PINEAPPLE PAYMENTS
TERMS OF SERVICE
LAST UPDATE: [1/31/2020]
Pineapple Payments Opco, LLC (“Pineapple”) provides
payment gateway services (“Services”) for merchants either directly, or through
arrangements with third parties that resell our Services to their merchant
customers. These Terms of Service (the
“Terms”) govern your access to and use of the Services. Please read these terms
carefully.
The term “you”, as used in these Terms, means any
person or entity who accesses or uses the Service. These Terms give you
specific legal rights, and you may also have other legal rights in addition,
which vary from jurisdiction to jurisdiction. THE DISCLAIMERS, EXCLUSIONS,
MANDATORY AND BINDING ARBITRATION, LIMITATIONS OF LIABILITY, INDEMNIFICATION,
WAIVER OF JURY TRIAL, WAIVER OF CLASS ACTION AND WAIVER OF PUNITIVE DAMAGES
UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Some jurisdictions do not allow the exclusion of implied warranties or the
exclusion or limitation of incidental or consequential damages or other rights,
so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCESSING AND
USING THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS. IF YOU DO
NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING
OR USING THE SERVICES.
1. OVERVIEW, ELIGIBILITY, CUSTOMER SERVICE, TERM AND
TERMINATION
(a)
Overview and
Relation to Other Agreements. These
Terms govern your use of the Services.
Certain features of the Services may be subject to additional
guidelines, terms, or rules, which will be posted by Pineapple at its website. All additional guidelines, terms, or rules
are incorporated by reference into these Terms and you are agreeing to accept
and abide by them by accessing and using the Services.
(b)
Our Role. Except
for our limited role in directing payment transaction data to applicable
payment processors, we are not involved in any underlying transaction between
you, any other user, or any other service provider or payment processor. We are
not a bank and do not offer banking services. We may use the services of one or
more third parties to provide the Services. We do not guarantee payment to you.
(c)
Eligibility.
(i)
You may use the
Services only if accept these Terms by accessing or using the Services, and
only if you are in compliance with these Terms and all
applicable local, state/provincial, national and international laws, rules, and
regulations.
(ii)
The Services are
not available to any users previously prohibited from using the Services by
Pineapple.
(d)
Term and
Termination. These terms will remain in
full force and effect so long as you continue to access or use the Services, or
until terminated in accordance with these Terms. At any time, Pineapple may (i) suspend or terminate your right to access or use the
Services, (ii) terminate these Terms with respect to you if Pineapple in good
faith believes that that you have used the Services in violation of these
Terms, including any incorporated guidelines, terms or rules.
(e)
Effect of
Termination. Upon termination of these
Terms, your right to access and use the Services will automatically terminate.
Termination does not relieve you of obligations incurred by you under these
Terms.
2. ACCOUNTS
(a)
When you access
and use the Services, you may be required to establish a user account with
Pineapple (“Account”).
(b)
You represent and
warrant that: (i) all required information you submit
is truthful and accurate; (ii) you will maintain the accuracy of such
information; and (iii) your use of the Services will not violate any U.S. or
other applicable law or regulation. You
are entirely responsible for maintaining the confidentiality of your Account
login information and for all activities that occur under your Account. You
agree to maintain your password securely to prevent others from gaining access
without your permission. You agree to immediately notify us of any unauthorized
use, or suspected unauthorized use, of your Account or any other breach of
security. We are not liable for any loss or damage arising from your failure to
comply with the above requirements.
(c)
You may only use
Services to facilitate transactions with your customers.
(d)
At any time during
the term of these Terms and your use of the Services, we may require additional
information from you to verify beneficial ownership or control of the business,
validate information you provided, verify you or your representative’s
identity, and assess the risk associated with your business. Your failure to
provide this information or material may result in suspension or termination of
your Pineapple Account. You authorize us to retrieve information about you from
our service providers and other third parties, including credit reporting
agencies and information bureaus and you authorize and direct such third
parties to compile and provide such information to us. You acknowledge that
this may include your name, addresses, credit history, and other data about you
or your representatives. You acknowledge that we may use your information to
verify any other information you provide to us, and that any information we
collect may affect our assessment of your overall risk to our business. You
acknowledge that in some cases, such information may lead to suspension or
termination of your Pineapple Account. Pineapple may periodically update this
information as part of our underwriting criteria and risk analysis procedures.
(e)
You agree to keep
the information in your Pineapple Account current. You must promptly update
your Pineapple Account with any changes affecting you, the nature of your
business activities, your Representatives, beneficial owners, principals, or
any other pertinent information. We may suspend your Pineapple Account or
terminate these Terms if you fail to keep this information current.
3. YOUR RELATIONSHIP WITH YOUR CUSTOMERS
(a)
Pineapple provides
Services to you but we have no way of knowing if any particular purchase, sale,
donation, order, or other transaction between you and your customers (each a
“Transaction”) is accurate or complete, or typical for your business. You are
responsible for knowing whether a Transaction initiated by your customer is
erroneous (such as a customer purchasing one item when they meant to order
another) or suspicious (such as unusual or large purchases, or a request for
delivery to a foreign country where this typically does not occur).
