Terms of service
The following terms and conditions (“Terms of Service”) govern the use of the hosted and online commerce and related services (the “Services”)offered by SWIPEBOX, LLC, d/b/a TRATTA, a Delaware Limited Liability Company(“Tratta”, “we” and “us”). By signing up or registering for an account for the Services (a “Tratta Account”) or by using any of the Services, you and the company or entity on whose behalf you are using the Services or opening a Tratta Account (collectively, “Customer”, “you”and “your”) agree to be bound by these Terms of Service. Any modifications, updates, new features or tools which are added by Tratta to the current Services shall be also subject to the Terms of Service and deemed part of the Services hereunder.
Tratta reserves the right to amend, update or change these Terms of Service by posting such amendments, updates and changes to Tratta’s website. You are advised to check the Terms of Service from time to time for any such amendments, updates or changes that may impact you. If you do not agree or accept any such amendments, updates or changes, you must cease using the Services and notify Tratta that you are terminating your Tratta Account. You can review the current version of the Terms of Service at any time at tratta.io/legal/terms.
Scope of Agreement
1.1 - Order Terms; EffectiveDate
- Pricing, fees and/or other specifics and details of the Services for Customer shall be as set forth in the applicable quote, order form, addendum or similar document or communication provided by or on behalf of Tratta and accepted by Customer (including, if applicable, Tratta’s order terms webpage accompanying or cross-referenced where and when Customer registers or signs up for the Services), or if not otherwise set forth in any such formal document, webpage or communication, such pricing fees and/or other specifics and details shall be in accordance with Tratta’s standard published pricing and terms for the Services (any of the foregoing, as applicable, being the “Order”). All applicable Orders for Customer shall be subject to and otherwise incorporated into these Terms of Service. Unless otherwise agreed to by Tratta in writing, any terms in a purchase order or other communication or document provided by Customer will be null and void. The “Effective Date” of this Terms of Service shall be the earlier to occur of the date Customer first accepts or agrees to the Order or this Terms of Service, or the date Customer first uses or accesses the Services.
1.2 - Additional Services and Terms
- Some Services that Tratta offers from time to time may be subject to separate or additional terms and conditions such as payment processing services, merchant services and point-of-sale (POS) services and equipment (collectively, “Additional Services”). Additional Services are subject to additional fees and additional terms, conditions, and policies that govern their availability and use (“Additional Service Terms”). Customer’s use of and access to any Additional Services is subject to all applicable Additional Service Terms as well as, to the extent applicable (and unless the Additional Service Terms expressly state otherwise), these Terms of Service. In the event of any conflict or inconsistency between these Terms of Service and any Additional Service Terms, the Additional Service Terms shall govern and take precedence, but only with respect to the Additional Services to which such Additional Service Terms apply.
1.3 - Beta Services
- From time to time, Tratta may in its sole discretion invite Customer to use, on a trial basis, potential new Services that are still under development and not yet available to all Tratta customers (“Beta Services”). Customer may accept or decline to participate in the trial use of any Beta Services at its sole discretion. If Customer accepts to use any Beta Services, any terms and conditions applicable to such use will be set out in an appendix or addendum to the Terms of Service. If there is a conflict or inconsistency between these Terms of Service and the terms set out in such an appendix or addendum, then the terms of the appendix or addendum shall prevail to the extent of any such conflict or inconsistency, but only with respect to the Beta Service to which such appendix or addendum applies. Beta Services are provided to Customer for evaluation purposes only and, although considered “Services” under this Terms of Service, are not eligible for any support, service level agreement, warranty or similar terms. Unless earlier discontinued by Tratta, any Beta Services trial period will expire on the earlier of the date set out in the applicable appendix or addendum or the date that a version of the Beta Services becomes generally available to Tratta customers. Tratta may discontinue any Beta Services at any time in its sole discretion and may never make such services generally available to all Tratta customers. Notwithstanding anything to the contrary herein, Tratta will have no liability for any harm or damage arising out of or in connection with any Beta Service or the use thereof.
2.1 - Services; Platforms
- During the Term, Tratta shall use commercially reasonableefforts to provide to Customer the Services ordered by Customer in accordancewith and subject to the terms and conditions of these Terms of Service. Unlessthe Order indicates otherwise, the Services will be provided for and throughthe Platform(s) (as defined at the end of this paragraph) located at the URL(s)listed in the Order or otherwise designated by Tratta for use by Customer, andfor other Platforms which may be activated from time to time for Customer throughCustomer’s request and Tratta’s acceptance in the manner designated by Tratta. Initially the Services shall include up to amaximum of one (1) Platform (unless the Order expressly states otherwise). Any additional Platforms in excess of suchinitial one (1) Platform may be added via an Order or amendment to this Termsof Service, as and if mutually agreed by the parties, which additionalPlatforms will be charged to Customer according to the fees specified in such Orderor amendment, or if not so specified, at Tratta’s then-current monthly ratesfor additional Platforms (as applicable, “Additional Platform Fees”). The term “Platform” means each onlineplatform, which may be associated with a URL listed in the applicable Order orany amendment hereto or otherwise designated or provided by Tratta for use byCustomer hereunder, to facilitate a separate Customer instance for receivingand accessing Services hereunder.
