Terms of Service

Effective date: January 01, 2025

SERVICES AGREEMENT

This Services Agreement together with any applicable Orders (as defined below) collectively constitute a binding agreement (the “Agreement”) between Nickel Technology Inc., a Delaware corporation (“Nickel” or “we”), and the legal entity you represent (“Merchant” or “you”). The “Effective Date” of this Agreement shall be the earlier of:

  1. (i) Merchant’s acceptance of the terms of this Agreement by clicking on the “Create Account” button after selecting the checkbox that states “I Agree,” or
  2. (ii) Merchant’s use of the Nickel Services.

Certain capitalized words below are defined in Section 12 (Definitions).

GENERAL TERMS

Thank you for choosing Nickel for your business. Nickel facilitates business-to-business transactions by providing Merchant with the Nickel Services, including a checkout widget (“Widget”) that is embedded in the Merchant Website user interface to facilitate the Payment Processing Services (as set forth herein) that enable a Merchant’s acceptance of payments from its Buyers for the sale of Merchant’s goods and services to Buyer.

In addition to the Services provided by Nickel directly to a Merchant as set forth in Section 2.1 of this Agreement, pursuant to Section 2.2 of this Agreement Nickel facilitates Merchant’s access to services (each a “Third-Party Offering”) that are provided directly to the Merchant by third parties (each a “Third-Party Provider”).

We are not a bank, money transmitter, or money services business, but instead, we are a supplier of the Nickel Services as set out in Section 2.1 of this Agreement and the facilitation of your access to and use of Third-Party Offerings.

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE NICKEL SERVICES. BY CLICKING ON THE “CREATE ACCOUNT” BUTTON, COMPLETING THE REGISTRATION PROCESS, OR ACCESSING OR USING ANY OF THE NICKEL SERVICES, YOU REPRESENT THAT (A) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (B) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH NICKEL, AND (C) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF THE ENTITY YOU REPRESENT, AND TO BIND THAT ENTITY TO THE AGREEMENT. THE TERM “MERCHANT” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU CREATED YOUR ACCOUNT AND COMPLETED THE REQUIRED INTAKE FORM. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE NICKEL SERVICES.

1. SERVICES

1.1 Nickel Services

(A) Widget
Nickel will provide Merchant with access to the Widget for use on Merchant’s Website. Subject to the terms and conditions of this Agreement, Nickel hereby grants to Merchant, during the term of this Agreement, a non-sub-licensable, non-transferable, non-exclusive, revocable right, to:

  1. (i) Internally use and reproduce the Documentation; and
  2. (ii) Use and display the Widget on the Merchant Website for Merchant’s own business purposes.

Merchant may not use the Widget for any other purpose without Nickel’s prior written consent, and nothing in the Agreement shall be deemed to grant Merchant any right, title or interest in the Widget. In addition, Merchant may not:

  • (x) Use the Widget (or any content displayed in connection with or through it) in any manner that would constitute an endorsement by Nickel of any Product or brand contained on the Merchant Website;
  • (y) Place the Widget on any website that includes content that is offensive, harassing, threatening, abusive, discriminatory, vulgar, pornographic, or otherwise inappropriate, as determined by Nickel in Nickel’s sole discretion; or
  • (z) Use the Widget in any manner that prevents Buyers from accessing Nickel’s standard terms of service and privacy policy (“Nickel’s Standard Terms”).

(B) Receipts
As part of the Nickel Services, Nickel will deliver to Buyer an acknowledgement of purchase (a “Receipt”) that includes certain information including an order number and total fees charged by Merchant for such purchase(s). Nickel will issue a Receipt by email to each Buyer after Buyer purchases a Product through the Merchant Website.

(C) Support Services
Subject to the terms of this Agreement, Nickel shall use commercially reasonable efforts to maintain the security and availability of, and to correct Errors in, the Nickel Services.

(D) ACH Processing Services
(Placeholder) – Additional terms regarding ACH Processing Services, settlement parameters, and any NACHA originator/third-party sender contractual language as needed would be inserted here.

