PLEASE READ CAREFULLY – THIS IS A BINDING CONTRACT
THIS PEARL SERVICES AGREEMENT (“AGREEMENT”) IS A BINDING AGREEMENT BETWEEN SWING SET LABS, LLC d/b/a Pearl (“PEARL”) AND YOU AND, IF APPLICABLE, THE COMPANY OR LEGAL ENTITY THAT YOU REPRESENT (COLLECTIVELY “YOU”). THIS AGREEMENT INCORPORATES BY REFERENCE THE TERMS OF SERVICE POSTED AT PEARLPAYMENTS.COM/TERMS (THE “PEARL SITE”) AS MODIFIED BY PEARL FROM TIME TO TIME.
YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THAT LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR DID NOT WISH TO BE BOUND TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICE. YOUR USE OF THE SERVICE SHALL CONSTITUTE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Services and Payment Terms.
1.1 Payment for Services. In exchange for your payment of the fees set forth on the Pearl Site, Pearl will provide the website payment services described on the Pearl Site at pearlpayments.com (the “Services”). The Services shall be provided at the fee set forth on the Services registration page (the “Services Fee”). The Services Fee (and all applicable sales, use or value-added taxes) shall be paid by you by credit, debit card or ACH. You shall provide Pearl with that credit card, debit card or ACH information required by Pearl to accept payment of the Services Fee. You hereby authorize Pearl to use such information to debit, credit or initiate, as applicable, your credit or debit card or ACH for payment of the Services Fee. In addition to any other rights granted to Pearl herein, Pearl reserves the right to suspend or terminate this Agreement and your access to the Services if Pearl is unable to use your credit or debit card or ACH for payment of the Services Fee. To the extent that this Agreement is terminated pursuant to Section 3 below, and to the extent you have pre-paid the Service Fees to Pearl, then Pearl will refund (or issue a credit) a pro-rata portion of the pre-paid Service Fees based on the remaining term of Services covered by such pre-payment. Except for a refund or credit related to pre-payments of the Services Fee, Pearl shall have no obligation to refund or issue you a credit in the event that this Agreement is terminated pursuant to Section 3 below.
1.2 License to Services. Subject to the provisions of this Agreement, Pearl grants to the you a non-exclusive, non-transferable, revocable, limited license to access and use the Services during the term of this Agreement. Except for the license granted in this Section 1.2, you acknowledge that you acquire no other rights to the Services and that all right, title and interest in and to the Services shall remain with Pearl and its licensors. You shall not decompile, copy, disassemble, modify, decrypt, translate, extract or otherwise reverse engineer the Services. You shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services; (b) modify or make derivative works based upon the Services; (c) create Internet “links” to the Services or “frame” or “mirror” the Services on any other server or wireless or Internet-based device; (d) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (e) attempt to gain unauthorized access to the Services or its related systems or networks.
1.3 Stripe. The payment processing portion of the Services for are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or continuing to use the Services, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Pearl enabling payment processing services through Stripe, you agree to provide Pearl accurate and complete information about you and your business, and you authorize Pearl to share it and transaction information related to your use of the payment processing services provided by Stripe.
1.4 Security and Support. Pearl shall provide you with a user ID to access and use the Services. You are solely responsible for the security and use of each such user ID and the password you select to use in conjunction with the user ID. You agree that each user who obtains the user ID and password to use the Services pursuant to this Agreement shall: (a) keep the user ID and password secure and confidential; and (b) not share or transfer user ID and password with any other person or entity. If the security of the user ID and/or password is compromised, you shall promptly contact Pearl by email at email@example.com. Pearl shall provide email based support concerning use of the Services Monday through Friday (excluding Federal holidays) from 9:00 AM to 5:00 PM (Central Standard Time).
2. Changes to this Agreement.
You agree that we may amend the terms and conditions of this Agreement, or any policy or other terms referenced in this Agreement (“Additional Policies”) at any time by posting a revised version of the Agreement or the Additional Policies on the Pearl Site. Any revised terms will become effective fifteen (15) days after we post them to the Pearl Site or, if we provide you a click-through or other means of accepting the revised terms, upon your acceptance. By continuing to use the Services after the revised terms become effective, you agree to be bound to the revised terms.
