Parqer - Cashless Valet Parking
Parqer Partner Agreement
PARTNER TERMS AND CONDITIONS
1. General Description
1.1. Parqer Payments, LLC ("we" or "Company" or "Parqer") provides Partners (also "you") access to the Parqer mobile payment and customer engagement platform ("Parqer platform"), and provides Parqer Partner Accounts, subject to your acceptance of and compliance with the following Parqer Partner Terms and Conditions ("Partner Terms").
1.2. Parqer authorizes use of the Parqer platform by Partners, subject to the terms and conditions set forth in these Partner Terms, strictly for the purpose of accepting Parqer as a method of payment at Partner's points of sale (POS), and/or Online points of sale. By applying for a Parqer Partner Account, and by accessing and utilizing the Parqer platform, and as an express condition of such use and access, you agree to comply with all of the following Partner Terms. These Partner Terms, as amended by Parqer from time to time, constitute a complete and binding legal agreement between you and Parqer. THESE PARTNER TERMS INCLUDE AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY.
1.3. Parqer reserves the right to change, update or otherwise alter these Partner Terms at any time by posting the updated terms on the Parqer website. All changes are effective immediately. We will do our best to notify you of any significant changes, but it shall remain your responsibility to monitor these Partner Terms for changes. Your continued use of the Parqer platform and services will constitute your consent to such changes. If you do not agree to the changes, you must cease your use of the Parqer platform and notify Parqer of your termination of this Agreement. In the event of a conflict between these Partner Terms and any other content provided by Parqer, unless specifically provided otherwise, these Partner Terms shall govern.
1.4. Definitions. In addition to the terms defined in parentheses throughout these Partner Terms, the following terms shall mean:
1.4.1. "User" means individuals having an established Parqer user account, with at least one financial account and/or payment instrument linked to such account, who have accepted the Parqer User Terms of Service (http://www.parqer.com/user-agreement/) ("User Terms"). Users may initiate payments via the Parqer platform using a Parqer App and/or through a Parqer Online POS.
1.4.2. "Parqer App" means any software application, including without limitation mobile applications for iOS Android, or Windows operating systems, or other software or web applications, authorized by Parqer and the application's User to access the Parqer platform, including without limitation by securely requesting and receiving payment tokens and accessing User Data, in whole or in part. The Parqer App allows Partners to accept any US-issued credit or debit card ("Cards") with a Visa, Mastercard, American Express, or Discover Logo. We may remove or add Cards that we accept at any time without prior notice. We will generally only process Cards that receive an authorization from the Card issuer.
1.4.3. "Online POS" means any piece of software that enables orders to be tendered with Parqer online.
1.4.5. "User Credit" shall refer to credit granted to a Parqer user by a party other than the redeeming Partner, that may be applied toward the purchase of Partner goods and/or services at a Partner's POS or Partner's Parqer Online POS, via the Parqer platform.
1.4.6. "User Data" means all data collected by Parqer in operating and otherwise concerning the use of the Parqer platform.
1.4.7. The term "Net Sales Proceeds" means the sum total of all monies paid using Parqer as the payment method at your POS location, after subtracting applicable fees.
1.4.8. The term "Partner Dashboard" means your portal provided at the Parqer website to view and manage your Partner Account and User Data.
2. Parqer's Principal Obligations
Parqer allows you to accept payments, including Card-based payments initiated with Cards bearing the trademarks of MasterCard International Inc. and Visa Inc. (collectively, the “Networks”). We are not a bank and we do not offer banking services as defined by the United States Department of Treasury.
As a payment service provider, Parqer facilitates the processing of payments you receive from your Users. This means that we collect, analyze and relay information generated in connection with these payments.
In order to serve in this role, we must enter into agreements with Networks, processors and acquiring banks. In some cases, Visa and MasterCard require that our Partners enter into an agreement directly with Parqer’s acquiring bank. If you are such a Partner we will provide you a “Commercial Entity Agreement” that you must complete in order to use the Services. This may happen during the registration process or at some other time. If you fail to complete a “Commercial Entity Agreement,” we may suspend or terminate your Parqer Account. Similarly, if you are a high value customer, American Express may require that you maintain your agreement directly with them and designate Parqer as your agent for American Express payments. If that is the case, you will be notified of such requirement.