In connection with the ACH Processing Services, funds debited from a Buyer’s bank account in connection with a Buyer’s authorized ACH transaction will be received by Grasshopper Bank N.A. (“Grasshopper Bank”), an FDIC-insured depository institution, and held by Grasshopper Bank in a bank account owned and controlled by Grasshopper Bank for the Merchant’s benefit (“Bank FBO Account”) until such amounts are paid to Merchant by Grasshopper Bank. Nickel, acting at the direction and upon instructions of the Merchant, will direct Grasshopper Bank to settle payments that are actually or constructively received into the Bank FBO Account to Merchant as set forth in this Agreement.

1.2 Third-Party Offerings

Although the Nickel Services may allow you to access or use Third-Party Offerings, they are not “Nickel Services” under this Agreement and are not subject to any of the warranties, service commitments, or other obligations with respect to the Nickel Services hereunder. Your use of any Third-Party Offering will be subject to a separate agreement with the applicable Third-Party Provider and may be contingent on your successful completion of an onboarding process with the Third-Party Provider.

The availability of any Third-Party Offerings through the Nickel Services does not imply Nickel’s endorsement of or affiliation with the Third-Party Providers. Nickel does not control Third-Party Offerings and will have no liability to you or your affiliates in connection with any Third-Party Offerings, including but not limited to the Third-Party Provider’s decision not to grant you access to the Third-Party Offering. Nickel has no obligation to monitor or maintain Third-Party Offerings, and may disable or restrict access to any Third-Party Offerings at any time.

A “Third-Party Agreement” is the legal agreement between you and a Third-Party Provider. You may be presented with a Third-Party Agreement before you create your Account. Any procurement by you of Payment Processing Services will be subject to any Third-Party Agreements you have executed (and any agreements incorporated by reference therein), which are solely between you and the applicable Third-Party Provider(s). By agreeing to a Third-Party Agreement, Merchant agrees to be bound by the Third-Party Agreement, as the same may be modified by the applicable Third-Party Provider(s) from time to time, and all applicable laws and regulations, and all applicable payment card network rules, policies, laws, and regulations, at all times while using any Third-Party Offerings. By using or enabling any Third-Party Offering, you are expressly permitting Nickel to disclose Your Data or other information to the extent necessary to utilize the Third-Party Offering.

YOUR USE OF THIRD-PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD-PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY OFFERINGS).

1.2.1 Third-Party Payment Card Processing Services

The processing of payment card transactions (i.e., credit and debit card processing) (“Payment Card Processing Services”) is provided directly by a Third-Party Provider to Merchant. In addition to the acceptance of this Agreement with respect to the Nickel Services, in order to receive such Payment Card Processing Services, and at Nickel’s discretion any other payment processing services offered by the Third-Party Provider, you will be required to accept the legal terms provided by an applicable Third-Party Provider. You agree that in connection with your use of the Payment Card Processing Services, you will comply with the terms and conditions of any Third-Party Agreement(s) you have executed, all applicable laws and regulations, and all applicable payment card network rules, policies, laws, and regulations, at all times while using such services made available by the Third-Party Provider.

1.2.2 Payments API

(Optional Placeholder) – If Merchant uses a Payments API as a Third-Party Offering, you may be required to accept a separate Third-Party Agreement governing the provision of that API. This includes compliance with the terms and conditions of such Third-Party Agreement and all applicable laws and regulations.

By checking the box that states “I Agree” before creating an Account, you acknowledge and agree that you are also indicating that you have reviewed and agree to the applicable Third-Party Agreement, as it may be modified from time to time by the applicable Third-Party Provider, pursuant to the terms of those agreements. Nickel is not a party to any Third-Party Agreement and is not liable to you in respect thereof. Merchant acknowledges and agrees that Nickel does not act on your behalf to process payments or receive payments.

As a condition of Nickel making available the Third-Party Offerings, Merchant agrees to provide Nickel with accurate and complete information about Merchant and Merchant’s business, and Merchant authorizes Nickel to share such information and other information to facilitate Merchant’s use of the Third-Party Offerings. Merchant acknowledges and agrees that a failure to provide such information may result in an inability to access Third-Party Offerings.

Notwithstanding anything to the contrary, Nickel may suspend performance hereunder or terminate this Agreement upon notice to Merchant if any Third-Party Offering provider:

  1. (a) Ceases providing services to Nickel for any reason, or
  2. (b) Determines it is unable to support our provision of the Nickel Services to Merchant.

