Pagos Service Agreement
Revised September 19th, 2023
At Pagos Solutions, Inc. (“We”, or “Pagos”), we are building the future of payment analytics and providing a suite of proprietary payment software tools and services. With our services and tools, depending on your selected services, we help businesses visualize, manage, analyze, monitor, optimize BIN/IIN codes, implement tokenization and/or account updater of Your payment and transaction data (e.g., transactions, payment methods, refunds, disputes/chargebacks, settlements and/or other types of transaction related data) (“Payment Data”) from payment service providers, payment processors, acquirers, banks, fraud data providers and other data sources, gateways, and/or other solution providers (“Solution Providers”). To get started, Youprovide us Your Payment Data virtually and seamlessly through Your Solutions Providers that use wallet, mobile, bank account, debit/credit or other cards, or other payment methods and we then securely anonymize or de-identify any personal information or data which is permanently deleted, if any is provided.
1.0: Definitions. Unless otherwise specified, specifically defined or given a technical meaning, the words and phrases in the terms and conditions are to be understood for their ordinary and common understanding.
1.1 “Affiliate” means any entity that a Party Controls or that Controls a Party. “Control” means: (a) that entity directly or indirectly owns more than 50% of such Party; or (b) that entity has the ability to direct the affairs of such Party through any lawful means (e.g., a contract that allows control).
1.2 “Connection Data” means Your login and password, which enable the access to the Services.
1.3 “Effective Date” means the date on which You agree to be bound by this Agreement by selecting “I Agree” or otherwise accepting the Agreement other authorized means.
1.4 “Parties” means You and Us.
1.5 “Party” means You or Us, as applicable.
1.6 “User(s)” means the individual users of the Service, as authorized entity Customer, such as employees, contractors, agents and/or third parties.
1.7 “You” or “Your” means the Customer subscribing and purchasing the Services herein, including without limit, any Users, employees, and staff as the case may be.
Subject to the terms of this Agreement, We shall provide You access and use to the payment intelligence solutions Services You purchase using our integrated platform, API, user interfacethat permits visualization, monitoring, tokenization, BIN/IIN optimization services, and other data services for the analysis of Your payment data (altogether “Services”) as more described in the Price List (Exhibit A hereto), and We grant You a limited, non-exclusive, non-transferrable, non-sublicensable, and royalty-free license pursuant to the term of this Agreement.
The Services You select are provided as-is, as available. We reserve the right to add new, enhanced and/or different or to change the features of Our Services at Our sole discretion, without materially reducing the core functionality of the Services. From time to time, in the future Pagos may expand Our service offerings with new or additional features or functionalities at Our discretion, and You may agree to purchase any of the new or different features or functionality for an additional fee when made available.
You shall not utilize Services for any legal, tax, regulatory or government compliances of any kind that may be applicable to. None of the Services are for consumer purposes or commercial exploitation and may not be used for any consumer or commercial credit purposes. Pagos is not designed for any such purposes and Pagos is not liable to ensure that the Services fulfill any kind of legal requirements applicable to You or Your business or Affiliates unless otherwise agreed to in writing in advance.
You are solely responsible for obtaining any hardware or software (other than Our software running the Services) necessary for proper functioning of the Services, as well as any training or integration necessary for the use and/or access of the Services as relevant.
3.0: Customer Responsibilities
3.1: Compliance. You shall comply with the provisions of this Agreement at all times and with applicable laws in connection with the use and/or access of any of the Services to the extent applicable, including those laws related to data privacy including, without limit, European Union General Data Privacy Regulation (GDPR), California Consumer Privacy Act (CCPA), and California Privacy Rights Act (CPRA). Access and/or Use of Pagos Services is not a substitute for Your legal compliance requirements including without limit, any government or agency reporting requirements, taxes, or otherwise. You shall ensure that your Users are authorized and comply with all legal and contractual requirements and shall be directly liable for any breach of Users. Any references to Customers, or You/Yourhereunder shall in such cases be deemed to apply directly to Users as well, as applicable and You are responsible to make sure the Users are informed and are in compliance.
3.2: Business Representative. You affirm to Pagos that (i) You are authorized to provide the information required under this Agreement and to be bound to this Agreement and (ii) the person agreeing to the terms of this Agreement is authorized to bind Your business. We may require You to provide additional information or documentation demonstrating authority. Without the express written consent of Pagos, You may not register or attempt to register for Pagos on behalf of a User Pagos previously terminated from use of the Services.
3.3 Safety and Security. You must take reasonable measures for security of the Services, such as securing Connection Data, Payment Data, and other information relating to Services. You agree that any actions taken via use of Your Connection Data shall be deemed to have been taken by You and that You shall be directly liable for such actions. Customers shall also have in place daily back-up of their data and an effective firewall together with virus prevention measures.
