Merchant Beta Agreement
Last Updated: December 28, 2023
THIS MERCHANT BETA AGREEMENT (“Agreement” or “General Terms”) is made by and between Zapxy. ("ZAPXY,", ZAP” “We” or “Us”), located at 101 Jefferson, Menlo Park, CA 94025 and the party indicating acceptance of this Agreement ("Merchant," “You” or “Your”).
GENERAL TERMS AND CONDITIONS
WHEREAS,
A. ZAP has developed a payments network & mobile application including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material (“Service”).
B. ZAP desires that the Service be tested prior to general release.
C. Merchant wishes to serve as a Beta test site for such Service;
NOW, THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties hereto agree as follows:
ZAP grants to Merchant a non-exclusive, non-transferable, revocable, and non-sublicensable license to use the Service on a single device at Merchant's business location solely for Beta testing and Beta use from effective date of agreement to 15 days after official release date of the products(s), subject to the terms and conditions below.
In consideration for receiving the Service for testing, Merchant agrees to serve as a "Beta Site" for the Service and will notify ZAP of all problems and ideas for enhancements which come to Merchant's attention during the period of this Agreement, and hereby assigns to ZAP all right, title and interest to such enhancements and all property rights therein including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights.
Merchant agrees that the Service is the sole property of ZAP and includes valuable trade secrets of ZAP. Merchant agrees to treat the Service as confidential and will not without the express written authorization of ZAP:
a. Copy, sell or market the Service to any third party
b. Publish or otherwise disclose information relating to performance or quality of the Service to any third party
c. Modify, reuse, disassemble, decompile, reverse engineer or otherwise translate The Service or any portion thereof.
The Service is prerelease code and is not at the level of performance or compatibility of a final, generally available product offering. The Service may not operate correctly and may be substantially modified prior to first commercial shipment or withdrawn. The Service is provided "AS IS" without warranty of any kind. The entire risk arising out of the use or performance of the Service remains with Merchant. In no event, shall ZAP be liable for any damage whatsoever arising out of the use of or inability to use the Service, even if ZAP has been advised of the possibility of such damages.
The Merchant agrees to provide material, statistics, or information that is not deemed confidential to Merchant’s business for use in press releases, customer testimonials, and as a reference in marketing and sales initiatives by ZAP. Merchant will provide a quote to ZAP that may be used in a press release.
Any notice required by this Agreement shall be given by a nationally recognized overnight delivery service or certified mail, return receipt requested to above address or such other address as may be given from time to time under the terms of this notice provision.
This Agreement constitutes the entire and only agreement between the parties for the Service and all other prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties.
Merchant shall comply with all applicable federal, state and local laws, regulations, and ordinances in connection with its activities pursuant to this Agreement.
Failure of ZAP to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.
If any provision of this Agreement shall be found by an arbitrator or court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.
Merchant agrees to make every effort to ensure all transactions are legitimate and will decline to a transaction if there is any doubt that the user is using a legitimate account.
Payments processed by The Service on behalf of Merchant will be collected by ZAP. ZAP agrees to pay Merchant for payments collected on its behalf via ACH, intrabank transfer, debitPIN, direct wire, deposit, credit card or any other method of transfer.
ZAP will send payment data amounts to Merchant at the end of every business day. Should there be any discrepancy with the payments data, the Merchant should contact ZAP within forty eight (48) hours via beta@zapxy.com.
Merchant agrees to do everything possible to eliminate fraud and ensure every transaction is a legitimate transaction, including but not limited to, rejecting a transaction when fraud is suspected. Merchant agrees to immediately notify ZAP of any potentially fraudulent activity.
Messaging Customers.
Merchant understands that it will have the ability and access to “message” ZAP users and the Merchant’s customers from time-to-time. Merchant understands that the messages are meant to be informational about Merchant’s business. Merchant agrees that the messages will not be offensive or use offensive language. Merchant agrees not to engage in any form of hate speech, and further agrees not to discriminate against any ZAP user based on race, creed, national origin, gender, sexual orientation or age. Merchant understands that ZAP will monitor these messages and reserves the right to reject any message at its own discretion.
Confidentiality; Proprietary Information.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of ZAP includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Merchant includes non-public data provided by Merchant’s customers to ZAP to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer Data.
Notwithstanding anything to the contrary, ZAP shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and ZAP will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other ZAP offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
Restrictions.