2.2 - Services Changes and Updates
- Tratta shall have the right from time to time during the Term to make updates or changes to the Services. Any such updates and changes shall be of general applicability to Tratta’s similarly situated customers. If Tratta removes or makes a material change to the core features and functionality of the Services, Tratta will notify Customer. Such notice may be provided via email or by posting notice in the administrative console for the Platform(s). New or modified Services with substantially new, improved or different features or functionality may be offered by Tratta (in its discretion) as separate Services for separate fees and charges. Tratta has no obligation hereunder to create or provide updated or modified Services or new, improved or different Services.
2.3 - Third Party Services
- The Services may interoperate with or connect to certain services and products offered by third parties and used by Customer (“Third Party Services”). Tratta does not make or provide any warranties or representations with respect to Third Party Services. You acknowledge and agree that Tratta has no control over Third Party Services and shall not be responsible or liable to you or anyone else for such Third Party Services. The availability of Third Party Services on or through the Services, or the integration, interoperation or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Tratta. Tratta does not promise or guarantee, and Tratta shall have no obligations or liability with respect to, the availability, discontinuation, suspension or proper functioning or performance of Third Party Services (or their interoperation or connection to the Services) and you acknowledge that Tratta may disable access to any Third Party Services at any time in its sole discretion and without notice to you. Tratta strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice, when assessing the correct tax rates you should charge to your customers.
- If you install or enable a Third Party Service for use with the Services, you grant us permission to allow the applicable provider of such Third Party Service (the “Third Party Provider”) to access your data and other Materials (as defined in Section 3.4 below) and to take any other actions as required for the interoperation or integration of the Third Party Service with the Services. Any exchange of data or other Materials or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider and shall be subject to any applicable terms and conditions agreed with or imposed by such Third Party Provider. Tratta is not responsible for any disclosure, modification or deletion of your data or other Materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other Materials.
- The relationship between you and any Third Party Provider is strictly between you and such Third Party Provider, and Tratta is not obligated to intervene in any dispute arising between you and a Third Party Provider.
- Under no circumstances shall Tratta be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider. These limitations shall apply even if Tratta has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
3.1 - Use of the Service
- Customer is solely responsible for all of the terms and conditions of the transactions that are evidenced, recorded, tracked or conducted on or through the Platform(s), including, without limitation, terms regarding payment, returns, warranties, shipping, handling, transportation, storage, insurance, interest, fees, applicable taxes, title and licenses, all of which must be in accordance with applicable law.
3.3 - Taxes for Customer Transactions
- It is Customer’s responsibility and obligation to: (i) determine what, if any, taxes apply to transactions occurring via, or evidenced, recorded or tracked by, the Platform(s); and (ii) collect, report and remit the correct taxes to the appropriate tax authorities. Tratta is not responsible for determining whether taxes apply to a transaction, or for collecting, reporting, or remitting any taxes arising from any transaction. Tratta may from time to time make available to Customer certain tax calculation services offered by third party providers, which tax services shall be Third Party Services hereunder subject to Section 2.3 above.
3.4 - Materials and Content Back Up
- In connection with the use of or access to the Services (including the Platforms) by or for Customer, any and all content, including transaction data, sales data, financial data, user account information, photos, images, videos, graphics, written content, audio files, code, information, reports, data, or other content posted, uploaded, generated, distributed, transmitted or otherwise provided by or for Customer to or through the Services (including the Platforms) or Customer’s Account shall be collectively referred to herein as the “Materials”. For the avoidance of doubt, Materials shall include Customer’s transaction data and data and information that originates from Customer’s accounts with third parties (e.g., transaction information from payment processors) which are imported into or otherwise obtained by the Services for Customer hereunder. Tratta does not pre-screen Materials and reserves the right, in its sole discretion, to refuse or remove any Materials from the Services at any time, Customer is solely responsible for maintaining backups and copies of the Materials, including but not limited to customer management, inventory, product listings, sales, order and payment tracking data, transaction data, financial data, reports and numeric results. Tratta shall have no responsibility or liability for storing or maintaining backups of any Materials or of any results or output arising from Customer’s use of the Services and may delete all such Materials and results and output following expiration or termination of these Terms of Service.
3.5 - Fees and Payments
- Fees. Customer shall pay to Tratta the fees and charges for the Services (the “Fees”) set forth in the applicable Order in accordance with any payment terms set forth therein and these Terms of Service. Such fees may include subscription fees, platform fees, transaction fees (which may vary depending on whether or not you are using Tratta or a third party for payment processing), third party charges for any portion of the Services that are being provided through third parties and other charges.
