with the PCI-DSS.
9.2. Data Security. Each party agrees to maintain commercially reasonable administrative, technical, and physical procedures to protect Card Data and other nonpublic personal information about consumers from unauthorized access, accidental loss, modification, or breach. However, no security system is impenetrable and Splitit cannot guarantee that unauthorized parties will never be able to defeat our security measures. Merchant provides Card Data and other information to Splitit with the understanding that any security measures that Splitit provides may not be appropriate or adequate for Merchant’s business, and Merchant agrees to implement security controls that meet Merchant’s specific requirements. In Splitit’s sole discretion, Splitit may take any action, including suspension of Merchant’s company account, to maintain the integrity and security of the Splitit Services, Card Data, other nonpublic personal information, or otherwise to prevent harm to Merchant, its customers, Splitit or Splitit’s systems, or others. Merchant waives any right to make a claim against us for losses that Merchants incurs that may result from such actions.
9.3. Accuracy and Retention of Data. You are solely responsible for verifying the accuracy and completeness of all Card Data and any other information submitted to us in connection with the Splitit Transactions. Except as otherwise provided in this Platform Agreement, we have no obligation to retain, report or otherwise provide any records of Splitit Transactions or Card Data collected by us. We have no obligation to provide you with any Card Data.
9.4. Data Access. You must provide us with remote access to Card Data and instruct your credit card payment processor(s) to provide us with unrestricted remote access to your credit card payment processing information relating to Splitit Transactions and the Splitit Services. You grant us the right to access your payment gateway and to employ other reasonable methods for obtaining the Card Data in connection with the Splitit Services.
9.5. Password Security. We will issue you, or permit you to use, a username and password granting you and/or your employees and agents access to a merchant portal providing a dashboard and information regarding your Splitit Transactions. You must restrict use and access to your password and log-on ID to your authorized employees and agents on an as-needed basis and ensure that each employee or agent is aware of, and complies with, the terms of this Platform Agreement. You are solely responsible for maintaining adequate security and control of any and all IDs, passwords and any other codes that are issued to you by Splitit, an acquiring bank or a Card Network.
9.6. Audit. In a case where we reasonably believe that a security breach or compromise of Card Data has occurred, you agree to reasonably cooperate with us, at your expense, to conduct a security audit of your systems and facilities.
10. TERM AND TERMINATION
10.1. Term. This Platform Agreement becomes effective upon your first use of the Splitit Platform and remains in effect until terminated as provided below (the “Term”).
10.2. By the Merchant. You may terminate this Platform Agreement at any time upon ninety (90) days’ prior written notice; provided that you may terminate this Platform Agreement upon thirty (30) days’ prior written notice if you do not accept any changes made to this Platform Agreement.
10.3. By Splitit. Splitit may terminate this Platform Agreement upon any of the following:
(a) Ninety (90) days’ prior written notice, for any reason.
(b) Thirty (30) days’ prior written notice, if there is or may reasonably be an increase in Risk Factors associated with your Splitit account.
(c) Immediately, if you change the basic nature of your business to a prohibited or restricted business of us or of our service providers in accordance with our underwriting guidelines, without prior written notice to us.
(d) Immediately, (i) if you do not comply with the terms of, or if you do not perform any of your obligations under, this Platform Agreement or other agreements entered into with Splitit, (ii) if we are requested to do so by any of the Card Networks or any governmental authority, (iii) if you are not in compliance with any laws, rules and regulations applicable to you and your business, in each case that is capable of remedy, remains unremedied for a period of five (5) days, or (iv) if you become, or are declared to be, subject to any bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors, including any proceedings falling under Chapter 11 of Title 11 of the Code of Laws of the United States of America (whether by court action or otherwise) and shall be construed so as to include any equivalent or analogous proceedings under the law of any jurisdiction or any other arrangement for the protection or relief of debtors in each case affecting the rights of all creditors generally and not just one particular creditor or group of creditors (excluding any solvent reorganisation, rearrangement or similar arrangement).
10.4. Effect of Termination. Upon termination of this Platform Agreement, you shall remove all Splitit branding assets from your websites and we will stop facilitating new Splitit Transactions through the Splitit Platform. You will not receive a refund for any Fees paid on account of your use of the Splitit Services. We will continue to facilitate processing of any remaining Installments under existing Splitit Transactions and you shall be responsible for associated Fees until the final Installment.
10.5. Survival. The following sections of this Platform Agreement shall survive termination: 2.4 – 2.7, 3.1-3.4, 4, 5.2(b), 6.2, 6.3, 6.5, 7, 9.1, 9.2, 10.4, 11.1, 11.2, 11.5-11.8, 11.15.
11.1. Limitation of Liability. The Splitit Platform, Splitit Services and all accompanying documentation are provided to you on an “as is” basis, without any express or implied warranties. Nothing in this Platform Agreement limits or excludes either our or your liability for (a) fraud or fraudulent misrepresentation, or (b) any liability that cannot be limited or excluded by applicable law.
