Last updated: March 3rd, 2024
The following User Terms and Conditions (the “Terms”) set forth the terms and conditions governing User’s use the Tapily Tap-to-Pay platform. These Terms may be modified by Tapily from time to time by providing written notice of such modifications to the User. The User is the Participating Merchant and their respective employees that access the Tapily app, Tapily services and/or Tapily Platform.
1.0 Pricing
1.1. Tapily uses plan language when it comes to our pricing model, so everyone understands. Transparent pricing, no hidden fees – experience a payment solution that puts you in control. Tapily charges 3.9% + $0.25 per transaction. Your pricing is all inclusive. Bring as many devices you want for no additional charge. No additional fees, No Monthly Fee. No additional fees to process Payouts. Payouts are automatically processed every 3 business days.
2. User Responsibilities.
2.1. As between User and Tapily, User will be responsible for (a) the management or oversight of Participating end-users, (b) the on-going management and operation of their User Accounts, including whether any User Account should be suspended or deactivated at any time. User agrees that, in order to use Tapily, a Person (and their device) must be in compliance with Tapily’s terms and conditions. Tapily will have sole discretion to (A) determine a User’s (and their device’s) eligibility to use the Tapily, and (B) suspend or terminate a User’s access of Tapily in the event such Participating Merchant (or their device) fails to meet the eligibility requirements or comply with Tapily’s applicable terms and conditions for such participation. User further agrees that by actively using Tapily they agree to Tapily’s Pricing, Terms and conditions. Tapily has the exclusive rights to exercise, modify, suspend or terminate a User’s access to the Tapily Platform. User acknowledges that third party agreement with our Payment Networks obligates Tapily fully comply with comply Payment Network rules and governance.
3. Fees.
3.1 As between User and Tapily, Tapily will have sole responsibility for determining what (if any) fees to charge the User for their access to Tapily, or conducting Transactions.
4. User Responsibilities.
4.1. User will be solely responsible for the establishment and management of its relationship with their end customers including but not limited to:
(a) complying with local and federal laws, (b) complying with, and using commercially reasonable efforts to ensure that all end-users comply with local and federal laws, all Tapily rules and mandates applicable to Tapily.
5. Non-Discrimination
5.1. Users will provide customer service for their end customer use of the Tapily Platform on parity with the level of customer service it provides for Competing Platforms. Notwithstanding the foregoing, any technical capabilities or functionality inherent in Competing Platforms and not in Tapily that justify differences in customer service.
6. Marketing and Branding.
6.1. User Trademark Licenses.
(a) Grant of License to use User Marks. User (on behalf of itself and each of its Affiliates) hereby grants Tapily, during the Term, a non-exclusive, non-transferable, non-sublicensable, royalty-free, fully paid-up, worldwide right and license to use, reproduce, have reproduced, display, and have displayed any of the User Marks as follows (i) in connection with the use and display of the Tapily Platform in Tapily Products, including the right to embed and display any of the User Marks within such Tapily Products; (ii) in the marketing, advertising, and promotion of Tapily in any medium including use in instructional materials, training materials, marketing materials, and advertising in any medium; and (iii) in a publicly disclosed list of the acquirers, payment service providers or other participants that have entered into an agreement with Tapily for the use of the Tapily in the applicable jurisdiction in the Territory. Tapily’’s use of the User Marks will be pursuant to, and in accordance with these Terms, unless otherwise agreed in writing by the Parties.
(b) Ownership of User Marks. Tapily acknowledges that: (i) the User Marks, all rights therein, and all goodwill associated therewith, are, and will remain, the exclusive property of User or one or more of its Affiliates; (ii) it will take no action which can reasonably be expected to adversely affect User’s or any of its Affiliates’ exclusive ownership of the User Marks or the goodwill associated with the User Marks; (iii) it will not seek to register any User Mark, any colorable imitation thereof, or any Mark confusingly similar thereto; and (iv) any and all goodwill arising from use of the User Marks pursuant to these Terms will inure solely to the benefit of User and its Affiliates. Nothing in these Terms will give Tapily any proprietary interest in or to any of the User Marks, except the limited right to use the User Marks in accordance with these Terms, and Tapily will not contest, cause any other Person to contest, or assist any other Person in contesting User’s or any User Affiliate’s title in and to any of the User Marks. In addition, nothing in these Terms will limit Tapily’s rights to freely market its own products and services, and Tapily will have no obligation to display or use any of the User Marks, commercial designations or slogans on or in connection with any Tapily products or services or any Tapily marketing, advertising or promotional materials for any Tapily products or services.
