TERMS AND CONDITIONS

Effective Date: October 23, 2019

Acceptance of the Terms of Service

Welcome to ClearChoice Merchant Services, LLC dba “ClearGate” (“we”, “us”, “ClearChoice Merchant Services”, “payup℠” or the “Company”). The following terms and conditions (together with any documents referred to in them, collectively, these “Terms of Service”) apply to your use of and the payup℠ application, including any user content, functionality and services offered on or through https://www.cleargate.com/ (the “Website”) and the payup℠ application (the “Application” and the Website, together with all content therein, and all applications, programs, license keys, patches, updates, or upgrades provided by us from time to time, and any improvements, modifications, enhancements, fixes and revised versions of any of the foregoing, and any derivative works of any of the foregoing, and any combination of the foregoing, is collectively the “Software”), regardless of whether you use a free version of the Software or elect to use any payup℠ paid version of the Software.

Read the Terms of Service carefully before you start to use of the Software. By using the Software you accept and agree to be bound and abide by these Terms of Service. If you are entering into these Terms of Service on behalf of a company or other legal entity, you are agreeing to these Terms of Service for and on behalf of yourself and such entity (in such cases, “you” may refer to either you or such entity, or both, as appropriate). You may not access or use the Software or accept these Terms of Service if you are not at least 18 years old, you do not have authority to bind the entity on behalf of which you purport to act, or you do not agree with any part of these Terms of Service.

BY ACCESSING OR USING THE SOFTWARE, YOU CONFIRM THAT (1) YOU HAVE READ THESE TERMS OF SERVICE, (2) YOU AND ANY ORGANIZATION OR ENTITY ON WHOSE BEHALF YOU ARE ENTERING IN TO THESE TERMS OF SERVICE AND/OR USING THE SOFTWARE, ACCEPT THESE TERMS OF SERVICE, AND (3) IF YOU ARE AN INDIVIDUAL, THAT YOU ARE AN EMPLOYEE OR AGENT OF THE ORGANIZATION OR ENTITY ON WHOSE BEHALF YOU ARE ACTING, AND HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE ON BEHALF OF SUCH ORGANIZATION OR ENTITY.

Changes to the Terms of Service

Payup℠ is a work in progress, and we will update these Terms of Service from time to time at our sole discretion. Your continued use of the Software following the means that you accept and agree to the changes. It is your responsibility to check these posted Terms of Service periodically for any such changes made. Your continued use of the services after any changes are posted (or, if applicable, after we have indicated to you in writing that such changes will become effective), constitutes your acceptance of these terms and conditions as so changed.

License Grant

Subject to these Terms of Service, we grant to you a worldwide, nonexclusive, non transferable, non-sublicensable license to (i) to install and run the Software made available to you hereunder during the Term; and (ii) to access and use the Software solely in support of the foregoing license grant. As between the parties, we retain all right, title, and interest in and to the Software, and all copies and derivative works thereof, which rights include, but are not limited to, patent, copyright, trademark, trade secret, and all other intellectual property rights

Restrictions on Use

You shall not directly or indirectly, nor authorize any person or entity to: (i) sell, rent, lease, distribute, redistribute or transfer the Software or any rights in any of the Software; (ii) reverse engineer, decompile, disassemble, re-engineer, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or otherwise create or attempt to create or permit, allow, or assist others to create or derive the source code of the Software, or its structural framework; (iii) modify or create derivative works of the Software; (iv) use the Software in whole or in part for any purpose except as expressly provided under these Terms of Service; (vi) remove any proprietary notice, labels, or marks on or in Software; or (vii) disable or circumvent any access control or related device, process or procedure established with respect to the Software (viii) disclose the results of any benchmark tests or other tests connected with the Software to any third party without our prior written consent. You may not use the Software for illegal or unlawful or malicious activities. While using the Software, you may not directly or indirectly, nor authorize any person or entity to: (a) access or use (or attempt to access or use) the account of another user without permission, or the login information of another user; (b) “frame” or “mirror” any portion of the Software; (c) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Software; or (d) probe, scan or test the vulnerability of the Software, nor breach the security or authentication measures on the Software, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Software, such as a denial of service attack. You are responsible for the use of the Software by you and your affiliates and your respective users, and for all their compliance with these Terms of Service, and any breach of these Terms of Service by any affiliate or user shall be deemed to have been a breach by you

Accessing the Software, Application and Account Security

We reserve the right to withdraw, amend, or change the pricing structure of the Software, and any service or material we provide on the Software, in our sole discretion without notice. Also, we will not be liable if for any reason all or any part of the Software is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Software, or the entire Software, to you and your authorized users.

To access the Software you must create a user name, password or any other piece of information as part of our security procedures. You must treat such information as confidential, and you must not disclose it to any third party. You agree to immediately notify Company of any unauthorized use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer/device so that others are not able to view or record your password or other personal information.

