|1. THE OODILI PLATFORM||5. TERMINATION AND OTHER GENERAL LEGAL TERMS|
|2. CLIENT ENGAGEMENT|
|3. GETTING AN ACCOUNT|
|4. PROCESSING TRANSACTION|
Terms of Platform
November 30th 2011
BY SUBSCRIBING TO OODILI PLATFORM, THE CLIENT AGREES TO THE TERMS AND CONDITIONS CONTEMPLATED IN THIS TOS, WHICH TOS SHALL GOVERN THE PROVISONS OF THE PLATFORM. THE ADMINISTRATOR ENTERING INTO THIS TOS ON BEHALF OF A THE CLIENT, REPRESENT THAT HE HAS THE AUTHORITY TO BIND THE CLIENT TO THIS TOS.
a. Oodili Offering
Oodili offer a Platform that helps the Client create an always-on virtual storefront that lets User register for activities, renew memberships, purchase tickets for an event, donate or buy its son’s soccer jersey while accepting and processing Card from the User. Oodili is not a bank or a money Platforms business and Oodili does not offer banking or money Platforms business as defined by the United States Department of Treasury. In addition, Oodili do not assume any liability for the Qualified Offering purchased using Oodili Platform.
Oodili’s Processors supports any US-issued Card and most non-US issued Card. Oodili will only process Card transactions that have been authorized by the applicable Card Network or Issuer. The Client is solely responsible for verifying identity of the Users and of the eligibility of a presented Card used to purchase its Qualified Offering, Oodili does not guarantee or assume any liability for transactions authorized and completed which may later be Reversed or Chargeback. The Client is solely responsible for all Reversed or Chargeback transactions, regardless of the reason for, or timing of, the Reversal or Chargeback. Oodili may add or remove one or more types of Cards as supported payment card any time without prior notice to you.
Oodili Platform also help the Client manage recurring and subscription billing charges. It is the Client responsibility to obtain the User’ consent to be billed on a recurring basis and this in compliance with applicable legal requirements and Card Network payment rules.
Oodili provides an API to enable the Client access to the Platform. Any use of the API, including use of the API through a third-party product that accesses Oodili Platform, is bound by the TOS plus the following specific terms:
The Client expressly understand and agree that Oodili 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 Oodili has been advised of the possibility of such damages), resulting from your use of the API or third-party products that access data via the API.
Abuse or excessively frequent requests to Oodili Platform via the API may result in the temporary or permanent suspension of the access to the API. Oodili, in its sole discretion, will determine abuse or excessive usage of the API. Oodili will make a reasonable attempt via email to warn the Client prior to suspension.
Oodili reserves the right at any time to modify or discontinue, temporarily or permanently, the Client access to the API (or any part thereof) with or without notice.
d. Client Service
Oodili provides the Client with support to resolve any issues relating to the Client Oodili Account, the Client use of the Platform and the Processing Service. The Client, and the Client solely, is responsible for providing support to the User for any and all issues related to the Client Qualified Offering, including but not limited to issues arising from the processing of User’ Cards through the Platform.
Oodili maintains commercially reasonable administrative, technical and physical procedures to protect all the Information regarding the Client and the User that is stored in Oodili servers from unauthorized access and accidental loss or modification. However, Oodili cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such Information for improper purposes.
Oodili comply with all applicable state and federal laws and rules in connection with collection, security and dissemination of any personal, financial, Card, or transaction Information. Oodili is at at all times compliant with the PCI-DSS and PA-DSS, as applicable. Information regarding the Client and the User is provided at the Client own risk.
