TipYo Customer Terms and Conditions
IMPORTANT: READ THE FOLLOWING CUSTOMER TERMS AND CONDITIONS (THIS “AGREEMENT“) CAREFULLY BEFORE USING THE SERVICE. TIPYO, INC. (“TIPYO“) IS WILLING TO PROVIDE YOU, AS THE AUTHORIZED USER OF THE SERVICE (“YOU” OR “YOUR“), ACCESS TO AND USE OF THE SERVICE ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND TIPYO. BY CLICKING “I ACCEPT” ON THE TIPYO WEBSITE OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR ACCESSING OR USING THE SERVICE, OR BY SIGNING AN ORDER FORM INCORPORATING THIS AGREEMENT, YOU AFFIRM THAT THIS AGREEMENT CONSTITUTES A SIGNED CONTRACT, AND THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE INDIVIDUAL WHO CLICKS “I ACCEPT” OR OTHERWISE EXECUTES THIS AGREEMENT IS ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF A CORPORATION, LIMITED LIABILITY COMPANY, PARTNERSHIP OR OTHER LEGAL ENTITY, SUCH AS FOR EXAMPLE HIS OR HER EMPLOYER, SUCH INDIVIDUAL REPRESENTS AND WARRANTS TO TIPYO THAT HE OR SHE IS AUTHORIZED TO ENTER INTO THIS AGREEMENT AND ACCEPT THESE TERMS ON BEHALF OF SUCH ENTITY.
“Confidential Information” means all confidential information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the foregoing, the terms and conditions of this Agreement, the Service, the business and marketing plans, technology, technical information, product designs and business processes of TipYo shall be considered the Confidential Information of TipYo. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
“Customer Data” means all electronic data, records or information submitted by You to the Service.
“Documentation” means any online documentation or user guides for the Service published by TipYo and supplied to You by TipYo, as updated from time to time in TipYo’s sole discretion, made available online by TipYo. The Documentation includes, without limitation, the Order Form.
“Force Majeure Event” means any circumstance or occurrence beyond the reasonable control of TipYo, including, without limitation, acts or omissions by a public authority, acts of God, strikes, blockades, acts of terrorism, riots, storms, earthquakes, explosions, fires, or floods.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means the form attached hereto, if this Agreement is executed by signature, setting forth the Subscription Term, the Services to be provided, and the applicable fees. If this Agreement is executed electronically, the Order Form means the webpage(s) on which the Subscription Term, the Services to be provided, and the applicable fees are specified. The Order Form is hereby incorporated by reference.
“Scheduled Maintenance” means any period during which the Service is unavailable for maintenance, including the implementation of any updates, enhancements, patches, fixes, or error corrections.
“Service” means the online, Web-based hosted software service made available by TipYo via the TipYo Website, and TipYo smartphone applications, as described by the Documentation.
“Subscription Term” means the Initial Term of this Agreement specified in an Order Form and all Renewal Terms (as defined in Section 12).
“TipYo Website” means TipYo’s website located at https://tipyo.net, or any other related website designated in writing by TipYo from time to time.
“Users” means individuals who are authorized to use the Service and who have been supplied user identifications and passwords pursuant to the Order Form. Users may include but are not limited to Your employees, consultants, contractors and agents.
