Terms of Service - Talus

Terms of Service

Terms of Service

These Terms of Service (these “Terms”) are a binding legal agreement between you, the user (“you” or “your”) and FPT Operating Company, LLC d/b/a Talus Payments (“Talus”). These Terms govern your use of Talus’s website, www.taluspay.com and of each other site of Talus associated therewith (collectively, the “Site”), as well as those services made available on the Site, as updated from time to time (collectively, the “Services”), whether such Services are offered by Talus or one of our subsidiaries or affiliates (each, a “Talus Company”).  To the extent other offerings of Talus are governed by different agreements and/or terms and conditions, then these Terms shall only govern your use of the Site/Services, and your use of those offering shall be governed by those other agreements/terms and conditions. Effective upon your use of any of the Site / Services, you accept and agree to these Terms (as they may be updated from time to time), including terms that limit Talus’ liability (see Section 15) and require arbitration for any potential legal dispute (see Section 18). If you are using the Services on behalf of a business, you agree that you are accepting these Terms and have authority to enter into these Terms, on behalf of that business. You should read all of the terms, including these Terms carefully.

  1. Privacy

You agree to Talus’ Privacy Policy, which explains how Talus collects, uses and protects the personal information you provide to us.

  1. Talus Web Account Registration

Although you are not required to register on our Site simply by visiting it, you will be required to register and establish an account via the Services (your “Talus Web Account”) in order to utilize certain features, including without limitation, submitting an application for merchant processing, using our proprietary merchant dashboard, and more.  By way of clarification, your Talus Web Account will be separate from any other account that Talus and/or you may establish in connection with the merchant processing services that you receive from Talus, if applicable.

During registration and from time to time thereafter, Talus may ask you for information. You must provide accurate and complete information in response to Talus’ questions and keep that information current by the various means made available to you by Talus

You are fully responsible for all activity that occurs under your Talus Web Account, including any actions taken by persons to whom you have granted access to your Talus Web Account. Talus reserves the right to suspend or terminate the Talus Web Account of any user who provides inaccurate, untrue or incomplete information or who fails to comply with the account registration requirements or these Terms.

Your creation of a Talus Web Account shall not automatically give you the right to receive merchant processing services from Talus. Those services shall require Talus’ approval based upon the information contained in your merchant processing application.

  1. Revisions, Disclosures and Notices

Talus may amend these Terms at any time with notice that it deems to be reasonable under the circumstances, by posting the revised version on Talus’s Site or communicating it to you through the Services (each, a “Revised Version”). Each Revised Version will be effective as of the time it is posted or otherwise transmitted to you. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute (as defined in Section 15) that may arise between Talus and you in respect of your use of the Services will be governed by the Terms in place when the Dispute arose.

Unless applicable (a) laws, (b) regulatory requirements, or (c) mandatory standards or codes of practice of any competent authority (collectively, “Applicable Law”) require an alternative or specific method of communication, you agree that any Talus Company may electronically provide or make available to you (as relevant) any communication: by (i) posting it on the Talus Website; (ii) pushing notifications through the Services; (iii) emailing it to the email address listed in your Talus Web Account; (iv) sending you a text message to the primary mobile phone number you have listed in your Talus Web Account; (v) uploading it to your Talus Web Account; or (vi) making the communications otherwise accessible via the Site, the App or other applications. In such circumstances, a communication has the same meaning and effect as if such Talus Company had provided you with paper copies. A communication is considered received by you twenty-four (24) hours after it is issued, unless the relevant Talus Company receives notice that it was not delivered.

If you wish to withdraw your consent to receiving electronic communications (which expressly excludes communications posted to the Site), you should contact Talus Support or by sending an email to sos@taluspay.com. Any withdrawal of your consent will be effective four (4) weeks after Talus Support receives your email (unless a shorter period is required by applicable law). If Talus Companies are not able to communicate with you otherwise than electronically as set out in this Section 3, you may need to terminate your Talus Web Account or terminate your use of certain or all of the Services.

You can change your email address by emailing Talus Support or through any other means made available to you by Talus.

  1. Copyrights and Trademarks and Restrictions on use

All of the pages and screens on the Site are owned and controlled by Talus, except as otherwise expressly stated, and are protected by U.S. copyright laws and international treaties. The copyrighted materials throughout the Site include, but are not limited to, the text, design, software, images, graphics, source code, and the content thereon. You may download copyrighted materials for your personal or internal business purposes only. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material. You may not copy, display, distribute, transfer, link to, reproduce, license, frame, alter, create derivative works of, or republish all or any portion of the Site for any commercial or public purpose without Talus’ prior written consent. Other featured words used on the Site to identify the source of goods and services are trademarks and service marks owned by Talus or owned by third parties. You may not use, copy, display, distribute, modify, or reproduce any of the trademarks found on the Site except as authorized in this paragraph. You may not use any of the Talus trademarks as a link to the Site except pursuant to a written trademark license agreement.