- Third Party Reseller Payments for Customer. If any of the Services are obtained by Customer through a third party reseller or other intermediary who is paying the applicable Fees to Tratta on Customer’s behalf, Customer shall not owe such Fees to Tratta hereunder. However, Customer shall remain obligated to pay Tratta any Fees due or payable for Services that are not being paid by such third party.
- Fee Changes. For any Renewal Term (as defined in Section 4 below), Tratta may in its sole discretion introduce new fees applicable to the Services, or increase or otherwise modify any of the existing Fees (including any Fees or other charges on the Order), provided that Tratta gives Customer written notice of any such additional fees or Fee increases at least 30 days prior to the end of the Initial Term, or 15 days prior to the end of the then-current Renewal Term. If Tratta does not provide notice to Customer pursuant to this Section 3.5(c), then the Fees applicable to the Initial Term or immediately prior Renewal Term, as applicable, will continue to apply to the subsequent Renewal Term. Notwithstanding the foregoing, any Fees based on third party charges may be increased commensurate with any increase in such third party charges at any time such third party charges are increased.
- Payment Terms and Billing Dates. Except to the extent otherwise provided in the applicable Order or in these Terms of Service, Fees shall be paid on a monthly basis within thirty (30) days after the end of each month or, for invoiced Fees, within thirty (30) days after the date of Tratta’s invoice therefor. The Fees for each Billing Month (as defined below) will be due and payable on the first day of the next Billing Month (“Billing Date”) based on applicable Fees and charges incurred or accrued for such previous Billing Month (except to the extent of any Fees designated by Tratta in the Order or otherwise in writing to be paid in advance, which such payments shall be due and payable on the first day of such Billing Month). All payment notifications will be sent directly to Customer via Customers billing email provided by Customer. “Billing Month” means the monthly period starting on the Effective Date (and the corresponding date of each calendar month thereafter) and ending on the corresponding date of the next calendar month. If you purchase a domain name through Tratta, domain registration will be preset to automatically renew each year so long as your Tratta Account remains active. You acknowledge that it is your sole responsibility to deactivate the Auto-renewal function should you choose to do so. Except as may be otherwise expressly specified in the applicable Order, all Fees hereunder are non-creditable, non-cancelable and non-refundable.
- Method of Payment - Authorized Bank Account. In order to access and use the Services, Customer must keep a valid bank account on file with Tratta (“Authorized Bank”). Tratta will charge the Authorized Bank for any one-time, non-recurring charges applicable to the Platform(s) or Services, including but not limited to one-time fees for any Setup, Implementation, Training, Consulting, Apps, Domain Names and Themes purchased by a Platform, and Tratta will charge all other applicable Fees to the Authorized Bank in accordance with Section 3.5(d) above. The method of payment may be changed upon the mutual agreement of the parties.
- Applicable Currency. Unless the parties agree otherwise, all Fees and other charges will be calculated in U.S. dollars, and all payments shall be in U.S. dollars (“Applicable Currency”). If any of the Platform(s) process transactions in a currency other than the Applicable Currency, then for the purposes of calculating any applicable Fees based on such transactions, the monetary value in the Applicable Currency of each transaction will be determined using the currency conversion rate in effect at the time that such transaction is processed by the Platform.
- Taxes. All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, use, value added and other taxes, duties, fees or governmental charges now in force or enacted in the future (collectively, “Taxes”). Customer shall, in addition to the other amounts payable under this Terms of Service, pay all applicable Taxes, however designated, which are levied or imposed by reason of the transactions contemplated by this Terms of Service or Customer’s subscription or access to or use of the Services, excluding only taxes based on Tratta’s net income. Customer agrees to indemnify, defend, and hold Tratta, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Customer’s failure to report or pay any such Taxes.
- For the avoidance of doubt, all sums payable by you to Tratta under these Terms of Service shall be paid free and clear of any deductions or withholdings whatsoever, including for Taxes. Other than Taxes charged by Tratta to you and remitted to the appropriate tax authorities on your behalf, any deductions or withholdings that are required by law shall be borne by you and paid separately to the relevant taxation authority and you shall pay such additional amounts as may be required so that, after all such deductions and withholdings, Tratta receives the full amount of Fees due hereunder. Tratta shall be entitled to charge the full amount of Fees stipulated under these Terms of Service to your Authorized Bank.
- To the extent that Tratta charges these Taxes, they are calculated using the tax rates that apply based on the billing address you provide to us. Such amounts are in addition to the Fees for such products and services and will be billed to your Authorized Bank. If you are exempt from payment of such Taxes or other applicable Taxes, you must provide us with evidence of your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive evidence satisfactory to Tratta of your exemption. If you are not charged Taxes by Tratta, you are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.
