Terms & Conditions

Merchant Services Terms

PLEASE READ THESE MERCHANT SERVICES TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY FALCONET SOLUTIONS INC. (“JINGLE”). BY CLICKING “I AGREE” YOU (“MERCHANT”) AGREE TO BE BOUND BY THESE TERMS, AT THE PRICES SET FORTH ON THE ORDER FORM, (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, YOU REPRESENT AND WARRANT YOU ARE AUTHORIZED TO BIND SUCH ORGANIZATION OR ENTITY TO THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. Order Forms; Access to the Services. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Merchant’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Jingle grants Merchant a nonexclusive, limited, nonsublicensable, nontransferable right and license to internally access and use the Jingle product(s) and/or service(s) specified in such Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the purpose of Merchant making Merchant Products available to Consumers, only as provided herein and only in accordance with Jingle’s applicable official user documentation for such Services. Merchant agrees to only offer for sale Merchant Products which are permitted in the Order Form.

2. Merchant Responsibilities. Merchant shall ensure that (i) its use of the Services and each Merchant employee or agent that interacts with the Services in connection with this Agreement (each, a “Authorized User”) only accesses and uses the Services in compliance with these Terms (as may be updated from time to time), (ii) Merchant has obtained all consents or approvals from or by, and provided all necessary to, all Consumers, necessary to access and use the Services and provide Jingle with the Merchant Data (as defined in below), including, without limitation, valid Consumer consents and notices, (iii) Merchant will employ or engage Merchant Drivers and be responsible for all wages, tips and payment to such Merchant Drivers for any delivery services, in each case in accordance with applicable laws, (iv) any Merchant Driver will have a valid driver license in the applicable geographical location in which delivery services are made and (v) Merchant Driver will comply with all applicable laws in making such deliveries.

Merchant is responsible for all of Merchant’s activity in connection with the Services, including, but not limited to, uploading data onto the Services and obtaining all necessary consents or approvals from or by, and providing all necessary notices to, all Consumers. Merchant is solely responsible for any activities or decisions that Merchant makes that are based on or relate to any information provided or collected by the Services. Merchant assumes all risks arising from such activities and decisions. If required to use the Services, Merchant will establish a username and password (or any other means required by Jingle) for verifying that only designated employees or agents of Merchant have access to any administrative functions of the Services. Merchant will be responsible for maintaining the security of Merchant’s account, passwords (including, but not limited to, administrative and user passwords) and files.

3. Implementation. Upon payment of any applicable fees set forth in each Order Form, Jingle agrees to use reasonable commercial efforts to provide standard implementation assistance for the Services only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If Jingle provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Jingle otherwise provides additional services beyond those agreed in an Order Form, Merchant will pay Jingle at its then-current hourly rates for such consultation.

4. Services Updates. From time to time, Jingle may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Jingle shall have no obligation under this Agreement or otherwise to provide any such Updates. Merchant understands that Jingle may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Jingle shall use commercially reasonable efforts to give Merchant reasonable prior notice of any major changes.

5. Ownership; Feedback. As between the parties, Jingle retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Jingle for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Merchant hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Merchant may (but is not obligated to) provide suggestions, comments or other feedback to Jingle with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Merchant, shall not create any confidentiality obligation for Jingle notwithstanding anything else. Jingle acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Merchant shall, and hereby does, grant to Jingle a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Jingle’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Merchant may develop, produce, market, or distribute.

6. Fees; Payment. Merchant shall pay Jingle fees for the Services as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be payable in U.S. dollars within thirty (30) days from date of invoice. Merchant shall be responsible for all taxes associated with Services (excluding taxes based on Jingle’s net income). All Fees paid are non-refundable and are not subject to set-off. Merchant shall reimburse Jingle for all refunds, disputes and chargebacks (“Disputes”), including all third-party fees incurred by Jingle as a result of such Disputes. Jingle is not liable for any losses relating to fraudulent charges or other actions by Merchant or Consumers that are deceptive, fraudulent or otherwise invalid (“Fraudulent Actions”). By using the Service, Merchant hereby releases Jingle from any liability arising from Fraudulent Actions. Merchant will also use its best efforts to promptly notify Jingle of any Fraudulent Actions which may affect the Service. Jingle reserves the right, in its sole discretion, to terminate Merchant’s account if Merchant engages in, or permits any other user or customer to engage in, Fraudulent Actions, or if Merchant’s account is subject to excessive Fraudulent Actions.

