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Terms of Use

These Terms of Use (hereinafter referred to as the “Terms“) govern the contractual relationship between:

and

You and MagicPay shall also hereinafter be referred to together as the “Parties” and individually as a “Party”.

Please read these Terms carefully before using the MagicPay Websites, POS Software and related Services. Your access to the MagicPay Websites, POS Software and related Services are conditioned upon your acceptance of and compliance with these Terms.

  1. Acceptance of the Terms. By accessing the MagicPay Websites, POS Software and related Services you agree to be bound by these Terms and accept to comply with all applicable laws and regulations. Should you disagree to be bound by these Terms, in whole or in part, you shall (i) not be permitted/authorized to use the MagicPay Websites, POS Software and related Services, and (ii) refrain from accessing/using the MagicPay Websites, POS Software and related Services. Your continued use of the MagicPay Websites, POS Software and related Services shall be deemed to constitute your acceptance of these Terms.

 

  1. Modification of the Terms. MagicPay reserves the right, at any time and in its sole discretion, to modify or replace these Terms. You shall be solely responsible for checking these Terms periodically so as to stay abreast of any changes to the Terms. Your continued access to the MagicPay Websites, POS Software and related Services following the posting of any changes to these Terms shall be subject to the newly modified Terms.
  1. License Grant. MagicPay grants you a personal, limited, revocable, non-transferable, non-sublicensable, non-exclusive license, without the right to sublicense or assign in any way to use our proprietary POS Software and related Services for your internal business use solely in the USA, U.S. Virgin Islands and/or Puerto Rico to manage your establishment and/or conduct associated point of sale activities in accordance with these Terms. All and any other uses of the POS Software and related Services are strictly prohibited. You shall not reproduce, redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, create derivative works of, sublicense, or otherwise transfer or use the POS Software and related Services unless MagicPay grants you with express written permission to do so.
  1. Restrictions

5.1 You shall not and shall not permit any third party to:

(a) access or attempt to access the POS Software and related Services (or any part thereof) that is not intended to be available to you;

(b) access or use (in any format) the POS Software and related Services (or any part thereof) through any time-sharing service, service bureau, network, consortium, or other means;

(c) without MagicPay’s advance written consent, use, ship or access the POS Software and related Services (or any part thereof) outside or from outside of the USA, US Virgin Islands or Puerto Rico;

(d) perform or attempt to perform any actions that would interfere with the proper working of the POS Software and related Services, prevent access to or use of the POS Software and related Services by other users, or impose a large load on MagicPay’s infrastructure, network capability or bandwidth; and/or

(e) use the POS Software and related Services (or any part thereof) except as permitted in these Terms.

5.2 For the avoidance of doubt, you shall not (i) be granted any right to commercialize or otherwise sublicense, transfer, assign, and/or convey the POS Software and related Services, and (ii) permit any third party to use or copy the POS Software and related Services, in whole or in part, or any improvements thereto.

5.3 Should MagicPay reasonably suspect you, in its sole discretion, of partaking in any irregular activity/abuse to access the POS Software and related Services, we may block your use of the POS Software and related Services and terminate your access to the MagicPay Websites, POS Software and related Services in accordance with these Terms.

  1. Service Requirements & Limitations

6.1 You may access and use the POS Software and related Services through your tablet or other mobile or fixed form factor identified by MagicPay as compatible with and capable of accessing and/or supporting the POS Software and related Services (“Device“) using a wired (Ethernet) or wireless (Wi-Fi or cellular) connection to the Internet. You are solely responsible for the payment of any fees that may be imposed by your Internet/data provider. Your use of the MagicPay Websites, POS Software and related Services accessed wirelessly or through the Internet shall be subject to: (a) the terms of any agreements you have with your Internet/data provider; and (b) availability, transmission range and uptime of the Services and any wireless equipment.

6.2 You may use the POS Software and related Services to conduct point-of-sale activities offline (Cash Sales Only). Transactions initiated offline will be queued and submitted for authorization when Internet connectivity to our server is restored so that the MagicPay Websites are accessible online again. You assume all risk, responsibility and liability associated with any transaction that you choose to conduct while the Service is offline.