- Disputed Charges. It is Customer’s responsibility to review all invoices for accuracy. Failure by Customer to dispute any Fees or other charges within 30 days of the applicable Billing Date or, if applicable, invoice date, will constitute Customer’s agreement that the invoiced Fees and other applicable charges are valid and a waiver of any claims Customer may have had regarding such Fees or charges.
- Unpaid Fees. If Tratta is not able to process payment of Fees using the Authorized Bank or Tratta otherwise fails to receive any Fees when due, Tratta may notify Customer. If after such notice to Customer, Tratta is still not able to process payment of Fees using the Authorized Bank (or does not otherwise receive such Fees within three days of such notice), then Tratta may suspend the Services and revoke Customer’s access to the administrative console for the Platform(s). Access will be reactivated upon payment of any outstanding Fees plus $50 per failed/late/returned attempt prior to the successful payment. During any period of suspension, Customer will not be able to access the administrative console for the Platform(s), and the online Platform(s) will not be accessible by users. If the outstanding Fees remain unpaid for 30 days following the date of suspension, Tratta reserves the right to terminate this Terms of Service. Any unpaid Fees (excluding amounts reasonably disputed by Customer in good faith) will bear interest at the rate of $25 or 2.5% per month (whichever is greater), or, if less, the highest rate permitted by applicable law. Customer shall pay all reasonable expenses (including attorney’s fees and court costs) incurred by Tratta in collecting unpaid Fees, excluding amounts reasonably disputed by Customer in good faith.
3.6 - Implementation Costs
- The costs and fees for any implementation, training or conversion Services shall commence upon the Effective Date. Such costs and fees will be invoiced directly to Customer with a separate Statement of Work (or as and if specified in the applicable Order). Such invoices shall be due and payable within thirty (30) days of the date of invoice. Unless the Order otherwise specifies, setup of private cloud infrastructure for the Services will be within AWS, which includes white-labeled instance, website domain, templates and all required servers. Customer must have their own database server within an isolated security environment. Implementation will also consist of mapping imported account files and naming structure.
3.7 - Additional Rules and Terms
- You must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from which you use the Services to open a Tratta Account and use the Services.
- You shall use the Services provided by Tratta solely for the purposes of carrying on business activities for Customer and not for any personal, household or family purpose. You may not use the Tratta Services for any illegal or unauthorized purpose.
- You must keep your password and other Tratta Account credentials secure. Tratta cannot and will not be liable for any loss or damage from your failure to maintain the security of your Tratta Account, password and credentials. You are responsible and liable for all activities occurring through your Tratta Account, including any Materials provided through your Tratta Account.
- The Services you receive hereunder may allow you to send certain communications to your customers and users by short message service (SMS) messaging (for example, sending payment confirmation notifications via SMS). You will only use such SMS Services in compliance with these Terms of Service, Twilio Inc.’s Acceptable Use Policy (as published by Twilio), and the laws of the jurisdiction from which you send messages, and in which your messages are received.
Term and Termination
4.1 - Term
- Unless terminated earlier pursuant to the terms and conditions of this Terms of Service (and except as otherwise expressly provided for in the Order, if at all), this Terms of Service shall commence on the Effective Date and shall remain in force for an initial term of one (1) month, unless the Order specifies a different initial subscription period of term (as applicable, the “Initial Term”). The Terms of Service shall automatically renew for successive one-month terms, or if the Initial Term under the Order was longer than one year, than the renewal shall be for successive one-year terms or as otherwise specified in the Order (each, as applicable, a “Renewal Term”) beginning at the end of the Initial Term and the end of each Renewal Term thereafter (except as otherwise expressly provided for in the Order, if at all), unless either party provides the other with notice of its intention not to renew at least 30 days prior to the expiry of the Initial Term or any then-current Renewal Term. Also, either party may terminate the Terms of Service at any time during any Renewal Term by providing the other party with at least 30 days’ prior written notice (unless the Order provides otherwise). The Initial Term and Renewal Term, except to the extent earlier terminated as expressly provided for in this Terms of Service, are collectively referred to herein as the “Term”.
4.2 - Termination and Suspension
- In addition to Tratta’s right to terminate the Services as otherwise specified in these Terms of Service or the Tratta AUP or API Terms, either party may terminate this Terms of Service upon written notice if the other party:
(i) assigns or attempts to assign this Terms of Service to a third-party in violation of this Terms of Service;
(ii) fails to cure a material breach by such other party under this Terms of Service within 30 days after receipt of written notification from the notifying party of such material breach;
(iii) ceases to carry on business as a going concern; or (iv) initiates a bankruptcy, reorganization or insolvency proceeding, or has such a proceeding initiated against it, makes an assignment for the benefit of creditors, or consents to the appointment of a trustee.
