Valsoft Corporation Inc. DBA Clubspeed, with offices located at 300 Spectrum Center Dr. Suite 1120, Irvine, CA 92618 (“Clubspeed”, “we”, “us” or “our”), offers the SpeedPay payment services to you (“Merchant”, “you” or “your”). These SpeedPay Merchant Terms and Conditions (the “Agreement”) set out our rates and fees, the Free POS Terminal Offer, and the other terms between you and Clubspeed. Capitalized terms used in this Agreement are defined in Appendix 1.
Fees
Pursuant to the Rates & Fees Disclosure, you agree to pay Clubspeed the fees associated with the Services, including any payment device purchase requirement and monthly device license plan described there.
You authorize us to collect amounts due under this Agreement by (i) charging the payment card you have on file with us, or (ii) debiting your designated bank account by ACH.
Fee Changes. We may change our fees on at least thirty (30) days’ written notice. If we notify you of an increase in the fees for Services, you may terminate this Agreement without further cause or penalty by giving us thirty (30) days’ advance written notice of termination, provided you do so within thirty (30) days after our notice. Your continued use of the Services after the effective date of the increase is deemed acceptance of the increased fees.
Free POS Terminal Offer
If you are eligible and elect to participate, we will provide you with a Free POS Terminal at no upfront cost, in exchange for your commitment to process your Card transactions through SpeedPay for the Commitment Period. This section applies in addition to, and notwithstanding, the payment device purchase requirement in the Rates & Fees Disclosure. The monthly device license plan described in the Rates & Fees Disclosure continues to apply. Except as stated in this section, the Free POS Terminal and your participation are subject to all other terms of this Agreement.
Eligibility. You are eligible once your SpeedPay application is approved. Any other eligibility will be agreed with you in writing. The offer is limited to one (1) Free POS Terminal per Location unless we agree otherwise in writing. We may change or withdraw the offer for new participants at any time.
Delivery. We will ship the Free POS Terminal directly to your Location. Risk of loss of, or damage to, the Free POS Terminal passes to you on the Terminal Delivery Date.
Commitment. During the Commitment Period you must keep this Agreement in effect, process your Card transactions through SpeedPay, and keep your Clubspeed subscription active.
Monthly Credit. When you elect to participate, we will set up a monthly charge equal to the Terminal Price divided by twelve (12). For each month in which you meet your commitment, that month’s charge will be credited in full, so that no amount is payable. For example, for a Free POS Terminal with a Terminal Price of $240, the monthly charge is $20 and each month it is credited to $0.
Minimum Processing Threshold. Your Location must process at least $3,000 in Net Processing Volume through SpeedPay within ninety (90) days after the Terminal Delivery Date. All Card transactions processed for that Location through SpeedPay count toward the threshold, not only those processed on the Free POS Terminal. The threshold applies once.
Failure to Meet the Threshold or Early Termination. If you do not meet the Minimum Processing Threshold, or your commitment ends before the end of the Commitment Period for any reason (including your termination of this Agreement, or our termination of this Agreement for Cause), we may, by notice to you, require you within fifteen (15) days to either:
(a) return the Free POS Terminal to us in good working condition, in accordance with our return instructions; or
(b) pay us the Remaining Terminal Balance.
For example, if a Free POS Terminal with a Terminal Price of $240 has been credited for three (3) months, the Remaining Terminal Balance is $240 – ($20 × 3) = $180. If you do not return the Free POS Terminal or pay the Remaining Terminal Balance within fifteen (15) days of our notice, you authorize us to collect the Remaining Terminal Balance by any of the methods described in the Fees section.
No Balance Due. No Remaining Terminal Balance is payable, and you may keep the Free POS Terminal, if during the Commitment Period (i) we terminate this Agreement upon thirty (30) days’ notice for any or no reason other than for Cause, or (ii) you terminate this Agreement following our notice of an increase in the fees for Services, as described in the Fees section.