Oodili agrees to use commercially reasonable efforts to operate and maintain the Platform generally available 24 hours a day, 7 days a week, except for planned downtime which Oodili shall schedule to the extent reasonably practicable during evening and weekend hours.
h. Suspicion of Unauthorized or Illegal Use
Oodili reserve the right to not authorize or settle any transaction submitted which Oodili believe is in violation of this TOS, any other Oodili agreements, or exposes the Client, other Oodili User, Oodili Processor or Oodili to harm, including but not limited to fraud and other criminal acts. The Client is hereby granting Oodili authorization to share information with law enforcement about the Client, its transactions, or its Oodili Account if Oodili reasonably suspect that the Client Oodili Account has been used for an unauthorized, illegal, or criminal purpose.
i. Card Network Rules
The Card Networks have established Network Rules. The Client is required to comply with all applicable Network Rules that are applicable to Merchant. The Client can review portions of the Network Rules at Visa and MasterCard. The Card Networks reserve the right to amend the Network Rules. Oodili reserves the right to amend the TOS at any time with notice to the Client as necessary to comply with Network Rules or otherwise address changes in the Platform.
j. Disclosures and Notices
The Client agrees to grant Oodili the right to reference the Client until such time the Client use of the Platform is discontinued. For the purposes above, the Client grants the right and license to publish, on Oodili public Website or third party website, the information about the Client Qualified Offering and use the Client's name and trademarks. The Client shall not use the name, Platform marks or trademarks of Oodili or its affiliates without Oodili's prior written consent
The Client agree that Oodili can provide disclosures and notices regarding the Platform to the Client by posting such disclosures and notices on its Website or emailing them to the email the Administrator address listed in the Client Oodili Account. The Client also agrees that electronic disclosures and notices have the same meaning and effect as if Oodili had provided the Client with a paper copy. Such disclosures and notices shall be considered to be received by the Client within 24 hours of the time it is posted to Oodili Website or emailed to the Client unless Oodili receive notice that the email was not delivered.
The Client agree to use the Platform solely for its internal business purposes as contemplated by this TOS and further agrees that the Client will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Client data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform, and notify Oodili promptly of any such unauthorized use; (iii) comply with all applicable local, state, provincial, federal and foreign laws in using the Platform; and will not: (iv) license, sublicense, sell, resell, rent, lease, assign, distribute, timeshare or otherwise commercially exploit or make the Platform available to any third party, other than as contemplated by this TOS; (v) send spam or otherwise duplicative or unsolicited messages in violation of applicable law; (vi) send or store infringing, obscene, threatening, libellous or otherwise unlawful or material which gives rise to a delict or is otherwise tortuous, including material violating third party rights including, but not limited to, privacy of rights; (vii) send or store material containing software viruses, worms, Trojan horses or harmful computer codes, files, scripts, agents or programs; (viii) interfere with or disrupt the integrity or performance of the Platform or the data contained therein; (ix) attempt to gain unauthorized access to the Platform or its related systems or networks; (x) modify, copy or create derivative works based on the Platform or the Oodili Intellectual Property Rights; (xi) create internet links to or from the Platform, or frame or mirror any content forming any part of the Platform other than on the Client's own website for the purposes hereof or otherwise for its own internal business purposes; or (xii) disassemble, reverse engineer or decompile the Platform for any purpose or reason.
The Client will defend, indemnify and hold harmless Oodili, its shareholders, directors, officers, employees, agents and representatives from and against any and all Claims related to or arising from the use of Oodili's Platforms by an employee, officer, consultant or representative of the Client.
b. Restricted Use
The Client is required to obey all laws, rules, and regulations applicable to the use of the Platform (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination or false advertising). In addition to any other requirements or restrictions set forth in this TOS, the Client shall not: (i) utilize the credit available on any Card to provide cash advances to User,(ii) submit any Card transaction for processing that does not arise from the Client sale of Qualified Offering , (iii) act as a payment intermediary or aggregator or otherwise resell Oodili Processing Service on behalf of any third party, (iv) send what the Client believes to be potentially fraudulent authorizations or fraudulent Card transaction, or (v) use the Client Oodili Account or the Platform in a manner that Card Network reasonably believes to be an abuse of the Card Network or a violation of Card Network Rules.
c. Oodili Fees
The Client agrees to pay the Fees for using the Platforms described in this TOS. These Fees will be calculated pursuant to the plan the Client has subscribed. Oodili reserve the right to revise its Fees at any time, subject to a thirty (30) day notice period to the Client.
