Product Overview: CynclyPay/Cyncly Payment Services
Cyncly Agreement Document
1. FUNCTIONAL OVERVIEW
Cyncly payment Solution offers merchants various products and services relating to payment processing and other value-added services directly and through Third Party Service Providers.
2. MARKET AND GEOGRAPHIC REGION
North America
3. CONTRACT TYPE
Subscription
4. TERM
The Term of the Agreement shall commence on the Effective Date on the Order Form and shall remain in full force and effect until terminated pursuant to the Special Terms at Clause 7 of this Product Overview.
5. ACCESS RIGHTS
5.1 The Customer is granted a non-exclusive right to use the Cyncly Payment Services during the Term hereof so long as the Customer is current in paying all applicable fees as referenced in Section 7 hereof, subject to the restrictions contained herein and restrictions communicated to you in the future by Cyncly. Cyncly shall provide the Cyncly Payment Services to the Customer in all material respects in accordance with the terms and conditions of this Product Overview, the Conditions and your rights are granted solely for the purposes contained herein and for no other purpose.
5.2 Customer use of the Cyncly Payment Services shall be restricted to the Customer. The Customer shall not submit Data or Transaction data to Cyncly or otherwise process orders on behalf of any other entity or individual. Any attempt by the Customer to use the Cyncly Payment Services on behalf of another entity or individual may result in an obligation to pay to Cyncly additional fees and charges, and/or Cyncly may revoke Customer’s right to use the Cyncly Payment Services and terminate the Agreement.
5.3 In connection with the exercise of your rights and obligations under the Agreement including, without limitation, any related to individual privacy, you will comply, at your own expense, with all applicable laws, regulations, rules, ordinances, and orders of governmental authorities having jurisdiction. You shall not use the Cyncly Payment Services in any manner, or in furtherance of any activity that may cause Cyncly to be subject to investigation, prosecution, or legal action.
5.4 Cyncly reserves the right to amend, modify or change its policies, procedures, and guidelines and you shall comply with all then current policies, procedures, and guidelines of Cyncly governing the Cyncly Payment Services.
5.5 Use of the Cyncly Web Services is subject to the Cyncly Terms of Use, available on the Cyncly web site at www.cyncly.com.
5.6 Customer will be allowed to access through the Cloud Site and/or the Cyncly Payment Service (collectively, the “Payments Software”) a Third Party payment processing platform so that Customer may accept payment cards and/or other electronic payments as may be supported by the Third Party Processor from time to time. You will set up your merchant account with the Third Party Processor through the Payments Software. Before using third party services, you must enter into a separate contract with the Third Party. The terms of that contract are available from the Third Party.
6. PREREQUISITES (FOR USING THE PRODUCT)
6.1 The Customer must be an ongoing customer of one of the following Cyncly Products:
6.1.1 RFMS Core ERP
6.1.2 Pacific Solutions Job Runner
6.1.3 Pacific Solutions Floor Manager
7. SPECIAL TERMS
7.1 Termination
7.1.1 The Customer may terminate this Agreement, only insofar as it relates to use of Cyncly Payment Services, with or without cause, and for any reason by providing Cyncly with at least thirty (30) days written notice of your intention to terminate this Agreement.
7.1.2 Cyncly may terminate this Agreement and/or terminate your use of Cyncly Payment Services immediately, or at any time, without advance notice and with or without cause, for any reason including without limitation the Customer’s breach or default of any obligation set forth in this Agreement or if Cyncly determines, in its sole discretion, that the Customer’s business practices are detrimental to the achievement of Cyncly’s business objectives. In such event, Cyncly shall provide the Customer with written or electronic notice of termination.
7.1.3 If Cyncly ceases to do business with a Third Party Processor for any reason, you will cooperate with Cyncly in the transition of your merchant processing account to another processor of Cyncly’s reasonable election, and you authorize Cyncly to take the steps necessary to facilitate migration of your processing account to such processor. To the extent necessary to effect that migration, you appoint Cyncly as your agent and attorney in fact for the limited purpose of executing agreement(s) related to such migration on your behalf.