  1. Restrictions

You may not, nor may you permit any third party to: (a) access or monitor any material or information on any Talus Company system using any manual process or robot, spider, scraper or other automated means; (b) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, Services or information from any Talus Company; (c) use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement; (d) transfer any rights granted to you under these Terms; (e) violate the restrictions in any robot exclusion headers on any Service, work around, bypass or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services or decompile, disassemble or otherwise reverse engineer the Services, except to the extent that such restriction is expressly prohibited by Applicable Law; (f) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by any person that signs up for a Talus Web Account or impose an unreasonable or disproportionately large load on Talus’ infrastructure; (g) use the Services for any illegal activity or goods or in any way that exposes you and any Talus Company or any of their partners to harm; or (h) otherwise use the Services except as expressly allowed under this these Terms.

If Talus reasonably suspects (including as a result of recommendations made by a Talus Company) that your Talus Web Account has been used for prohibited, unauthorized, illegal or criminal purposes, you give Talus express authorization to share information about you, your Talus Web Account and any of your activities with law enforcement.

  1. Credit Report Authorization.

You understand and agree that when applying for merchant processing services via your Talus Web Account, you will need to authorize Talus to obtain your personal credit report from one or more credit bureaus.  Our use of the information we receive from the credit bureaus shall be limited to evaluating your application and as otherwise described in our Privacy Policy.

  1. Your Content

You will have the ability to enter, upload and share information, materials and content (collectively, “Content”) with us via the Services.

Subject to applicable law and in accordance with our Privacy Policy, you grant each Talus Company and its successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform and publicly display your Content throughout the world. You retain all rights in your Content, subject to the rights you grant to each Talus Company under these Terms.

You will not upload or provide Content or otherwise post, transmit, distribute or disseminate through the Services any Content that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy or Intellectual Property Rights; (d) contains corrupted data or any other harmful, disruptive or destructive files; (e) advertises products or services competitive with a Talus Entity’s or its partners’ products and services, as determined by Talus in its sole discretion; or (f) in Talus’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services or which may expose any Talus Company or any Talus Seller to harm or liability of any nature.

Although Talus has no obligation to monitor any Content, Talus has absolute discretion to remove Content at any time and for any reason without notice. You understand that by using the Services, you may be exposed to Content that is offensive, indecent or objectionable. Talus does not take any responsibility nor does Talus assume any liability for any Content, including any loss or damage to any of your Content.

  1. Notices and Procedures for Making Claims of Copyright Infringement

Talus respects the rights of owners of intellectual property and expect its users to conduct themselves accordingly. If you believe that any information or material violates these Terms, infringes upon your copyrights or otherwise should be removed, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”), please immediately notify Talus by email (Subject line: “DMCA Takedown Request”) or by mail at the address specified below and include the following information (see 17 U.S.C 512(c)(3) for further detail): (i) Identification of the copyrighted work(s) or material claimed to have been infringed or to be the subject of infringing activity and that is to be removed (provide information reasonably sufficient to permit us to locate the material); (ii) A physical or electronic signature of the person authorized to act on behalf of the owner of the right that is allegedly infringed; (iii) Information reasonably sufficient to permit Talus to contact you, such as an address, telephone number, and, if available, an electronic mail; (iv) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (v) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. You acknowledge that if you fail to comply with all of the requirements of this paragraph, your DMCA notice may not be valid.

If you believe that any content provided by you was improperly removed (or to which access was disabled) and is not infringing, or that you have the authorization from the copyright owner or its agent, or by law, to post and use such content, you may send Talus a counter-notice containing the following information: (i) Your name, address, telephone number, and e-mail address and your physical or electronic signature; (ii) Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (iii) A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (iv) a statement that you consent to the jurisdiction of the federal court in Dallas, Texas, and that you will accept service of process from the person who provided notification of the alleged infringement.  Talus has the right but not the obligation to send a copy of such counter-notice to the original complaining party informing them that Talus may replace the removed content or cease disabling it in ten (10) business days.  Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of such counter-notice, at Talus’ sole discretion.

  1. Security

Talus has implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, Talus cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes.

You are responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify Talus Support of any unauthorized use of your Talus Web Account or any other breach of security. Notwithstanding Sections 17 and 18 hereof, in the event of any dispute between two or more parties as to account ownership, Talus will be the sole arbiter of such dispute in its sole discretion after taking into consideration the recommendations of any relevant Talus Company. Talus’ decision (which may include termination or suspension of any Talus Web Account subject to dispute) will be final and binding on all parties.

