Terms of Use
Last Updated: July 11, 2024
Effective as of: July 11, 2024
These General Terms of Use replace and supersede all prior versions.
PLEASE READ THESE GENERAL TERMS OF USE AND ALL LINKED OR APPENDED TERMS (“Terms”) CAREFULLY BEFORE USING THIS WEBSITE OR REGISTERING FOR ANY SERVICE OR CONTENT OFFERED OR PROVIDED BY PAGOS SOLUTIONS, INC., OR ANY OF ITS AFFILIATES OR SUBSIDIARIES (“Pagos”, “we”, “us”, “our”).
YOUR ACCESS TO AND USE OF THIS WEBSITE, PAGOS SERVICES AND CONTENT PRIOR TO AND AFTER REGISTRATION CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND GOVERN YOUR USE OF AND ACCESS TO THE PAGOS WEBSITE, WEB-BASED APPLICATIONS AND PRODUCTS, CUSTOMER SUPPORT, AND SERVICES, AND YOUR INSTALLATION AND USE OF ANY SOFTWARE AND OTHER MATERIALS THAT WE INCLUDE AS PART OF ANY PAGOS SERVICE (“Agreement”). IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED TO USE THIS WEBSITE OR TO DOWNLOAD, ACCESS, CONNECT WITH OR USE ANY PAGOS SERVICE OR CONTENT.
Pagos Solutions, Inc., is building the future of payment optimization and execution by providing a suite of proprietary payment software tools and services that help businesses visualize, manage, analyze, and monitor payment and transaction information (e.g., transactions, payment methods, BIN/INN codes, refunds, disputes/chargebacks, settlements and other types of transaction-related data) (collectively, “Payment Data”), optimize BIN/IIN codes, and implement network tokenization and account updates of Payment Data received from payment service providers, payment processors, card networks, card issuers, acquirers, financial institutions, fraud data providers and other data sources, gateways, and solution providers (“Service Providers”). In addition, Pagos also provides solutions to stream data back to You, provide benchmark services and other tools related to optimized payment processing. To get started, create a Pagos account, connect with any Pagos API, configure no-code, or access any information or other materials from this Pagos website. Certain Services may require completion of a Pagos Order Form.
1. Definitions
Unless otherwise specified, specifically define herein or given a technical meaning, the words and phrases used in these Terms are to be understood for their ordinary and common understanding in the applicable industry.
“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).
“Content” means articles, reports, information, data, API, and other information and materials provided by Pagos, including via the Pagos website.
“Customer” means an organization or group, including a business or any other commercial entity, government entity, non-profit organization, or educational institution subscribing to or licensing the Services under this Agreement.
“Customer Content” means content, data, information (including any personally identifiable information), Login Credentials, Payment Data, and other information provided by or on behalf of Customer to Pagos in connection with the Services.
“Effective Date” means the date on which You (a) first use the Pagos website or Services, download any Pagos Content, software, or other materials, or (b) execute an Order Form for Pagos services or products and pay associated fees, as applicable, or (c) otherwise accept these Terms via other authorized means.
“Login Credentials” means Your unique login and password, which enable access to the Services.
“Order Form” means an executed Pagos form indicating quantity, pricing, and other additional commercial terms related to one or more indicated Pagos products and services, as may be provided by Pagos.
“Party” or “Parties” means You and Pagos, individually or collectively.
“Service” means one or more payment intelligence solutions services and products offered by Pagos, including the Pagos software applications, APIs, integrated platform, and user interface that provide visualization, benchmarking, monitoring, tokenization, BIN/IIN optimization services, and other data services applied to Payment Data, and all Content, information, and other materials made available via the Pagos website, either individually or as a bundle or package of multiple Services or Content, and any other services, such as customer support, and materials made available by Pagos.
“User(s)” means individual users of the Service, acting as an authorized agent or representative of a Customer, such as employees, contractors, and agents, to access and use the Service solely on behalf of the Customer.
“You” or “Your” means the Customer and its User(s), as the case may be.