- Tratta may also suspend access to and use of the Services (including the Platforms and/or your Tratta Account) immediately without notice in the event Tratta reasonably believes such access or use could cause or constitute a violation of law or fraud, the violation of infringement of the rights of others, or a threat to the security, integrity or operation of the Services or any material portions thereof. In such case Tratta shall notify Customer and use reasonable efforts to resume such access and use when the cause of such suspension has abated.
4.3 - Effect of Termination
- Upon the expiry or termination of the Term or this Terms of Service for any reason:
- Tratta will cease providing Customer with the Services and Customer will no longer have access to the administrative console for the Platform(s) or other aspects of the Services;
- Customer’s online Platform(s) will be taken offline;
- unless and to the extent otherwise expressly provided the applicable Order, Customer will not be entitled to any refunds of any prepaid Fees, pro rata or otherwise;
- any outstanding balance of any Fees, any accrued Fees or other charges owed or accrued by Customer to Tratta up to the effective date of termination or expiration will immediately become due and payable to Tratta in full;
- if (i) Tratta terminates the Terms of Service pursuant to Section 3.5(i) or Section 4.2 during the Initial Term; or (ii) if Customer terminates the Terms of Service for any reason other than pursuant to Section 4.2 during the Initial Term, then as a genuine pre-estimate of Tratta’s damages, and not as a penalty, Tratta will have the right to charge Customer the remaining amount of any minimum fees (if any) specified in the Order for the Initial Term;
- if you purchased a domain name through Tratta, your domain will no longer be automatically renewed and it will be your sole responsibility to handle all matters related to your domain with the domain provider; and
- each party will immediately discontinue all use of the other party’s Confidential Information, except to the extent required to comply with applicable laws or otherwise duly authorized in writing.
4.4 - Survival
- All sections of this Terms of Service that by their nature should survive termination or expiration will survive such termination or expiration of this Terms of Service, including, without limitation, provisions concerning payment obligations owed, payable or accrued prior to termination or expiration, confidentiality obligations, intellectual property rights, warranty disclaimers, indemnities and limitations of liability.
5.1 - Customer Intellectual Property
- Customer, or its third party licensors, retains ownership over all Materials provided, submitted, uploaded posted or created by Customer or on Customer’s behalf by a third party (including without limitation any transaction data and other data and information retrieved by Tratta from Customer’s accounts with third parties as part of the Services). Customer will be solely responsible for the accuracy, adequacy, quality, integrity, legality, reliability, and appropriateness of all Materials posted on the Platform(s) or otherwise generated, uploaded, stored, posted, displayed, distributed, transmitted or exhibited in connection with Customer’s use of the Services. For any such Materials, Customer grants to Tratta a worldwide, non-exclusive, royalty-free, transferable and sub-licensable right to review, use, reproduce, modify, adapt, translate, publish, duplicate, create derivative works of, store, collect, transmit, distribute and display any or all of such Materials in any form, media or technology whether known or not currently known, in any manner, solely in order to provide, operate and improve the Services, for internal business purposes (solely as anonymized in such case), to comply with applicable laws and otherwise to perform Tratta’s obligations hereunder and for no other purposes unless Customer provides prior consent and except as required for compliance with applicable laws. Customer represents and warrants that it has all the rights, power and authority necessary to grant the above license.
5.2 - Tratta Intellectual Property
- Customer acknowledges and agrees that: (i) the Services, including without limitation any associated software, documentation, applications, websites, tools, information, technology and products (including any Beta Services and any storefront design templates found in Tratta’s Theme Platform), and any modifications, enhancements and updates thereto, and all intellectual property rights therein (collectively, “Tratta IP”) are exclusively owned by Tratta and/or Tratta’s third party providers; (ii) the Tratta IP contains valuable copyrighted material and is protected by Canadian, U.S. and international copyright and other intellectual property laws; and (iii) subject to Customer’s compliance with the Terms of Service, Tratta grants Customer a limited, non-exclusive, revocable, non-sublicensable, non-transferable license under the Tratta IP solely to access and use the Services during the Term on an online, software-as-a-service basis in compliance with the Terms of Service; and (iv) Customer has no rights in the Tratta IP, other than the rights and licenses granted herein. Except as expressly stated in this Terms of Service, no rights or licenses are provided or granted by Tratta under this Terms of Service, by implication, estoppel or otherwise, in or to the Services, the Tratta IP or any other intellectual property rights of Tratta or its affiliates or licensors, and Tratta and its licensor retain all their rights in and to the foregoing.
5.3 - Restrictions and Limitations
- Customer and any of its users shall not and shall not attempt to (and shall have no rights to): (a) modify, alter, tamper with, repair, or otherwise create derivative works of the Services, any Tratta IP or any portions thereof; (b) reverse engineer, disassemble, or decompile the Services, any Tratta IP or any portions thereof, or apply any other process or procedure to derive the source code of any software included in the Services; (c) access or use the Services in a way intended to avoid incurring Fees or charges or in any way that exceeds or violates any usage, storage, capacity or other limits, quotas or restrictions set forth on any Order or other part of this Terms of Service, or (d) resell, distribute, lease or sublicense the Services or provide any third party access to or use of the Services, including without limitation via a service bureau model; or (d) remove any proprietary notices from the Services.