11.2. No Consequential Damages. Under no circumstances will either party or any of our respective affiliates, vendors, officers, directors, employees, contractors or agents be liable toward the other party for any indirect, incidental, consequential or special damages, including, without limitation, damages for lost revenue, lost profits (real or anticipated), lost business, lost data, injury to business reputation or cost of procurement of substitute services, whether in contract or in tort, including negligence or otherwise, regardless of whether such party has been advised of the possibility of such damages. Each party’s total liability to the other under this Platform Agreement shall not exceed the aggregate Fees received by such party from the other party on account of your use of the Splitit Services during the thirty (30) days prior to the date of your claim.
11.3. Assignability. This Platform Agreement may not be assigned by either party without the advance written consent of the other party, which consent shall not be unreasonably withheld, except that either party may assign its interests in this Platform Agreement to a parent corporation or affiliate now existing or hereinafter formed without advance written consent. In addition, Splitit may assign, transfer or novate this Platform Agreement (or any rights arising out of it) (i) to any successor corporation in the event Splitit is acquired, whether by asset purchase, stock purchase, merger or any other change of control transaction, or (ii) to any financier, lender, third party investor, third party purchaser of receivables or to any special purpose company established by any of the foregoing at any time in its absolute discretion. If you change your name or place of jurisdiction, you shall immediately notify Splitit in writing.
11.4. Notices. Any notices sent in relation to this Platform Agreement will be sent by email and effective upon confirmation of delivery; if to you, to the email address you provide on the Application and/or post in the merchant portal, and if to us, to email@example.com and to your account manager, if applicable. If you wish to terminate this Platform Agreement, notice must be sent by email to your account manager designated on your merchant portal.
11.5. Waiver. If either party fails to enforce any provision of this Platform Agreement, or to exercise any right or remedy under this Platform Agreement or applicable law to which it is entitled, such failure will not be construed as a waiver of such party’s right to assert or rely upon any such provision, right or remedy. Any waiver by either party of a breach of any provision of this Platform Agreement must be in writing, and no such waiver will be construed as a waiver of any other and/or subsequent breach of such provision or a waiver of the provision itself.
11.6. Indemnification. You agree to indemnify, defend and hold Splitit and its affiliates, subsidiaries, and their respective officers, directors, employees and agents harmless from any losses, damages, claims, liabilities and expenses, including reasonable attorney’s fees, related to your use of the Splitit Platform or Splitit Services, or any violation of this Platform Agreement, and related agreements entered into by you with Splitit, or any consumer, including any Installment Agreement.
11.7. Governing Law. This Agreement will be governed by the laws of the State of New York, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
11.8. Arbitration Any dispute, controversy or claim arising out of or in connection with this Platform Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by confidential, binding arbitration under the rules relating to commercial arbitration of the American Arbitration Association except as modified herein (“Arbitration Rules”). In the event of a conflict between the Arbitration Rules and this paragraph, this paragraph shall control. There will be a single neutral arbitrator (“Arbitrator”) who will be selected pursuant to the Arbitration Rules; provided, however, that, notwithstanding the Arbitration Rules, each party shall have the right to preemptively challenge any Arbitrator that has previously arbitrated any matter for either party. The language to be used in the arbitral proceedings shall be English. The arbitration proceedings shall convene and be held in the city of New York, New York or such other city mutually agreed upon by the parties. To the extent permitted by law, the prevailing party (if a prevailing party is determined to exist by the Arbitrator) in any proceeding or action under this paragraph shall be entitled, in addition to any other damages or relief awarded, to an award of reasonable attorneys’ and accounting fees, expenses and other out-of-pocket costs incurred by such party (including any costs and fees incurred by and payable to the Arbitrator and any costs incurred in enforcing any such award), not to exceed such fees incurred by the non-prevailing party. The parties shall otherwise share equally all fees and expenses of the Arbitrator to the extent permitted by applicable law and each party shall personally bear all other costs and fees, including attorney’s fees, incurred by that party in the course of the arbitration, except, in each case, to the extent that such fees and expenses are losses that are indemnifiable pursuant to Section 11.6 in which case they shall be treated as provided in Section 11.6.
11.9. Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union, and other applicable jurisdictions in providing and using the Splitit Services.
11.10. Publicity. Merchant agrees that Splitit may refer to Merchant’s name and trademarks in Splitit marketing materials, websites, and communications with Merchant’s customers in connection with the Splitit Services.
11.11. Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment, debtor/creditor relationship, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
11.12. Third party rights. Nothing in this Platform Agreement confers, or is intended to confer, a benefit enforceable by a person other than you.
11.13. Force Majeure. No party will be liable to the other for any failure or delay in its performance of this Platform Agreement in accordance with its terms if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party.
11.14. Headings. The headings in this Platform Agreement are for convenience of reference only and should in no way be used to interpret the provisions hereof.
11.15. Severability. If any provision of this Platform Agreement or portion thereof is held to be unenforceable, this determination will not affect the remainder of this Platform Agreement.
11.16. Entire Agreement. This Platform Agreement, together with the Application and all of our policies referenced herein, sets forth the entire understanding between us and supersedes any other agreement or understanding concerning the subject matter of this Platform Agreement.