2. Licenses
2.1 License to Services and Content. Pagos grants You a limited, non-exclusive, non-transferable, revocable, license (without a right to sublicense) for You to access and use the Services and Content for internal, non-commercial business purposes strictly in accordance with these Terms, including the restrictions stated in Section 3, below, and subject to Your full compliance with any payment obligations. To the extent the Pagos website provides data or data analytics related to payments or card transactions based, in whole or in part, on Your Payment Data, You may make such data or data analytics available to other Users, so long as the other Users are authorized for such use hereunder. Pagos may terminate access to and use of a Service by a User immediately at any time, with or without notice, in the event that such User violates the terms of this Agreement. Any rights not granted hereunder is expressly reserved by Pagos.
2.2 License to Customer Content. You grant Pagos a worldwide, non-exclusive, royalty-free, fully-paid, transferable under Section 17.8, license (with a right to sublicense to Service Providers) to use, reproduce, modify, electronically distribute, and display Customer Content for: (a) providing Pagos Services to You; (b) complying with applicable legal requirements; (c) assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with applicable laws; and (d) any other purpose for which You provided consent. You also grant Pagos a worldwide, non-exclusive, perpetual, irrevocable, transferable, fully-paid, royalty-free license, with a right to sublicense, to use, reproduce, modify, distribute and transfer anonymized and aggregated Customer Content for (a) providing, enhancing, developing and improving Pagos Services, including recommendation and benchmarking services, data analytics, and metrics, and (b) creating and distributing, and allowing others to create and distribute products and services that incorporate such anonymized and aggregated Customer Content.
3. Restrictions on Your use of Services and Content
Any unauthorized use of the Content or Pagos Services, or any portion thereof, is prohibited. You will not access or use the Services, or any system used to provide the Services, or Content without express prior authorization from Pagos.
3.1 Use of Services and Content. You will not use, or encourage, promote, facilitate or instruct others to use the Services or any Content to: (a) commit or encourage fraudulent or other illegal activities in violation of the Agreement, Our policies or any applicable law, regulation, or legal agreement; (b) infringe or misappropriate any copyright, trademark or other intellectual property, proprietary right, license right, or legal content protection; (c) 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; (d) 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 and penetration testing; or (e) 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, and cancelbots). Pagos reserves the right to remove any Customer-provided content and materials that are in violation of these restrictions.
3.2 Additional Restrictions. You will not use the Services or Content for any consumer or household purposes, or to determine a consumer’s eligibility for: (a) credit or insurance for personal, family, or household purposes; (b) employment; or (c) a government license or benefit. You will not: (i) decompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicense, or create derivative works from the Pagos Content or any aspect of the Services; (ii) use any network monitoring or discovery software to determine the site architecture, or extract information about usage, individual identities or users of the Services or any Content; (iii) use any robot, spider, other automatic software or device, or manual process to monitor or copy any Content; (iv) copy, modify, reproduce, republish, distribute, display, or transmit for consumer, commercial, non-profit or public purposes all or any portion of the Content, except to the extent permitted above; (v) export or re-export the Content or any Pagos Services or any portion thereof in violation of export control laws and regulations of the United States of America or in violation of any other country’s laws or regulations; (vi) use the Services or Content for any legal, tax, regulatory or government compliances of any kind; (vii) disable, interfere with, abuse, disrupt, intercept, circumvent or otherwise violate the security of the Services; (viii) access any Service or restricted area within a Service to which You are not permitted access; (ix) attempt to probe, scan, or test the security measures of any system used to provide the Services; or (x) 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.
4. Customer Obligations
4.1 Compliance You will comply with the provisions of this Agreement at all times and with applicable laws in connection with the use of and access to any of the Services to the extent applicable, including those laws related to data privacy including, without limitation, the European Union General Data Privacy Regulation (GDPR), California Consumer Privacy Act (CCPA, as amended by the California Privacy Rights Act), and all other applicable U.S. and international data privacy laws. Access to and use of Pagos Services is not a substitute for Your legal compliance requirements, including without limitation, any government or agency reporting requirements, taxes, or otherwise. You will ensure that Users are authorized to use Your Login Credentials and access Your Pagos account and comply with all legal and contractual requirements associated therewith. You will be directly liable for all activities of Users.