6.3 The POS Software and related Services does not function with every mobile device. MagicPay may alter which Device is approved/considered (or not) as compatible with the POS Software and related Services at MagicPay’s sole discretion.

6.4 You shall at all times comply with any operating procedures, requirements, or guidelines regarding your use of the MagicPay Websites, POS Software and related Services that are provided or made available to you by MagicPay.

6.5 You agree that MagicPay shall not have any liability to you arising directly or indirectly from or otherwise concerning: (a) any termination, suspension, delay or disruption of the POS Software and related Services (including billing for the Services) by the Internet, any common carrier or any third party service provider; (b) any failure, disruption or malfunction of the POS Software and related Services, the Internet, or any communications network, facility or equipment beyond MagicPay or a third party’s reasonable control; (c) your failed attempts to access/use the POS Software and related Services or to complete transactions via the POS Software and related Services; or (d) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by you.

  1. Communicating with Your Customers through the POS Software

7.1 You must comply with applicable law, including by obtaining any legally required consent, when collecting and using customer contact details to communicate with your customers through the MagicPay Websites, POS Software and related Services. You must promptly honor any customer opt-out.

7.2 You may not use the MagicPay Websites, POS Software and related Services to send marketing communications except to the contact information provided directly to you by the consumer and with the proper consumer’s choice as required by law.

  1. Third Party Services

8.1 Links. The MagicPay Websites, POS Software and related Services may contain links to services, products or promotions provided by third parties and not by MagicPay (“Third Party Services“).

If you decide to use Third Party Services, you will be responsible for reviewing and understanding the terms and conditions associated with such Third Party Services (including obtaining and maintaining any required third party hardware and/or software that is required for the Third Party Services to work with our Services).

ANY ACCESS OF OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THIRD PARTY SERVICES IS ACCESSED OR DOWNLOADED AT YOUR OWN RISK. MAGICPAY WILL NOT BE RESPONSIBLE FOR ANY ACTIONS OR ANY FAILURES TO ACT OF ANY THIRD PARTY, AND EXPRESSLY DISCLAIMS ALL LIABILITY RELATED TO ANY THIRD PARTY SERVICES. MAGICPAY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PROVIDER OF A THIRD PARTY SERVICE OR THIRD PARTY SERVICE ADVERTISED OR OFFERED THROUGH MAGICPAY’S SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. MAGICPAY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND PROVIDERS OF THIRD PARTY SERVICES.

8.2 Third Party Hardware Providers & Payment Processors

Any of your obligations set out in these Terms relating to your use of the POS Software, Services and MagicPay Websites via your Device are in addition and not in substitution of any other obligations imposed on you by any third party hardware (e.g. Pax Technology and ValorPayTech hardware) and/or Device providers/manufacturers, credit card payment processors and authorized POS Software resellers/sub-licensors under any of their respective, separate and applicable terms and conditions. You shall ensure that you read and understood all such applicable and separate terms and conditions.

  1. Account Registration & MagicPay POS Dashboard

9.1 If and when prompted by MagicPay’s registration process to register and create a “Member” or “Merchant” account (“Account“), you agree to (a) provide true, accurate, current and complete information about yourself and/or your business, and (b) maintain and update this information to keep it true, accurate, current and complete. If any information provided by you is untrue, inaccurate, not current or incomplete, MagicPay has the right to terminate your Account and to refuse any and all current or future use of the MagicPay Websites, POS Software and related Services.

9.2 You may use your Account to connect to your specific MagicPay webpage (“MagicPay Dashboard”). You may access the POS Software which MagicPay provides as part of the Services that reside on the MagicPay Dashboard. The POS Software (and its functionalities) that make up the Services may vary from time to time. You, and your authorized users and employees, can access the MagicPay Dashboard via most internet browsers.

Through the MagicPay Dashboard and using your Account, you and your authorized employees will be able to accept payments for card not present transactions (the “MagicPay Virtual Terminal”). All transactions accepted through the MagicPay Virtual Terminal will be governed by these Terms.