7. Restrictions on the Services. Except as expressly set forth in this Agreement, Merchant shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Jingle product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Service; (viii) bypass any measures Jingle may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (ix) use the Services in any way that violates or conflicts with any compliance applicable local, state, national or foreign laws, treaties or regulations (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws); (x) use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights; or (xi) use the Services for any purpose other than to promote and sell Merchant Products to be fulfilled through the Service.

8. Merchant Data. For purposes of this Agreement, “Merchant Data” shall mean any data, information or other material provided, uploaded, or submitted by Merchant to the Services in the course of using the Services, including data and information (including personal information) related to (a) pricing content and availability of Merchant Products, (b) Authorized Users or (c) Consumers and potential customers. Notwithstanding anything to the contrary, Merchant shall retain all right, title and interest in and to the Merchant Data, including all intellectual property rights therein. Merchant, not Jingle, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Merchant Data. Jingle shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Merchant Data. Jingle is not responsible to Merchant for unauthorized access to Merchant Data or the unauthorized use of the Services unless such access is due to Jingle’s gross negligence or willful misconduct. Merchant is responsible for the use of the Services by any person to whom Merchant has given access to the Services or to whom Merchant has allowed to access to the Services, even if Merchant did not authorize such use or access. Merchant agrees and acknowledges that Merchant Data may be irretrievably deleted if Merchant’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Merchant acknowledges and agrees that Jingle may freely use and make available Merchant Data for any legal purposes.

9. Third Party Services. Merchant acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by Jingle. Jingle is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Merchant is solely responsible for procuring any and all rights necessary for Merchant to access Third Party Services (including any Merchant Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Jingle does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Merchant and a third party provider is solely between Merchant and such third party provider and is governed by such third party’s terms and conditions.

10. Representations and Warranties of Merchant. Merchant represents, warrants and covenants that (a) it has all rights, consents, permits and licenses to enter into this Agreement and perform its obligations contemplated hereunder, (b) it shall comply with all applicable laws, regulations and safety rules and protocols in the course of performing its obligations contemplated hereunder, including but not limited to preparing, fulfilling and delivering the Merchant Products to Consumers, and (c) it shall obtain and maintain adequate general commercial insurance for Merchant’s business and automotive insurance for the Merchant Drivers and Merchant Vans.

11. Jingle Logistics. If the Order Form sets forth delivery services of the Merchant Products by Jingle, which includes Jingle Drivers and/or Jingle Vans (collectively, the “Jingle Logistics”), then Jingle will make such Jingle Logistics available on an as-available basis. Jingle is not responsible for (a) any unavailable or delayed Jingle Logistics, (b) damage to Merchant Products in the course of delivery other than due to Jingle’s gross negligence or willful misconduct, (c) injury or damage to Merchant’s personnel or property during participation in the Jingle Logistics, including riding in the Jingle Vans, and (d) delivery services performed by Merchant or Merchant Drivers and any liability resulting therefrom.

12. Term; Termination. This Agreement shall commence upon the Effective Date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. Either party may terminate this Agreement upon thirty (30) days written notice to the other party. Without limiting the foregoing, Jingle may suspend or limit Merchant’s access to or use of the Services if (i) Merchant’s account is more than thirty (30) days past due, (ii) Merchant’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with Jingle’s ability to provide access to the Services to other customers; provided that in the case of subsection (ii): (a) Jingle shall use reasonable good faith efforts to work with Merchant to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Jingle shall use commercially reasonable efforts to provide notice to Merchant describing the nature of the damage or degradation; and (c) Jingle shall reinstate Merchant’s use of or access to the Services, as applicable, if Merchant remediates the issue within five (5) days of receipt of such notice; or (iii) if Merchant violates any applicable law and/or Jingle believes that Merchant is likely to or likely has violated any applicable law. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, Sections 5 through 7, and 10 through 17.