4.2 Infrastructure. You are solely responsible for obtaining and maintaining all hardware and software (other than Pagos hardware and software running the Services) necessary for proper functioning of the Services, as well as any training or integration necessary for Your access and use of the Services.
4.3 Previously Terminated Users. You may not register or attempt to register for any Services on behalf of a User or Customer that Pagos previously terminated from use of such Services without the prior express written consent of Pagos.
4.5 Customer Content. You are solely responsible for all Customer Content, for obtaining all Customer Content necessary for onboarding to the Pagos Services and features, and for onboarding to the Pagos Services and features. You are responsible for ensuring that all content and data, including Customer Content, that is transferred by or on behalf of You to Our systems has been collected in compliance with any and all legal requirements and that the transferring and processing of such content and data by Pagos for the provision of the Services does not violate any applicable laws or regulations. This Section 4.5 does not apply to processing of Customer Content by Pagos in violation of the terms of this Agreement.
4.5.1 Pagos Services are designed with personal data minimization principles in mind and the Services are not designed to collect personally identifiable information, personal information, or personal data, as those terms are defined under applicable data privacy laws, regulations, or directives (“PII”), except as necessary to provide the specific requested Services to You (for example, certain payment account numbers and credit card information is required to use the Loon and Toucan services). As between Pagos and Customer, Customer is solely responsible for removing or fully anonymizing any PII from Customer Content prior to making such available to Pagos. In the event that Pagos becomes aware that it has received any PII from You, Pagos will promptly delete such PII.
4.5.2 Without limiting Pagos’ rights and remedies hereunder, Pagos is 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. Pagos may further resort to (i) legal proceedings for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from breach of this Agreement; (ii) disclosure of any information to law enforcement authorities as We reasonably believe is necessary or appropriate to enforce this Agreement or comply with applicable laws. Pagos excludes and disclaims all liability for actions it pursues under this Section 4.5.2.
4.6 Notification. You will notify Pagos immediately and use reasonable efforts to stop any unauthorized use of Login Credentials or any other account information or other known or suspected breach of security, and any unauthorized use of the Services associated with Your account.
5. Fees and Payments
5.1 Fees for Services. Pagos provides Services and associated Content to You on a month-to-month, fixed term, or pre-paid basis, depending on the Service(s) identified on the applicable Order Form and per the fees, including any set-up fee, indicated on the Order Form.
5.2 Billing. You will be charged and invoiced, for each of the Services You purchase, in accordance with the terms of this Agreement and as indicated on the Order Form, which charges will include monthly fees for each purchased Service. Pagos may invoice you on or after the Effective Date all fees for the purchased Services, including the monthly fee for the first month (which monthly fee shall be at least the first tier pricing fee) and any applicable one-time set-up fee; thereafter, Pagos will invoice You in arrears all associated fees for such purchased Services. You will be invoiced for the full contract term for any pre-paid Services upon or after the Effective Date of this Agreement. Each month, You will be invoiced, for each purchased Service, the greater of (i) the minimum tier prices applicable to such Service, and (ii) the tier pricing fee of the last invoice, and (iii) the tier pricing fee associated with Your actual use of such Service, which tier pricing may be based on volume, additional Users, additional Payment Data sources, and other factors.
5.3 Payment Terms. You will fully pay each invoice, excluding amounts disputed in good faith as set forth in this Section 5.3, together with any additional applicable charges within 30 days from the invoice date. Timely payment of Pagos fees is a prerequisite for continuation of any Services and access to Content. Pagos will be entitled to suspend any Services in the event of a delay or default in payment, which default is not fully cured within five (5) days of written notice by Pagos of such default. If a payment due date falls on a weekend or holiday, such payments may be executed on the next business day. If Your payment is initiated by Pagos automatically, by card transaction or ACH transfer, the origination of bank or ACH payment information or card transactions to Your account must not violate applicable provisions of U.S. law. In the event of a delayed or defaulted payment, Pagos has the right to assess a finance charge of 1.5% per month on any outstanding balance or the maximum amount permitted under applicable law, whichever is lower, and You will be responsible for any and all reasonable attorneys’ fees and costs necessary to enforce and collect payment incurred or due under this Section 5, notwithstanding anything otherwise stated in any other agreement or writing. If You dispute any charges, You must notify Pagos in writing within 30 days after Your invoice date. All amounts paid are non-refundable.