7.1.4 In the event Cyncly is notified by a Third Party Service Provider, court of competent jurisdiction, governmental body or authority, Acquiring Bank or the Card Association that the Customer is no longer entitled to receive payment data for any reason whatsoever, Cyncly may suspend and/or terminate Cyncly Payment Services and/or this Agreement without notice and without liability.
7.1.5 Upon termination of this Agreement for any reason whatsoever, the Customer will be responsible for any transactions processed through Cyncly, including, but not limited to network fines, fees, chargebacks, and/or retrievals.
7.2 Payment Terms
7.2.1 Due Date and ACH Authorization
7.2.1.1 Cyncly may charge you fees for facilitating access to third party services. Cyncly Payment Service fees shall be deducted from Your proceeds as per the cadence notified to you in writing by Cyncly.
7.2.1.2 You must authorize Cyncly to initiate transaction entries to Your depositories account through ACH. This authority is to remain in full force and effect until i) Cyncly has received written notification from you of your request for termination in such time as to afford Cyncly and your depository institution a commercially reasonable opportunity to acknowledge and respond to the request and ii) Cyncly has collected all fees due and owing under this agreement. Entries initiated to or from your depository account will be in accordance with the rules of the National Automated Clearing House Association (NACHA) and/or any other regulatory body or agency having jurisdiction over the subject matter hereof.
7.2.1.3 You must promptly update your account information with Cyncly or Affiliate Partner with current and accurate information. Further, you authorize Cyncly to (a) share information with a third party payment processor; and (b) access all information flowing through your account on Cyncly’s systems—including information flowing through the Third Party Processor account that you will set up through Cyncly Payment Services—for any legal purpose consistent with the parameters of this agreement and/or your use of the payment processing services provided by the third party. If you fail to provide Cyncly or Affiliate Partner with current and accurate depository account information, Cyncly may immediately discontinue providing Cyncly Payment Services to you, without liability, until such information is provided to Cyncly and/or terminate this Agreement. You acknowledge that any change in account information may not be effective until the month following the month in which Cyncly receives such notice. Termination of your authorization shall result in termination of any and all Cyncly Payment Services.
7.3 Fees
7.3.1 Cyncly Payment Service Fees
7.3.1.1 You shall pay to Cyncly the fees as set forth in the Fee Schedule provided to you by Cyncly and/or, if applicable, Affiliate Partner. The Fee Schedule is hereby incorporated into the terms of this Agreement by reference.
7.3.1.2 Notwithstanding the foregoing, if your relationship with the Affiliate Partner that offered you the Cyncly Payment Services expires or terminates and such Affiliate Partner was billing you for certain Fees, then you may continue using the Cyncly Payment Services. If you elect to continue using the Cyncly Payment Services, you acknowledge and agree that Cyncly may begin to bill you for such Fees in the amounts that the Affiliate Partner had been charging you. In accordance with the Supplier’s Conditions, Cyncly may amend the Fee schedule after providing you with thirty (30) days’ notice.
7.3.2 Other Fees and Charges
7.3.2.1 You agree to pay all costs and expenses of whatever nature, including attorneys’ fees, incurred by or on behalf of Cyncly in connection with the collection of any unpaid charges and fees.
7.3.2.2 You must pay the Third Party Processor directly and according to your separate agreement with that third party for any liabilities associated with your payment processing activity (including, for example, chargebacks, refunds, or any assessments, or fees imposed by the Third Party Processor or any applicable third party). However, should the Third Party Processor collect from Cyncly any liability associated with your processing activity—either at the Third Party Processor’s option, or because you failed or refused to pay the Third Party Processor—you agree unconditionally to indemnify and make Cyncly whole for any amounts Cyncly pays to the Third Party Processor arising out of or related to your payment processing activity, even if you contend that the amount is incorrect, disputed, or otherwise not due and payable to the Third Party Processor. You authorize Cyncly to debit your bank account(s) for any amounts Cyncly pays to the Third Party Processor on your behalf or related to your processing activity.