5.4 - Names and Trademarks
- The trade names, trademarks, service marks, trade dress and logos (collectively “Marks”) of each party, its parent or affiliates are the exclusive property of such party and, except as otherwise provided in the Terms of Service, the other party shall not use such Marks or any abbreviation or adaptation thereof for any purposes without the prior written consent of the party who owns such Marks. Notwithstanding the foregoing or Section 5.1, Customer hereby grants Tratta a non-exclusive right and license to use Customer’s Marks to promote and provide the Services, which includes the right to brand the Platform with Customer’s Marks and the right to publicly identify the Customer as a Customer of Tratta. Each party acknowledges that all use of the other party’s Marks shall inure to the benefit of and be on behalf of the party owning such Marks.
Representations and Warranties
6.1 - TRATTA WARRANTIES
- TRATTA REPRESENTS AND WARRANTS TO CUSTOMER THAT (a) DURING THE TERM IT WILL PROVIDE THE SERVICES IN A MANNER CONSISTENT WITH THIS TERMS OF SERVICE; and (b) IT HAS THE LEGAL POWER TO ENTER INTO AND PERFORM ITS OBLIGATIONS AND GRANT THE RIGHTS TO CUSTOMER SET OUT IN THIS TERMS OF SERVICE.
6.2 - CUSTOMER WARRANTIES AND COVENANTS
- CUSTOMER REPRESENTS, WARRANTS AND COVENANTS THAT:
- CUSTOMER HAS THE LEGAL POWER TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THIS TERMS OF SERVICE AND THE PERSON ACCEPTING THIS TERMS OF SERVICE ON CUSTOMER’S BEHALF HAS BEEN DULY AUTHORIZED TO DO SO AND HAS THE RIGHT AND AUTHORITY TO BIND THE CUSTOMER ENTITY HERETO.
- AS BETWEEN CUSTOMER AND TRATTA, CUSTOMER IS BETTER ABLE TO PUT IN PLACE PHYSICAL AND PROCEDURAL IMPEDIMENTS TO THE INAPPROPRIATE USE OF THE SERVICES, AND THEREFORE CUSTOMER SHALL BE RESPONSIBLE FOR THE MATERIALS (INCLUDING THE ACCURACY, ADEQUACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, AND APPROPRIATENESS OF SAME) AND THE OPERATION OF, AND TRANSACTIONS PROCESSED, STORED, ANALYZED OR EVIDENCED THROUGH, THE PLATFORM(S).
- WITH RESPECT TO THE MATERIALS: (i) CUSTOMER OWNS OR HAS VALIDLY LICENSED ALL NECESSARY AND USEFUL RIGHTS TO ALL MATERIALS GENERATED, STORED, POSTED, DISPLAYED, EXHIBITED OR DISTRIBUTED BY, OR UPLOADED, PROVIDED OR TRANSMITTED TO OR FROM, THE PLATFORM(S) OR SERVICES; (ii) ANY MATERIALS THAT CUSTOMER (OR THOSE ACTING ON ITS BEHALF) GENERATES, UPLOADS, PLATFORMS, POSTS, EXHIBITS, DISPLAYS, DISTRIBUTES, PROVIDES OR TRANSMITS DO NOT AND WILL NOT INFRINGE OR VIOLATE ANY OF THE COPYRIGHT, PATENT, TRADEMARK, OR ANY OTHER INTELLECTUAL PROPERTY, PERSONAL, PRIVACY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY (“THIRD PARTY RIGHTS”); (iii) CUSTOMER HAS OR WILL HAVE THE RIGHT AND AUTHORITY TO OFFER, SELL, TRADE, DISTRIBUTE OR EXPORT THE PRODUCTS OR SERVICES DESCRIBED IN THE MATERIALS AND SUCH OFFER, SALE, TRADE, DISTRIBUTION, OR EXPORT DOES NOT OR WILL NOT VIOLATE ANY APPLICABLE LAWS OR THIRD PARTY RIGHTS; (iv) CUSTOMER HAS OBTAINED ALL RIGHTS, PERMISSIONS, CONSENTS AND AUTHORIZATIONS REQUIRED TO GRANT TRATTA THE LICENSES TO THE MATERIALS GRANTED HEREUNDER AND FOR TRATTA TO USE THE MATERIALS TO PROVIDE THE SERVICES OR PERFORM TRATTA’S OBLIGATIONS HEREUNDER.