3.4: Content. You are solely liable for all of Your content or data and onboarding to the Pagos Services and features. All content or data transferred to Our systems within the scope of this Agreement or the Services must be legal and shall comply with any and all legal obligations concerning collection, use, processing and transfer of such content and data. You understand and accept that We are entitled to remove, or request removal or revision of any content or data that is illegal (including illegal processing), in breach of this Agreement or any Service Provider policies effective at the time. We may further resort to legal proceedings for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach; further legal action; and/or disclosure of any illegal content or information to law enforcement authorities as We reasonably feel is necessary or appropriate. We exclude and disclaim all liability for actions taken in response to breaches of this Clause. The responses described in this Clause are not limited, and We may take any other action We reasonably deem appropriate.
3.5: Restrictions on Use of Services. You agree not to use, or encourage, promote, facilitate or instruct others to use the Services to:
Commit or encourage fraudulent or other illegal activities in violation of the Agreement, Our policies or any applicable law, regulation, or legal agreement.
Infringe or misappropriate any copyright, trademark or other intellectual property, proprietary right, license right, or legal content protections.
Use, store, share, host, copy, distribute, display, publish, transmit or send content that is or may be deemed offensive, inflammatory, hateful, defamatory, discriminatory, obscene, abusive, invasive of privacy, harmful to others, or otherwise objectionable including any materials or data or payment information related to sex, sexually graphic content, or pornography of any kind.
Access or probe any network, computer or communications system, software application, or network or computing device systems without authorization, including but not limited to breaches, vulnerability scans or penetration testing.
Attack, abuse, interfere with, surreptitiously intercept, or disrupt any users, systems or services, including but not limited to Denial of Service (DoS), unauthorized monitoring or crawling, distribution of malware (including but not limited to viruses, Trojan horses, worms, time bombs, spyware, adware, or cancelbots).
Distribute unwanted, unsolicited or harassing mass e-mail or other messages, promotions, advertising, or solicitations.
Alter, forge or obscure mail headers or assume a sender’s identity without the sender’s express permission, nor collect replies to messages sent from another internet service provider if those messages violate this Policy or the acceptable use policy of that provider.
You further agree and accept:
Not to disable, interfere with, abuse, disrupt, intercept, circumvent or otherwise violate the security of the Services.
Not to use the Services, nor access any system used to provide the Services, without Our authorization.
Not to access any Service or restricted area within a Service to which You are not permitted access.
Not to attempt to probe, scan, or test the security measures of any system used to provide the Services.
Not to access or use the Services in a manner designed or intended to exceed usage quotas or limits placed upon Your account (if any), nor in any manner designed to avoid the incurrence of additional fees based on such use.
3.6: Unauthorized Use.
You shall undertake to:
(a) notify Us immediately of any unauthorized use of Connection Data or any other account information or other known or suspected breach of security, and (b) report to Us immediately and use reasonable efforts to stop any unauthorized use of the Services.
4.0: Data Protection and Privacy
We shall access and use Connection Data, Your Payment Data,and any of Your content and data to the extent reasonably required to provide the Services and only in accordance with Our Data Protection and Privacy Policies, if applicable, to You or Your Users.
We may transfer, copy, backup and store Connection Data, Your Payment Data, in the United States or other countries or jurisdictions outside Your country as a part of the Services.
In case of any processing (including use, transfer, hosting, etc.) of third party data within the scope of the Services, You shall be solely responsible for obtaining the legally required consents from third parties whose data is processed or transferred within the scope of this Agreement or use of the Services and supplying such to Pagos accurately and promptly including, without limit, Your customer’s consents and approval.
5.0: Fees and Payments
5.1: Payments. Pagos provides Services You Services on a month-to-month basis for which You will be charged for each of the Services based on the legal of Service you purchase on Your Price List previously agreed to, and incorporated here in by reference, which may increase based on Your usage as defined below. You will be invoiced for the full contract term upon Services being provided and must pay the full set up fee in accordance with Your Price List before Services will be initiated. You shall fully pay each invoice along with any additional applicable charges within 30 days.
You acknowledge that timely payment of our fees is a prerequisite for initiation and continuation of any Services and that We shall be entitled to suspend any Services in case of a delay or default in payment at our sole discretion. You will be charged the minimum tier prices applicable to Your Usage which includes, but is not limited to, volume, additional users, or additional payment data sources, in accordance with Your Price List.