7.4 Data Security, Collection Transfer and Retention
7.4.1 In addition to the provisions contained in the Cyncly Terms and Conditions, the Parties agree the following:
7.4.2 Cyncly’s Duties
7.4.2.1 You understand Cyncly will collect, retain, use, and share information and data collected from you and your customers in accordance with Cyncly’s then current Privacy Policy and Supplier Conditions. You hereby consent, as a condition of your enrollment in and use of the Cyncly Payment Services, to the collection, use, processing and transfer of personal data as described in the Supplier’s Conditions and Cyncly’s Privacy Policy.
7.4.2.2 You understand that Cyncly may collect and hold personal or non-public information about you and your customers, including but not limited to: your name, address, telephone number, e-mail address, social security number, and/or tax identification number, and payment data as well as your customers’ names, mailing & shipping addresses, email addresses, phone number, types of purchases and descriptions of purchases (“Data”) for the purpose of considering eligibility for the Cyncly Payment Services and for the purpose of providing you and your customers with the Cyncly Payment Services. You also understand and agree that Cyncly, its subsidiaries, Affiliate Partners, Third Party Service Providers, suppliers and/or their agents and/or contractors may transfer Data among themselves as necessary for the purpose of the provision and management of the Cyncly Payment Services and that Cyncly may further transfer Data (i) with non-affiliated entities that assist Cyncly in providing products and services that you have requested; (ii) with companies that provide support services to Cyncly; (iii) with companies that provide marketing services on behalf of Cyncly; or (iv) as otherwise provided by law.
7.4.2.3 You further understand that in evaluating your eligibility for, provision of, administration and management of the Cyncly Payment Services, as well as under circumstances described in the Privacy Policy that may be changed from time to time, that Cyncly may obtain various consumer reports regarding you from third parties, run a credit check, or obtain other personal or credit information about you.
7.4.2.4 You further understand that while Cyncly uses commercially reasonable efforts to safeguard Data and Transaction data transmitted while using Cyncly Payment Services, Cyncly does not warrant that Data and Transaction data will be transported without unauthorized interception or modification or that Data or Transaction data will not be accessed or compromised by any unauthorized third parties.
7.4.2.5 With respect to the Cyncly Payment Services, at all times while this Agreement is in effect, Cyncly will maintain compliance with the Payment Card Industry Data Security Standard (PCI DSS).
7.4.3 Customer Duties
7.4.3.1 You agree that you will comply at all times with all applicable and then-current legal obligations and security measures including without limitation those issued by the United States Government, Federal, State and Municipal laws and ordinances, Card Association, the Federal Trade Commission, PCI DSS, and any other governing body. You agree that you will comply with all Cyncly security protocols, notices, and safeguards in effect during the term of this Agreement. You warrant that you have taken such precautions as are necessary to ensure that your data and your customer data is protected and that your electronic systems are secure from breach, intrusion, or compromise by any unauthorized third parties. In the event that your system is breached and an unauthorized third party has access to or has accessed Data or Transaction data, you shall notify the designated parties as required under any applicable laws or industry guidelines and shall immediately notify Cyncly of such breach and take such prompt action and precautions as necessary to prevent any continuous or additional breach.
7.4.3.2 You are solely responsible for the security of data residing on server(s) owned or operated by you, Third Party Service Provider, or a third party designated by you (e.g., a web hosting company, processor, or other service provider), including credit card numbers and any other personal data. You shall comply with all applicable laws and regulations governing the collection, retention and use by you of credit card and other financial information and agree to provide notice to your customers on your web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement.
7.4.3.3 You agree that you are solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by Cyncly associated with your account and verifying that all corresponding funds are accurately processed. You acknowledge that the fees associated with any and all transactions processed through your account are earned by Cyncly and shall not be reimbursed. You acknowledge that Cyncly shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to your account, Data, or Transaction data. Cyncly’s liability for unauthorized Transactions or improperly processed Transactions solely attributable to the negligence of Cyncly is limited pursuant to Section 12.