The Client acknowledge that he or she is also responsible for any penalties or fines imposed on Oodili or directly to the Client by any Card Network or financial institution.
d. Privacy of Others
If the Client receives Information about others through the use of the Platform, the Client must keep such information confidential and only use it in connection with the Platform. The client may not disclose or distribute any such Information to a third party or use any such Information for marketing purposes unless the Client receives the express consent to do so. The Client may not disclose Card numbers to any third party, other than in connection with the processing of a Card transaction.
It is the Client responsibility to determine what, if any, taxes apply to the sale of its Qualified Offering and/or the payments received in connection with the use of the Platform. It is solely the Client responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. Oodili is not obligated to, nor will determine whether taxes apply, or calculate, collect, report, or remit any taxes to any tax authority arising from any transaction. The Client acknowledge that Oodili may make certain reports to tax authorities regarding transactions Oodili processed by Oodili Processing Service.
Pursuant to the Internal Revenue Code, merchant acquiring entities and third party settlement businesses are required to file an information return with the IRS for each calendar year, reporting all payment Card transactions and third party network transactions with Merchant occurring in that calendar year. The Client acknowledge that it is its responsibility to report to the Internal Revenue Platform the total amount of the payments received each calendar year if the Client (i) received more than $20,000 in gross Card transactions, and (ii) received more than 200 Card payment transactions, in that calendar year.
a. Registration To use Oodili Platform, the Client will first have to register for an Oodili Account. When the Client registers for an Oodili Account, Oodili will collect basic information including name, business name, location, email address, tax identification number and phone number. If the Client has not already done so, the Client will also be required to provide an email address and password for the Administrator of the Oodili Account.
b. Company Descriptions and Website URL As part of the Client registration, the Client must provide its website URL and the name under which it does business (which may be the business’s legal name or a “doing business name”) because these two fields may appear in the User’ Card statements. To avoid User confusion and transaction disputes, it is important that the Client enter a description that clearly identifies its business as well as an accurate website URL. The client agree to indemnify Oodili from any costs from disputes due to its failure to do so.
c. Verification and Underwriting To verify the Client identity, Oodili will require additional information such as: business EIN or Tax ID. Oodili may also ask for additional information to help verify the Client identity and assess its business risk including: invoices, a driver’s license or other government issued identification, a business license or for financial statements. The Client failure to comply with any of these requests within five (5) days may result in suspension or termination of the Client Oodili Account. Oodili will use the Client information to apply for Card Merchant acquiring accounts on the Client behalf with certain Card Networks.
After Oodili has collected and verified all the Clientr information, Oodili will review the Client Oodili Account and determine if the Client is eligible to use the Platform. Oodili may also share the Client information with its Processor, each of which may also make a determination regarding the Client eligibility. Oodili will notify the Client once its account has been either approved or deemed ineligible for use of the Platform.
By accepting the terms of this TOS, the Client is providing Oodili with authorization to retrieve information about the Client by using third parties, including credit bureaus and other information providers. The client acknowledges that such information retrieved may include its name, address history, credit history, and other data. Oodili may periodically update this information to determine whether the Client continue to meet the eligibility requirements for an Oodili Account.
The Client agrees that Oodili is permitted to contact and share information about the Client and its application (including whether the Client is approved or declined), and the Client Oodili Account with the Processors. This includes sharing information (a) about the transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the Platform, (c) to create and update their records, and (d) to conduct Oodili’s risk management process.