In connection with your usage of the Parqer platform, and subject to the more detailed Partner Terms set forth herein, Parqer agrees that we will:
2.1. Work with you to enable you to accept the Parqer App as a method of payment at your physical POS locations and/or Online POS locations;
2.2. Permit you to leverage the Parqer platform to engage Parqer Users and new users;
2.3. Provide you with rich analytics about your customer Users' activities via our Parqer Partner Business Dashboard, in accordance with applicable Users' permissions;
2.4. Work with you to try to resolve promptly and professionally any User complaints related to the usage of the Parqer platform at your locations; and
2.5. Provide fast payment to you of the Net Sales Proceeds from Parqer transactions at your POS locations.
3. Partner's Principal Obligations
In connection with your usage of the Parqer platform, and subject to the more detailed Partner Terms set forth below, you agree that you will:
3.1. Work with Parqer to provide complete and accurate information concerning your business as may be requested in connection with your usage of the Parqer platform, and to maintain the accuracy of all such information;
3.2. Permit Users to use a Parqer App as a form of payment for goods and services, while offering to Users the same prices generally available to any customer using any other payment method including cash, credit/debit cards and any other form of payment;
3.3. Immediately notify Parqer of any actual or suspected unauthorized use, fraud, violations of any state or federal laws or regulations, or other breach of these Partner Terms or Parqer's User Terms;
3.4. Publicize your relationship with Parqer and encourage your customers to use Parqer, including by messaging via Twitter, Facebook, Text, and/or email to your existing customers;
3.5. Agree to add a sticker to your physical storefront and a digital badge to your website explaining that customers may pay with Parqer (Parqer will provide such materials free of charge).
4. Partner Application, Registration, and Approval
4.1. In order for Parqer to effect payments to you by Users via the Parqer platform, and for you to leverage the Parqer platform for Campaigns, you must be registered with Parqer and have an established Parqer Partner Account. You may request a Parqer Partner Account by contacting Parqer directly, by phone or email. A Parqer representative will contact you with information needed to complete an application to register for a Parqer Partner Account.
4.2. In order to establish a Parqer Partner Account, Parqer requires that you provide Parqer certain information, including without limitation your full legal name and/or the legal name of your business, your Social Security Number and/or the Federal Employer or Tax ID Number of your business, and account information for a valid financial account connected to the ACH network. Parqer will maintain the security of your account information using a third-party provider. Parqer does not share your personal, business, or bank account information except as required to establish and maintain the Parqer Partner Account.
4.3. By establishing a Parqer Partner Account associated with one or more financial accounts, you authorize Parqer to credit your associated financial account directly, including without limitation for the payment of Net Sales Proceeds..
4.4. You represent and warrant that all information provided by you to Parqer in connection with the application for a Partner Account is complete and accurate. You agree to update all such information promptly in the event of any changes. The provision of inaccurate information shall be grounds for revocation of your Partner Account, without limitation to other available remedies.
4.5. US Patriot Act Notice: To help the government fight the funding of terrorism and money laundering activities, federal law requires financial institutions to obtain, verify, and record information that identifies each person who registers for a Partner Account with Parqer. Partners will be required to provide such information to the satisfaction of Parqer prior to establishing a Partner Account.
4.6. Parqer reserves the right to reject an application or registration for a Parqer Partner Account, for any reason.
5. Payments Using Parqer
5.1. Payments. For transactions using Parqer as a method of payment at Partner's point-of-sale, Parqer pays Partners the Net Sales Proceeds collected as follows:
5.1.1. Parqer pays Partner all Net Sales Proceeds on the next Monday following the transaction via direct deposit to the bank account associated with your established Parqer Partner Account via the ACH network. Transfers typically take 24 hours to arrive in the Partner's associated bank account. Some banks may take longer than 24 hours to process payments, particularly on weekends and holidays.
5.1.2. If, in our determination, you have not provided the goods or services in exchange for the Net Sales Proceeds, or otherwise violated these Partner Terms in connection with a submitted transaction, you agree that Parqer shall have the right to withhold and not to pay you such Net Sales Proceeds in connection with said transaction, and/or to pay a refund to any User following a distribution of Net Sales Proceeds to you, and to deduct such refund amount from future deposits to your account or to debit your associated financial account for the amount of the Net Sales Proceeds associated with the good/or services not delivered.