3. Term and Termination.
This Agreement is effective when you accept the terms and conditions of this Agreement and will continue in effect until terminated by you or Pearl in accordance with this section. Either You or Pearl may terminate this agreement effective immediately upon ninety (90) days’ prior written notice to the other for any reason. The following sections of the Agreement shall survive termination of this Agreement: 7, 8 and 9.
4. Content Submissions.
4.1. Ownership. All data that you submit to us and all output files that you create in your use of the Services (“Your Data”) remain your property. Pearl makes no claim of ownership in Your Data.
4.2. Content. Your Data and/or your use of the Services may not: (a) interfere in any manner with the functionality or proper working of the Services; (b) constitute, promote, facilitate or permit gambling; (c) include, promote or facilitate child pornography or other illegal activities, including without limitation, activities that might be libelous or defamatory, invasive of privacy or publicity rights, abusive, or otherwise malicious or harmful to any person or entity, or that discriminate based on race, sex, religion, nationality, disability, sexual orientation or age; (d) distribute, share or facilitate the distribution or sharing of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; or (e) violate, misappropriate or infringe the intellectual property, privacy, publicity, contractual or other proprietary rights of any third party.
4.3. License to Your Data. You grant to Pearl a worldwide, royalty-free, non-exclusive, sub-licensable right and license to use, copy, and modify Your Data as necessary to perform the Services. Notwithstanding your ownership of Your Data, you agree that Pearl is also authorized to use, reproduce and generally make Your Data available to third parties in the aggregate, provided that Your Data shall not include personally identifiable information or identify you as the source of such aggregated data.
5. Limited Warranty.
Pearl represents and warrants that it has the legal right to enter into this Agreement and to perform the Services. Pearl also warrants to you that the Services shall be performed in accordance with the functional descriptions of the Services found on the Pearl Site. If the Services fail to so conform to that description of the Services, then Pearl shall, as your sole remedy, make a commercially reasonable effort to correct the Services. All warranty claims related to the Services must be made within the term of the Agreement. You represent and warrant that you have the legal right to enter into this Agreement and that Your Data and your use of the Services do not violate the terms of this Agreement.
6. Warranty Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5 OF THIS AGREEMENT, PEARL EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. PEARL DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL BE ACCURATE OR RELIABLE OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE.
You agree that you will indemnify, defend and hold Pearl harmless from and against any and all liabilities, damages, losses, expenses, demands, claims, suits or judgments, including reasonable attorneys’ fees, costs and expenses arising from: (a) your unauthorized use of the Services; (b) claims that Your Data infringes any intellectual property or other right of any third party; (c) your breach of this Agreement or violation of any law, rule or regulation through your use of the Services; or (d) claims made by your customers.
8. Limitation of Liability.
PEARL SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM OR OCCASIONED BY YOUR USE OF THE SERVICES. PEARL’S LIABILITY TO YOU FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO PEARL UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED.
This Agreement contains the entire understanding of the parties regarding the Services and supersedes all prior agreements, contracts or understanding regarding the Services. You may not assign or otherwise transfer, including by operation of law, any of your rights or obligations under this Agreement without Pearl’s prior written consent. This Agreement will be governed by and interpreted under the laws of the state of Minnesota, without reference to any choice of laws principles. Any dispute arising out of or in connection with this Agreement will be resolved in the federal or state courts located in Hennepin County, Minnesota. All notices under this Agreement will be in writing and will be effective only if delivered, if to Pearl, to Swing Set Labs LLC, 514 N 3RD ST STE 105, Minneapolis, MN 55401, and if to you, to the e-mail address that you provided when registering for the Services. No waiver of any provision of this Agreement will be binding unless it is in writing. Except as otherwise provided herein, this Agreement may be amended only by a written document signed by both parties. If any provision or part of any provision contained in this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions or portions thereof, will not be in any way affected or impaired thereby.
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