7.4.3.4 You agree not to use, disclose, sell or disseminate any card, cardholder, or ACH information obtained in connection with a Transaction except for purposes of completing or settlement of a Transaction, and/or resolving chargebacks, retrievals or similar issues involving a Transaction unless required to do so by court order or governmental agency request, subpoena, or order.
7.4.3.5 You agree that you are solely responsible for compiling and retaining permanent records of all Data and Transaction data for your reference. Except as otherwise provided herein, Cyncly shall have no obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or other Data collected or processed by Cyncly. You acknowledge that upon termination of this Agreement, Cyncly shall have no obligation to provide you with any Data or Transaction data. You agree that you shall use proper controls for and limit access to all Data or Transaction data. Prior to discard you shall render all Data or Transaction data unreadable and abide by any laws or regulations imposed on you for Data or Transaction data destruction and/or disposal.
7.4.4 Customer User Name and Password
7.4.4.1 In connection with your rights described in Section 7.4.2, Cyncly or Affiliate Partner will issue to you or permit you to use a user name and password to enable you and/or your employees and agents to access your gateway account and use the Cyncly Payment Services. You will restrict access to such user name, password, and account to your employees and agents as may be reasonably necessary and consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement and any recommendations and notices regarding such use and access.
7.4.4.2 You are solely responsible for maintaining adequate security and control of any and all user names, passwords, or any other codes that are issued to you by Cyncly or Affiliate Partner, or selected by you for purposes of giving you access to the Cyncly Payment Services. Cyncly shall be entitled to rely on information it receives from you and may assume that all such information was transmitted by or on behalf of you.
7.5 Customer User Name and Password
7.5.1 The parties shall promptly investigate any disputes under this Agreement. If the disputed amount is less than five percent (5%) of the total fees invoiced by Cyncly for the relevant billing statement, the total amount invoiced shall be due and payable on or before the due date. If the amount in dispute is greater than five percent (5%) of the total fees invoiced by Cyncly for the relevant billing statement, the disputed amount may be withheld until the dispute is resolved. All disputes must be made in good faith and in writing within thirty (30) days of the billing statement date. Fees billed shall be deemed accepted where written objections are not lodged within thirty (30) days from the billing statement date.
7.5.2 Any dispute or claim arising out of or relating to this Agreement, except claims involving intellectual property and claims for indemnification, will be resolved by binding arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) rules, as modified by this Agreement, and will take place in the location wherein the Supplier is registered as a Company, unless the Parties mutually agree to hold the proceedings elsewhere. This Agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. An arbitrator may not award relief in excess of or contrary to what this Agreement provides or order consolidation or arbitration on a class wide or representative basis, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute.
7.6 LIMITATION OF LIABILITY
7.6.1 Without limiting any other disclaimers or liability limitations contained in the Supplier’s Conditions, the following provisions will apply:
7.6.2 Cyncly Disclaimers
7.6.2.1 CYNCLY EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, WHICH ARISES FROM OR RELATED TO ANY UNAUTHORIZED ACCESS TO YOUR FACILITIES OR TO YOUR DATA OR PROGRAMS DUE TO ACCIDENT, ILLEGAL, OR FRAUDULENT MEANS OR DEVICES USED BY ANY THIRD PARTY OR OTHER CAUSES BEYOND CYNCLY’S REASONABLE CONTROL.
7.6.2.2 CYNCLY EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, ARISING FROM OR RELATED TO: (I) YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE, OR SECURE YOUR ACCOUNT(S); (II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH YOUR ACCOUNT(S); (III) DISRUPTION OF CYNCLY PAYMENT SERVICES, SYSTEMS, SERVER, OR WEB SITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (IV) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A THIRD PARTY SERVICE PROVIDER, OR AFFILIATE PARTNER, OR AQUIRING BANK; OR (V) UNAUTHORIZED ACCESS TO DATA, CUSTOMER DATA INCLUDING BUT NOT LIMITED TO, CREDIT CARD NUMBERS AND OTHER PERSONALLY IDENTIFIABLE INFORMATION, TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO CYNCLY, YOU OR ANY THIRD PARTY.
