The MazumaGo software-as-a-service Terms of Service (the “Terms of Service”, together with any attachments, exhibits, and/or addendums hereto, the “Agreement”) form an agreement between the customer accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the MazumaGo SaaS Services (as defined below) (such customer, the “Customer”) and MazumaGo Holdings Ltd. (“MazumaGo”), the supplier of the MazumaGo SaaS Services, and is entered into on the earlier of the date Customer first uses any part of the MazumaGo SaaS Services and the date Customer agrees to be bound by this Agreement (the “Effective Date”). Each of MazumaGo and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.
This Agreement sets forth the terms and conditions that govern the provision and use of: (a) the MazumaGo SaaS Services for the digitization of business payments as described at https://www.MazumaGo.com/us; and (b) additional services made available by MazumaGo in respect of the MazumaGo SaaS Services.
BY USING THE MAZUMAGO SAAS SERVICES (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 12(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE MAZUMAGO SAAS SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO MAZUMAGO THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE MAZUMAGO SAAS SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO MAZUMAGO THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
THE MAZUMAGO SAAS SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
MAZUMAGO’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE MAZUMAGO SAAS SERVICES, EXCEPT WITH MAZUMAGO’S PRIOR WRITTEN CONSENT.
Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, MazumaGo will make the MazumaGo SaaS Services available to Customer and Permitted Users on the terms and conditions set out in this Agreement during the Term.
Customer will not itself, and will not permit others to:
Customer may access and use the MazumaGo SaaS Services solely for Customer’s internal business purposes.
Customer is responsible for: (i) identifying and authenticating all Permitted Users; (ii) for ensuring that all appropriate "Know Your Client" documentation and processes are completed; (iii) for ensuring only Permitted Users access and use the MazumaGo SaaS Services, and (iv) for Permitted Users’ compliance with this Agreement.
MazumaGo may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
MazumaGo may engage third parties to assist it in providing the Services or any part thereof.
The MazumaGo SaaS Services may permit access to products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the MazumaGo SaaS Services (“Third-Party Products”). For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to Customer for acceptance within the MazumaGo SaaS Services by website link or otherwise. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products
It is not necessary for Customer to create a Customer User Account to send and receive payments through the MazumaGo SaaS Service. However, the functionality of the MazumaGo SaaS Services will be limited without a Customer User Account and Customer will not be able to initiate a payment without creating a Customer User Account.
Customer will ensure that Permitted Users only use the MazumaGo SaaS Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify MazumaGo of any actual or suspected unauthorized use of the MazumaGo SaaS Services. MazumaGo reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose. Customer will ensure that all individual users of the MazumaGo SaaS Services, including Permitted Users, are contractually bound to terms and conditions with Customer that are no less restrictive or protective of MazumaGo’s rights than those set forth in this Agreement.
In order for MazumaGo to issue the Customer User Accounts, MazumaGo will perform background verifications in order to comply with applicable laws, regulatory obligations, industry practices, and internal business purposes to limit fraud and manage risk. Such background verifications may include anti-money laundering, credit score and history and more general “know your client” information. By completing the account sign-up process, you consent to MazumaGo’s background verifications for the purposes described above.
Customer hereby consents to MazumaGo conducting credit investigations from time to time at MazumaGo’s discretion, including such requests for and exchange of information to and from consumer reporting agencies or credit grantors as it may require in relation to the MazumaGo SaaS Services.
As between MazumaGo and Customer, Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to MazumaGo a nonexclusive, worldwide, royalty-free, irrevocable, sub-licensable, and fully paid-up right to access, collect, use, process, store, disclose and transmit Customer Data to:
MazumaGo may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. As between MazumaGo and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by MazumaGo.
MazumaGo or its licensors retain all ownership and Intellectual Property Rights in and to:
(collectively “MazumaGo Property”).
Customer grants to MazumaGo and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the MazumaGo SaaS Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of MazumaGo’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. MazumaGo is not obligated to use any Feedback.
All rights not expressly granted by MazumaGo to Customer under this Agreement are reserved.
Unless otherwise agreed to in writing between the parties, all Fees identified at: https://www.mazumago.com/us/pricing and the Business Deposit Agreement are in United States dollars (“Fees”). If Customer’s use of the MazumaGo SaaS Services requires the payment of additional fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
MazumaGo reserves the right to change the Fees and institute new charges upon notice to Customer.