d. Prohibited Businesses By registering for an Oodili Account, the Client is confirming that it will not accept payments in connection with the following businesses, business activities or business practices: (1) door-to-door sales, (2) offering substantial rebates or special incentives to the User subsequent to the original purchase, (3) negative response marketing, (4) engaging in deceptive marketing practices, (5) sharing User’s data with another Merchant for payment of up-sell or cross-sell product or service, (6) evading Card Network’s Chargeback monitoring programs, (7) engaging in any form of licensed or unlicensed aggregation or factoring, (8) airlines, (9) age restricted products or services, (10) bail bonds, (11) bankruptcy lawyers, (12) bidding fee auctions, (13) collection agencies, (14) chain letters, (15) check cashing, wire transfers or money orders, (16) counterfeit goods, (17) currency exchanges or dealers, (18) embassies, foreign consulates or other foreign governments, (19) firms selling business opportunities, investment opportunities, mortgage consulting, credit repair or protection or real estate purchases with no money down, (20) credit card and identity theft protection, (21) cruise lines, (22) essay mills, (23) flea markets, (24) drug paraphernalia, (25) extended warranties, (26) fortune tellers, (27) gambling, (28) sports forecasting or odds making, (29) illegal products or Platforms, (30) mail-order brides, (31) marijuana dispensaries and related businesses, (32) money transmitters or money service businesses, (33) multi-level marketing or pyramid schemes, (34) non-institutional pharmacies, (35) pseudo pharmaceuticals, (36) quasi-cash or stored value, (37) securities brokers, (38) sexually-oriented or pornographic products or services, (39) shipping or forwarding brokers, (40) substances designed to mimic illegal drugs, (41) telemarketing, (42) timeshares, (43) tobacco and e-cigarettes, (44) weapons and munitions and (45) virtual currency that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world.
By accepting this TOS the Client confirm that it will satisfy these requirements.
a. Processing Card Transactions Oodili will honour all eligible Card presented for payment by the User in accordance with the Card Network Rules, this TOS and any operating guides that Oodili may provide the Client from time to time. Oodili will obtain an authorization from the Card Network for each Card transaction, as required under the Card Networks’ Rules, and will not submit a Card transaction for settlement where there is a negative authorization or the Card is otherwise expired. The Client acknowledges that the existence of an affirmative authorization from Oodili or the Card Networks does not mean that a particular Card transaction will not be subject to Chargeback, Reversal or Claim at a later date.
Oodili will provide a receipt to the User at the conclusion of the purchase transaction that includes all information required under Card Network Rules and applicable law. Oodili will submit all Card transactions for processing no later than three (3) days from the date of authorization.
Oodili will maintain appropriate records of all Card transactions for a period of at least two (2) years from the date of the transaction.
Oodili will display all Card Network marks in accordance with the rules and procedures of the Card Networks, and will use such marks only to indicate that the Client accept their cards for payment
b. Payouts and Transaction History
Oodili will pay out funds settling from the Card Networks to your designated bank settlement account in the amounts actually received less Oodili Fees for Card transactions submitted to Oodili Platform. The payouts will be made to the bank account the Client provided for its Oodili Account. The bank account must be an account located at bank in the United States or in Canada and held in the name of the Client. The client is responsible for the accuracy and correctness of information regarding its bank account. Funds for any given transaction will not be transferred to the Client bank account until the transaction is deemed complete. The actual timing of the transfers to the Client bank account of the settling funds will be subject to the payout schedule as defined below.
After each payout of Card settlement funds to its bank account,Oodili will update information in the Client Oodili Account to reflect settlement. Information regarding the Client Card transactions processed and settled with the Platforms will be available to the Client when login to Oodili Account. Oodili provides a minimum of one year of transaction. Except as required by law, The Client is solely responsible for compiling and retaining permanent records of all transactions and other data associated with its Oodili Account, its transaction history and use of the Platform.
c. Payout Schedule
Payout schedule refers to the time it takes to initiate a transfer to your bank account of settlement funds arising from Card transactions processed through the Platform. Once the Client bank account information has been reviewed, Oodili will initiate transfer of settlement funds (net of Fees, Chargebacks, and other funds owed to Oodili or the Processors) in accordance with the payout schedule, the terms of which will be made available to the Client in its Oodili Account. The settlement funds should normally be credited to the Client bank account within 1-2 days initiating the payout. Oodili is not responsible for any action taken by the institution holding the Client bank account that may result in some or all of the funds not being credited or not being made available.