TipYo will make the Service available to You and Your Users pursuant to this Agreement during the Subscription Term. You agree to pay the relevant amounts indicated on the Order Form for the Service and You further agree that non-payment of any amount owed to TipYo relating to this Agreement will constitute a basis for TipYo’s termination of this Agreement. Fees are based on monthly periods. If Your Subscription Term starts in the middle of the month, the fees for Your first month will be prorated based on the number of days left in that month. For the following months, You will be charged the full monthly rate. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. If TipYo does not receive fees by the due date, then such charges shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Fees and charges imposed under this Agreement or under any Order Form or similar document ancillary to or referenced by this Agreement, shall not include taxes except as otherwise provided herein. You shall be responsible for all taxes. If, however, TipYo has the legal obligation to pay taxes for which You are responsible under this section (including, without limitation, any withholding taxes applicable to amounts paid as Tips (as defined below) to your employees, consultants, or contractors), You shall promptly pay the taxes invoiced by TipYo unless You have furnished TipYo with valid tax exemption documentation at the execution of this Agreement or at the execution of any subsequent instrument, order form or agreement ancillary to or referenced by this Agreement. You shall comply with all applicable tax laws and regulations. You hereby agree to indemnify TipYo for any taxes and related costs paid or payable by TipYo attributable to taxes that would have been your responsibility under this section. You shall promptly pay or reimburse TipYo for all costs and damages related to any liability incurred by TipYo as a result of your non-compliance or delay with its responsibilities herein. Your obligations related to taxes or indemnification regarding the same shall survive the termination or expiration of this Agreement.
Subject to the terms of this Agreement, TipYo grants you a limited, non-exclusive license to access and use the Services for your internal business purposes in a manner consistent with the Documentation. TipYo will use commercially reasonable efforts to: (i) maintain the security and integrity of the Service and (ii) make the Service available 24 hours a day, 7 days a week, except for: (a) Scheduled Maintenance and (b) downtime caused by a Force Majeure Event. TipYo will use commercially reasonable efforts to provide at least 24 hour notice of Scheduled Maintenance, which notice will generally be provided via posting on the TipYo website or via login to the Service and will be emailed to the email address You have on file. You are responsible for Your Users’ compliance with this Agreement and the Documentation. You will: (i) have sole responsibility for the integrity, legality and appropriateness of all Customer Data and will ensure that all instructions given to TipYo in respect of the Customer Data will be in compliance with applicable data protection laws; (ii) use best efforts to prevent unauthorized access to, or use of, the Service, and notify TipYo promptly following Your discovery of any such unauthorized access or use; (iii) comply with all applicable local, state, federal and foreign laws in using the Service, including without limitation all applicable data protection laws and regulations. You may use the Service solely for Your internal business purposes as contemplated by this Agreement and the Documentation; (iv) have sole responsibility for ensuring that Your Users only use the Services in complete and total compliance with the terms of this Agreement and You may not: (i) knowingly license, resell, transfer, assign, distribute or otherwise commercially make the Service available to any third party, other than to Users acting on your behalf as contemplated by this Agreement; (ii) transmit or store infringing, threatening, libelous, or otherwise unlawful material, including material that is harmful to children or violates third-party privacy rights; (iii) send or store Malicious Code; (iv) intentionally interfere with or disrupt the integrity or performance of the Service; or (v) knowingly attempt to gain unauthorized access to the Service or its related systems or networks. TipYo reserves the right to change or discontinue the Service or change or remove features or functionality of the Service from time to time. TipYo will notify You in writing of any material change to or discontinuation of the Service.
Neither You nor Your Users shall use or access the Services for any unlawful, obscene, offensive or fraudulent content or activity, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive or deceptive messages, viruses or harmful code, or violating third party rights. If there is a complaint or notice of violation, use may be suspended until resolved, and terminated if not resolved promptly.
Subject to the limited rights expressly granted hereunder, TipYo and its licensors reserve all of TipYo’s and its licensors’ rights, title and interest in and to the Service and all portions thereof, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. You will not: (i) modify, copy or create derivative works based on the Service or any portion thereof; (ii) frame or mirror any content forming part of the Service; (iii) reverse engineer the Service or any portion thereof (to the extent such restriction is permitted by law); or (iv) access the Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Service. As between TipYo and You, TipYo acknowledges and agrees that You exclusively own all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. You grant TipYo and its affiliates a worldwide license to host, have hosted, copy, transmit, access, use, modify, and display Your Customer Data as necessary for TipYo to provide the Service in accordance with this Agreement. TipYo may monitor your use of the Service and use data and information related to such use in an aggregate and anonymous manner, including without limitation to compile statistical and performance information related to the provision and operation of the Service (“Aggregated Statistics”). As between You and TipYo, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by TipYo. You acknowledge that TipYo will be compiling Aggregated Statistics based on your use of the Service and You agree that TipYo may (a) make such Aggregated Statistics publicly available, and (b) use such information for purposes of data gathering, analysis, service enhancement, and marketing.