(b)
You may only use
the Services for legitimate Transactions with your customers.
(c)
If you are unsure
if a Transaction is erroneous or suspicious, you agree to research the
Transaction and, if necessary, contact your customer before fulfilling or
completing the Transaction. You are solely responsible for any losses you incur
due to erroneous or fraudulent Transactions in connection with your use of the
Services.
4. ACCESS TO SERVICES
(a)
Access and Use.
Subject to these Terms, Pineapple will permit you to access and use the
Services for the purpose of enabling (i) the
direction of payment transaction data to applicable payment processors and (ii)
ancillary processes and activities directly related thereto (the “Permitted
Purpose”) and for no other purposes.
(b)
Certain
Restrictions. The rights granted to you in these Terms are subject to the
following restrictions: (i) you agree not to license,
sell, rent, lease, transfer, assign, distribute, host, or otherwise
commercially exploit the Services; (ii) you agree not to modify, make
derivative works of, disassemble, reverse compile, or reverse engineer any part
of the Services; (iii) you agree not to access the Services in order to build a
similar or competitive service or product; (iv) except as expressly stated herein,
no part of the Services may be copied, reproduced, distributed, republished,
downloaded, displayed, posted, or transmitted in any form or by any means; (v)
you agree not to upload, transmit, or distribute any computer viruses, worms,
or any software intended to damage or alter a computer or communication
network, computer, handheld mobile device, data, the Services, or any other
system, device or property; (vi) you agree not to interfere with, disrupt, or
attempt to gain unauthorized access to, the servers or networks connected to
the Services or violate the regulations, policies, or procedures of such
networks; and (vii) you agree not to access (or attempt to access) any of the
Services by means other than through application programming interface(s) provided
by Pineapple. Any future release, update, or other addition to functionality of
the Services shall be subject to these Terms.
(c)
Security.
Pineapple cares about the integrity and security of your personal information.
However, Pineapple cannot guarantee that unauthorized third parties will never
be able to defeat our security measures or use your personal information for
improper purposes.
(d)
Modification.
Pineapple reserves the right, at any time, to modify the Services or any part
thereof with or without notice. You agree that Pineapple will not be liable to
you or to any third party for any modification, of the Services or any part
thereof.
5. AGREED USAGE AND LIMITATIONS OF PINEAPPLE SERVICES
(a)
Interruption of
Services. While we aim for the Services
to be highly reliable and available, they are not intended to be reliable or
available 100% of the time. The Services are subject to sporadic interruptions
and failures for a variety of reasons beyond Pineapple’s control, including,
without limitation, power disruptions, service provider uptime, mobile
notifications and carriers, among others. You acknowledge these limitations and
agree that Pineapple is not responsible for any damages allegedly caused by the
failure or delay of the Services.
(b)
Reliability of
Services. You acknowledge that the Services are not error-free or 100% reliable
and 100% available, and may be interrupted, delayed, refused, or otherwise
limited for a variety of reasons, including insufficient coverage, power
outages, termination of service and access, environmental conditions,
interference, non-payment of applicable fees and charges, unavailability of
radio frequency channels, system capacity, upgrades, repairs or relocations,
and priority access by emergency responders in the event of a disaster or
emergency (collectively “Service Interruptions”). You understand that Service
Interruptions may result in the Services being unreliable or unavailable for
the duration of the Service Interruption. We cannot and do not guarantee that
you will receive notifications in any given time or at all.
(c)
Service
Interruptions; no refund or rebate. The Services may be suspended temporarily
without notice for security reasons, system failure, maintenance and repair, or
other circumstances. You agree that you will not be entitled to any refund or
rebate for such suspensions. Pineapple does not offer any specific uptime
guarantee for the Services.
(d)
System
Requirements. It is your responsibility to ensure that you have all required
system elements and that they are compatible and properly configured. You
acknowledge that the Services may not work as described when the requirements
and compatibility have not been met. If you modify, substitute, move, or
otherwise change any of the required system elements, it is your sole duty and
responsibility to be sure they are compatible and properly configured to work
with the Services.
(e)
Data
Reliability. You are solely responsible
for the accuracy and completeness of all data transmitted by you using the
Services.
(f)
Representations. You warrant, represent and agree that you
will not transmit any data or other information via the Services, or otherwise
use the Services in a manner that, (i) violates
rights of publicity or privacy, or other rights of any third party; (ii)
violates any law, statute, ordinance or regulation or is otherwise illegal;
(iii) contains a virus, Trojan horse, worm, time bomb, or other harmful
computer code, file, or program; (iv) jeopardizes the security of your Account
or anyone else’s Account (such as allowing someone else to log in to the
Services as you); (v) attempts, in any manner, to obtain or access the
password, account, products, devices, systems, or other security information
from any other user or third party; (vi) violates the security of any computer
network, or cracks any passwords or security encryption codes; (vii) interferes
with the proper working of the Services (including by placing an unreasonable
load on the Services infrastructure); or (viii) denigrates or disrupts any
network capacity or functionality.