Monitoring. We will monitor Card transactions processed at each Location that has received a Free POS Terminal to determine whether the commitment and the Minimum Processing Threshold are met. Our records of your Card transactions are conclusive, absent manifest error.
Ownership and Care. We retain title to the Free POS Terminal until the end of the Commitment Period, when title passes to you automatically at no further cost. If you pay the Remaining Terminal Balance, title passes to you upon our receipt of payment. Until title passes, you must not sell, transfer, lend or encumber the Free POS Terminal. You must keep the Free POS Terminal secure, allow only your authorized personnel to use it, and notify us promptly if it is lost, stolen or tampered with.
Warranty. The Free POS Terminal carries the manufacturer’s one (1) year warranty. Otherwise, the Free POS Terminal is provided in accordance with the Warranties; Exclusion of Consequential Damages; Limitation on Liability section of this Agreement.
Survival. Your obligations under this section, including payment of any Remaining Terminal Balance, survive the expiration or termination of this Agreement.
Term and Termination
This Agreement takes effect upon your acceptance and continues until terminated by either party upon thirty (30) days’ notice to the other party. We may terminate this Agreement at any time and for any or no reason upon thirty (30) days’ prior notice.
We may terminate this Agreement for Cause by notice to you, effective immediately or on the date stated in the notice. “Cause” means any of the following:
(i) you fail to pay any amount due under this Agreement within fifteen (15) days after notice of non-payment;
(ii) you breach any other material term of this Agreement and do not cure the breach within ten (10) days after notice; or
(iii) you become insolvent, make a general assignment for the benefit of creditors, or are the subject of a bankruptcy or similar proceeding.
Upon termination, all amounts payable under this Agreement become due and payable on demand. Neither the expiration nor termination of this Agreement terminates provisions which by their terms are intended to survive, including your payment obligations.
Warranties; Exclusion of Consequential Damages; Limitation on Liability
This Agreement and any addenda is an agreement for services and, except as expressly provided in this Agreement and any addenda, we and our Affiliates disclaim all representations or warranties, express or implied, made to Merchant or any other person, including without limitation any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (regardless of any course of dealing, custom or usage of trade) of any services or any goods provided incidental to the Services provided under this Agreement.
Notwithstanding anything in this Agreement and any addenda to the contrary, in no event shall we or our Affiliates be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages.
Notwithstanding anything in this Agreement and any addenda to the contrary, our and our Affiliates’ cumulative liability, in the aggregate (inclusive of any and all claims made by Merchant against us and/or our Affiliates, whether related or unrelated) for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this Agreement and any addenda) and regardless of the form of action or legal theory shall not exceed the lesser of (i) $100,000; or (ii) the amount of fees paid to us under this Agreement for Services performed in the immediately preceding twelve (12) months.
Confidentiality
Each party acknowledges and agrees that the other may be providing to it and that it may become aware of the confidential and proprietary information of the other party, including but not limited to the terms of this Agreement, financial information and other information related to each party’s business operations. Each party agrees that it will maintain the confidentiality of such information and neither party shall disclose any such information to any other person or entity (other than to those of its employees, agents, contractors, representatives and Affiliates to whom disclosure is reasonably necessary in furtherance of the performance of this Agreement). Notwithstanding the foregoing, the requirements of non-disclosure shall not apply to any information which: (a) at the time of disclosure is already in the possession of the receiving party; (b) is independently developed by the receiving party without reliance on the disclosed confidential or proprietary information; (c) is or becomes publicly available through no wrongdoing of the receiving party; or (d) becomes available to the receiving party on a non-confidential basis from a person, other than the disclosing party, who is not bound by a confidentiality obligation or otherwise restricted from transmitting the information to the receiving party.