5.2. You understand that there may be times when the User may not be the authorized user of the Card or that such User may otherwise contest the transaction through the Chargeback process (described hereni). You agree to comply with the Chargeback process and to liability associated with such Chargebacks.
5.2.1. Your Liability for Chargebacks - The amount of a transaction may be reversed or charged back to your Parqer Partner Account (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Network, our processor, or a Buyer or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement.
5.2.2. Our Collection Rights for Chargebacks - For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a reserve. We may debit the amount of any Chargeback and any associated Fees, fines, or penalties or assessed by our processor from your Parqer Partner Account (including without limitation any Reserve), any proceeds due to you, your bank account, or other payment instrument registered with us. If you have pending Chargebacks, we may delay payouts from your Parqer Partner Account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a User's complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the User may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all Parqer Partner Account deficit balances unpaid by you.
5.2.3. Excessive Chargebacks - If we determine that you are incurring an excessive amount of Chargebacks, we may establish controls or conditions governing your Parqer Partner Account, including without limitation, by (a) establishing new processing fees, (b) creating a reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts, and (d) terminating or suspending your Parqer Partner Account.
5.2.4. Contesting Chargebacks - You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Parqer App. To that end, you permit us to share information about a Chargeback with the User, the User's financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release the reserved funds to your Parqer Partner Account. If a Chargeback dispute is not resolved in your favor by the Network or issuing bank or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in this Agreement. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.
5.3 Parqer Processing Errors - We will attempt to rectify processing errors that we discover. If the error resulted in your receipt of less than the amount to which you were entitled, Parqer will credit your Parqer Partner Account for the difference. If the error results in your receipt of more than the amount to which you were entitled, Parqer will debit the extra funds from your Parqer Partner Account. Parqer will only correct transactions that you process incorrectly if and when you notify us of such an error. Your failure to notify us of a processing error within thirty days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
6. Data Reporting and Analytics
6.1. Parqer provides to Partners, via the Partner Business Dashboard interface, access to User Data and related reporting and analytics features concerning transactions conducted on the Parqer platform at Partner's locations, as authorized by Parqer's Users. The User Data provided to Partners pursuant to these Partner Terms includes a history of a User's transaction on the Parqer platform at your locations (i.e., the date, time, location, and amount of each customer's individual purchases).
7. Use of the Parqer Platform
7.1. Your use of the Parqer platform, the Parqer Partner business dashboard, and your Parqer Partner Account, is authorized by Parqer for the limited purposes set forth in these Partner Terms.
7.2. You represent and warrant that all information provided by you to Parqer is complete and accurate. You agree that the entity identified in connection with your Parqer Partner Account shall be the only entity for which payments are accepted by the Parqer platform. Partners are not authorized to accept payments on behalf of an unidentified third party using the Parqer platform.
7.3. You agree that, to the extent the Parqer platform is used to facilitate payments by Users, payments shall only be accepted for goods and/or services actually delivered or provided by you in the ordinary course of your business, as described by you to Parqer in the application and registration process, or as updated from time to time by contacting Parqer. You are required to notify Parqer of any material change or expansion in the nature of goods and services offered by your business, for which you intend to accept Parqer as a method of payment.
7.4. You shall not use the Parqer platform for the purpose of accepting security or payment for loans, providing cash advances, check cashing, or otherwise distributing cash to any person or entity. You warrant to Parqer that you comply with all applicable laws and regulations concerning the prevention of money laundering and/or funding of terrorist organizations.
7.5. You shall not use the Parqer platform to accept payments for or in connection with any illegal activity, in violation of any federal, state, or local law, or in connection with any lottery or gambling activity.
7.6. You agree to comply with any individual transaction amount limits imposed by Parqer, and not to attempt to circumvent such individual transaction limits by “structuring” transactions, or breaking a large transaction amount into multiple smaller transaction amounts.
7.7. You agree to ensure that none of your employees or agents requests that a Parqer User divulge their credit or debit card account number, PIN number, or other personal identifying information such as address, telephone number, email address, or name, in connection with or as a condition to any Parqer transaction.