The party receiving Confidential Information (the “Receiving Party”) will not disclose or use any Confidential Information of the party disclosing such information (the “Disclosing Party”) for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission or as required by law. Both parties agree to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own confidential information of like kind, but in no event shall such Confidential Information be treated with less than reasonable care. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Notwithstanding the foregoing, You acknowledge and agree that TipYo may anonymize data You upload to and/or store via the Service, including without limitation the Customer Data, aggregate such anonymized data with anonymized data of other users of the Service, and use or disclose such data to third-party service providers, including without limitation the right to use such data for the purposes of improving or modifying the Service, or sell such anonymized data to third parties. You agree that TipYo may use such anonymized data with no compensation to you and that their rights to such data survive any termination or expiration of this Agreement.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
The Service may facilitate payments between Your customers and You (“Tips”) through our payment processing partner Stripe, but TipYo is not a party to any such Tips and does not handle funds. In order to receive the Tips from Your customers via the Services, You must agree to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these terms or continuing to operate on the Service, You agree to be bound by the Stripe Connected Account Agreement and Stripe Services Agreement, as those agreements may be modified by Stripe from time to time. As a condition of receiving payment processing services through Stripe, You agree to provide TipYo with accurate and complete information about You, Your Users, and Your business, and You authorize TipYo to share this information and transaction information related to Your use of the payment processing services provided by Stripe. You also agree to accurately distribute such Tips to Your employees, contractors and consultants and to distribute such Tips in compliance with all applicable laws. To the extent there are any credit card processing fees applied or applicable to such Tips, Customer shall be solely responsible for such credit card processing fees and Customer agrees not to, and shall not, pass such fees onto its employees, contractors and consultants.
Payment Disputes: All requests for Tip payment chargebacks, errors, claims, refunds and disputes (“Payment Disputes”) will be subject to review by TipYo in accordance with the rules applicable to the payment method used to make the Tip and will be resolved in TipYo’s absolute discretion. TipYo is not liable to You under any circumstances for Payment Disputes we are unable to resolve in Your favor. TipYo will normally process Your valid written Payment Dispute request within thirty (30) days after TipYo receives it, unless a shorter period is required by law. You may file a Payment Dispute by emailing it to TipYo support at [email protected]. If You close or deactivate Your account before the adjudication of Your Payment Dispute, TipYo will not be able to issue you any amounts You are owed. TipYo will attempt to pay You any Payment Disputed amounts You are owed, but TipYo cannot guarantee that it will be able to do so.
If Your actions result, or are likely to result in a Payment Dispute, a violation of this Agreement or create other risks to TipYo or its payment processing partners, or TipYo we determines that Your accounts have been used to engage in deceptive, fraudulent, or illegal activity, then TipYo may permanently withhold any amounts owed to You in TipYo’s sole discretion.
TipYo represents and warrants that the Service will perform substantially in accordance with the Documentation. You represent and warrant that the collection and processing of Your Customer Data as contemplated by this Agreement complies in all respects with applicable data protection laws and regulations.
THE ABOVE LIMITED WARRANTIES ARE THE ONLY WARRANTIES PROVIDED BY TIPYO REGARDING THE SERVICE. EXCEPT FOR THE LIMITED WARRANTIES ABOVE, THE SERVICE IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TIPYO DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR NEEDS, OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE WILL BE ERROR-FREE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TIPYO OR ITS DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS OR AGENTS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SIMILAR DAMAGES, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF TIPYO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THEORY UPON WHICH SUCH CLAIM IS BASED. IN NO CASE WILL TIPYO’S OR ITS LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE SUBSCRIPTION FEES THAT YOU PAID FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 10 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
You will defend, indemnify and hold TipYo and its owners, directors, managers, officers, employees and agents (each an “TipYo Indemnified Party”) harmless against any loss, liability, damage, cost or expense (including reasonable attorneys’ fees) suffered or incurred by any TipYo Indemnified Party in connection with claims, demands, suits, or proceedings made or brought against any TipYo Indemnified Party by a third party alleging (i) a breach by You or Your Users of Your obligations under applicable laws, including, without limitation, applicable data protection laws and regulations; or (ii) that the Customer Data, or Yours or Your Users’ use of the Service in breach of this Agreement, infringes or breaches the intellectual property rights, of, or has otherwise harmed, a third party; or (iii) a breach by You or Your Users of Section 6 (Confidentiality).