MagicPay Payments provides you with access to the MagicPay Websites which include the MagicPay Dashboard, MagicPay Virtual Terminal functionality, hosted checkout capabilities, and developer tools APIs.

  1. POS Software & Service Maintenance

10.1 MagicPay may perform maintenance on the MagicPay Websites, POS Software and related Services which may result in Service interruptions, delays, or errors. MagicPay will not be liable for any such interruptions, delays, errors, or bugs. MagicPay may contact you in order to improve the POS Software and related Services and to obtain information needed to identify and fix any errors.

10.2 MagicPay may, at its discretion, release enhancements, improvements or other updates to any software. If MagicPay notifies you that such update requires an installation, you shall integrate and install such update into your systems within 30 days of your receipt of such notice. Failure to install any updates in a timely fashion may impair the functionality of the POS Software and related Services. MagicPay shall have no liability for your failure to properly install the most current version of the POS Software or any update thereof, and MagicPay shall have no obligation to provide support services for any outdated version of the POS Software.

10.3 The POS Software may automatically install, download, and/or deploy updated and/or new components, which may include a new version of the software itself. You shall not, in any event or in any manner, impede such update process. You agree to assume full responsibility and indemnify MagicPay for all damages and losses, of any nature, for all adverse results or third party claims arising from your impeding the update process.

  1. Fees

You will be charged and agree to pay the applicable fee to use the POS Software and related Services, as displayed in the MagicPay Agreement, and all applicable taxes (other than taxes based on MagicPay’s income), duties or other governmental assessments based on your use of the POS Software and related Services. If you dispute any amounts you are charged, you must notify MagicPay in writing within 30 days of incurring the charge that you dispute. If you notify MagicPay after 30 days, you agree MagicPay has no obligation to effect any adjustments or refunds.

  1. Term and Termination

12.1 These Terms commence on the date on which you first use the MagicPay Websites, POS Software and related Services and continue for the subscription term you select. The subscription term will automatically renew upon expiration of the initial term and shall be equal in duration as the initial term, unless either party gives notice of cancellation prior to the expiration of the initial or any renewal term. The fee charged during any renewal term will be equal to the fee in effect during the immediately preceding subscription term, unless MagicPay provides advance notice of a fee change, which fee change will be effective upon the renewal term.

12.2 MagicPay may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the MagicPay Websites, POS Software and related Services without any notice and liability for any reason, including if in MagicPay’s sole determination you violate any provision of these Terms.

12.3 Upon termination of these Terms for any reason, you must immediately stop using the MagicPay Websites, POS Software and related Services and your license to use the POS Software and related Services provided under these Terms shall end. Upon your termination of these Terms, MagicPay will provide you with a reasonable period of time to allow you to extract your Account Data (defined below) that MagicPay has stored on its servers as of the termination date. Subject to the foregoing sentence and applicable law and card association rule requirements, MagicPay will delete Account Data stored on MagicPay’s servers upon your termination of these Terms, and MagicPay will not be liable to you or any third party for (i) terminating your/their access to the MagicPay Websites, POS Software and related Services or (ii) deleting your/their Account Data.

12.4 The rights, obligations and limitations provided under Sections 6.2, 6.5, 10.2, and 10.3, 12, 14, 15, 16, 17, 18, 19, 20 and 24 will survive termination of these Terms.

  1. Privacy and Data Use

13.1 All data collected via the MagicPay Websites or in connection with your use of the POS Software and related Services, including customer information and information about your business and employees used with or stored in or by the MagicPay Websites or POS Software, is collected by MagicPay. The MagicPay Privacy Policy (available at https://magicpay.net/privacy-policy/ ) describes MagicPay’s collection, use, disclosure, and other practices of MagicPay in connection with such data.