13. References. Merchant agrees to allow Jingle to state that Merchant is a customer on Jingle’s website and marketing materials, and Merchant hereby grants to Jingle during the term of this Agreement a non-exclusive, royalty-free, limited license to use Merchant’s logo on Jingle’s website and in other marketing materials. Jingle may issue press releases, white papers and case studies that reference Merchant and Merchant’s use of the Services, subject to Merchant’s prior review and written approval, which will not be unreasonably withheld, conditioned or delayed. In addition, Jingle may ask Merchant to act as a Merchant reference for Jingle from time to time by providing reasonable assistance as described below. Merchant will designate and provide a Merchant contact to speak to potential Jingle Merchants from time to time, provided that such assistance shall not materially interfere with the day-to-day responsibilities of such designated contact. Merchant will promote Jingle in Merchant’s physical stores, Merchant’s website (if any), and on the exterior of Merchant’s delivery vehicles (if any), provided that Jingle shall have pre-approved the content and placement of such promotions.

14. Indemnification. Merchant (“Indemnitor”) shall defend, indemnify, and hold harmless Jingle, its affiliates and each of its and its affiliates’ employees, officers, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any third party claim relating to or arising out of (a) the Merchant Products, (b) Merchant’s actual or alleged noncompliance with Section 2 (Merchant Responsibilities), and Section 10 (Representations and Warranties of Merchant), (c) that the Merchant Data or Merchant’s use of the Services infringes, violates, or misappropriates any third party right, (d) Merchant’s fulfillment (or non-fulfillment) of its obligations under this Agreement including, without limitation, accurate and timely fulfillment of orders, (e) the delivery of Merchant Products, including but not limited to any liability involving Merchant Drivers, or driving or operating the Merchant Vans, (f) injury or damage to Merchant’s personnel or property during participation in the Jingle Logistics, (g) Merchant’s negligence willful misconduct, and fraud, (h) Merchant’s violation of applicable law, regulations, or rules, (i) bodily injury and death. Merchant’s indemnification obligations hereunder shall be conditioned upon Jingle providing Merchant with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Merchant of its indemnity obligations if the Merchant is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that Jingle may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Merchant’s expense).

15. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

16. Limitation of Liability. EXCEPT FOR MERCHANT’S INDEMNIFICATION OBLIGATIONS AND BREACH OF SECTIONS 7 AND 10, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, OFFICERS, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) (A) THE MERCHANT REVENUE SPLIT PAID OR PAYABLE BY MERCHANT TO JINGLE HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER, (B), IF NO FEES ARE PAID OR PAYABLE BY MERCHANT TO JINGLE, $500.

17. Miscellaneous. This Agreement represents the entire agreement between Merchant and Jingle with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Merchant and Jingle with respect thereto. The terms, provisions or conditions of any purchase order or other business form or written authorization used by Merchant (before and/or after the Effective Date) will have no effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Jingle to object to those terms, provisions or conditions unless such terms are in a writing signed by both Jingle and Merchant which writing specifically states that it is intended to amend this Agreement. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Streamlined Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules.

The arbitration shall take place in San Francisco, CA, USA, in the English language and the arbitral decision may be enforced in any court. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the business day after it is sent, if sent for next day delivery by internally recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Copies of notices to Jingle, which copies shall not constitute notice, shall be sent to Nicholas Markman, Gunderson Dettmer et al, 550 Allerton, Redwood City, CA 94063.

Either party may update its address set forth above by giving notice in accordance with this section 16. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; pandemics; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. If this Agreement is signed in multiple originals, any one of which is in the English language, then the English language version of this Agreement shall be the binding Agreement, and the translations shall have no legal status.

This Agreement is the result of negotiations among, and has been received by, the parties and their respective counsel. Accordingly, this Agreement shall be deemed to be the product of all parties hereto, and no ambiguity shall be construed in favor of or against either party. This Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Each party has the necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Merchant does not have any authority of any kind to bind Jingle in any respect whatsoever. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Jingle may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the substantially prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.