7.8. As a Partner utilizing the Parqer platform, your conduct and business practices reflect upon Parqer and the community of Partners accepting Parqer as a payment method. Parqer reserves the right to terminate your use of the Parqer platform if, in its sole discretion, it determines that your business, conduct, or business practices reflect poorly upon Parqer.
8. Marketing and Referrals
8.1. As a condition of your use of the Parqer platform, you grant Parqer a limited, non-exclusive license to use your business name, logo, and related information in order to promote your use of Parqer to Users.
8.2. In order to promote the success and accelerated use of Parqer following integration at your Partner locations, Parqer suggests that Partner engage in all or some of the following marketing initiatives, which Parqer has found to be particularly effective, specifically including the following:
8.2.1. Curbstand promotion including stickers on curb stands;
8.2.2. Handing out cards promoting the Parqer App to customers at each Partner location;
8.2.3. Email promotion to existing Partner’s customer base; and
8.2.4. Social media promotion of the Parqer App on Partner’s sites.
8.3. Parqer will assist Partners to a reasonable degree in planning and coordinating all of the above marketing initiatives. Costs and expenses associated with such marketing initiatives, or other marketing initiatives concerning the use of Parqer at Partner locations, are to be paid solely by Partner.
8.4. In order to facilitate the above-listed marketing initiatives, Partner is granted a limited, non-exclusive license to use Parqer promotional materials and Parqer trademarks and logos for the above-enumerated purposes. Partner shall not be permitted to alter or modify any Parqer trademarks or Logos. All other use of Parqer trademarks and logos shall be subject to the prior approval of Parqer. Partner shall not use any Parqer promotional materials or Parqer trademarks or logos in any way that suggests or implies that Parqer endorses Partner's products or services.
8.5. Parqer will list and/or promote Partner's location(s) to Users within the Parqer platform in a manner as determined by Parqer. In connection with such efforts, you grant us, our affiliates and our advertising partners, a limited, non-exclusive license to use, copy, reproduce, modify, license, distribute and publish any of your trademarks, service marks, logos, photographs, text, images or other content ("Partner Content") for publication as part of marketing or promotion of your use of Parqer to Parqer Users and new users, including in applications, on the Parqer website, through the online services of our affiliates and advertising partners. You represent and warrant to us that you have the right to provide the Partner Content to us, and that the use, copying, modification and publication of the Partner Content by us and by our affiliates and advertising partners: (a) will not infringe, violate or misappropriate any third party copyright, patent, trade secret or other proprietary rights, (b) will not infringe any rights of publicity or privacy, and (c) will not be defamatory or obscene or otherwise violate any law.
9. Parqer Fees
Parqer charges only the following fees:
9.1. Parqer charges a standard convenience and payment processing fee of (i) $0.75 for a complimentary valet transaction where the User pays only a gratuity or service charge, and (ii) $1.00 for a transaction where Partner charges a valet parking fee to the User ("Transaction Fee"). The Transaction Fee can be passed through to the User via the Parqer App.
10. Intellectual Property
10.1. You agree and acknowledge that Parqer owns and retains all ownership of all right, title and interest (including without limitation all copyright, trademark, patent, and/or trade secret rights) in and to the inventions, software, hardware, technology, tools, content, Campaigns, User Data, confidential information, websites, guides, online services, trademarks, logos, data, and other materials related to the Parqer platform and Parqer Apps, other than the Partner Content, defined above, or otherwise used by us to promote, sell, generate, or distribute the use of the Parqer platform (collectively, the "Parqer Content"). You may use the Parqer Content solely for the purposes of and as specified by these Partner Terms. Otherwise, Parqer reserves all rights in the Parqer Content, and no licenses or other rights to the Parqer Content are granted to you by your use of the Parqer Platform, or by these Partner Terms. Except as expressly provided herein, you shall not rent, lease, publish, license, distribute, transfer, copy, reproduce, display, or modify the Parqer Content or any portion thereof, or use such Parqer Content as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. You shall not prepare any derivative work based on the Parqer Content, nor shall you translate, reverse engineer, decompile or disassemble the Parqer Content.