- CUSTOMER HAS OBTAINED ALL REQUIRED RIGHTS, CONSENTS, PERMISSIONS AND AUTHORIZATIONS (AND PROVIDED ALL NOTICES) REQUIRED FOR (AND CUSTOMER HEREBY PROVIDES ITS OWN CONSENT AND PERMISSION FOR) TRATTA TO ACCESS AND OBTAIN ALL DATA, INFORMATION AND MATERIALS REQUIRED FOR PERFORMANCE OF THE SERVICES FROM CUSTOMER AND FROM CUSTOMER’S APPLICABLE ACCOUNTS WITH THIRD PARTY SERVICE PROVIDERS, PROCESSORS, GATEWAYS AND TRANSACTION PLATFORMS, INCLUDING WITHOUT LIMITATION AS REQUIRED FOR TRATTA TO DIRECTLY INTERFACE WITH AND PULL INFORMATION AND DATA FROM SUCH ACCOUNTS FOR USE WITH THE SERVICES.
- CUSTOMER WILL COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS IN CONNECTION WITH THE SUBJECT MATTER OF THIS TERMS OF SERVICE, ANY SALES TRANSACTIONS OCCURRING ON OR IN THE PLATFORM(S) WILL REPRESENT A BONA FIDE SALE, CUSTOMER WILL FULFILL ALL OF ITS OBLIGATIONS TO EACH PURCHASER WHO ENTERS INTO A TRANSACTION WITH CUSTOMER, AND CUSTOMER WILL RESOLVE ANY DISPUTE OR COMPLAINT DIRECTLY WITH ITS PURCHASERS.
6.3 - DISCLAIMER
- EXCEPT AS SPECIFICALLY SET OUT IN THIS SECTION, THE SERVICES (INCLUDING THE PLATFORMS) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. TRATTA AND ITS THIRD-PARTY LICENSORS AND SUPPLIERS MAKE NO OTHER REPRESENTATIONS AND GIVE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICES, THE PLATFORMS OR ANY PRODUCTS PROVIDED UNDER THIS TERMS OF SERVICE. EXCEPT AS EXPRESSLY STATED IN THIS TERMS OF SERVICE, TRATTA SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, DURABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TRATTA DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S EXPECTATIONS, BE SECURE, TIMELY, UNINTERRUPTED OR FREE FROM DEFECTS OR ERRORS, OR THAT DEFECTS OR ERRORS WILL BE CORRECTED. TRATTA DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING THE RESULTS OF USING THE SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CUSTOMER BASE, COMMERCIAL ADVANTAGE, OR RISK OF INJURY TO CUSTOMER’S OR ANY USER'S SYSTEMS OR NETWORK. TRATTA SHALL NOT BE LIABLE TO CUSTOMER, ANY USER OR ANY THIRD PARTY FOR ANY USE OF OR INACCURACY IN ANY MATERIALS OR FOR ANY TRANSACTIONS PROCESSED THROUGH THE PLATFORM(S).
Indemnities and Limitation of Liability
7.1 - Customer Indemnity
- Customer will indemnify and hold Tratta and (as applicable) its subsidiaries, affiliates, partners, officers, directors, agents, and employees, harmless from and against any third party claims, demands, suits or proceedings (“Claims”) together with any resulting losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees and court costs) due to, arising out of or related to: (i) the Materials; (ii) Customer’s use or misuse of the Services except to the extent such Claims arise solely from a third party claim that Tratta IP infringes or violates Third Party Rights or violates applicable law or from a breach of this Terms of Service by Tratta; (iii) disputes arising from transactions made via the Platform(s), or Customer’s relationship with, or products or services provided to, any of its customers, clients or users; (iv) any breach of this Terms of Service (including without limitation the Tratta AUP and the API Terms) by Customer, including a breach of Customer’s covenants, representations and warranties herein or therein; (v) Customer’s access to or use of a Third Party Service or Customer’s relationship with a Third Party Provider, or (vii) Customer’s violation of any applicable law or Third Party Rights.
7.2 - Limitation of Liability
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TRATTA OR ITS AFFILIATES, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT TRATTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TRATTA’S (OR ITS AFFILIATES’, EMPLOYEES’, CONTRACTORS’ OR AGENTS’) AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS TERMS OF SERVICE OR THE SERVICES EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE (OR, IF GREATER, $1,000). CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED BY TRATTA FOR THE SERVICES AND THAT IF TRATTA WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, THE FEES WOULD OF NECESSITY BE SUBSTANTIALLY INCREASED.
Confidentiality and Privacy
8.1 - Confidential Information
- For the purposes of this Terms of Service, “Confidential Information” includes any information, technical data, or know-how provided or disclosed by or on behalf of either party to the other party hereunder, including, but not limited to, that which relates to research, products, services, customers, markets, business policies or practices, software, developments, inventions, processes, designs, drawings, engineering, marketing, reports and audits, business plans or finances. Customer acknowledges that Confidential Information may contain material, non-public information of Tratta, and Customer is aware, and its representatives have been advised, that applicable securities laws prohibit any person having material, non-public information about Tratta from purchasing or selling securities of Tratta.