Customer may not withhold or setoff any amounts due under this Agreement. Without limiting MazumaGo’s other rights, MazumaGo may suspend Customer’s access to the Services, if Customer has not paid the applicable Fees within 30 days of the date that such Fees become due.
The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of MazumaGo.
Any suspension of the Services by MazumaGo pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:
Each Party will take industry-standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
Notwithstanding Section 7(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.
Upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 11(d) below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, MazumaGo may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
Customer represents and warrants to and covenants with MazumaGo that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions, and otherwise has all authority, in each case as required by applicable laws, to enable MazumaGo to provide the MazumaGo SaaS Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to MazumaGo and to or from all applicable third parties.
MAZUMAGO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY MAZUMAGO TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAZUMAGO HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, MAZUMAGO EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
This Section 9(a) states the MazumaGo’s sole liability to, and the Customer Indemnitees exclusive remedy against, MazumaGo for any third party claim described in this section.
The Customer will defend, indemnify and hold harmless MazumaGo, and its officers, directors, employees and agents (each, a “MazumaGo Indemnitee”) from and against any and all Losses incurred by a MazumaGo Indemnitee arising out of or relating to any Action by a third party (other than an affiliate of a MazumaGo Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Services by the Customer or any Permitted User; or (iv) use of the Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service. Customer will fully cooperate with MazumaGo in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of MazumaGo.
Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 9. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 9(c) will not relieve the Indemnitor of its indemnity obligations under this Section 9 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MAZUMAGO IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL MAZUMAGO’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL MAZUMAGO BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
A subscription to MazumaGo SaaS Services will commence on the Effective Date and will continue in full force and effect until terminated by either Party pursuant to this Agreement (the “Term”).
MazumaGo may, at its discretion, terminate the MazumaGo SaaS Services at any time by providing at least 30 days advance notice to Customer. MazumaGo may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if: (i) MazumaGo suspects or becomes aware of any fraudulent, illegal, or suspicious transactions; (ii) Customer ceases to process payments or otherwise use the MazumaGo SaaS Services for a period of 366 days; or (iii) Customer breaches this Agreement, becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
Customer may, at its discretion, terminate this Agreement by contacting MazumaGo and requesting termination.
Upon expiration or termination of this Agreement, Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the Services (without right to refund of any Fees) and Customer shall delete or, if requested by MazumaGo, return any MazumaGo Property in its possession and certify in writing to the MazumaGo that the MazumaGo Property has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle the Customer to any refund. All Fees due and payable and any amounts due to MazumaGo are immediately due and are to be immediately paid by Customer to MazumaGo. After termination, MazumaGo will have no obligation to maintain or provide any Customer Data and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited. Notwithstanding the foregoing, MazumaGo will not be required to remove any Customer Data maintained in accordance with its standard backup procedures or record retention policies until such time as such backups are scheduled to be deleted provided that in all cases Customer Data will continue to be protected in accordance with this Agreement.
The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 4 (Ownership; Reservation of Rights), Section 5 (Privacy), Section 6 (Fees and Payment), Section 7 (Confidential Information), Section 8 (Warranty and Disclaimer), Section 9 (Indemnities), Section 10 (Limitation of Liabilities), Section 11(e) (Survival), and Section 12 (General Provisions).
Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to MazumaGo, to the following MazumaGo’s address and email contact:
2261 Market St #4415, San Francisco, CA 94114
and (ii) if to Customer, to the current mailing or email address that MazumaGo has on file with respect to Customer. MazumaGo may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with MazumaGo current at all times during the Term.
Customer may not assign this Agreement to any third party without MazumaGo’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. MazumaGo may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the State of Delaware and any applicable federal laws of the United States, without regard to conflicts of law principles. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction in the Court of Chancery of the State of Delaware or any court of the United States located in the State of Delaware, for any action, proceeding or investigation in any court or before any governmental authority. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent MazumaGo from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
Customer will comply with all export laws and regulations that may apply to its access to or use of the MazumaGo SaaS Services. MazumaGo makes no representation or warranty that the MazumaGo SaaS Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control (except for a failure by Customer to pay Fees or Customer’s indemnities under this Agreement), including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement.
Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
MazumaGo’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, MAZUMAGO MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY MAZUMAGO, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).