Oodili reserves the right to change the payout schedule or suspend payouts to the Client bank account should Oodili determine it is necessary due to pending disputes, excessive or anticipated excessive Chargebacks or refunds, or other suspicious activity associated with the Client use of the Platform or if required by law or court order.
d. Reconciliations and Errors
Your Transaction History will be available to you when you login to your Oodili Platform Account. You are solely responsible for reconciling your Transaction History with your actual card payment transactions. You agree to notify us of any discrepancies arising from such reconciliation and verification. We will investigate any reported discrepancies and attempt to rectify any errors that you or we discover. In the event you are owed money as a result of the discrepancy, we will transfer funds to your Bank Account in the next scheduled payout. Your failure to notify us of an error or discrepancy in your Transaction History within sixty (60) days of when it first appears on your Transaction History will be deemed a waiver of any right to amounts owed to you in connection with any such error or discrepancy in processing your card payments.
If you submit or cause us to process transactions erroneously, you agree to contact us immediately. We will investigate any reported errors and attempt to rectify any errors that you or we discover by crediting or debiting your Oodili Platform Account as appropriate. Oodili 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 (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
e. Refunds and Returns
By accepting this Agreement, you agree to submit any and all refunds and adjustments for returns of your products and Platforms through the Oodili Platform to the Cardholder Card in accordance with the terms of this Agreement and Network Rules. Network Rules require that you will (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose your return or cancellation policy to customers at the time of purchase, (iii) not give cash refunds to a customer in connection with a Card sale, unless required by law, and (iv) not accept cash or any other item of value for preparing a Card sale refund.
Full refunds must be for the exact dollar amount of the original transaction including tax, handling charges, and other. The refund amount may not exceed the original sale amount except by an amount equal to any reimbursements to customer for postage costs incurred for product returns. Refunds processed though the Oodili Platform must be submitted within sixty (60) days of the original transaction but in all cases, within three (3) days of approving the Cardholder refund.
A Chargeback (see Section D: Your Liability) is typically caused when a customer disputes a charge that appears on their bill. A Chargeback may result in the reversal of a transaction, with the amount charged back to you. You can be assessed charge backs for: (i) customer disputes, or (ii) unauthorized or improperly authorized transactions, or (iii) transactions that do not comply with Network Rules or the terms of this Agreement or are allegedly unlawful or suspicious, or (iv) any reversals for any reason by the Card Network, our Processors or acquiring bank, or the Cardholder bank.
When a Chargeback is issued, you are immediately liable for the full amount of payment of the Chargeback plus any associated Fees, fines, expenses or penalties (including those assessed by the Networks or our payment processors). You agree that Oodili or its Processors may recover these amounts by debiting by means of ACH debit of your Bank Account associated with your Oodili Platform Account, debiting your Reserve Account, or setting off any amounts owed to you by us. 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 any unpaid Chargebacks unpaid by you.
Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, Oodili or its Processors 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 customer’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur.
g. Contesting your Chargebacks
You or Oodili may elect to contest Chargebacks assessed to your account. Oodili may provide you with assistance including notifications and software to help contest your Chargebacks. We do not assume any liability for our role or assistance in contesting Chargebacks.
You agree to provide us with the necessary information, in a timely manner and at your expense, to investigate or help resolve any Chargeback. You also grant us permission to share records or other information required with the Cardholder, the Cardholder’s financial institution, and your financial institution to help resolve any disputes. You acknowledge that your failure to provide us with complete and accurate information in a timely manner may result in an irreversible Chargeback being assessed.
If the Cardholder’s issuing bank or the Network does not resolve a dispute in your favour, we may recover the Chargeback amount and any associated fees from you as described in this Agreement.