Pagos offers a variety of options for payment including allowing You to pay Your invoice using any valid ACH or wire transfers, card payment, or reoccurring charge authorization. You may maintain a valid card payment method with Pagos or valid ACH payment information for collection of payments due for all Services or additional charges You incur, purchase, access, or use, and You authorize Pagos to charge or withdraw such fees or charges incurred in accordance with the payment card services agreement or ACH rules.
In the event of a recurring or regularly scheduled payments to Us, where You provided Us payment credentials, such as ACH/bank account or card information, on file and we initiate payment from Your bank, by ACH or card transactions or otherwise, You further authorize Pagos to charge and collect, from the bank or card account that You provided to Us, for the invoiced amounts and/or all regularly scheduled charges for all Services, or additional charges You incur.
You will be able to retrieve a copy of the invoice through Pagos using Your dashboard or a copy will be sent and a receipt for each payment will be made available to You and the fees and charge(s) will appear on your bank or card account statement.
You expressly understand that Your authorizations will remain in effect until You cancel it in writing, and You agree to notify Pagos in writing of any changes to Your account information or termination of this authorization as soon as possible but at least within 20 days prior to the end of Your contract term, otherwise You may be charged additional sums depending on the Services. If the above noted payment dates fall on a weekend or holiday, You also understand that the payments may be executed on the next business day. If Your payment is initiated by Pagos automatically, by card transaction or ACH transfer, Youacknowledge that the origination of bank or ACH payment information or card transactions to Your account must not violate applicable provisions of U.S. law. You further certify that You are an authorized user of the bank or ACH payment information or card account provided to Us, or ACH payment information, and will not dispute or cancel these scheduled transactions; so long as the transactions correspond to the terms indicated.
In the event of a default in payment, You agree and acknowledge that Pagos is entitled to recover any and all reasonable attorneysfees and costs to enforce or collect payment incurred or due under this paragraph 5.1 notwithstanding anything otherwise stated in any other agreement or writing.
5.2: Changes in Fees. You will be automatically invoiced and Your fees may automatically increase based on Your Usage in accordance with the applicable tier in Your Price List for the remainder of the term of your Agreement, which may also be increased accordingly in the event You upgrade or expand or select different Services subject to the terms herein. Except for Usage increases which are automatic, We may also update or change our base fees at any time after notifying you 30 days prior to the changes taking effect, and You will be subject to the prevailing pricing at the end of the term of this Agreement.
5.3: Changes in Service Scope. Subject to the terms of this Agreement, You may change, upgrade, add or expand any Service(s) at any time during the term of this Agreement which You understand will incur increased charges or fees correspondingly to the usage and Service(s) employed and/or additional data sources. For month-to-month Agreements, any change requests concerning decrease in Services shall be applied following 20 days prior notice of the reduction in Services and after the expiration of the existing term, if applicable, which You understand you will be charged for the reduced Services based on Your Price List commencing on the following month. There are no refunds for any reductions or decreases in Services for 12 or 24 month Agreements unless mutually agreed in writing.
To the fullest extent possible under applicable laws, You shall be liable for all sales, value added, general standard and/or similar taxes, levies, duty, or charges imposed by any governmental authority, related to or arising from Your use, purchase, or access of the Services. In no event shall either Party be responsible for the payment of any other Parties’ taxes of any kind.
7.0: Intellectual Property Rights
7.1: Ownership. You shall retain all Your original rights to information, content or data transferred to Us belonging to You within the scope of the Services. We and/or Our licensors own all intellectual property rights to the Services, related software, designs, and any documentation, which are proprietary to Pagos. This ownership extends to all copies and portions of, and all improvements, enhancements, modifications and derivative works to these items, regardless of whether carried out within the scope of this Agreement or at the request of Customer(s).
7.2: License. Upon execution of the Agreement and commencement of Services, We grant You a limited, non-transferable, non-sublicensable, non-exclusive and royalty free right to use the Services, related software and documentation; to the extent such use is required to use the Services as set forth in this Agreement.
This license does not provide the right to modify, alter, or otherwise create derivative works from the Services or any software to which You are provided access as part of the Services. You shall not disassemble, decompile, or reverse engineer any such software, or attempt to do so.
Your License Grants.
By accepting this Agreement and commencing use of the Services, You grant Us a worldwide, non-exclusive, non-transferable license to access to use, reproduce, electronically distribute, and display Your data for the following purposes: (i) providing and improving the Pagos Services, including the collection, processing and use of such data for the purposes of Pagos providing and improving the benchmarking and recommendation services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such data has been anonymized or de-identified and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the User or Customer. You shall provide all notices and obtain all consents necessary for Pagos’ use of Your data set out above. You also grant Us a worldwide, non-exclusive, perpetual, irrevocable license to use or transfer any de-identified or anonymized data for the Services. With this license, We shall be entitled create and distribute or allow others to create and distribute any product or service that incorporates said data. You understand and acknowledge that You shall not be entitled to any royalties or other payments due to any such use.