Subject to the terms and conditions of this Agreement, this Agreement will commence on the “Term Start Date” set forth on the applicable Order Form and unless sooner terminated for cause as provided below, will continue for the “Initial Term” set forth on the Order Form. Unless either party gives written notice to the other at least 30 days prior to the end of the Initial Term (or any applicable Renewal Term), the Agreement will automatically renew for additional terms equal in length to the Initial Term (each, a “Renewal Term,” and all Renewal Terms together with the Initial Term shall collectively be referred to as the “Subscription Term”). Your access to and use of the Service will terminate at the end of the Subscription Term. TipYo may terminate this Agreement for cause upon written notice to You if: (i) You breach any term or condition of this Agreement or (ii) if You fail to pay when due any amount owed to TipYo relating to this Agreement. Upon termination of this Agreement, Your Subscription Term will automatically terminate. You may terminate this Agreement for cause upon written notice to TipYo if TipYo breaches any term or condition of this Agreement and fails to cure such breach within 30 days of receipt of written notice of such breach, which notice must be delivered in accordance with the notice delivery provisions of Section 18 below. Upon termination of this Agreement for any reason, Your Subscription Term and Your use of and access to the Service will automatically terminate. TipYo will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession.
This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia and the United States of America. Any suit, action or proceeding arising in connection with this Agreement will be brought in the courts located in Alexandria, Virginia and You expressly submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action, or proceeding.
This Agreement is the entire agreement between You and TipYo relating to the Service and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communications between the parties, except for conflicting terms set forth in the Order Form that specifically reference the section of this Agreement that are being modified. Certain other products and services offered by TipYo may be subject to separate terms and conditions established from time to time by TipYo. This Agreement may be amended from time to time by TipYo, with notification provided to You via email in the event of material changes. The current version of this Agreement is available to You at the TipYo Website. You acknowledge and agree that the posting of amendments to this Agreement at such web site, via the Service or by email message will constitute written notice to You of such amendments. By continuing to use the Service after the effective date of any amendments to this Agreement, You agree to be bound by the amended terms. Except for the foregoing right of TipYo to so modify this Agreement, this Agreement may otherwise only be modified in writing signed by both parties hereto.
You may not assign or transfer this Agreement or any of Your rights or obligations under this Agreement without the prior written consent of TipYo, except that You may assign this Agreement in its entirety to Your successor in the event of a merger, corporate reorganization or a sale of all or substantially all of Your assets so long as such successor is not a competitor of TipYo. TipYo may freely assign, delegate or otherwise subcontract its rights or obligations hereunder, in whole or in part.
The Service and, other technology TipYo makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. You represent that You are not named on any U.S. government denied-party list. You shall not permit Users to access or use the Service in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement will continue in full force and effect. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
TipYo may provide any notice to You under this Agreement by posting a notice to the TipYo Website or otherwise within the Service or by sending a message to the email address then associated with Your account. Notice provided by posting to the TipYo Website or within the Service will be effective upon posting and notices provided by email will be effective when TipYo sends the email. You will be deemed to have received any email sent to the email address then associated with Your account when TipYo sends the email, whether or not You actually receive it. Notices provided to TipYo by You under this Agreement must be sent by email to TipYo at [email protected]. Notices sent are effective upon receipt.
19. Surviving Provisions
The provisions of Sections 5 through 19 of this Agreement will survive any termination or expiration of this Agreement.
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