7. Program Change, Suspension, Discontinuation.
Tapily reserves the right to change, discontinue or suspend (for any period of time) any or all functionality, user interface or any other aspect of Tapily and the Tapily Platform (whether software, hardware, or any part of the Tapily service) at any time in such jurisdiction in the Territory. Tapily will inform User as soon as commercially practicable of its intent to suspend or discontinue Transaction usage and communicate in good faith to User about the potential duration of such suspension or discontinuance and the contemplated date (if any).
Tapily and the Tapily Platform do not permit or promote User transactions related to alcohol, marijuana or prescription drugs sales. Tapily reserves the right to limit access to its services and Platform for Users engaged in alcohol, marijuana and prescription drugs sales without notice.
8. Data, Confidentiality.
8.1. User Data. User will authorize Tapily, to provide User Data to our payment network providers and partners to a) provide service b) promote the Tapily Platform c) improve the service, d) execute Taptrs terms and conditions.
9. Compliance with Applicable Law.
9.1. Each Party will comply with all Applicable Laws related to the performance of its obligations under these Terms. As part of its compliance obligations, User will be responsible for adherence to Applicable Law relating to User’s use of Tapily.
10. Representations and Warranties.
10.1. User represents and warrants that as at the Effective Date:
(a) It: (i) is duly incorporated, duly qualified, registered and in good standing under the laws of each applicable jurisdiction in the Territory where the conduct of its businesses requires such qualification or registration; (ii) has the requisite power and authority and the legal right to conduct its businesses as now conducted and hereafter contemplated to be conducted, enter into these Terms and grant the licenses granted herein; and (iii) is in compliance with its articles of association, charter and/or other organizational documents.
(b) No legal proceeding or regulatory action is pending or, to its knowledge, threatened against it that would reasonably be expected to have a material adverse effect on its ability to perform its obligations under these Terms.
(c) Except as would not reasonably be expected to have a material adverse effect on its ability to perform its obligations under these Terms: (i) it is in compliance with all Applicable Laws; and (ii) it is not subject to any order or ruling that restricts in any respect its ability to perform its obligations under these Terms.
(d) It has all licenses, permits and authorizations required by Applicable Law or any Governmental Authorities having jurisdiction over it and is in good standing (i) in each jurisdiction in which the conduct of its business requires it to so qualify or be licensed, and (ii) with each Governmental Authority having jurisdiction over it, including, but not limited to, maintaining all licenses, permits and authorizations required to establish and manage Platform Accounts, provide User Services in relation to Platform Accounts, and perform its obligations under these Terms.
11. Term.
11.1. The initial term of these Terms will begin on the Effective Date (the date and time Tapily was accessed and any payment processed or attempted to process) and terminate at 11:59 p.m. Pacific Standard Time on the third (3) anniversary of the Effective Date (the “Initial Term”), unless terminated earlier as provided herein. The Initial Term will be automatically extended for additional one-year periods (each, a “Renewal Term”) unless a Party notifies the other Party in writing of its intent not to extend no later than six (6) months prior to the expiration date of the then-current Term. The Initial Term, together with any Renewal Term, are collectively referred to in this Agreement as the “Term.”