13.2 You shall comply with all applicable laws pertaining to the privacy, secrecy, confidentiality, collection, usage, sharing, security, protection, disposal, or international transfer, of personal information, including laws applicable to direct marketing, telemarketing, and unsolicited e-mails or text messages. Applicable laws may include, but are not limited to US federal and state laws, such as the FTC Act, the California Consumer Privacy Act, the CAN-SPAM Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, Gramm-Leach-Bliley Act, state consumer protection laws, state data security laws, security breach notification laws, laws imposing minimum security requirements, laws requiring the secure disposal of records containing certain personal information, as well as any MagicPay requirements related to such matters.

13.3 You must implement reasonable security measures designed to protect the personal information that you collect, use, disclose, transfer, or otherwise process in connection with your use of (i) the MagicPay Websites, POS Software and related Services, and (ii) your Device. You acknowledge and agree that you are solely responsible for all privacy and information security obligations and liabilities relating to any data that you download, export, or otherwise transfer from the MagicPay Websites, POS Software and related Services or Device to your own information environment.

13.4 You shall maintain and make available to your consumers a privacy policy applicable to your use of (i) the MagicPay Websites, POS Software and related Services, and (ii) your Device on which the POS Software is installed.

13.5 You must ensure that any third parties with which you share personal information in connection with your use of the MagicPay Websites, POS Software and related Services or in connection with the use of your Device will provide the same level of privacy and data security protection that you are legally required to maintain.

13.6 You must respond in a legally appropriate manner to any legally valid requests from individuals pertaining to the individual’s privacy or data subject rights at your sole cost and expense.

13.7 You acknowledge and agree that when you install an application on the Device, you establish a contractual relationship with the developer of the application. By installing an application, you authorize and instruct MagicPay to process and transfer personal information to facilitate your ongoing use of the application, including the disclosure of certain categories of personal information to the developer of the mobile application and the receipt of personal information from the developer, as may be required by the application, until such time as you instruct MagicPay otherwise. You are solely responsible for instructing an application developer to cease processing and/or destroy any personal information.

13.8 MagicPay may process personal information to create aggregated, anonymized, or de-identified information and use that information for its lawful business purposes, including for purposes of creating data insights and analytics and demographic profiling.

13.9 Unless you have received prior written consent to do so from MagicPay, you may not use the MagicPay Websites, POS Software and related Services to (a) process personal information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership; or genetic data, biometric data, data concerning health, or data concerning a natural person’s sex life or sexual orientation; or (b) upload or incorporate, process transactions involving, or otherwise provide MagicPay with, any “protected health information” within the meaning of the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA).

13.10 You agree to provide reasonable assistance to help MagicPay comply with its privacy or data protection legal obligations, or defend against any claims or investigations, in either case, in any way arising from or related to the Terms. You agree to promptly notify MagicPay of any opt-outs and legally valid data subject rights requests relating to data with MagicPay’s possession, custody, or control.

  1. Protecting Information

14.1 You shall safeguard all confidential information MagicPay supplies or otherwise makes accessible to you using a reasonable degree of care. You shall only use MagicPay’s confidential information for the purposes of these Terms and shall not disclose MagicPay’s confidential information to any person, except as MagicPay may agree in advance and in writing. At MagicPay’s request, you shall return to MagicPay or destroy all of MagicPay’s confidential information in your possession or control.

14.2 You are solely responsible for ensuring that your account numbers, passwords, security questions and answers, login details and any other security or access information used by you to use or access the MagicPay Websites, POS Software and related Services is kept safe and confidential. You must prevent unauthorized access to and use of any of your information or data used with or stored in or by the MagicPay Websites or POS Software (collectively, “Account Data“).

You are responsible for electronic communications sent to MagicPay or to any third party containing Account Data and for all uses of the MagicPay Websites, POS Software and related Services in association with your Account Data, whether or not authorized by you. MagicPay has the right to rely on user names, password, credentials and/or other access controls provided or approved by MagicPay to authenticate access to, and use of the MagicPay Websites, POS Software and related Services.

You must immediately notify MagicPay if you become aware of any loss, theft or unauthorized use of any Account Data.

MagicPay reserves the right to deny you access to the MagicPay Websites, POS Software and related Services, in whole or in part, if MagicPay believes that any loss, theft or unauthorized use of any Account Data or access information has occurred.