1.3 Restrictions and Covenants

Merchant will not, and will not permit any third party to:

  • (a) Use the Nickel Services or Third-Party Offerings to harvest, collect, gather or assemble information or data regarding other users without their consent;
  • (b) Access or copy any data or information of other users without their consent;
  • (c) Knowingly interfere with or disrupt the integrity or performance of the Nickel Services or Third-Party Offerings, or the data contained therein;
  • (d) Reverse engineer, disassemble or decompile any component of the Nickel Services, Nickel Technology, or Third-Party Offerings;
  • (e) Interfere in any manner with the operation of the Nickel Services or Third-Party Offerings or the network used to operate either of the foregoing;
  • (f) Copy or make derivative works based on any part of the Nickel Services, Nickel Technology, or Third-Party Offerings; or
  • (g) Otherwise use the Nickel Services, Nickel Technology, or Third-Party Offerings in any manner that exceeds the scope of use permitted under this Agreement.

Merchant acknowledges and agrees that the Nickel Services will not be used, and are not licensed for use, in connection with any of Merchant’s time-critical or mission-critical functions.

Merchant represents, warrants and covenants that:

  • (x) Merchant’s use of the Nickel Services will comply with all applicable laws and regulations, including the CAN-SPAM Act of 2003 and the Telephone Consumer Protection Act of 1991, and the terms of this Agreement;
  • (y) Merchant has obtained all rights, licenses, consents and releases that are necessary to make available to Nickel the Merchant Data and otherwise make the purchase of its Products available to Buyers on the Merchant Website via the Nickel Services.

1.4 Merchant Obligations

As between Nickel and Merchant, Merchant is responsible for Product delivery, shipment, returns/return policies, refunds/refund policies, chargebacks, invoice creation, warranties, and any other Product-related complaints by Buyers or any other third parties. Without limiting the foregoing, Merchant is solely responsible for ensuring the accuracy of Transaction-related invoices submitted through the Nickel Services, and Nickel will not be liable to you or Buyer for any claims, losses, or inaccuracies in connection therewith.

Notwithstanding the foregoing, Merchant agrees that Nickel may make certain information available on your behalf through the Payments API to facilitate refunds/chargebacks to be processed through the Payment Processing Services. As between Nickel and Merchant, Merchant is responsible for providing any information Nickel reasonably requests related to a chargeback, and Merchant agrees to provide evidence that the items or services involved in the chargeback request were delivered, as applicable, and that such item(s) were as described in the original listing, as well as any additional information Nickel or a Third-Party Provider may request, within five (5) days (or sooner if requested by a Third-Party Provider) of being informed of the chargeback.

Merchant agrees that its standard terms of service and privacy policy (“Merchant Standard Terms”) will apply to any Buyer’s purchase, use, or inability to use, the Products. Merchant further agrees to make the Merchant Standard Terms available to Buyers at the point of purchase in accordance with applicable law.

2. ADDITIONAL SERVICES

Where the parties have agreed to Nickel’s provision of integration, design, development, operational, and other professional services (“Additional Services”), they will enter into an Order specifically governing the provision of the Additional Services. The Order will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of the Order and the terms of this Agreement, the terms and conditions of this Agreement will govern. The Order will include:

  1. A description of the Additional Services;
  2. The schedule for the performance of the Additional Services;
  3. The ownership rights with respect to the work product resulting from the performance of the Additional Services (and if no such provision is provided, all ownership rights are and shall be vested in Nickel immediately); and
  4. Nickel’s then-current rates for the performance of the Additional Services.

3. PAYMENTS AND FEES

3.1 Fees

In consideration for access to the services rendered hereunder, Merchant agrees to pay all Fees as set forth in this Section.

  1. Subscription Fee
    Merchant will pay to Nickel a monthly subscription fee based on the number of users authorized to access the Nickel Services (the “Subscription Fee”).
  2. Processing Fees
    As between Nickel and Merchant, Merchant is responsible for payment processing fees charged by applicable Third-Party Providers for each Transaction that is processed through the Payment Processing Services (the “Processing Fees”, and together with the Subscription Fees, “Fees”).