14. Suspension and Termination.
14.1. Prior to the end of the Term:
(a) User’s use of Tapily may be suspended or terminated by mutual written consent of User and Stripe;
(b) User’s use of Tapily may be suspended or terminated immediately upon written notice to User, in the event of User’s material breach of these Terms that is inherently incurable (as determined by Tapily in its sole discretion), or not otherwise cured within thirty (30) days of User receiving notice of such breach; and
(c) Tapily, may suspend User’s participation of the Tapily Platform immediately upon giving written notice to User in the event of (i) a material User Security Breach that threatens to, or has had, a significant adverse effect on Tapily, or (ii) as otherwise deemed necessary and appropriate by Tapily.
16. User Indemnification.
To the extent permitted by Applicable Law, User agrees to protect, indemnify, defend and hold harmless Tapily, its Affiliates, and the shareholders, employees, officers, and directors of each of Tapily and its Affiliates, from and against any and all Indemnified Losses suffered or incurred by any of them in connection with any Claim based on or for any of the following: 16.1. any breach by User or a User Affiliate of any contract between User and Tapily.;
16.2. User’s or any of its Affiliates’ or Service Providers’ failure to comply with Applicable Laws;
16.4. any amounts paid by User, User’s Affiliates, Payment Networks, acquirers, merchants or cardholders for Unauthorized Transactions;
16.5. any advertising, promotions or marketing programs, or similar documents or materials conducted or created by or on behalf of User or any of its Affiliates or Service Providers in connection with Tapily;
16.6. use of any Tapily Marks by User or any of its Affiliates or Service Providers in a manner not in accordance with these Terms or not otherwise authorized by Tapily in writing;
16.8. the gross negligence, fraud or willful misconduct of User or any of User’s Affiliates or Service Providers.
17. No Tapily Liability for Unauthorized Transactions.
17.1 User acknowledges that it is its responsibility to check all payments and transactions on Tapily and the Tapily Platform are duly authorized. Tapily will not be liable for any Unauthorized Transactions on the Tapily Platform.
18. Limitation of Liability.
To the maximum extent permitted under Applicable Law, in no event will Tapily be liable to User for indirect, consequential, incidental, special, punitive or exemplary damages, whether in contract, tort (whether in negligence or strict liability) or other legal or equitable theory, or any loss of profits or revenue, regardless of whether Tapily knew or should have known of the possibility of such damages.
19. No Warranties.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, Tapily MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE Tapily PLATFORM OR ANY RELATED PRODUCTS AND SERVICES CONTEMPLATED BY THESE TERMS AND CONDITIONS, INCLUDING, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, Tapily DOES NOT WARRANT THAT THE USE OF THE Tapily PLATFORM OR ANY RELATED PRODUCTS AND SERVICES WILL BE ERROR FREE OR UNINTERRUPTED.
20. Binding Agreement.
The rights and obligations of User under these Terms will be binding upon and inure to the benefit of User’s respective successors, executors and administrators, as the case may be. User may not assign or delegate its rights or obligations under these Terms without Tapily’s prior written consent, not to be unreasonably withheld.
21. Governing Law.
These Terms and any non-contractual obligations arising out of or in connection therewith will be governed by, construed, and take effect in accordance with California law, without regard to its choice of law principles. The Convention on Contracts for the International Sale of Goods will not apply to these Terms.
22. Arbitration
Any dispute, controversy, or claim arising out of or relating to this contract, or the breach, termination, or invalidity thereof, shall be settled by arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in [City], California, unless otherwise mutually agreed upon by the parties. The arbitrator(s) shall be selected by mutual agreement of the parties, or failing such agreement, shall be appointed in accordance with the rules of the AAA. The arbitration proceedings shall be conducted in the English language. Each party shall bear its own costs and expenses of arbitration, including legal fees and expenses, and shall equally share the fees and expenses of the arbitrator(s) and the AAA. This arbitration clause shall not preclude either party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties hereby waive any right to a jury trial in any action, proceeding, or counterclaim arising out of or relating to this contract.
24. Definitions.
For the purposes of these Terms, the following terms mean the following:
24.1. “Adjustments” means Transactions where the transaction amount is adjusted but not entirely reversed.
24.2. “Affiliate” means any Person that Controls, is Controlled by, or is under common Control with either Party.