14.3 You may submit comments or ideas about the MagicPay Websites, POS Software and related Services, including about how to improve them. By submitting any idea, you agree that (a) MagicPay expressly disclaims any confidentiality obligations or use restrictions, express or implied, with respect to any idea; (b) your submission will be non-confidential; and (c) MagicPay is free to use and disclose the idea on an unrestricted basis without notifying or compensating you. You release MagicPay from all liability and obligations that may arise from MagicPay’s receipt, review, use or disclosure of any portion of any idea.

  1. Intellectual Property

15.1 “Marks” means MagicPay’s names, logos, emblems, brands, service marks, trademarks, trade names, taglines or other proprietary designations. All right, title and interest in and to all confidential information and intellectual property related to the MagicPay Websites, POS Software and related Services (including Marks, all software, the content of any materials, web screens, layouts, processing techniques, procedures, algorithms, and methods and any updates, changes, alterations, or modifications to or derivative works from such intellectual property), owned, developed or licensed by MagicPay at any time or employed by MagicPay in connection with the the MagicPay Websites, POS Software and related Services, shall be and remain MagicPay’s or its affiliates’, vendors’ or licensors’ (as applicable) sole and exclusive property and all right, title and interest associated with the MagicPay Websites, POS Software and related Services not expressly granted by MagicPay in these Terms are deemed withheld. You may not use Marks in any manner, including in any advertisements, displays, or press releases, without MagicPay’s prior written consent.

15.2 You shall not, and shall not permit any third party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover by any means any source code, underlying ideas or algorithms of the POS Software and related Services (or any part thereof), except to the extent that such restriction is expressly prohibited by law; (b) modify, translate, or alter in any manner, the MagicPay Websites, POS Software and related Services (or any part thereof) or the Marks; (c) create derivative works of or based on the MagicPay Websites, POS Software and related Services (or any part thereof), or the Marks; (d) except for backup and archival purposes, directly or indirectly copy the MagicPay Websites, POS Software and related Services (or any part thereof); (e) republish, upload, post, transmit, disclose, or distribute (in any format) the MagicPay Websites, POS Software and related Services (or any part thereof) except as permitted in these Terms; or (f) remove, relocate, or otherwise alter any proprietary rights notices from the MagicPay Websites, POS Software and related Services (or any part thereof) or the Marks.

15.3 If MagicPay provides you with copies of or access to any software or documentation, unless otherwise expressly stated in writing, that software and documentation is provided on a personal, non-exclusive, non-transferable, non-assignable, revocable limited license for the period of your subscription to the Service and solely for you to access and use the POS Software and related Services and documentation for their intended purpose on the Device owned or licensed by you.

15.4 You shall not take any action inconsistent with the stated title and ownership in this Section 15 You will not file any action, in any forum that challenges the ownership of any part of the MagicPay Websites, POS Software and related Services, any related software, materials or documentation. Failure to comply with this provision will constitute a material breach of these Terms.

  1. Disclaimer

YOUR USE OF THE MAGICPAY WEBSITES, POS SOFTWARE AND RELATED SERVICES SHALL BE AT YOUR OWN RISK AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAGICPAY WEBSITES, POS SOFTWARE AND RELATED SERVICES ARE PROVIDED “AS IS” AND MAGICPAY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU OR ANY OTHER PERSON, INCLUDING ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THAT THE MAGICPAY WEBSITES, POS SOFTWARE AND RELATED SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT THE MAGICPAY WEBSITES, POS SOFTWARE AND RELATED SERVICES ARE SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR DO NOT INFRINGE THE RIGHTS OF ANY THIRD PARTY.

  1. Your Responsibilities

17.1 You shall comply fully with the requirements of all applicable federal, state and local laws and regulations related to your use of the MagicPay Websites, POS Software and related Services as well as of any cardholder data, customer information and other point -sale-data in connection with the POS Software and related Services. You shall not use the MagicPay Websites, POS Software and related Services for illegal purposes.