In the future, you may be asked to provide certain registration details or other information. It is a condition of your use of the Software that all the information you provide on the Software is correct, current and complete.

We have the right to disable any user identification code or password, whether chosen by you or provided by us, at any time at our sole discretion for any or no reason, including if, in our opinion, you have failed to comply with any provision of these Terms of Service.

Term; Cancellation or Termination

The term of your agreement with payup℠ pursuant to these Terms of Service shall continue for the longer of (a) upon your election to use and access any paid versions of the Software and/or Service, the term length you elected and continuing thereafter for equivalent successive periods of length until terminated as permitted herein, and (b) so long as you continue accessing or using the Software (the “Term”). Unless otherwise contractually agreed to between you and us, you may cancel the Software by providing written notice of cancellation to us at least thirty (30) days’ prior to the end of the current term for which you subscribed. Notwithstanding the term of your subscription of the Software, we may, at its sole discretion, for any or no reason, and at any time, discontinue your access and use of the Software, including but not limited to for reason that: (a) you have materially breached this Agreement; (b) you cease your business operations or have become subject to insolvency proceedings, and the proceedings are not dismissed within 90 days; or (c) you fail to pay fees when they become for thirty (30) days past the due date.

No use or access of our Software, intellectual property, data, reports, logos, marketing materials, links, or any other materials relating to the Software shall be continued following termination of these Terms of Service to you, regardless of the manner by which they are terminated.

Pricing; Late Fees

Upon your election to use and access any paid versions of the Software, you shall pay all fees specified in the online order form (or other written or electronic form) through which you subscribed for such version of the Software. Payment obligations are non-cancellable and fees paid are non-refundable. By entering into these Terms of Service, you acknowledge that your paid subscription to the Software has recurring payments and you accept responsibility for all recurring charges prior to cancellation or termination of these Terms of Service and authorize us to levy such charges. We reserve the right to modify any stated fees upon prior notice to you. All fees are set in U.S. Dollars.

Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, accessible by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have a legal obligation to pay or collect Taxes for which you are responsible under these Terms of Service, the appropriate amount shall be invoiced to and paid by you on demand.

Past due invoiced amounts are subject to interest at a rate of 1.5% per month on any outstanding balance from the invoice date, or the maximum amount permitted by law, whichever is less, plus all expenses of collection (including attorneys’ fees), and you agree to pay such interest charges and all collection expenses.

Intellectual Property Rights

The Software and their entire contents, features and functionality (including but not limited to all information, Software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by Canada, United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

You are permitted to use the Software for purposes not inconsistent with applicable law or these Terms of Use.

If you use any part of the Software in breach of the Terms of Service, your right to use the Software will cease immediately. No right, title or interest in or to the Software or any content on the site is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Software not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark and other laws.

Prohibited Uses

You may use the Software only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Software:

In any way that violates any applicable federal, state, local and international law or regulation (including, without limitation, any laws regarding the export of data or Software to and from the US or other countries).

To transmit, or procure the sending of, any mass advertising or direct solicitation material.

To impersonate or attempt to impersonate the Company or a Company employee, another user, or another person or entity (including, without limitation, the use of email addresses or screen names associated with or confusingly similar to any of the foregoing).

Additionally, you agree not to:

Use the Software in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Software, including their ability to engage in real time activities through the Software.

Use any robot, spider or other automatic device, process or means to access the Software for any purpose, including to monitor or copy any of the material on the Software.

Use any manual process to monitor or copy any of the material on the Software for any other unauthorized purpose without our prior written consent.

Use any device, Software or routine that interferes with the proper working of the Software.

Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.

Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Software, the server on which the Software is stored, or any server, computer or database connected to the Software.

Attack the Software via a denial-of-service attack or a distributed denial-of-service attack or otherwise attempt to interfere with the proper working of the Software.

User Contributions and Legal Disclaimer

The Software requires you to upload/input personal information, client information, financial information, etc., and this information will be referred to as user content, (“User Content”).

All User Content must comply with the content standards set out below.

We claim no intellectual property rights over the User Content. Your profile and materials uploaded remain yours. However, you grant us the right to use this material for internal purposes. You represent and warrant that you own or control all rights in and to the User Content and have the right to grant the Company and its affiliates the license granted above. You represent and warrant that all of your User Content do and will comply with these Terms of Service, and you agree to defend, indemnify and hold harmless the Company and its affiliates and licensors for any breach of that representation and warranty.

You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness. Any content and/or opinions uploaded, expressed or submitted to the Software, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity submitting them and do not necessarily reflect the opinion of the Company. We are not responsible, or liable to any third party, for the content or accuracy of any materials posted by you or any other user of the Software.

In particular, User Content is not intended to be accounting advice or form an advisory relationship between the users and the Company. Use of the Software should never be understood to be replacing use of a qualified accountant, and ClearGate’s relationship to all documents and transactions completed using the Software is that of a trusted, disinterested technology platform.

Any feedback, comments, or suggestions you may provide regarding payup℠ is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.