5.4 Payment Options. Pagos offers a variety of options for payment, including using a valid ACH or wire transfer, card payment, or reoccurring charge authorization. You may maintain a valid card payment method or valid ACH payment information with Pagos 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.
5.5 Automatic Payment Option. In the event of recurring or regularly scheduled payments to Us, if You provided Us payment credentials, such as ACH/bank account or card information, for Pagos to maintain on file and Pagos initiates payment from Your bank, by ACH or card transactions or otherwise, You hereby authorize Pagos to charge and collect, from the bank or card account that You provided to Us, the invoiced amounts and all regularly scheduled charges for all Services and any additional charges You incur.
5.5.1 You will be able to retrieve a copy of each invoice and receipt via access to Your Pagos dashboard or a copy will be sent to You upon request, and the fees and charge(s) will appear on Your bank or card account statement.
5.5.2 Your charge authorization will remain in effect until You cancel it in writing or this Agreement expires or is terminated. You will 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 fees depending on the affected Services.
5.6 Authorized User. You hereby certify that You are an authorized user of the bank or ACH payment information or card account provided to Us and You will not dispute or cancel any scheduled payment transactions that are for amounts set forth in and in accordance with these Terms and the Order Form, as may be amended.
5.7 Changes in Fees. Your invoiced fees may automatically increase for any Services in accordance with the applicable tiers in Your Order Form for the remainder of the Agreement Term or applicable Service Term. Fees charged may also increase or payment terms may otherwise change in the event You upgrade, expand or select different Services. In the event that Your use of a Service significantly decreases over a persistent period of time, You may submit a written request to Pagos for a tier reduction for future months for such Service, subject to Pagos’ review and approval. Except for automatic increases, Pagos may also update or change its base fees or charge for new features added to existing Services at any time after notifying You 30 days prior to the changes taking effect; however, You will be subject to the prevailing pricing at the end of the Agreement Term with respect to each affected Service.
5.8 Changes in Service Scope. Subject to these Terms, You may change, upgrade, add or expand most Services at any time during the Services Term, which may incur increased charges or fees; however, not all Services are available for such change, upgrade, addition or expansion. Please refer to Your Order Form for additional information and limitations on Services. Any change requests You make regarding removal of a Service will be implemented by Pagos after the expiration of the then-current Service Term. You will be charged for the revised Services based on the price list on Your then-current Order Form commencing on the calendar month following Our implementation of the requested revision. There are no refunds for any reductions in or removals of Services for 12- or 24-month Agreements unless mutually agreed in writing.
5.9 Changes in Services by Pagos. Pagos reserves the right to add new, enhanced or different features or to otherwise modify the features of any of the Services, without materially reducing the core functionality of the Services, at Our sole discretion. From time to time, Pagos may expand its Services 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, when made available, for an additional fee. The version of a Service available or supported at a renewal date may be different from the version available when you first license the Service from Pagos.
5.10 No Fees for Trial License. In the event that any Service or Content is made available by Pagos under a free, limited term trial basis (“Trial Version”), Pagos grants You a limited, non-exclusive, non-transferable, revocable, no-fee license (without a right to sublicense) for You to access and use the Trial Version for internal, non-commercial business purposes solely during the applicable trial period strictly in accordance with these Terms, including without limitation the restrictions stated in Section 3. Such Trial Version does not include all functionality and features included in the Service or Content available for license under Section 2.1, and Pagos has no obligation to provide integration, installation, or support for such Trial Version. At the end of Your trial license term, Your license will expire, and You will be required to either (a) uninstall and cease all access and use of the Service and Content, or (b) enter into a paid license under Section 2.1 to receive a full version of the Service and Content. Pagos is under no obligation to make any of its Services available as a Trial Version, and each such Trial Version is made available to any Customer at Pagos’ sole discretion.
6. Taxes
To the fullest extent possible under applicable laws, You will 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 will either Party be responsible for the payment of any other Parties’ taxes of any kind.