17.2 You are solely responsible for obtaining all required permits, consents and licenses applicable to your use of MagicPay Websites, POS Software and related Services and to the operation of your business, for interpreting applicable laws and regulations, for determining the requirements for compliance with all applicable laws and regulations, and for maintaining an on-going compliance program.

17.3 You are solely responsible for ensuring the accuracy, quality, integrity, legality and appropriateness of all information and data regarding your business that you provide to MagicPay or its service providers in connection with the MagicPay Websites, POS Software and related Services. In addition, if applicable, you are solely responsible for verifying that all information and data loaded onto a Device by MagicPay or its service providers at your request are accurate prior to your business use of such Device. MagicPay and its service providers disclaim any and all liability arising out of any inaccuracies with respect to any information or data you provide.

17.4 By using Google Pay you hereby agree to Google Pay API Terms of Service

  1. Limitations on Liability, Risk Assumption & Release/Waiver of Liability

18.1 IN NO EVENT SHALL MAGICPAY, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS, BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

MAGICPAY’S AND ITS AFFILIATES’ CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING THOSE ARISING OUT OF OR RELATED TO THESE TERMS AND ANY INDEMNITIES), REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED THE AMOUNT OF FEES RECEIVED BY MAGICPAY UNDER THESE TERMS FOR THE IMMEDIATELY PRECEDING SUBSCRIPTION TERM.

18.2 IN CONSIDERATION FOR THE PROVISION OF THE SERVICES BY MAGICPAY, YOU HEREBY ASSUME ALL OF THE RISKS IN THE OPERATION OF THE POS SOFTWARE WHEN BEING PROVIDED WITH THE SERVICES, including by way of example and without limitation, any risk of loss of stored data, any delay in reporting, any delay in Service provision or any other damage resulting from operation of the POS Software during performance of the Services and any risks that may arise from your negligence or carelessness while being provided with the Services, including without limitation, where liability may arise without fault.

 

18.3 YOU HEREBY WAIVE, RELEASE, AND DISCHARGE MagicPay from any and all liability arising from the operation of the POS Software during performance of the Services, including but not limited to, liability arising from the negligence or fault of MagicPay, for death, disability, personal injury, property damage, loss of property (e.g. loss of stored data), or damage or loss of any other kind (e.g. delays of any kind including delays in reporting). This Release and Waiver of Liability shall be construed broadly to provide a release and waiver to the maximum extent permissible under applicable law. YOU CERTIFY THAT YOU FULLY UNDERSTAND THE CONTENT OF THIS RELEASE AND WAIVER OF LIABILITY AND ARE AWARE THAT IT IS A CONTRACT THAT IS ENTERED INTO FREELY BY YOU.

18.4 You understand, acknowledge and agree that MagicPay, in its capacity as authorized reseller of Pax Technology and ValorPayTech hardware, (i) shall not be liable for any damages suffered by you or any third party as a result of your use of the Pax Technology and ValorPayTech hardware or any other hardware sold by MagicPay, and (ii) does not make any warranty with respect to the Pax Technology and ValorPayTech hardware or any other hardware sold by MagicPay.

  1. Indemnity

You will indemnify, defend and hold MagicPay harmless (and MagicPay’s employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to:

(a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms, including without limitation any violation of our policies or the card associations’ rules;

(b) your wrongful or improper use of the MagicPay Websites, POS Software and related Services;

(c) any transaction submitted by you through the MagicPay Websites, POS Software and related Services (including without limitation the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you);

(d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights;

(e) your use of any personal information obtained in connection with your use of the MagicPay Websites, POS Software and related Services, of your Device or of any application used on your Device;

(f) the activities under your Account, or any other party’s access and/or use of the MagicPay Websites, POS Software and related Services or of your Device with your unique username, password, API key, or other appropriate security code;

(g) your failure to maintain reasonable security in connection with the use of the MagicPay Websites, POS Software and related Services or in connection with the use of your Device;

(h) any data breach, information security incident, or similar, arising from your action or inaction;

(i) your violation of any law, rule or regulation of the United States or any other country; or

(j) any other party’s access and/or use of the MagicPay Websites, POS Software and related Services with your user names, password and any other sign-on credentials/access controls provided or approved by MagicPay to authenticate access to, and use of the MagicPay Websites, POS Software and related Services.