11. Bundling and Debit Card Preference
11.1. Parqer employs a number of business strategies to continue to lower our costs associated with enabling the Parqer platform to be used by Users as a payment method. In order to be eligible for the low Parqer Transaction Fee set forth above, you agree to support such strategies. One such strategy is the practice of "bundling" (grouping User transactions together to avoid incurring multiple swipe fees). Bundling is a common business practice utilized by many businesses. Parqer may bundle Users' transactions according to User- granted permissions and the applicable User Terms, based on proprietary algorithms used to predict risk and frequency of use. Parqer reserves the right to group Users' transactions into payment bundles at any time, and to change our bundling algorithms at any time, without notice to Partner or User.
11.2. As a Partner, you will always be paid for transactions using Parqer as a payment method on the next Monday after the transaction, regardless of Parqer's bundling strategy. Parqer holds all risk associated with Parqer's inability to collect User funds at a later time. All Users are required to accept Parqer's User Terms of Service.
12. User Complaints; Fraud
12.1. If Parqer receives any User complaints related to your use of Parqer as a payment method, , you will cooperate with us as we investigate such complaints. While we will seek to resolve complaints to the satisfaction of all parties, we might not be successful in doing so, and so we reserve the right to refund payments to Users, and adjust the Net Sales Proceeds owed to you correspondingly, as determined to be necessary in our sole discretion.
12.2. Parqer employs a number of strategies to prevent fraudulent use of the Parqer platform and fraudulent transactions by Parqer Users, including for example immediate email receipts to Users to confirm transactions made using their Parqer account.
13. Representations and Warranties
You represent and warrant to Parqer that:
13.1. You have the right, power and authority to enter into this agreement to be bound by these Partner Terms, including the right to bind your employer if your access to the Parqer platform is undertaken or requested on behalf of your employer, and your execution and performance of these Partner Terms will not conflict with or violate any agreements or instruments by which you are bound, any applicable law, or any rights of any third party;
13.2. You are registered for sales and use tax collection purposes in all jurisdictions in which your goods and services will be provided pursuant to the use of the Parqer platform;
13.3. The use of your Parqer platform, including any discounts or goods and services offered thereunder, will comply with all, and will not violate any, local, state, federal or international law, statute, rule, regulation or order, including without limitation those governing rewards, incentives, gift cards, coupons and/or gift certificates; and
13.4. Any advertising or promotion of your products or services relating to the Parqer platform will not constitute, and you will not engage in any, false, deceptive or unfair trade practices.
14. Disclaimer of Warranties
We will make reasonable efforts to provide the Parqer platform and other services described in these Partner Terms to you in a workmanlike manner and in compliance with the applicable descriptions herein. Your sole and exclusive remedy, and Parqer's sole and exclusive liabilities, for breach of the foregoing covenant shall be as follows: (a) if you notify Parqer of any such breach within thirty (30) days of its occurrence, Parqer shall promptly remedy the error in accordance with the requirements of these Partner Terms; and (b) if Parqer fails to or is unable to remedy the error, Parqer will refund to you the Transaction Fee(s) applicable to the transaction related to the error. OTHER THAN AS EXPLICITLY SET FORTH IN THIS SECTION 17, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE PARQER PLATFORM INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PARTNERABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT OR ANY WARRANTIES ARISING FROM CUSTOM OR USAGE OF TRADE. WE DO NOT WARRANT OR GUARANTEE THAT YOU WILL ACHIEVE ANY LEVEL OF SALES, REVENUE OR PROFIT. WE DO NOT WARRANT OR GUARANTEE THAT THE PARQER WEBSITES OR SERVICES OR USER DATA WILL ALWAYS BE AVAILABLE OR OPERATE ERROR-FREE, THAT THE CAMPAIGNS WILL BE ERROR-FREE, OR THAT ANY ERRORS, OMISSIONS OR MISPLACEMENTS IN THE PARTNER RELATIONSHIP WILL BE CORRECTED. No statement, either orally or in writing, made by any of our officers, employees or agents will vary this paragraph.
15. Limitation of Liability.
15.1. IN NO EVENT WILL WE BE LIABLE OR OBLIGATED TO YOU OR ANY THIRD PARTY IN ANY MANNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES ON ACCOUNT OF LOST PROFITS, LOST REVENUES OR FAILURE TO REALIZE ANTICIPATED BUSINESS BENEFITS, ARISING IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE PARQER PLATFORM, REGARDLESS OF THE FORM OF ACTION, WHETHER OCCURRING IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT WE KNEW THAT SUCH DAMAGES MAY HAVE BEEN INCURRED.