8. Intellectual Property
8.1 Ownership. As between You and Pagos, You retain all ownership rights in and to Customer Content. Pagos or Our licensors own all intellectual property rights in and to the Services and all related software, designs, and documentation, and Content, including all copies and portions thereof, owned, created, provided, and otherwise made available by Pagos hereunder, and all improvements, enhancements, modifications and derivative works thereto, regardless of whether such improvements, enhancements, modifications and derivative works were performed at Your request.
9. Data Protection and Privacy
Pagos will access and use Login Credentials, Your Payment Data, and any of Your content and data to the extent reasonably required to provide the Services to You in accordance with Our Data Protection and Privacy Policies, to the extent applicable. Pagos may transfer, copy, back-up or store Login Credentials or Payment Data, in the United States or other countries or jurisdictions outside Your country in connection with providing the Services. You are at all times solely responsible for (a) obtaining all legally required consents from all third parties whose data is processed or transferred under this Agreement or in connection with Your access and use of the Services, and (b) supplying a copy of such consents to Pagos accurately and promptly including, without limit, Your customer’s consents and approval, upon request. Please review the Pagos Data Policy and Privacy Policy, both of which are incorporated fully herein and made part of these Terms by this reference.
10. Term and Renewal
10.1 Term. The term of each Service will commence at the earlier of (a) Your use of an API or Your use or download of any other Service, or (b) payment of any required set-up fee(s) and other amounts due, and will continue for the term stated on the applicable Order Form or associated with the applicable Service (each a “Service Term”). This Agreement will come into effect on the Effective Date and continue through the last to expire Service Term and any renewals thereof (“Agreement Term”), unless otherwise agreed in writing or terminated by either Party pursuant to this Agreement.
10.2 Renewal. Each Service Term is renewed automatically under the same terms at the end of each such Service Term, unless: (a) the Services or Order Form is modified pursuant to Sections 5.6, 5.7 or 5.8; or (b) either Party terminates the Agreement with respect to one or more Services under Section 11.
10.3 Suspension of Services. Pagos may suspend access to all or any part of any Service for cause or, in the event of non-compliance with any Service Provider policies effective at the time, immediately if such non-compliance is not fully cured within five (5) days of written notice by Pagos of such non-compliance. A suspended Service may resume following remedy of the non-compliance or default. In all instances, Pagos reserves its right to terminate this Agreement for cause under Section 11.2. You will be liable for the full amount due for Services and no refunds will be made for the term of suspension.
11. Termination
11.1 Termination for Convenience. You may choose to terminate this Agreement at any time, which termination becomes effective at the end of the Agreement Term and terminate a Service at any time, which termination becomes effective at the end of the Service Term. You will remain obligated to pay for all outstanding invoices and fees for Service(s) incurred through the balance of the Term of this Agreement or Service Term, as applicable, following termination, in accordance with Section 5 above. No refunds or prorated amounts will be returned if You cancel any Service or this Agreement prior to the end of the applicable Service Term or Agreement Term or if You change the Service scope pursuant to Section 5.8.
11.2 Termination for Cause. If either Party materially breaches any of its 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; provided, however, that Pagos has the right to terminate this Agreement or any Service, with or without notice, in the event that You default in Your payment obligations hereunder. In the event of such payment default, Pagos is entitled to recover a default fee and any and all reasonable attorneys’ fees and costs to enforce or collect payment incurred or due. Pagos reserves the right to suspend, on a permanent or temporary basis, or terminate the provision of any Service to any Customer at its sole discretion if required for Pagos to comply with its legal, regulatory or other obligations to its Service Providers or any government or regulatory agency.
11.3 Effect of Termination.
11.3.1 Return of Payments. Except where the Agreement is terminated by You for cause, Pagos will not return any prepaid amounts or credit any amount of fees. You are not entitled to any credit or refund in the event of early termination or suspension of any Services, and You will remain obligated to timely pay the full month’s invoice, together with any additional charges incurred.
11.3.2 Access to Account. Your access to Your account will be suspended immediately upon termination of this Agreement or for other reasons authorized hereunder. Pagos is not obligated to store or share with You any of Payment Data following the date of such termination, unless We are required to do so to comply with applicable law or regulations. After termination of this Agreement or Your access to a Service is suspended, You will 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.