- Confidential Information also includes any materials or information provided by either party to the other that are identified by the disclosing party as confidential or proprietary, or that the receiving party should reasonably understand to be confidential and proprietary. Confidential Information does not include information that: (i) was in the public domain at the time the receiving party received it; (ii) comes into the public domain after the receiving party received it through no fault of the receiving party; (iii) the receiving party received from a third party without breach of the receiving party’s or third party’s confidentiality obligations; (iv) is independently developed by the receiving party without use of or reference to the Confidential Information of disclosing party; or (v) the receiving party is required by law or court order to disclose.
8.2 - Confidentiality Obligations
- Neither party shall use any Confidential Information of the other party except in order to exercise its rights or perform its obligations under this Terms of Service or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like nature (and in any case no less than a reasonable degree of care). Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, directors, employees, service providers, customers, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of this Terms of Service and who are subject to confidentiality obligations at least as restrictive as those in this Section 8.
8.3 - Injunctive Relief
- Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its Confidential Information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
8.4 - Personal Information
9.1 - Relationship of Parties
9.2 - Assignment
- Customer may not assign this Terms of Service without the prior written consent of Tratta, such consent not to be unreasonably withheld. Tratta may assign this Terms of Service at any time without consent. These Terms of Service shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto.
9.3 - Governing Law; Jurisdiction; Limitation of Action
- This Terms of Service shall be governed by and is to be construed and interpreted in accordance with the laws in force in the State of Delaware and the laws of the United States of America applicable therein, without regard to principles of conflicts of laws. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods to this Terms of Service. All disputes arising under this Terms of Service will be subject to the exclusive jurisdiction of the courts located in Wilmington, Delaware and each party irrevocably and unconditionally consents to personal jurisdiction of such courts. To the extent permitted by applicable law, all claims related to this Terms of Service must be filed within two years from the date the cause of action arose.
9.4 - Severability
- If any provision of this Terms of Service is held by a court of competent jurisdiction to be invalid, unenforceable or contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law (but otherwise severed herefrom), and the remaining provisions of this Terms of Service shall remain in full force and effect.
9.5 - Force Majeure
- Except for obligations to pay any Fees owing under this Terms of Service, neither party shall be deemed to be in breach of this Terms of Service for any failure or delay in performance caused by reasons beyond such party’s reasonable control, including but not limited to acts of God, extreme weather, earthquakes, wars, terrorism, communication failures, or strikes (other than strikes at such party’s facility or involving such party’s employees). If either party’s performance is prevented by a force majeure event for a period of more than 30 calendar days, the other party may terminate this Terms of Service, subject to any payment amounts due and payable or accrued as of the effective date of termination.
9.6 - No Exclusivity
- Tratta reserves the right to provide services to any third party, including without limitation any of Customer’s competitors, and makes no promise of exclusivity of any kind hereunder.
9.7 - Legal Notice
- All legal notices or demands to or upon a party in connection with this Terms of Service shall be made in writing and sent to such party personally, by courier or certified mail, or email to the following addresses:
- For Tratta: Swipebox LLC, dba Tratta via email to legal@Tratta.io
- For Customer: Notice to the Customer shall be provided using the Customer information in the applicable Order or, if not there, as provided upon registration or opening Customer’s account for the Services. Except as otherwise specified in this Terms of Service all notices, permissions and approvals must be in writing and will be deemed to have been given upon: (i) personal or couriered delivery; (ii) the fifth business day after mailing; or (iii) the first business day after sending by email.
9.8 - Suggestions and Feedback
- Tratta welcomes any ideas, feedback and/or suggestions regarding improvements, modifications or additions to the Services. Under no circumstances shall any disclosure or provision of any such ideas, feedback or suggestions or any related material (collectively, “Suggestions") to Tratta be subject to any obligation of confidentiality or expectation of compensation. By submitting, disclosing or providing any Suggestions to Tratta, Customer waives any and all rights in and to the Suggestion and Customer agrees that Tratta is free to (and Customer hereby grants Tratta an unlimited, perpetual, irrevocable, royalty-free, fully paid-up, sublicensable right and license to) implement and use and modify the Suggestion in any manner it desires, without the need for obtaining any further permission or license from Customer or from any third party.
9.9 - Amendment and Waiver
- This Terms of Service may only be modified, or any rights under it waived, by Tratta in accordance with the procedures set out above near beginning of this Terms of Service or otherwise by a written document executed by both parties. The failure or delay of either party to exercise or enforce any provision, right or remedy of or under this Terms of Service shall not constitute a waiver of such right, remedy or provision or any other provision of the Terms of Service or otherwise affect the rights of such party.
9.10 - Entire Agreement