Merchant will pay all Fees in accordance with the terms of this Agreement and any applicable Order. Upon the execution of this Agreement, the Subscription Fee for the first month of the Term will be due and payable within fourteen (14) days of the Effective Date. For each subsequent month during the Term, Nickel will invoice Merchant for that month’s Subscription Fee in advance, on or around the first day of the month. Processing Fees will be invoiced monthly, in arrears for all processing-related fees incurred during the prior month. Unless otherwise agreed in an Order or stated herein, all Fees are due within thirty (30) days of receipt of invoice. All Fees are quoted in United States Dollars, and except as otherwise agreed upon in an Order, all payment obligations under this Agreement are non-cancelable and all Fees paid are non-refundable.

3.2 Taxes

The fees are exclusive of, and Merchant will pay, all sales, use, excise, income, and other taxes and applicable export and import fees, customs duties, and similar charges that may be levied upon Merchant in connection with this Agreement, except for employment taxes for Nickel employees and taxes based on Nickel’s net income. Merchant is responsible for accurately calculating taxes associated with Transactions.

4. NICKEL PROPRIETARY RIGHTS

4.1 Generally

Merchant acknowledges that as between the parties, Nickel retains all right, title, and interest (including all Intellectual Property Rights) in and to the Nickel Services and the Nickel Technology, and that other than as expressly set forth in this Agreement, no license or other rights in the Nickel Services or Nickel Technology are granted to Merchant.

4.2 Feedback

From time to time Merchant or its agents may provide suggestions, enhancement requests, recommendations, corrections, or other feedback to Nickel with respect to the Nickel Services or Nickel Technology (“Feedback”). Merchant acknowledges and agrees that all Feedback and all Intellectual Property Rights therein are the exclusive property of Nickel, and hereby assigns to Nickel all right, title, and interest thereto.

5. MERCHANT PROPRIETARY RIGHTS; MERCHANT DATA

5.1 Data Sharing

Nickel may disclose information about Merchant to Third-Party Providers to facilitate Merchant’s access to the Nickel Services or Third-Party Offerings. The Third-Party Providers may use or disclose this information to their third-party vendors, Acquirers, and/or Payment Networks in compliance with applicable privacy law (including, when applicable, the California Consumer Privacy Act and applicable state privacy laws) to facilitate the provision of the applicable Nickel Services or Third-Party Offerings. By agreeing to the terms and conditions of this Agreement, you acknowledge and agree that Nickel may disclose Financial Information and other data to Third-Party Providers, and that such Third-Party Providers will collect, use, retain, and disclose any information that Nickel provides to such Third-Party Providers in accordance with applicable privacy laws. Without limiting anything else set forth herein, Merchant expressly agrees to the data use and sharing terms set forth in any Third-Party Agreement(s) executed by Merchant and any such Third-Party Provider(s).

5.2 Merchant Marks

Solely to the extent necessary to provide the Nickel Service [and to perform Additional Services], Merchant hereby grants to Nickel a term-limited, non-exclusive, worldwide, royalty-free and fully paid license to access, use, reproduce, modify and display the Merchant’s trademarks, logos and service marks (“Merchant Marks”), subject to Merchant’s prior written approval on a periodic basis (it being understood that approval shall be deemed given for general use cases, and that individual approval for each similar use is not required). Merchant owns all rights in and to the Merchant Marks.

5.3 Merchant Data

(A) Ownership; License
The Merchant Data made available to Nickel as part of the Nickel Services, and all worldwide Intellectual Property Rights therein, is the exclusive property of Merchant. Merchant hereby grants to Nickel a non-exclusive, worldwide, royalty-free and fully paid license to access, use, reproduce, modify and display the Merchant Data for the purposes of:

  1. (a) Providing, training, and improving the Nickel Services and Nickel Technology,
  2. (b) Generating Aggregated and Anonymous Data (as defined below),
  3. (c) Exercising its rights and obligations under this Agreement,
  4. (d) Providing Third-Party Offerings with access to required information, and
  5. (e) Complying with its obligations under law.

All rights in and to the Merchant Data not expressly granted to Nickel in this Agreement are reserved by Merchant.

(B) Aggregate and Anonymous Data
Notwithstanding anything to the contrary herein, Merchant agrees that Nickel may obtain and use Merchant Data to create aggregated, anonymized, or deidentified data or information of similar form that does not permit the identification of Merchant or any individual or entity (the “Aggregated and Anonymous Data”). Merchant further agrees that Nickel shall own such Aggregated and Anonymous Data and may retain, use, and disclose such data for any lawful business purpose, including to improve its products and services.