8.0: Suspension of Services
We may suspend access to all or any part of the Services for cause; immediately without prior notice, in case of non-compliance with any Service Provider policies effective at the time.
Services shall resume following remedy of the non-compliance or default. Our right to terminate this Agreement for cause is reserved.
You accept that, in the above cases, You shall be liable for the full amount due for Services, and no refunds shall be made for the term of suspension.
9.0: Term and Renewal of Services
9.1: Agreement Term. This Agreement shall come into effect on the Effective Date and continue for the term agreed to in Section 5.0 above, unless otherwise agreed in writing, and shall be binding on the Parties throughout the term of Services, unless terminated by either Party as per the provisions of this Agreement.
9.2: Service Term. Services shall commence with the payment of any related initiation fee(s) and amounts due, and continue for the term of the Service(s) chosen by You.
9.3: Renewal Term. Services shall automatically renew upon completion of the term, under the same conditions, unless You update Your Services or terminate the Agreement as per the provisions hereunder.
10.1: Termination for Convenience. You may choose to terminate this Agreement at any time, to become effective at the end of the then-current term. You will remain obligated to pay for all Service(s) incurred through the balance of the term of this Agreement following termination in accordance with paragraph 5 above. There are no refunds or prorated amounts returned if cancelled early or for any reduction in the selected Service(s).
10.2: Termination for Cause. If either Party materially breaches any of its duties or obligations hereunder and such breach is not cured within thirty (30) calendar days after written notice of the breach, the non-breaching Party may terminate this Agreement for cause as of a date specified in such notice. Pagos further reserves the right to suspend the Services of any Customer at its sole discretion in any event relating to its business continuity.
10.3: Return of Payments. You accept and agree that, except where the Agreement is terminated by a for cause, or for convenience, We shall not return any prepaid amounts. You further accept and agree that any early termination or suspension of any Services, or for additional charges incurred, will not be entitled to any credit or refund and that You must timely pay the full month’s invoice.
10.4: Access to Account. Your access to Your account shall be suspended immediately upon termination of this Agreement or for other reasons authorized hereunder. We shall not be obliged to store or share with You any of Payment Data following the date of such termination, unless We are required to do so legally. After termination of this Agreement or Your access is suspended, Youwill no longer be permitted to use or access any of the Services but may retain any of Your reports that You have downloaded or kept in Your possession prior to the termination and/or suspension becoming effective.
11.1: Definition. “Confidential Information” means any information disclosed by a Party to the other Party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as “confidential” and is confirmed in writing to the receiving Party to be “confidential” or “proprietary” within 30 days of such disclosure, or (c) reasonably appears to be “confidential” or “proprietary” because of the circumstances of disclosure and the nature of the information itself.
11.2: Confidentiality. During the term of this Agreement and for five (5) years thereafter, each Party shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each Party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other Party. Each Party shall promptly notify the other of any actual or suspected misuse or unauthorized disclosure of the other Party’s Confidential Information. Neither Party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other Party’s Confidential Information and which are provided to the Party hereunder. Each Party may disclose Confidential Information of the other Party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving Party.
11.3: Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving Party, (b) is known to the receiving Party, without restriction, at the time of disclosure or becomes known to the receiving Party, without restriction, from a source other than the disclosing Party not bound by confidentiality obligations to the disclosing Party, or (c) is independently developed by the receiving Party without use of the Confidential Information as demonstrated by the written records of the receiving Party. The receiving Party may disclose Confidential Information of the other Party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving Party shall use reasonable efforts to promptly notify the other Party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each Party may disclose the existence of this Agreement and the relationship of the Parties, but agree that the specific terms of this Agreement will be treated as Confidential Information.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, WE, (i) EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY, CONDITION OR OTHER IMPLIED TERM AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND (ii) MAKE NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES, ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH THE SERVICES, OR THAT THE SERVICES WILL MEET ANY CUSTOMER REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.
13.0: Limitation on Damages
Except for gross negligence, deliberate or intentional conduct or violations of applicable laws, or the collection and enforcement of Payment hereunder, in no event is any Party liable for the following types of damages:
(a)any indirect, incidental, exemplary, special or consequential damages;
(b)loss or corruption of data;
(c)loss of revenues, profits, goodwill or anticipated sales or savings;
(d)procurement of substitute goods and/or services; or
(e)interruption to business or wasted administrative time.