7.6.2.3 CYNCLY EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS FOR THE LEGITIMACY OF ORDERS FORWARDED FROM YOU AND FOR ANY AND ALL CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM CONCLUSIONS DRAWN FROM THE DATA PROVIDED BY ANY SERVICES PROVIDED BY CYNCLY, OR ANY SYSTEM OR PROGRAM ASSOCIATED THEREWITH OR THE LIMITATION OF THE FUNCTIONING OF ANY CYNCLY PAYMENT SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH WHETHER IT IS OWNED BY CYNCLY OR OFFERED THROUGH A THIRD PARTY SERVICE PROVIDER OR OTHER ENTITY.
7.6.3 Cyncly Limitation of Liability
7.6.3.1 UNDER NO CIRCUMSTANCES WILL CYNCLY OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS, OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR VENDORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES HOWEVER OR WHENEVER ARISING, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT, INCLUDING NEGLIGENCE, CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.6.3.2 CYNCLY’S TOTAL LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY CYNCLY PAYMENT PRODUCTS OR SERVICES, SHALL NOT EXCEED THE AGGREGATE COMPENSATION CYNCLY RECEIVED FOR PROVIDING THE CYNCLY SERVICES TO YOU DURING THE TWELVE MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
7.7 REPRESENTATIONS AND WARRANTIES
7.7.1 Mutual Representations and Warranties
7.7.1.1 Each party represents and warrants to the other that (i) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; (ii) the party’s obligations under this Agreement do not violate any law or breach any other agreement to which such party is bound; (iii) it has all necessary right, power and ability to execute this Agreement and to perform its obligations therein; and (iv) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
7.7.2 Your Representations and Warranties
7.7.2.1 You represent and warrant that you are engaged in a lawful business that includes the sale of products and/or services and are duly licensed to conduct such business under the laws of all jurisdictions in which you conduct business. You further represent and warrant that all statements made by You in this Agreement, or in any other document relating hereto by you or on your behalf, are true, accurate, and complete in all material respects. You hereby authorize Cyncly to investigate and confirm the information submitted by you herein. For this purpose, Cyncly may utilize credit bureau, reporting agencies, and/or its own agents.
7.7.2.2 You will comply with all applicable laws, regulations, rules, ordinances, and orders of governmental authorities having jurisdiction. You will further comply with the Payment Card Industry Data Security Standard (PCI DSS), the Gramm-Leach-Bliley Act, the National Automated Clearing House Association (NACHA), and any other regulatory body or agency having jurisdiction over the subject matter hereof.
7.7.2.3 You will abide with all material terms of the then current policies, procedures, and guidelines of Cyncly governing the Cyncly Payment Services.
7.7.3 Cyncly Representations and Warranties
7.7.3.1 You acknowledge that Cyncly Payment Services are designed for use with certain third-party programs, including, without limitation, certain Internet browser software programs. You will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance, or other support regarding the same. Cyncly makes no warranty, express or implied, with regard to any such third-party software.
7.7.3.2 You may not rely on the representation or warranty regarding Cyncly Payment Services by any third party in contravention of the foregoing statements, including representations or warranties of any Third Party Service Provider or Affiliate Partner. In the event of a breach of the foregoing warranty, Cyncly shall use commercially reasonable efforts to repair, or at its option, replace the Cyncly Payment Services. You acknowledge that Cyncly does not warrant that such efforts will be successful. If Cyncly’s efforts are not successful, You may terminate this Agreement in accordance with Section 7. THE FOREGOING SHALL CONSTITUTE YOUR SOLE REMEDY, AND CYNCLY’S SOLE LIABILITY, FOR INTERRUPTIONS, OUTAGES OR OTHER DELAYS IN CYNCLY’S SERVICES AND/OR VALUE-ADDED SERVICES. Cyncly does not warrant the services of any third party, including without limitation Third Party Service Providers, Affiliate Partners, VARS or the Card Association.