11.4 Survival. The following Sections will survive expiration or termination of this Agreement: 1.0, 2.2 (with respect to anonymized and aggregated Customer Content), 3.0, 5.1, 5.2, 5.3, 5.5, 6.0, 8.1, 9.0, 11.3, 12.0, 13.0, 14.0, 15.0, 16.0, 17.0, 18.0, and 19.0.
12.1 Definition. 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.
12.2 Confidentiality Obligation. During the term of this Agreement and for five (5) years thereafter, each Party (“Recipient”) will treat as confidential all Confidential Information of the other Party (“Discloser”), will not use Discloser’s Confidential Information except to exercise Recipient’s rights and perform Recipient’s obligations under this Agreement, and will not disclose Discloser’s Confidential Information to any third party. Without limiting the foregoing, Recipient will 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 Discloser’s Confidential Information. Recipient will promptly notify the Discloser of any actual or suspected misuse or unauthorized disclosure of Discloser’s Confidential Information. Recipient will not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the Discloser’s Confidential Information, and which are provided to the Recipient hereunder. Recipient may disclose Discloser’s Confidential Information 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 Recipient. Notwithstanding anything to the contrary, Confidential Information considered a trade secret under applicable law shall retain all protection as Confidential Information for as long as it qualifies as a trade secret.
12.3 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 Recipient; (b) is known to the Recipient, without restriction, at the time of disclosure or becomes known to the Recipient, without restriction, from a source other than the Discloser not bound by confidentiality obligations to the Discloser; or (c) is independently developed by the Recipient without use of the Discloser’s Confidential Information. The Recipient may disclose Discloser’s Confidential Information to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the Recipient uses reasonable efforts to promptly notify the Discloser prior to such disclosure to enable the Discloser 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 and agrees that the specific terms of this Agreement will be treated as Confidential Information.
Representations and Warranties
13.1 You represent and warrant to Pagos that: (a) You are authorized to provide the information required under this Agreement and to be bound to this Agreement; (b) You have obtained all consents as required under applicable law to collect, process, and transfer to Pagos the Payment Data and all associated personally identifiable information associated with such Payment Data; (c) You have all rights necessary to provide the Customer Content to Pagos under these Terms; and (d) the person agreeing to these Terms and entering into this Agreement is authorized to bind Your business.
13.2 Pagos represents and warrants to You that: (a) Pagos is authorized to provide the Services under this Agreement and to be bound to this Agreement; (b) the person agreeing to these Terms and entering into this Agreement is authorized to bind Pagos; and (c) the Services will be provided diligently in a professional and workmanlike manner consistent with the skill ordinarily exercised under similar circumstances and in accordance with all applicable laws, regulations, rules, standards, and guidelines.
14. Indemnification
You will indemnify Pagos (and Our subsidiaries, affiliates, officers, agents, employees, partners, and licensors) from any claims, demands, losses, and damages, including reasonable attorneys’ fees, arising out of or relating to (a) Customer Content; (b) Your use of any Service or Content; (c) Your violation of the Terms (collectively, “Claims”). You have the right to control the defense of any Claims (except to the extent that any settlement involves material commitments, responsibilities, or obligations affecting Pagos, in which case such settlement shall require Pagos’ prior written consent). Pagos will provide commercially reasonable cooperation with You in the defense of any Claim at Your sole expense. Pagos reserves the right to participate at its own cost in any proceedings with counsel of its own choosing.
15. Disclaimer of Warranties
15.1 THE SERVICES, CONTENT, AND TRIAL VERSIONS ARE PROVIDED ON AN AS-IS, AS-AVAILABLE BASIS. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, PAGOS EXPRESSLY DISCLAIMS 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 AND NON-INFRINGEMENT, AND MAKES NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES, CONTENT, TRIAL VERSIONS, ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH THE SERVICES AND TRIAL VERSION, OR THAT THE SERVICES, CONTENT OR TRIAL VERSION WILL MEET ANY CUSTOMER REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.
15.2 Except as otherwise provided in these Terms, Pagos specifically disclaims all liability for any losses resulting from Your use of any Services and Content. You use and access the Services and Content. Our use of and access to the Services and Content is at Your own discretion and risk, and You are solely responsible or any damage to Your computer system or loss of data that may result from Your use of and access to any Service and Content.