  1. Representation and Warranties. You represent and warrant that:

(a) you are validly existing, in good standing and have the right, power, and authority to enter into and perform under these Terms;

(b) any sales transaction submitted by you (i) is genuine and arises from a genuine sale or service that you directly sold or provided, (ii) accurately describes the goods or services sold and delivered to a purchaser and (iii) represents the correct amount of goods or services purchased from your business;

(c) 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 consumer;

(d) you, all transactions initiated by you and your use of the MagicPay Websites, POS Software and related Services will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations and card association rules and regulations;

(e) except in the ordinary course of business, no sales transaction submitted by you through the MagicPay Websites, POS Software and related Services will represent a sale to any principal, partner, proprietor, or owner of your entity;

(f)you will not use the MagicPay Websites, POS Software and related Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the MagicPay Websites, POS Software and related Services; and

(g) you are not engaged in and will not accept payment for any illegal activity, in the legal jurisdiction(s) in which you do business or provide goods and/or services.

  1. Consent to Electronic Communication

21.1 You agree that MagicPay, its affiliates and its third party subcontractors and/or agents, may use, in addition to any live agent calls, an automatic telephone dialing system, an artificial or pre-recorded voice, or both, to contact you at the telephone number(s) you have provided, and/or may leave a detailed voice message if you are unable to be reached, even if the number provided is a cellular or wireless number or if you have previously registered on a Do Not Call list or requested not to be contacted for solicitation purposes.

21.2 You consent to receiving commercial electronic messages, including e-mail messages, SMS and text messages, and telephone calls, from MagicPay, its affiliates and its third party sales contractors and/or agents.

  1. Amendment made to the MagicPay Websites, POS Software and related Services

MagicPay may at any time for any reason or for no reason change, add to, delete, discontinue, or impose conditions on any feature or aspect of MagicPay Websites, POS Software and related Services without notice to you.

  1. Assignment

These Terms, and any rights or licenses granted hereunder, may not be transferred or assigned by you (including by operation of law, transfer of voting control of you or otherwise) without MagicPay’s prior written consent, but may be assigned by MagicPay without restriction.

  1. General Provisions

These Terms (i) constitute the entire agreement between you and MagicPay, (ii) describe the entire liability of MagicPay and its licensors, vendors and suppliers (including processors) in relation to the provision of the MagicPay Websites, POS Software and related Services, and (iii) provide your exclusive remedy with respect to your use and access to the MagicPay Websites, POS Software and related Services.

In the event of a conflict between these Terms and the Privacy Policy, the Privacy Policy shall prevail.

These Terms shall be governed and construed in accordance with the laws of the State of Florida (USA) without regard to its conflicts of laws provisions. You and MagicPay agree to submit to the exclusive jurisdiction of the courts located within Palm Beach County, Florida (USA) to resolve any legal matter arising from these Terms.

If any provision of these Terms is 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.

These Terms do not limit any rights that MagicPay may have under trade secret, copyright, patent or other laws. Except for MagicPay’s affiliates and as otherwise stated herein, no persons shall be third party beneficiaries to these Terms.

No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such provision or any other provision, and MagicPay’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.

Notices sent to your last known e-mail address or postal address, as indicated in our records, shall constitute effective notice to you under these Terms.

  1. Contacting MagicPay

If you have any questions about these Terms, please contact MagicPay at [email protected] .

Except as otherwise stated in these Terms, all notices to MagicPay required or permitted in these Terms relating to your use of the MagicPay Websites, POS Software and related Services shall be in writing and sent by postal mail to:

MagicPay Merchant Services, LLC

Legal Department

1616 NW 2nd Ave

Boca Raton, FL 33432.

Notices shall be effective when actually received or, if sent by courier, when delivered.