24.3. “Applicable Law” means all laws (including common law), codes, statutes, rules, regulations, published standards, permits, judgments, writs, injunctions or rulings, published regulatory bulletins or orders or decrees of any Governmental Authority, as may be amended and in effect from time to time, related to the subject matter of these Terms and that apply to or are binding upon User and/or Tapily (as applicable) in the applicable jurisdiction in the Territory.
24.4. “Card” means any physical, digital or virtual card, account access device or other form factor, or payment device accessing a Card Account.
24.5. “Card Account” means any account in the applicable jurisdiction in the Territory under which a purchase, cash advance, convenience check, peer-to-peer transfer, account funding or balance transfer transaction may be or has been made by or to a Person (or any other Person authorized by such Person).
24.6. “Chargeback” means a Transaction that is subject to reimbursement from a Participating Merchant other than Adjustments or Merchandise Returns.
24.7. “Claim” means any claim (including counterclaim or cross-claim) or other assertion brought or threatened to be brought in a legal proceeding by a third party, or any investigation or any examination by a Governmental Authority of the transactions or business relationships that are the basis of these Terms, where such Claims are not in the ordinary course of business.
24.8. “Competing Platform” means any software that enables the use of a portable contactless payment device to accept payments and conduct transactions.
24.9. “Confidential Information” means: (a) either Party’s product plans and roadmaps; (b) the terms and conditions of these Terms; and (c) any other information disclosed by a Party or its Affiliates to the other Party or its Affiliates in connection with these Terms, or the development of the Parties’ or their respective Affiliates’ respective systems in connection with the activities contemplated by these Terms, and designated by the disclosing Party as confidential in writing or, if disclosed orally, designated as confidential at the time of disclosure; provided, however, that “Confidential Information” will not include information that: (v) is now or subsequently becomes generally known or available to the public through no fault or breach on the part of the receiving Party or its Affiliates; (w) the receiving Party can demonstrate to have had rightfully in its possession or the possession of its Affiliates prior to disclosure from the disclosing Party or its Affiliates (that is not precluded from being disclosed as a result of confidentiality obligations owed to a third party); (x) is independently developed by the receiving Party or its Affiliates without use of or reliance in any way on the disclosing Party’s Confidential Information; (y) the receiving Party or its Affiliates rightfully obtain from a third party who has the right to transfer or disclose it to the receiving Party or its Affiliates without any obligation of confidentiality; or (z) is released for publication by the disclosing Party or its Affiliates in writing.
24.10. “Effective Date” means the date on which the Platform was accessed, used or terms are accepted online or signed offline by User.
24.11. “Enabled Device” means any Tapily Product that has been enabled to allow Participating Merchants to accept payments and conduct transactions via the Tapily Platform.
24.12. “Stripe” means Stripe, Inc.
24.13. “User” means the Tapily end customer. 24.40. “User Data” means all information related specifically to a Participating Merchant that is obtained, generated or created by or on behalf of User in connection with Platform Account establishment, processing and maintenance activities, issuing statements to Participating Merchants regarding their Platform Accounts, customer service and collections, and transaction data (e.g., transaction date, Participating Merchant name, amount, industry category, and industry code).
24.14. “User Marks” means all Marks, directly or indirectly owned by or licensed to User and User Affiliates.
24.15. “User Security Breach” means a breach of User’s security measures relating to the Tapily Platform.
24.16. “User Services” mean the services provided by User to Participating Merchants (whether directly or indirectly) to enable such Participating Merchants to conduct Transactions.
24.17. “Transaction” means any payment, purchase or other transaction conducted on an Enabled Device via the Tastr Platform, regardless of whether such transaction is approved, declined or subject to an Adjustment, Chargeback or Merchandise Return. For the avoidance of doubt, “Transaction” includes any transaction, including a Merchandise Return, conducted on an Enabled Device via the Tapily.
24.18. “Unauthorized Transaction” means any Transaction initiated by a Person that is not authorized to make a Transaction, including without limitation, any fraudulent Transaction.