7.7.3.3 Even though your access to a Third Party Processor’s services is through Cyncly‘s Software, Cyncly does not control the Third Party Processor’s technology or systems. The Third Party Processor is solely responsible for providing its services through its own platform. WITHOUT LIMITING ANY OTHER DISCLAIMERS OR LIABILITY LIMITATIONS CONTAINED IN THE SUPPLIER’S CONDITIONS, YOU AGREE THAT UNDER NO CIRCUMSTANCES WILL CYNCLY HAVE ANY LIABILITY TO YOU WHATSOEVER FOR ANY SERVICES OUTAGES, ERRORS, OMISSIONS, IRREGULARITIES, DISPUTES, CLAIMS, OR PROBLEMS OF ANY KIND OR NATURE THAT YOU MAY EXPERIENCE WITH THE THIRD PARTY PROCESSOR SERVICES. CYNCLY DOES NOT MAKE ANY WARRANTIES WHATSOEVER ABOUT THE THIRD PARTY PROCESSOR OR THE THIRD PARTY PROCESSOR’S SERVICES. Consequently, any promises in the Subscription Agreement to provide services, service levels, and customer support will not extend to the Third Party Processor’s services. Likewise, the Third Party Processor does not control Cyncly’s service offerings, platform, or technology, and you agree that the Third Party Processor is not responsible for any issues solely arising out of or relating to your use of Cyncly’s systems or services, separate and apart, from the Third Party Processor’s services.
7.7.4 Cyncly Services “As Is” Disclaimer
WITHOUT LIMITING ANY OTHER DISCLAIMERS OR LIABILITY LIMITATIONS CONTAINED IN THE SUPPLIER’S CONDITIONS CYNCLY PAYMENT SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. CYNCLY DOES NOT REPRESENT OR WARRANT THAT THE CYNCLY PAYMENT SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR FREE. YOU MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE CYNCLY PAYMENT SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING, BUT NOT LIMITED TO REPRESENTATIONS BY THIRD PARTY SERVICE PROVIDERS OR AFFILIATE PARTNERS. CYNCLY SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE CYNCLY SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT CYNCLY SHALL BEAR NO RISK WITH RESPECT TO YOUR SALE OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD, ACH FRAUD, CHECK FRAUD OR CHARGEBACKS.
7.8 Indemnification
7.8.1 Cyncly shall defend, indemnify and hold you and any of your officers, directors, agents and employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by you, arising out of or relating to any alleged infringement of a U.S. patent of any other entity or person by Cyncly.
7.8.2 Cyncly’s obligations in Section 7.8.1 do not apply if Cyncly Payment Services or portions or components thereof (a) are modified by persons or entities other than Cyncly if the alleged infringement relates to such modification; (b) are combined with other products, processes or materials not supplied or recommended by Cyncly where the alleged infringement relates to such combination, or (c) continue to be used after Cyncly has made a non-infringing version available to you (collectively, “your Faults”). If Cyncly Services or any component thereof becomes, or in Cyncly’s opinion is likely to become, the subject of a claim of infringement, then you shall permit Cyncly, at Cyncly’s sole option and expense, either to (i) procure for you the right to continue using the Cyncly Services as permitted in this Agreement, or (ii) replace or modify the affected Cyncly Payment Services or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, Cyncly is unable to cure the infringement, either party may terminate this Agreement upon notice to the other, as provided in Section 7.1. Notwithstanding the above, Cyncly’s total liability shall not exceed the amount as stated in Section 7.6.3.2. THIS SECTION 7.8.2 STATES THE ENTIRE LIABILITY OF CYNCLY TO YOU WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY CYNCLY PAYMENT SERVICES.