Monitoring and Enforcement of User Content; Termination

We have the right to:

Remove or refuse to post any User Content for any or no reason in our sole discretion.

Take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, if we believe that such User Content violates the Terms of Service, including the Content Standards, infringes any intellectual property right or other right, threatens the personal safety of users of the Software and the public or could create liability for the Company.

Disclose user identities when required to do so by applicable law, including in response to a law enforcement request supported by a valid court order.

Terminate your access to all or part of the Software for any or no reason, including without limitation, any violation of these Terms of Service.

You waive and hold harmless the Company from any claims resulting from any action taken by the Company during or as a result of its investigations and from any actions taken as a consequence of investigations by either the Company or law enforcement authorities.

We do not undertake to review all material before it is posted on the Software. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this paragraph.

Reliance on Information Posted

The Software presented is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this Software. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such Software by you or any other visitor to the Software, or by anyone who may be informed of any of its contents.

Disclaimer of Warranties, Limitations of Liability and Indemnification.

You acknowledge that you have only a limited, nonexclusive, non transferable license to use the Software. Because the Software is not complete and is not error or bug free, you agree that you will use it carefully and avoid using it ways which might result in any loss of your or any third party’s property or information.

Your use of the Software is at your sole risk. The service is provided on an “as is” and “as available” basis. In particular, you acknowledge that technical support is only provided in only available via email, in English; that we use third party vendors and hosting partners to provide the necessary hardware, Software, networking, storage, and related technology required to run the Software; that the technical processing and transmission of the service, including User Content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

We do not warrant that (i) the Software will meet your specific requirements, (ii) the service will be uninterrupted, timely, secure, or error free, (iii) the results that may be obtained from the use of the Software will be accurate or reliable, (iv) the quality of any products, Software, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the Software will be corrected.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT CLEARGATE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CLEARGATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;

(IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (V) OR ANY OTHER MATTER RELATING TO THE SERVICE.

IN NO EVENT SHALL THE COMPANY, ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, AGENTS, PARTNERS AND EMPLOYEES, BE LIABLE FOR ANY DAMAGES ARISING FROM THIS AGREEMENT OR YOUR USE OF THE SOFTWARE THAT EXCEED, IN THE AGGREGATE, THE EQUIVALENT OF THE LESSER OF (A) ONE THOUSAND DOLLARS ($1,000) OR (B) ONE (1) YEAR OF YOUR SUBSCRIPTION FEE.

You agree to defend, indemnify and hold harmless the Company, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from your violation of these Terms of Service or your use of the Software, including, without limitation, any use of the Software’s content, services and products other than as expressly authorized in these Terms of Service or your use of any information obtained from the Software.

Geographic Restrictions

ClearGate is based in Reno, Nevada. We provide this Software for use by persons located in the United States and Canada. We make no claims that the Software or any of its content is accessible or appropriate outside of the United States and Canada.  Access to the Software may not be legal by certain persons or in certain countries. If you access the Software from outside of the United States and Canada, you do so on your own initiative and are responsible for compliance with local laws.

Governing Law and Jurisdiction

These Terms of Service and any dispute or claim arising out of, or related to, them, their subject matter or their formation (in each case, including non contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule.

Any legal suit, action or proceeding arising out of, or related to, these Terms of Service or the Software shall be instituted exclusively in the State of Nevada, Washoe County. You waive any and all objections to the exercise of jurisdiction over you other courts and to venue in such courts.

Customers Utilizing ClearGate Payment Service: Acceptance of Terms of Use and Privacy Policy

In order for you to use ClearGate payment processing services, you must register with ClearGate as a merchant via the payup℠ application.  ClearGate’s Terms of Use explain that process and are available at: https://www.cleargate.com/terms-of-use. The ClearGate Privacy Policy is available at: https://www.cleargate.com/privacy-policy.  By accepting these Terms of Use in conjunction with an integration with ClearGate, you agree that you have reviewed the ClearGate Terms of Use and Privacy Policy and agree to them.

Third Party Sites and Integration

In addition to those expressly referenced above, some links or integrations provided through the Software may navigate you away from the Software or redirect you to other web sites or applications, including those operated by third parties. Please be aware that those third party websites and applications are not under our control. We provide these links and integrations to you as a convenience and service to you, and access to any such websites or applications is at your own risk and may be subject to such third parties’ own terms of use and privacy policies. You should review the terms of use and privacy policies that are posted on any website that you visit, before using any linked or integrated solutions. We shall not be responsible or liable, directly or indirectly, for any damages or losses caused or alleged to be caused by or in connection with the use of or reliance on such third party content, products, services or other materials available on or through any such third party website or application.

Waiver and Severability

Our failure to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision.

The Terms of Service constitutes the entire agreement between you and us and govern your use of the service, superseding any prior agreements (including, but not limited to, any prior versions of the Terms of Service). If any provision of these Terms of Service is held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.