15.2 IN NO EVENT WILL OUR LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PARQER PLATFORM EXCEED: (A) IF THE DAMAGES RELATE TO A PARTICULAR TRANSACTION OR TRANSACTIONS, THE AMOUNT OF TRANSACTION FEE(S) PAID TO AND RETAINED BY PARQER IN CONNECTION WITH SUCH TRANSACTION(S); AND (B) IF THE DAMAGES DO NOT RELATE TO PARTICULAR TRANSACTIONS, THE TOTAL AMOUNT OF TRANSACTION FEE(S) PAID TO AND RETAINED BY US IN THE THREE (3) MONTH PERIOD BEFORE THE LIABILITY AROSE. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER THE DAMAGES ARISE IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
16.1. YOU WILL INDEMNIFY AND HOLD HARMLESS PARQER, ITS AFFILIATED AND RELATED ENTITIES, AND ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS ("COMPANY INDEMNITEES") AGAINST ANY CLAIMS, ACTIONS, SUITS, INVESTIGATIONS, PROCEEDINGS, LIABILITIES, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES, INCLUDING BUT NOT LIMITED TO ATTORNEYS' FEES AND COSTS, IN EACH CASE AS AND WHEN INCURRED ("DAMAGES"), ARISING OUT OF, RELATING TO, OR INCURRED IN CONNECTION WITH, ANY OF THE FOLLOWING:
16.1.1. YOUR BREACH OR ALLEGED BREACH OF THESE PARTNER TERMS, OR OF YOUR REPRESENTATIONS, WARRANTIES OR COVENANTS SET FORTH HEREIN;
16.1.3. THE PRODUCTS OR SERVICES PROVIDED OR REQUIRED TO BE PROVIDED BY YOU, INCLUDING BUT NOT LIMITED TO ANY CLAIMS FOR FALSE ADVERTISING, PRODUCT DEFECTS, PERSONAL INJURY, DEATH, OR PROPERTY DAMAGES RELATED TO YOUR PRODUCTS OR SERVICES; AND
16.1.4. THE USER DATA AND REPORTING OR ANALYTICS SERVICES PROVIDED BY PARQER PURSUANT TO USER GRANTED PERMISSIONS, INCLUDING THE COMPLETENESS OR ACCURACY OF SUCH DATA, YOUR USE OR MISUSE OF SUCH DATA, AND/OR THE REVOCATION OF ANY APPLICABLE PERMISSIONS.
16.2 PARQER SHALL HAVE THE RIGHT TO APPOINT COUNSEL TO DEFEND ANY CLAIM, ACTION, SUIT, INVESTIGATION OR PROCEEDING ("CLAIM") COVERED BY YOUR INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE, AT YOUR COST AND EXPENSE. YOU SHALL HAVE NO RIGHT TO CONTROL THE DEFENSE OR SETTLEMENT OF ANY SUCH CLAIM, AND YOU SHALL NOT SETTLE OR COMPROMISE ANY SUCH CLAIM WITHOUT PARQER'S PRIOR WRITTEN CONSENT.
In connection with these Partner Terms, and the actions contemplated hereunder, Parqer and Partner may disclose to each other certain confidential and proprietary information relating to their respective businesses, customers, suppliers, prices, products, and technologies that is not generally publicly known ("Confidential Information"). Each of us shall keep confidential the expressly designated Confidential Information of the other party, not disclose it to any third party, and not use it except for the purposes contemplated by these Partner Terms. The obligations of confidentiality herein shall not apply to (a) information in the public domain without fault of the receiving party; (b) information disclosed to the receiving party or in the possession of the receiving party without any breach of any obligation of confidentiality owed by the receiving party or any third party to the disclosing party; (c) information independently developed by the receiving party without use of the Confidential Information of the disclosing party; and (d) information required to be disclosed in order to comply with law.