You may not, nor may you permit any third party, directly or indirectly, to:
a. export the Services, to any country outside of the United States of America, this means should you leave the country, you must suspend your account and account access and delete the app from your phone. You agree to fully comply with US law and US Export Administration Regulations (15 C.F.R. Chapter VII);
b. engage in any activity that may be in violation of regulations administered by the United States Department of the Treasury’s Office of Foreign Asset Control (31 C.F.R. Parts 500-599). Prohibited activity includes but is not limited to the provision of Services to or for the benefit of a jurisdiction, entity, or individual blocked or prohibited by relevant sanctions authorities, including but not limited to activities in Iran, Cuba, North Korea, Russia, Syria, or the Crimean Region of the Ukraine. If found to be in apparent violation of these restrictions, your account will be terminated, and your funds could be held for an indefinite period of time;
c. access or monitor any material or information on any ZAP system using any manual process or robot, spider, scraper, or other automated means;
d. use any work-around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services;
e. perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;
f. copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from ZAP;
g. use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement;
h. transfer any rights granted to you under these General Terms;
i. use the Services for the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm or any U.S. federally illicit drugs;
j. use the Services for terrorist funding, money laundering, illegal gambling, any other illegal activity or goods, or that in any way exposes you, other ZAP users, our partners, or ZAP to harm; or
k. otherwise use the Services except as expressly allowed under these Terms. If we reasonably suspect that your ZAP account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your ZAP account, and any of your transactions with law enforcement.
Payment Services.
ZAP is a “payment processor” pursuant to 31 CFR §1010.100(ff)(5)(ii)(B). We are not a bank and do not provide banking services. We provide a payment service that enables you as the ZAP Merchant holder to accept payments for a product or service only from ZAP account holders.
Indemnity.
You will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; and (e) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code.
No Warranties.
THE USE OF “ZAP” MEANS ZAP, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES). THE SERVICES ARE BETA AND PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ZAP SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ZAP DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ZAP does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party. ZAP does not have control of, or liability for, goods or services that are paid for using the Services.Limitations of Liability and Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ZAP BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. IN ALL CASES, ZAP WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
UNDER NO CIRCUMSTANCES WILL ZAP BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ZAP ACCOUNT, OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF ZAP IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) $500. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ZAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.Third-Party Products.
All third-party hardware and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. ZAP MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE
Disputes.
“Disputes” are defined as any claim, controversy, or dispute between you and ZAP, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these Terms or the Services, or any other aspect of our relationship.
Binding Individual Arbitration
You and ZAP agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST ZAP. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org) according to this Section and the applicable arbitration rules for that forum. The Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the General Terms and/or Additional Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Subject to applicable jurisdictional requirements, you may elect to pursue your claim in your local small-claims court rather than through arbitration so long as your matter remains in small claims court and proceeds only on an individual (non-class or non-representative) basis. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. Any arbitration hearing will occur in San Mateo County, California, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. An Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. ZAP will reimburse the arbitration fees due to the American Arbitration Association for individual arbitrations brought in accordance with this section for all claims totaling less than $10,000 unless the Arbitrator determines that your claims were frivolous. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the arbitrator. For any claim where you are seeking relief, we will not seek to have you pay our attorney’s fees, even if fees might otherwise be awarded, unless the Arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and ZAP also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases as discussed above) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the County of San Mateo, California, or federal court for the Northern District of California. Notwithstanding the foregoing, ZAP may bring an action for collection of amounts due as well as collection costs and attorney fees, in the County of San Mateo, California and you consent to jurisdiction and venue therein.
Governing Law
These General Terms and any Dispute will be governed by California law and/or applicable federal law (including the Federal Arbitration Act), without regard to its choice of law or conflicts of law principles.
Limitation on Time to Initiate a Dispute
Any action or proceeding by you relating to any Dispute must commence within 60 days after the cause of action accrues.
Assignment
These General Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.
Other Provisions
These General Terms, and any applicable Additional Terms or Policies, are a complete statement of the agreement between you and ZAP regarding the Services. In the event of a conflict between these General Terms and any other ZAP agreement or Policy, these General Terms will prevail and control the subject matter of such conflict. Merchant agrees to that the person providing the electronic signature hereto has the authority to bind the Merchant to this Agreement. If any provision of these General Terms or any Additional Term is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These General Terms do not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these General Terms will be deemed a further or continuing waiver of such term or any other term.