We reserve the right, upon notice to you, to charge a Fee for mediating or investigating Chargeback disputes.
h. Excessive Chargebacks
At any point, Oodili, the Card Networks or our Processors may determine that you are incurring excessive Chargebacks. Excessive Chargebacks may result in additional fees, penalties, or fines. Excessive Chargebacks may also result in additional controls and restrictions to your use of the Oodili Platform, including without limitation, (i) changes to the terms of your Reserve Account, (ii) increases to your applicable Fees, (iii) delays in your Payout Schedule, or (iv) possible suspension or termination of your Oodili Platform Account and the Platform. The Card Networks may also place additional controls or restrictions as part of their own monitoring programs for merchants with excessive Chargebacks.
i. Our Collection Rights
To the extent permitted by law, we may collect any obligations you owe us under this Agreement by deducting the corresponding amounts from the Reserve Account or from funds payable to you arising from the settlement of card transactions. Fees will be assessed at the time a transaction is processed and will be first deducted from the funds received for such transactions. If the settlement amounts or Reserve Account are not sufficient to meet your obligations to us, we may charge or debit the bank account or credit card registered in your Oodili Platform Account for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
Additionally, we may require a personal guaranty from a principal of a business for funds owed under this Agreement.
Funds held in reserves are amounts of money set aside to cover Chargebacks, refunds, or other payment obligations under this agreement (“Reserve Account”). Oodili, in its sole discretion, will set the terms of your Reserve Account and notify you of such terms, which may require that a certain amount (including the full amount) of the funds received for your transaction is held for a period of time or that additional amounts are held in Reserve Account. Oodili, in its sole discretion, may elect to change the terms of the Reserve Account at any time for any reason based on your payment processing history or as requested by our Processors. Oodili may fund the Reserve Account by means of: (i) any funds payouts made or due to you for card transactions submitted to the Platform, or, or (ii) amounts available in your Bank Account by means of ACH debit to that Bank Account, or (iv) other sources of funds associated with your Oodili Platform Account; or (iv) requesting that you provide funds to Oodili for deposit to the Reserve Account.
k. Security Interest
You grant us a lien and security interest in the Reserve Account, all Card transactions (including future Card transactions), any rights to receive credits or payments under this Agreement, and all deposits and other property of yours possessed or maintained by us on your behalf. You will execute, deliver, and pay the Fees for any documents we request to create, perfect, maintain and enforce this security interest.
The Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use the Platform or until terminated by Oodili.
You may terminate this Agreement by closing your Oodili Platform Account at any time by following the instructions in your account profile (“Profile”). We may terminate this Agreement and close your Oodili Platform Account at any time for any reason effective upon providing you notice in accordance with Section A9 above. We may suspend your Oodili Platform Account and your access to the Platform and any funds in your Oodili Platform Account, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Platform because of the risk associated with your Oodili Platform Account, including without limitation significant credit or fraud risk, or for any other reason; or (ii) you do not comply with any of the provisions of this Agreement, (iii) upon request of a Processor or the Issuer.
3. Effects of Termination
Upon termination and closing of your Oodili Platform Account, we will immediately discontinue your access to the Platform. You agree to complete all pending transactions and stop accepting new transactions through the Platform. You will not be refunded the remainder of any fees that you have paid for the Platform if your access to or use of the Platform is terminated or suspended. Any funds in our custody will be paid out to you subject to the terms of your payout schedule.
Termination does not relieve you of your obligations as defined in this Agreement and Oodili may elect to continue to hold any funds deemed necessary pending resolution of any other terms or obligations defined in this Agreement, including but not limited to Chargebacks, Fees, Refunds, or other investigations or proceedings.
Upon termination you agree: (i) to immediately cease your use of the Platform (ii) discontinue use of any Oodili trademarks and to immediately remove any Oodili references and logos from your Site (iii) or other trademarks to continue to be bound by this Agreement (iv) that the license granted under this Agreement shall end, (v) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (e) we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Platform, or any termination or suspension of the Platform or deletion of your information or account data.
4. Your License
Oodili grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Platform. The Platform includes our website, any software, programs, documentation, tools, internet-based Platforms, components, and any updates (including software maintenance, Platform information, help content, bug fixes or maintenance releases) thereto provided to you by Oodili.
The Platform is licensed and not sold. We reserve all rights not expressly granted to you in this Agreement. The Platform is protected by copyright, trade secret and other intellectual property laws. We own the title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Platform and all copies of the Platform. This Agreement does not grant you any rights to our trademarks or Platform marks.