(C) Data Representations
Merchant represents and warrants that any Merchant Data made available to Nickel or its service providers, including Third-Party Providers, by or on behalf of Merchant as part of the Nickel Services will:

  • (a) Be (and remain) true, accurate, current, and complete,
  • (b) Not infringe, misappropriate, or violate any Intellectual Property Rights, publicity/privacy rights, laws, or regulations,
  • (c) Not be deceptive, defamatory, obscene, pornographic, or unlawful,
  • (d) Not contain any viruses, worms, or other malicious computer programming codes intended to damage, surreptitiously intercept, or expropriate any system, data, or personal or personally identifiable information, and
  • (e) Not otherwise violate the rights of a third party.

Nickel is not obligated to back up any Merchant Data. Merchant is solely responsible for creating backup copies of any Merchant Data at Merchant’s sole cost and expense. Merchant agrees that any use of the Nickel Services contrary to or in violation of the representations and warranties of Merchant in this section constitutes unauthorized and improper use of the Nickel Service.

5.4 Buyer Data

As between the parties, the Buyer Data made available to Nickel as part of the Nickel Services, and all worldwide Intellectual Property Rights therein, is the exclusive property of Buyer. Nickel’s use and disclosure of Buyer Data will be subject to Nickel’s Standard Terms.

6. REPRESENTATIONS AND WARRANTIES

6.1 Mutual

Each party represents and warrants that:

  1. (a) It has the requisite power and authority to enter into, deliver, and perform the obligations under this Agreement; and
  2. (b) This is a valid and legally binding Agreement enforceable against it and its business.

6.2 Nickel Warranty

Nickel warrants to Merchant that, when used as permitted by Nickel and in accordance with the Documentation, the Nickel Services will operate materially free from Errors during the term of the Agreement. Merchant’s exclusive remedy, and Nickel’s sole obligation, for breach of the foregoing warranty during the term hereof shall be Nickel’s efforts to correct Errors.

6.3 Disclaimer

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NICKEL SERVICES AND THE NICKEL TECHNOLOGY ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS, AND NICKEL AND ITS AFFILIATES, SUPPLIERS, CONTRACTORS, AND LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, RELATING TO THE NICKEL SERVICES AND NICKEL TECHNOLOGY WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NICKEL DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE NICKEL SERVICES AND THE NICKEL TECHNOLOGY WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE.

SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO MERCHANT.

7. LIMITATION OF LIABILITY

7.1 Generally

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY NOR TO ANY THIRD PARTIES FOR LOST PROFITS OR LOST DATA OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE, OR PUNITIVE LOSSES OR DAMAGES HOWSOEVER ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE NICKEL SERVICES OR NICKEL TECHNOLOGY, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, WHETHER FORESEEABLE OR NOT, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE, OCCUR OR RESULT. IN NO EVENT SHALL NICKEL BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY MERCHANT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM (“LIABILITY CAP”). THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT HAS BEEN ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

7.2 Basis of the Bargain

THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN NICKEL AND MERCHANT. NICKEL’S FEES FOR THE SERVICES RENDERED HEREUNDER REFLECT THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

7.3 Exclusions

THE LIMITATIONS OF LIABILITY IN THIS SECTION DO NOT APPLY TO:

  1. (A) A breach by Merchant of Section 2.1(A) or Section 5.3(C);
  2. (B) Merchant’s indemnification obligations; or
  3. (C) Willful misconduct.

8. CONFIDENTIALITY

“Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt, the Nickel Service, Nickel System, and Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Nickel. Information will not constitute the other party’s Confidential Information if it:

  • (a) Is already known by the Receiving Party without obligation of confidentiality;
  • (b) Is independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information;
  • (c) Is publicly known without breach of this Agreement; or
  • (d) Is lawfully received from a third party without obligation of confidentiality.

The Receiving Party will not use or disclose any Confidential Information except as expressly authorized by this Agreement and will protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event less than reasonable care. The Receiving Party will take prompt and appropriate action to prevent unauthorized use or disclosure of the Disclosing Party’s Confidential Information.