  1. Termination

Unless otherwise required by Applicable Law, Talus may immediately terminate your Talus Web Account, your access to any Service and these Terms. You may also terminate your Talus Web Account and these Terms at any time. The termination of your Talus Web Account shall not result in the automatic termination of any merchant processing services that you may be receiving from Talus and/or any other account(s) that Talus and/or you may have established in connection with such merchant processing services, if applicable. If you continue to use the Site/Services following the termination of your Talus Web Account, these Terms shall continue to govern your activities and we shall have all of the same rights that were in effect prior to such termination.

  1. Effect of Termination

If these Terms or your Talus Web Account is terminated or suspended for any reason: (a) any rights granted under these Terms will similarly be suspended or terminated, as applicable; (b) Talus may (but has no obligation to) delete your information and account data stored on its servers that was collected via your Talus Web account; and (c) no Talus Company will be liable to you or any third party for compensation, reimbursement or damages for any termination or suspension of the Services or for the deletion of your information or Talus Web Account data. In addition to any continuing obligations under any Additional Terms, the following sections of these Terms will survive and remain in effect in accordance with their terms upon termination: 5 (Restrictions) 7 (Your Content), 8 (Copyright and Trademark Infringement), 11 (Effect of Termination), 12 (Indemnity), 13 (Your Representations and Warranties), 14 (Our Representations and Warranties), 15 (Limitation of Liability), 17 (Disputes), 18 (Arbitration), 19 (Governing Law), 20 (Limitation on Time to Initiate a Dispute), 21 (Assignment), 22 (Third Party Service and Links to Other Web Sites) and 23 (Other Provisions).

  1. Indemnity

You will indemnify, defend and hold each Talus Entity (as defined below) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest and expenses (including without limitation reasonable legal 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; (b) your wrongful or improper use of the Services; (c) your violation of any Applicable Law; and (d) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code.

“Talus Entity” means (i) each Talus Company, (ii) each of the licensors, suppliers and processors of each Talus Company and (iii) each of the respective affiliates, officers, employees, agents or contractors of each entity set forth in clauses (i) and (ii).

  1. Your Representations and Warranties

You represent and warrant to Talus that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Services and have the right, power and ability to enter into and perform under these Terms, including on behalf of any business using the Services hereunder; (c) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by you will comply with all Applicable Law; (e) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) your use of the Services will be in compliance with these Terms and the Additional Terms.

  1. Our Representations and Warranties

EACH TALUS ENTITY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

NO TALUS ENTITY WARRANTS OR GUARANTEES THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

ACCESS TO AND USE OF THE SERVICES IS AT YOUR OWN RISK AND WE DO NOT WARRANT THAT THE USE OF THE SERVICES OR ANY MATERIAL DOWNLOADED THEREFROM WILL NOT CAUSE DAMAGE TO ANY PROPERTY, OR OTHERWISE MINIMISE OR ELIMINATE THE INHERENT RISKS OF THE INTERNET INCLUDING BUT NOT LIMITED TO LOSS OF DATA, COMPUTER VIRUS INFECTION, SPYWARE, MALICIOUS SOFTWARE, TROJANS AND WORMS. ALSO, WE ACCEPT NO LIABILITY IN RESPECT OF LOSSES OR DAMAGES ARISING OUT OF CHANGES MADE TO THE CONTENT OF THIS WEBSITE BY UNAUTHORISED THIRD PARTIES.

  1. Limitations of Liability

No Talus Entity will be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any: (a) loss of profit; (b) loss of sales, turnover, revenue or business; (c) loss of customers or contracts; (d) loss of or damage to reputation or goodwill; (e) loss of opportunity; (f) loss of anticipated savings; (g) loss of any software or data; (h) loss of use of hardware, software or data; (i) loss or waste of management or other staff time; or (j) indirect, consequential or special loss, arising out of or relating to these Terms, whether or not such loss was foreseeable or if the Talus Entity which would otherwise be liable for such loss was advised of its possibility (and, for the purposes of this Section, the term “loss” includes a partial loss or reduction in value as well as a complete or total loss).

No Talus Entity will be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss, damage, expense or liability incurred or sustained as a result of: (a) the use of any Service except for its normal intended purpose; (b) any adaptation or modification of any Service or integration or combination with any other product or material not supplied by any Talus Company, in each case carried out by anyone other than any Talus Company or without its express written consent; (c) the compliance by any Talus Company with any design, specification or instructions provided by you on your behalf; and/or (d) any Merchant Content or Third Party Services.