For the purposes of this Agreement, (“Intellectual Property Rights”) means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and Platform mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
You may choose to or we may invite you to submit comments or ideas about the Platform, including without limitation about how to improve the Platform (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Oodili under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Oodili does not waive any rights to use similar or related ideas previously known to Oodili, or developed by its employees, or obtained from sources other than you.
6. Your Liability
You are responsible for all Reversals, Chargebacks, Claims, fines, fees, penalties and other liability arising out of or relating to your breach of this Agreement, and/or your use of the Platform. You agree to reimburse your customer, Oodili, Processors and any third party designated by Oodili for any and all such liability. ("Chargeback") means a request that a buyer customer files directly with his or her card company or card issuing bank to invalidate a processed payment. ("Claim") means a challenge to a payment that you or a buyer customer files directly with Oodili or the Processors. ("Reversal") means Oodili reverses the settlement of funds from a processed card transaction that you received because (a) the card transaction is invalidated by the Issuer, (b) the settlement funds were sent to you in error by (i) Oodili; (ii) the Processors, suppliers or licensors of Oodili; or (iii) any of the respective affiliates, agents, directors and employees of any of the entities listed in (i) or (ii) above, (c) the sender of the payment did not have authorization to send the payment (for example: the buyer used a card that did not belong to the buyer), (d) you received the payment for activities that violated this Agreement or any other Oodili agreement, or (e) Oodili decided a Claim against you.
Oodili will have the final decision-making authority with respect to Claims, including without limitation claims for refunds for purchased items that are filed with Oodili by you or the User. You will be required to reimburse Oodili for your liability. Your liability will include the full purchase price of the item plus the original shipping cost (and in some cases you may not receive the item back). You will not receive a refund of any fees paid to Oodili.
Without limiting the foregoing, you agree to defend, indemnify, and hold harmless Oodili, the Processors and their respective employees and agents (collectively “Disclaiming Entities”) from and against any claim, suit, demand, loss, liability, damage, action or proceeding arising out of or relating to (i) your breach of any provision of this Agreement, and/or (ii) your use of the Platform, including without limitation any Reversals, Chargebacks, Claims, fines, fees, penalties and attorneys’ fees; (iii) your, or your employee’s or agent’s, negligence or willful misconduct; or (iv) third party indemnity obligations we incur as a direct or indirect result of your acts or omissions (including indemnification of any Processors or Issuer).
If you are liable for any amounts owed to Oodili, Oodili may immediately remove such amounts from your Reserve Account and deduct the amounts owed to Oodili from such Reserve Account funds. If you do not have sufficient funds in the Reserve Account to cover your liability, you will be required to immediately add funds additional funds to your Reserve Account to cover funds owed to Oodili. If you do not do so, Oodili may engage in collections efforts to recover such amounts from you at your cost and expense.
7. Representation and Warranties
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Platform and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name under which you sell goods and Platforms; (d) any sales transaction submitted by you will represent a bona fide sale by you; (e) any sales transactions submitted by you will accurately describe the goods and/or Platforms sold and delivered to a purchaser; (f) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by you through the Platform will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) you will not use the Platform, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Platform.
8. No Warranties
THE PLATFORM AND ALL ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USE OF THE PLATFORM IS AT YOUR OWN RISK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE PLATFORM OR FROM (I) OODILI; (II) THE PROCESSORS, SUPPLIERS OR LICENSORS OF OODILI; OR (III) ANY OF THE RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR (II) ABOVE (COLLECTIVELY, THE “DISCLAIMING ENTITIES” AND INDIVIDUALLY A “DISCLAIMING ENTITY”), AND WILL CREATE ANY WARRANTY. YOU SPECIFICALLY ACKNOWLEDGE THAT NEITHER OODILI HAVE ANY CONTROL OVER THE PRODUCTS OR PLATFORMS THAT ARE PAID FOR WITH THE PLATFORMS, AND NEITHER OODILI CAN ENSURE THAT THE USER WILL COMPLETE A TRANSACTION OR IS AUTHORIZED TO DO SO. WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT WARRANT THAT THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH THE PLATFORM IS ACCURATE, RELIABLE OR CORRECT; THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS; THAT THE PLATFORM WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT THE PLATFORM WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PLATFORM IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. THE DISCLAIMING ENTITIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT HOW LONG WILL BE NEEDED TO COMPLETE THE PROCESSING OF A TRANSACTION.
THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR PLATFORM ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR PLATFORM, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND OODILI WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR PLATFORMS.
9. Limitation of Liability and Damages
IN NO EVENT SHALL A DISCLAIMING ENTITY (AS DEFINED IN SECTION 8 ABOVE) BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE PLATFORMS, INCLUDING WITHOUT LIMITATION THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE PLATFORM. UNDER NO CIRCUMSTANCES WILL ANY OF THE DISCLAIMING ENTITIES (AS DEFINED IN SECTION 8 ABOVE) BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PLATFORM OR YOUR OODILI PLATFORM ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE PLATFORM; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH THE PLATFORMS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (C) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PLATFORM; (D) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM; (E) ANY ERRORS, INACCURACIES OR OMISSIONS IN ANY CONTENT OR INFORMATION, FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED, STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE PLATFORM; AND/OR (F) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THS SECTION 9, THE DISCLAIMING ENTITIES’ CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO OODILI DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF OODILI HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PROVISIONS OF THIS SECTION 9 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Platform is controlled and operated from its facilities in Canada. Oodili makes no representations that the Platform is appropriate or available for use in other locations. Those who access or use the Platform from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States, foreign and local laws and regulations, including but not limited to export and import regulations. You may not use the Platform if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Platform are solely directed to individuals, companies, or other entities located in the United States.
10. Disputes; Choice of Law; Jurisdiction and Venue
You agree that any disputes arising out of or relating to this Agreement or the Platform shall be resolved in accordance with this Section 10. This Agreement is governed by the laws of the Province of Quebec (without regard to its choice of law provisions). The exclusive venue for any actions or claims arising under or related to this Agreement shall be in the appropriate state or federal court located in Montreal, Quebec. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that we may have under trade secret, copyright, patent or other laws. Our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
11. Right to Amend
We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Platform or software with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our website or any other website maintained or owned by us for the purposes of providing Platforms in terms of this Agreement. Any use of the Platform or software after our publication of any such changes shall constitute your acceptance of this Agreement as modified.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without consent or other restriction.
13. Change of Business
You agree to provide us with prompt notification if you are the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. You also agree to promptly notify us of any adverse change in your financial condition, any planned or anticipated liquidation or substantial change in the basic nature of your business, any transfer or sale of 25% or more of your total assets or any change in the control or ownership of you or your parent entity. You will also notify us of any judgment, writ, warrant of attachment, execution or levy against 25% or more of your total assets not later than three days after you obtain knowledge of it.
This Agreement binds you and your respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.
15. Third Party Platforms and Links to Other Web Sites
16. Force Majeure
No party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this section will affect or excuse your liabilities and obligations under Section 6, including without limitation for Reversals, Chargebacks, Claims, fines, fees, refunds or unfulfilled products and Platforms.
17. Entire Agreement
These terms and conditions and all policies and procedures that are incorporated herein by reference constitute the entire agreement between you, Oodili and Processors with respect to the provision of the Platform. In the event of a conflict between this Agreement and any other Oodili agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. Except as expressly provided in this Agreement, these terms describe the entire liability of Oodili, Processors and our vendors and suppliers and sets forth your exclusive remedies with respect to the Platform and your access and use of the Platform. If any provision of this Agreement (or portion thereof) is held to be invalid or unenforceable under applicable law, then it shall 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.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: Sections B(3), B(4) D(4), D(5),D(6),D(9), D(10),D(11), C(12), E(3), E(5), E(6), E(8), E(9), E(10) and E(17).