In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

9. INDEMNIFICATION

9.1 By Nickel

Nickel will defend at its expense any suit brought against Merchant, and will pay any settlement Nickel makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the permitted use of the Nickel Service infringes, misappropriates, or violates any third party Intellectual Property Rights. If any portion of the Nickel Services becomes, or in Nickel’s opinion is likely to become, the subject of a claim of infringement, Nickel may, at Nickel’s option:

  1. (a) Procure for Merchant the right to continue using the Nickel Services;
  2. (b) Replace the Nickel Services with non-infringing software or services which do not materially impair the functionality of the Nickel Services;
  3. (c) Modify the Nickel Services so that it becomes non-infringing; or
  4. (d) Terminate this Agreement and refund any fees actually paid by Merchant to Nickel for the remainder of the term then in effect, and upon such termination, Merchant will immediately cease all use of the Nickel Services and Documentation.

Notwithstanding the foregoing, Nickel shall have no obligation under this section or otherwise with respect to any infringement claim based upon:

  • (x) Any use of the Nickel Services not in accordance with this Agreement or as specified in the Documentation;
  • (y) Any use of the Nickel Services in combination with other products, equipment, software or data not supplied by Nickel; or
  • (z) Any modification of the Nickel Service by any person other than Nickel or its authorized agents

(collectively, “Exclusions”). This Section states Nickel’s entire liability and Merchant’s sole and exclusive remedy for the claims and actions described herein.

9.2 By Merchant

Merchant will defend at its expense any suit brought against Nickel, and will pay any settlement Merchant makes or approves, or any resulting damages, insofar as such suit is based on a claim by any third party arising out of or relating to:

  1. (a) An Exclusion;
  2. (b) Merchant’s breach of law;
  3. (c) Any breach by Merchant of any Third-Party Offering terms that Merchant executes with a provider of such Third-Party Offering, including for any chargebacks or losses Nickel may incur due to such breach;
  4. (d) Merchant’s Products; and
  5. (e) Any claims by Buyers or claims related to Nickel’s permitted use of Merchant Data (other than to the extent resulting from Nickel’s breach of this Agreement).

This Section sets forth Merchant’s entire liability and Nickel’s sole and exclusive remedy for the claims and actions described herein.

9.3 Procedure

Any party that is seeking to be indemnified under the provisions of this Section (an “Indemnified Party”) must:

  1. (a) Promptly notify the other party (the “Indemnifying Party”) in writing of any third-party claim, suit, or action for which it is seeking an indemnity hereunder,
  2. (b) Give the Indemnifying Party sole control over the defense of such claim, suit, or action and any related settlement negotiations, and
  3. (c) Cooperate and, at Indemnifying Party’s reasonable request and expense, assist in such defense.

10. TERM AND TERMINATION

10.1 Term

This Agreement is effective as of the Effective Date and will remain in effect for a period of two (2) years, unless earlier terminated in accordance with this Agreement (the “Term”).

10.2 Termination

Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. Nickel may suspend performance hereunder or terminate this Agreement upon notice to Merchant in the event that any Third-Party Offering provider:

  1. (a) Ceases providing services to Nickel for any reason, or
  2. (b) Determines it is unable to support our provision of the Nickel Services to Merchant.

10.3 Effect of Termination

Upon termination or expiration of this Agreement for any reason:

  1. (a) All rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate;
  2. (b) Any amounts owed to Nickel under this Agreement will become immediately due and payable; and
  3. (c) Each party will return to the other all property (including any Confidential Information) of the other party.

The sections and subsections titled Definitions, License Grant; Restrictions (with respect to the restrictions only), Additional Restrictions and Covenants, Nickel Proprietary Rights, Payments and Fees, Merchant Proprietary Rights; Merchant Data (excluding any term-limited license grants), Mutual Representations and Warranties, Limited Warranty; Disclaimer, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous, and any other provisions which should by their nature survive expiration or termination, will survive expiration or termination of this Agreement for any reason. During the period commencing on the effective date of any termination or expiration of this Agreement and ending thirty (30) calendar days thereafter, Nickel will use commercially reasonable efforts to export Merchant Data contained in the Nickel System and will provide such Merchant Data to Merchant, upon Merchant’s request.