Furthermore, this section shall not prohibit the receiving party from making legally required disclosures pursuant to subpoena, court order or the order of any other authority having jurisdiction; provided that the receiving party shall provide the disclosing party with prompt notice thereof, unless prohibited by law or court order, so that the disclosing party may seek an appropriate protective order or other remedy. If, in the absence of a protective order or other remedy or waiver of the terms of this section, the receiving party determines in its sole discretion that it is required by law, regulation, legal process or regulatory authority to disclose any such confidential or proprietary information, the receiving party may disclose such information upon written notice to the disclosing party unless prohibited by law or court order.
Miscellaneous
Compliance with Laws. Each party agrees to comply with all laws and regulations applicable to it, and each is responsible for its own costs of compliance.
Force Majeure. No party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused directly or indirectly by a force majeure event. In any such event, the non-performing party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable.
Notices. All notices and other communications required or permitted hereunder (other than those involving normal operational matters relating to the Services) shall be in writing: if to Merchant, at the address provided in your SpeedPay order form or by any electronic means, including but not limited to the e-mail address you have provided to us; and if to Clubspeed, at 300 Spectrum Center Dr. Suite 1120, Irvine, CA 92618. Notice sent by mail or courier is deemed given when received. Notice given by electronic means is effective when delivered.
Indemnification. The parties agree to indemnify each other from and against any losses, actions, causes of action, claims, demands, costs, liabilities, expenses, damages, sanctions, fines, legal fees or penalties arising from: (i) a party’s misrepresentation or breach of warranty, covenant, or any provision under this Agreement; or (ii) a party’s employees’ or agents’ fraud, gross negligence, willful misconduct or failure to comply with this Agreement.
Publicity. No party shall make any press release or other public disclosure concerning the terms and conditions of this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld).
Entire Agreement; Waiver. This Agreement, together with the Rates & Fees Disclosure and your SpeedPay order form, constitutes the entire agreement between you and Clubspeed with respect to its subject matter, and supersedes any previous agreements and understandings between you and Clubspeed on that subject matter. Except as provided in this Agreement, this Agreement can be changed only by a written agreement signed by both parties. A party’s waiver of a breach of any term or condition of this Agreement shall not be deemed a waiver of any subsequent breach of the same or another term or condition.
Severability. The parties intend every provision of this Agreement and any addenda to be severable. If any part of this Agreement and any addenda are not enforceable, the remaining provisions shall remain valid and enforceable. In such case, the parties will in good faith modify or substitute a provision consistent with their original intent. If any remedy fails of its essential purpose, then all other provisions, including the limitations on liability and exclusion of damages, will remain fully effective.
THIS AGREEMENT IS BINDING UPON YOUR ACCEPTANCE THROUGH SIGNATURE OF YOUR SPEEDPAY ORDER FORM OR ELECTRONIC ACCEPTANCE DURING SPEEDPAY SIGN-UP.
Appendix 1: Definitions
“Affiliate” is an entity that, directly or indirectly, (i) owns or controls a party to this Agreement or (ii) is under common ownership or control with a party to this Agreement.
“Card” is a credit card, debit card, or other payment card or account accepted through SpeedPay.
“Cause” has the meaning given in the Term and Termination section.
“Commitment Period” means the twelve (12) month period beginning on the Terminal Delivery Date.
“Free POS Terminal” means a payment terminal provided to you under the Free POS Terminal Offer section of this Agreement.
“Location” means one physical address at which you perform the goods or services sold using the Services.
“Net Processing Volume” means the total value of Card transactions processed for a Location through SpeedPay, less refunds and chargebacks.
“Rates & Fees Disclosure” means our schedule of rates and fees for the Services provided to you, as updated in accordance with this Agreement.
“Remaining Terminal Balance” means the Terminal Price less the monthly credits you have received under the Free POS Terminal Offer section of this Agreement.
“Services” means the SpeedPay services, payment devices, and related services provided by Clubspeed under this Agreement.
“SpeedPay” means Clubspeed’s integrated payments offering.
“Terminal Delivery Date” means the date the Free POS Terminal is delivered to your Location, as shown by the carrier’s tracking record.
“Terminal Price” means the price of the Free POS Terminal stated in your terminal order confirmation.