18.1. These Partner Terms, as amended from time to time, shall apply until terminated pursuant to this section.
18.2. Parqer reserves the right to terminate this Agreement, and any other agreements you may have with Parqer, to revoke any license(s) granted hereunder, and/or to revoke access to the Parqer platform for any Partner, without recourse, in the event that: (i) you are in material breach of these Partner Terms, (ii) you violate any laws or otherwise engage in any conduct that may adversely affect our business or reputation; or (iii) Parqer is required to terminate by law. Such determinations are in the sole discretion of Parqer. All accrued rights and remedies granted to Parqer hereunder shall survive any termination of this Agreement.
18.3. Upon the termination of this Agreement for any reason, you agree to immediately cease all use of the Parqer platform, and to erase and destroy all copies, full or partial, of Parqer Confidential Information in your and your authorized users' possession or control. At Parqer's request, you agree to provide written certification of such destruction to Parqer. Parqer will not be liable for compensation, indemnity, or damages of any sort as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other right or remedy Parqer may have, now or in the future.
18.4. You may terminate this Agreement and other Parqer agreements by closing your Parqer Partner Account at any time. Upon closure of a Parqer Parqer Account, any pending transactions will be cancelled. Any funds that we are holding in custody for you at the time of closure, less any applicable Transaction Fees, will be paid out to you according to your payout schedule, assuming all payout-related authentication requirements have been fulfilled (for example, you may not close your Parqer Payment Account as a means of evading your payout schedule). If an investigation is pending at the time you close your Parqer Payment Account, we may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds in dispute, we will release those funds to you.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection your use of our software and services (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Parqer specifically disclaims any liability for Taxes.
If in a given calendar year you receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Parqer will report annually to the Internal Revenue Service (“IRS”), as required by law, your name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year. Whether you reach $20,000 in payments or more than 200 payments will be determined by looking at the SSN associated with your Parqer Account.
21. Customer Service
You are solely responsible for all customer service issues relating to your goods or services, including pricing, order fulfillment, order cancellation by you or a User returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us. As between you and us, we are solely responsible for customer service issues relating to any Parqer Partner Account, payment, Card processing, debiting or crediting.
22.1. This Agreement represents the entire agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties. No waiver by any party of a breach of any provision of this Agreement by any other party shall be construed to be a waiver of any succeeding breach of the same or any other covenant or condition. Ambiguities, if any, in this Agreement shall not be construed against any party, irrespective of any rule of construction to the contrary. Parqer shall not be liable for any breach of these Partner Terms to the extent such breach arises from factors outside Parqer's reasonable control.
22.2. All disputes arising out of or relating to this Agreement or the Parqer platform, including without limitation the validity, applicability, and/or enforceability of this provision or any provision herein, shall be resolved exclusively by binding arbitration before a single arbitrator (the "Arbitrator") in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "AAA") then in effect and the further procedures set forth herein. (For information on the AAA and its rules, see http://www.adr.org). The arbitration shall be conducted in Dallas, Texas, unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to this Agreement, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, either party may file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. Parqer does not hereby waive any defense that such jurisdiction may be lacking in your state. Without derogation of the parties' obligation to arbitrate as set forth herein, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to this Agreement or the Parqer platform shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting in Dallas, Texas, except that, following confirmation of an arbitration award in a state or federal court in Dallas, Texas, a judgment arising therefrom may be executed in any court of competent jurisdiction.
22.3. The parties are independent contractors. Except for our right to advertise on your behalf in accordance with these Partner Terms, this Agreement does not create any joint venture or agency. Neither party has the power or right to bind the other.
22.4. All communications between Partner and Parqer, and any notices due hereunder, may use electronic means. Partner: (a) consents to receive communications from Parqer in an electronic form; (b) agrees that all Partner Terms, agreements, notices, disclosures, and other communications that Parqer provides to you electronically will satisfy any legal requirement that such communications be in writing; and (c) agrees that email sent to the email address on record for your Partner account will constitute formal written notice under these Partner Terms.
22.5. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law; provided, however, that if the court invalidates the prohibition on class, aggregated, mass or consolidated proceedings, then the arbitration clause in Section 23.2 shall also be invalid.
22.6. This Agreement shall be governed by the laws of the State of Texas, without regard to its choice of law rules and without regard to conflicts of laws principles, except that the Arbitration provision in Section 22.2 shall be governed by the Federal Arbitration Act.
22.7. These Partner Terms are void where prohibited by law.
Effective Date of these Terms of Service: July 3, 2014