11. MISCELLANEOUS

11.1 Marketing; Publicity

Merchant agrees that (in addition to the express license granted above) Nickel may use the Merchant Marks, subject to Merchant’s then-current trademark usage guidelines, in Nickel’s marketing materials or communications (including, but not limited to, Nickel’s website and in Nickel’s marketing presentations) for the sole purpose of indicating Merchant as a Merchant of the Nickel Services. Neither party will issue a press release announcing its relationship with the other party without the other party's prior approval, not to be unreasonably withheld or delayed. Subject to the terms and conditions of this Agreement, Merchant hereby grants to Nickel a non-exclusive and limited license to use and publicly display Merchant’s logo as set forth in this Section.

11.2 Governing Law and Venue

This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Merchant hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Nickel’s principal place of business is located for any lawsuit filed there against Merchant by Nickel arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Merchant shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Nickel Service, Nickel System, or Documentation.

11.3 Export

Merchant agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Nickel, or any products utilizing such data, in violation of the United States export laws or regulations.

11.4 Severability

If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

11.5 Waiver

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.6 No Assignment

Merchant shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Nickel, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Merchant may assign this Agreement in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.

11.7 Force Majeure

Nickel will not be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of Nickel.

11.8 Independent Contractors

Merchant’s relationship to Nickel is that of an independent contractor, and neither party is an agent or partner of the other. Merchant will not have, and will not represent to any third party that it has, any authority to act on behalf of Nickel.

11.9 Notices

All notices or other communications required or permitted under this Agreement will be in writing to the other party, for customer, at the address provided to Nickel upon registration, and for Nickel, at 594 Dean Street, Brooklyn, NY 11238, and will be delivered by personal delivery, certified overnight delivery such as Federal Express, or registered mail (return receipt requested) and will be deemed given upon personal delivery or upon confirmation of receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.

11.10 Electronic Communications

For contractual purposes, you:

  1. (a) Consent to receive communications from Nickel in an electronic form; and
  2. (b) Agree that all terms and conditions, agreements, notices, disclosures, and other communications that Nickel provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.

The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).

11.11 Entire Agreement

This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of the parties.

12. DEFINITIONS

In addition to terms defined in the body of this Agreement, as used in this Agreement:

  1. “Acquirer” means a financial institution that processes credit and debit card transactions on behalf of the card issuers.
  2. “Buyer” means any customer of Merchant who purchases Merchant’s products, materials, or services (collectively, “Products”) through the Merchant Website.
  3. “Buyer Data” means any data, information, content or materials supplied or made available by or on behalf of Buyers and used in connection with the Nickel Services.
  4. “Documentation” means the technical materials provided or made available by Nickel to Merchant in hard copy or electronic form that describe the features, functionality, or operation of the Nickel Services or Technology.
  5. “Error” means a reproducible failure of the Nickel Services to substantially conform to the Documentation.
  6. “Financial Information” means information required to perform financial transactions, such as bank account information, or credit, debit, charge, or prepaid card information.
  7. “Intellectual Property Rights” means any and all now known or hereafter existing:
    • (a) Rights associated with works of authorship, including copyrights, mask work rights, and moral rights;
    • (b) Trademark or service mark rights;
    • (c) Trade secret rights;
    • (d) Patents, patent rights, and industrial property rights;
    • (e) Layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights;
    • (f) All registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
  8. “Merchant Data” means any data, information, content, or materials supplied or made available by or on behalf of Merchant and used in connection with the Nickel Services.
  9. “Merchant Website” means any Merchant website on which the Widget is embedded.
  10. “Nickel Services” means the embedded link (“Widget”) provided by Nickel to Merchant designed to facilitate Merchant’s ability to accept online payments via the Merchant Website including any related services. Notwithstanding anything to the contrary, Nickel Services exclude the Third-Party Offerings.
  11. “Nickel Technology” means the Nickel Services, Documentation, [results of Additional Services,] all software and all Nickel proprietary information and technology used by Nickel or provided to Merchant in connection with the Nickel Services, and Aggregated and Anonymous Data (as the foregoing are defined herein).
  12. “Order” means any ordering document signed or acknowledged by both parties in writing that references this Agreement.
  13. “Payment Networks” mean the entities that facilitate credit or debit card payments, such as Visa, Mastercard, American Express, and Discover.
  14. “Third-Party Offerings” means any third party products, applications, websites, implementations, or services, including Payment Processing Services, that the Nickel Services link to or provide access to, or that interoperate with or are used in conjunction with the Nickel Services.
  15. “Transaction” means a purchase, sale, donation, order, or other transaction.