16. Limitation of Liability
16.1 Except for a Party’s gross negligence, willful misconduct or violations of applicable laws, Pagos’ costs for collection and enforcement of payment obligations under Section 5, breach of Pagos’ intellectual property rights under Section 8, breach of confidentiality obligations under Section 12, and Your indemnification obligation under Section 14, in no event is any Party liable for any indirect, incidental, exemplary, special or consequential damages, loss or corruption of data, loss of revenues, profits, goodwill or anticipated sales or savings, procurement of substitute goods and services, or interruption to business or wasted administrative time.
16.2 To the extent permitted by law, Pago’s maximum liability (which includes, collectively, Our Affiliates, officers, directors, employees, agents, suppliers and licensors) will not exceed the direct fees You have paid to Us during the twelve (12) months before the last event that gave rise to Your claim. This limitation of liability applies whether the claims are in contract, tort (including negligence), or otherwise. This limitation of liability for Services and Content is in the aggregate and not per incident.
16.3 Except for Your breach of Our intellectual property rights under Section 8, or in relation to the collection or enforcement of payment under this Agreement, neither Party may bring a claim under this Agreement more than eighteen (18) months after the event that creates the action or claim.
17. General Provisions
17.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of Delaware, without regard to internal choice of law. Parties each hereby consent and submit to the jurisdiction of Massachusetts in all questions and controversies arising out of this Agreement. The Parties further disclaim the convention on intentional contracts on sale of goods.
17.2 Force Majeure. Except for payment obligations, neither Party will be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, virus, pandemic, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed Party. Any such excuse for delay will last only as long as the event remains beyond the reasonable control of the delayed party. Either Party will be entitled to terminate the Agreement in the event that the force majeure event lasts for more than thirty (30) days, subject to the provisions of Section 11.1 In cases where the force majeure event causes an interruption to the Services, the term of interruption will be added to the end of the then-current Service Term.
17.3 Amendments. This Agreement may only be modified or amended upon an authorized signed writing by both Parties; provided, however, that Pagos may amend any of Our policies concerning the use of Services and Content any time. Customers should visit the Pagos website periodically to access the latest version of Our policies.
17.4 Relationship of the Parties. The Parties are independent contractors and nothing in this Agreement constitutes a partnership, employment or agency between the Parties. Neither Party will be entitled to contract on behalf of the other or bind the other Party in any way.
17.5 No Waiver. The failure of either Party at any time to require performance by the other Party of any provision of this Agreement will in no way affect that Party’s right to enforce such provisions, nor will the waiver by either Party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
17.6 Severability. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.
17.7 Notices. We may be required by a government to notify You of certain events. You hereby acknowledge and consent that such notices will be effective upon their posting on Our website or delivery to Your e-mail. If you do not provide Us with accurate information, or if you do not keep Your e-mail contact information up to date, We will not be held liable for failure to notify You. Any communications to Us should be sent to support@pagos.ai.
17.8 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent; provided, however, Pagos may assign this Agreement in its entirety without Your consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, these Terms will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
17.9 Entire Agreement. This Agreement, the Services, Your Price List and fees, and Data Protection and Privacy Policies (if applicable), constitute a complete and exclusive final written expression of the terms of agreement between the Parties regarding the subject matter hereof. It supersedes all earlier and contemporaneous agreements, understandings and negotiations concerning the subject matter.
17.10 Updates to Terms. Pagos may make changes to these Terms from time to time, and if we do, we will notify You by revising the date at the top of the Terms and, in some cases, we may provide You with additional notice. Any such changes will not apply to any dispute between You and Pagos arising prior to the date on which we posted the revised Terms incorporating such changes or when the Terms otherwise become effective. You should look at the Terms regularly. Unless otherwise noted, the amended Terms will be effective immediately and Your continued use of our Services and Content confirm Your acceptance of the changes. If You do not agree to the amended Terms, You must stop using our Services and Content and, if applicable, cancel Your subscription.