7.9 Indemnification by Customer
7.9.1 You shall defend, indemnify, and hold harmless Cyncly and its Affiliate Partners, Third Party Service Providers, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by Cyncly, arising out of or relating to (a) any breach or alleged breach by you of any representation, warranty, or obligation of You set forth in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by you or any of your employees, agents or customers; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by you to Cyncly; (d) payment card transactions submitted by you to Cyncly and rejected by Cyncly or an issuing bank; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from your Fault; (f) claims by your customers, including, without limitation, claims relating to the disclosure of consumer data; (g) any alleged or actual violation by you of any applicable laws, regulations or rules of (i) the Credit Card Associations; (ii) the Gramm Leach Bliley Act; (iii) or any regulatory body or agency having jurisdiction over the subject matter hereof; or (h) any violation of Cyncly’s then current policies or guidelines. In the event you cause fines and/or penalties to be charged to Cyncly by the Credit Card Associations or any other entity, you agree to immediately reimburse Cyncly for said fines and penalties.
7.10 Indemnification procedure is further delineated in Section 12 of the Supplier’s Conditions.
7.11 Exceptions
7.11.1 If the Customer is an agency or instrumentality of a state of the United States and are precluded by the law of your state from entering into indemnification obligations, then the obligations under Sections 7.9 and 7.10 shall apply only to the extent permitted by such state law.
7.12 In the event of a conflict between the Product Overview and the Supplier’s Conditions, this Cyncly Pay/ Payment Services Product Overview will prevail.
8. DEFINITIONS
“Acquirer” or “Acquiring Bank” or “Acquiring Institution” means the financial institution supplying you with the ability to accept credit cards for payments. The financial institution will charge you fees for providing these services.
“ACH” or “Automated Clearing House” means an electronic network that allows the exchange and settlement of electronic payments between financial institutions.
“Affiliate Partner” means any third party through whom Cyncly may offer the Cyncly Payment Services to you, including but not limited to an “ISO” or “Independent Sales Organization”, Merchant Service Provider (“MSP”), Value Added Reseller (“VAR”), Application Service Provider (“ASP”), Acquiring Bank and Financial Institution.
“API” or “Application Programming Interface” means an interface allowing integration with a programmable software package or platform.
“AVS” or “Address Verification Service” for the purposes of this agreement shall mean a response generated by the Issuing Bank to indicate the level of accuracy of a given address based on the billing address of the customer’s credit card.
“Batch” means any bulk processing of Transactions, or a bulk settlement submitted to a Processor by Cyncly including credit card, ACH, or other related transactions.
“Card Association” for the purposes of this Agreement means a network of Issuing Banks and Acquiring Banks that process payment cards of a specific brand. Without limiting the foregoing definition, American Express, Discover Financial Services, JCB International, MasterCard International Inc., Visa Inc., Visa International Inc., and any other payment card company belong to the Card Association.
“Close Batch” means the process of sending a batch of transactions for settlement.
“Fee Schedule” means a list of Fees and charges that is accepted by you and paid by you to Cyncly.
“IP Address” means an internet address usually represented in dotted decimal, e.g. “127.0.0.1”.
“Issuing Bank” means the financial institution that issues Card Association branded Payment Cards directly to consumers.
“Cyncly Web Services” means accessing any Cyncly web page, mobile application or software development kit.
“PCI DSS” means Payment Card Industry Data Security Standard.
“Privacy Policy” means the then current Cyncly Privacy Policy which can be found on the internet at www.cyncly.com.
“Return Payment Fee” is a fee charged to you by Cyncly on each occurrence when Cyncly is unable to collect fees on your Account for any reason, including but not limited to insufficient funds, closed account, or any other negative response.
“Supplier’s Conditions” means the Suppliers general terms and conditions which can be accessed here www.cyncly.com/en/terms-and-conditions and may be updated from time to time.
“Third Party Payment Processor” for purposes of this Agreement means an entity/provider that allows a business to accept card payments by transferring funds from a customer to the business's bank account or vice versa with regards to card refunds without requiring a business to have their own merchant account at the processing bank.
“Third Party Service Provider” for purposes of this Agreement means an entity that provides bank and/or merchant payment services including, but not limited to billing, reporting, customer service, authorization, and settlement services.
“Transaction(s)” means any billable occurrence completed or submitted under your Account including but not limited to sale, void, refund, credit, offline force, capture, authorization, validate, update, or settlement regardless of whether approved or declined.