Subject to the other terms of this Section 15, any Talus Entity’s total liability arising out of or relating to these Terms or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) will be limited, in respect of each event or series of connected events, to $1,000.00.

  1. Potential Disruption of Services

Access to the Services may from time to time be unavailable, delayed, limited or slowed due to, among other things:

  • Hardware failure, including among other things failures of computers (including your own computer), servers, networks, telecommunication lines and connections, and other electronic and mechanical equipment;
  • Software failure, including among other things, bugs, errors, viruses, configuration problems, incompatibility of systems, utilities or applications, the operation of firewalls or screening programs, unreadable codes, or irregularities within particular documents or other content;
  • Overload of system capacities;
  • Damage caused by severe weather, earthquakes, wars, insurrection, riots, civil commotion, act of God, accident, fire, water damage, explosion, mechanical breakdown or natural disasters;
  • Interruption (whether partial or total) of power supplies or other utility of service
  • strike or other stoppage (whether partial or total) of labor;
  • Governmental or regulatory restrictions, exchange rulings, court or tribunal orders or other human intervention; or
  • Any other cause (whether similar or dissimilar to any of the foregoing) whatsoever beyond the control of Talus.

You shall not be entitled to any damages, reimbursements or other monies upon the occurrence of any such Services disruption.

  1. Disputes

“Disputes” are defined as any claim, controversy or dispute between you and any Talus Entity, including any claims relating in any way to these Terms or the Services or any other aspect of your relationship with any Talus Entity.

  1. Arbitration

Any Dispute between you and Talus arising out of or in connection with these Terms or any Additional Terms or Policies, including in respect of their interpretation, subject-matter or termination, will be referred to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”), which rules are deemed to be incorporated by reference into these Terms. The number of arbitrators will be one, unless the AAA determines that, in view of all the circumstances of the case, a three-member tribunal is appropriate. The place and seat of arbitration will be Dallas, Texas. The language to be used in the arbitration proceedings will be English. Any reference under this Section 18 will be deemed to be a reference to arbitration within the meaning of the Arbitration Act 1996. The arbitrator’s decision will be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the arbitrator. For purposes of this arbitration provision, references to you and Talus also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.

Notwithstanding the foregoing, nothing in these Terms, Policies, Additional Terms or related documents will prevent any party from commencing proceedings and pursuing claims before a court of competent jurisdiction in accordance with the second paragraph of Section 19 in cases in which interim, injunctive or declaratory relief is required or where the right to issue proceedings would be prejudiced by the impending expiration of any applicable limitation period.

  1. Governing Law

These Terms and any Dispute are governed by the laws of the State of Texas, without regard to choice of law or conflicts of law principles.

Subject to and without waiver of the arbitration provisions in Section 18, you irrevocably agree that the State and Federal courts in Dallas, Texas will have exclusive jurisdiction to settle any Dispute, but Talus is entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce their respective Intellectual Property Rights and/or Confidential Information.

  1. Limitation on Time to Initiate a Dispute

Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.

  1. Assignment

These Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.

  1. Third Party Services and Links to Other Web Sites

You may be offered services, products and promotions provided by third parties and not by a Talus Company (“Third Party Services”). If you decide to use Third Party Services you will be responsible for reviewing and understanding the terms and conditions for these services. Talus is not responsible for the performance of any Third Party Services. The Services may contain links to third party websites. The inclusion of any website link does not imply an approval, endorsement or recommendation by any Talus Company. Such third party websites are not governed by these Terms. You access any such website at your own risk. Talus expressly disclaims any liability for these websites. When you use a link to go from the Services to a third party website, Talus’ Privacy Policy is no longer in effect. Your browsing and interaction on a third party website, including those that have a link in the Services is subject to that website’s own terms, rules and policies.

  1. Other Provisions

These Terms and any applicable Additional Terms and Policies, constitute the entire agreement between you and Talus in regards to your use of the Services, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.  To the extent other agreements, policies and directives have been consummated between any Talus Company and you, those agreements shall be unaffected by the termination of these Terms and your Talus Web Account.

You and each Talus Company agree that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out under these Terms. You and each Talus Company agree that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms and any applicable Additional Terms and Policies. If any provision of these Terms or any Additional Term is invalid or unenforceable under Applicable Law, then it will 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 Talus may have under trade secret, copyright, patent or other laws. No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term.

Nothing in these Terms or in any document referred to herein or in any arrangement contemplated herein creates a partnership or joint venture.

If any provision hereunder conflicts with those contained in any other agreement that you may sign or have signed with Talus from time to time and/or any other terms and conditions imposed by Talus under which you are subject, then these Terms shall govern your use of the Site/Services, and those other agreements/terms and conditions shall govern all such other uses.

Last Updated: April 2018

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