17.11 Security, No Conflicts. Each Party agrees to inform the other of any information made available to the other Party that is classified or restricted data, agrees to comply with the security requirements imposed by any state or local government, or by the United States Government, and will return or destroy all such material upon request and provide Pagos a certificate confirming disposition of said materials if applicable. Each Party represents and warrants that its participation in this Agreement does not conflict with any contractual or other obligation of the Party or create any conflict of interest and will promptly notify the other Party if any such conflict arises during the Term.
18. Non-Solicitation
During the Term of this Agreement and for a period of one year thereafter, You will not, except with the Pagos’ prior written approval, solicit the employment of any employee, consultant or subcontractor of Pagos that directly participated in the activities set forth in this Agreement. The foregoing will specifically not apply to general solicitations of employment issued by either Party to which an employee of the other may voluntarily respond.
19. Class Action Waiver and Arbitration
19.1 Informal Resolution. Pagos wants to address Your legal concerns without a formal legal case if possible. Before filing a claim against Pagos of any kind, You will try to resolve the dispute informally by making reasonable efforts to contact Pagos with a written Notice of Dispute to support@pagos.com that includes at least Your full legal name, contact information, a detailed description of Your dispute or claim, “Notice Of Dispute” in the subject line, and what result You seek. Pagos will try to resolve the dispute informally by contacting You via email or directly.
19.2 Dispute Resolution. If a dispute is not resolved within 60 days after submission, You or Pagos may bring a formal proceeding. If You reside in or are an entity established under the laws of the EU, the European Commission provides for an online dispute resolution platform, which You can access here: https://ec.europa.eu/consumers/odr. If You reside in a country with laws that give consumers the right to bring disputes in their local courts (e.g., a member state of the European Union), this paragraph does not affect those requirements.
19.3 U.S. Citizens, Residents and Entities. If You are a U.S. resident or citizen or an entity organized under the laws of a U.S. state, You agree to the following binding and mandatory arbitration provisions:
19.3.1 Arbitration. Pagos and You agree to resolve any claims or causes of action relating to these Terms or the Services by final and binding individual arbitration by a single arbitrator, except as set forth under the “Exceptions to Agreement to Arbitrate” below. The scope of Arbitration includes disputes arising out of or relating to the interpretation or application of this “Mandatory Arbitration Provisions” section, including its scope, enforceability, revocability, or validity. The arbitrator may award relief only individually and only to the extent necessary to redress Your individual claim(s); the arbitrator may not award relief on behalf of others or the general public.
19.3.2 Arbitration Procedures. Pagos and You agree to submit any arbitration demand to the American Arbitration Association (AAA) to administer the arbitration under its prevailing Consumer Arbitration Rules. The AAA’s rules and filing instructions are available at www.adr.org or by calling 1-800-778-7879. The arbitration will be held in Boston, MA, unless the Parties agree to another location the Parties or as may be decided by the duly appointed Arbitrator.
19.3.3 Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees; provided, that the Parties will bear their own fees and costs related to any Arbitration, including without limitation, filing fees, costs, expenses, experts, attorneys’ fees and costs. Any recovery of attorneys’ fees is expressly waived to the extent permitted by law.
19.3.4 Exceptions to Agreement to Arbitrate. Either Pagos or You may assert claims or causes of action, if available, in a small claims court in Boston, MA. Both Parties also are allowed to bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or for any type of monetary or non-monetary relief for any intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to You or Your claim, You agree to the exclusive jurisdiction of the state and federal courts in Suffolk County, Massachusetts, to resolve Your claim.
19.3.5 No Class or Representative Actions. You may only resolve disputes with Pagos on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed and are expressly waived and prohibited.
19.4 Severability. If any part of this “Mandatory Arbitration Provisions” section is found to be illegal or unenforceable, the remainder of the Terms will remain in effect. However, if a finding of partial illegality or unenforceability would allow class or representative arbitration, this entire “Mandatory Arbitration Provisions” section will be unenforceable. If either Party is found to have a non-waivable right to bring a particular claim or to request a particular form of relief that the arbitrator lacks authority to redress or award according to this “Mandatory Arbitration Provisions” section, including public injunctive relief, then only that respective claim or request for relief may be brought in court. You and Pagos agree that litigation of any such claim or request for relief will be stayed, pending the resolution of any individual claim(s) or request(s) for relief in arbitration.