6. LIMITATIONS OF PINEAPPLE SERVICES DUE TO THIRD
PARTIES
(a)
General. The Services rely on or interoperate with
third party products and services. These third-party products and services are
beyond Pineapple’s control, but their operation may impact or be impacted by
the use and reliability of the Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on
third party product vendors and service providers, (ii) these third-party
products and services may not operate in a reliable manner 100% of the time,
and they may impact the way that the Services operate, and (iii) Pineapple is
not responsible for damages and losses due to the operation of these
third-party products and services.
(b)
Third Party
Service Providers Used by Pineapple. You acknowledge that Pineapple uses third party
service providers to enable some aspects of the Services and is not responsible
for such third party service providrs,
their services, or their systems.
(c)
Equipment, ISP,
and carrier. You acknowledge that the availability of the Services is dependent
on (i) your computer, internet network, and other
related equipment and (ii) your Internet service provider (“ISP”). You
acknowledge that you are responsible for all fees charged by your ISP in
connection with your use of the Services. You also acknowledge that you are
responsible for compliance with all applicable agreements, terms of
use/service, and other policies of your ISP.
(d)
Release Regarding
Third Parties. Pineapple is not responsible for third parties or their products
and services. Pineapple hereby disclaims and you hereby discharge, waive and
release Pineapple and its licensors and suppliers from any past, present, and
future claims, liabilities, and damages, known or unknown, arising out of or
relating to your interactions with such third parties and their products and
services.
7. SUSPICION OF UNAUTHORIZED OR ILLEGAL USE
We may refuse, condition, or
suspend any Transactions that we believe: (i) may
violate these Terms or other agreements you may have with Pineapple; (ii) are unauthorized,
fraudulent or illegal; or (iii) expose you, Pineapple, or others to risks
unacceptable to Pineapple. If we suspect or know that you are using or have
used the Services for unauthorized, fraudulent, or illegal purposes, we may
share any information related to such activity with the appropriate financial
institution, regulatory authority, or law enforcement agency consistent with
our legal obligations. This information may include information about you, your
Pineapple Account, your customers, and Transactions made through your use of
the Services.
8. PROCESSING TRANSACTIONS; DISPUTES, REFUNDS,
REVERSALS
(a)
To enable us to
process Transactions for you, you authorize and direct us, our affiliates, the
Payment Method Providers and Payment Method Acquirers to receive and settle any
payment processing proceeds owed to you through the Services. “Payment Method”
means a type of payment method that Pineapple accepts as part of the Services,
such as credit card, debit card, and ACH. “Payment Method Acquirer” means a
financial institution that is authorized by a Payment Method Provider to enable
the use of a Payment Method by accepting charges from Customers on behalf of
the Payment Method Provider, and routing these charges
to the Payment Method Provider. “Payment Method Provider” means the provider of
a Payment Method, such as Visa, MasterCard, Discover, and American Express.
(b)
Except where
Pineapple and a customer have otherwise agreed, you maintain the direct
relationship with your customers and are responsible for: (i)
acquiring appropriate consent to submit charges through the Services on their
behalf; (ii) providing confirmation or receipts to customers for each charge;
(iii) verifying customers’ identities; and (iv) determining a customer’s
eligibility and authority to complete Transactions. However, even authorized
Transactions may be subject to a dispute. Pineapple is not responsible for or
liable to you for authorized and completed Charges that are later the subject
of a dispute, refund, or reversal, are submitted without authorization or in
error, or violate any laws.
9. OWNERSHIP AND INTELLECTUAL PROPERTY
You acknowledge that all
intellectual property rights, including without limitation copyrights, patents,
trademarks, and trade secrets, in the Services are owned by Pineapple or our
affiliates or licensors. Your access to and use of Services do not transfer to
you or any third party any rights, title, or interest in or to such
intellectual property rights. Pineapple and its affiliates and licensors and
suppliers reserve all rights not granted in these Terms.
10. INDEMNITY FOR THIRD PARTY ACTIONS
TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD
PINEAPPLE AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY THE “PINEAPPLE
PARTIES”) HARMLESS FROM AND AGAINST (I) ALL CLAIMS, ACTIONS, LAWSUITS AND ANY
OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE PINEAPPLE
PARTIES ARISING FROM OR RELATING TO (A) YOUR ACCESS TO AND USE OF THE SERVICES,
(B) YOUR VIOLATION OF THESE TERMS, (C) YOUR VIOLATION OF ANY LAW OR THE RIGHTS
OF ANY THIRD-PARTY (COLLECTIVELY “THIRD PARTY ACTIONS”); AND (II) ANY AND ALL
RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGMENTS (INCLUDING PAYMENT OF THE
PINEAPPLE PARTIES’ ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE PINEAPPLE
PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE PINEAPPLE PARTIES, OR MADE BY ANY
OF THE PINEAPPLE PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY
ACTION (“THIRD PARTY RELATED LOSSES”). YOU UNDERSTAND AND AGREE THAT YOUR
INDEMNIFICATION OBLIGATION TO THE PINEAPPLE PARTIES APPLIES EVEN IF SUCH
THIRD-PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF
ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY,
NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE
PINEAPPLE PARTIES. Pineapple reserves the right to assume the exclusive defense
and control of any matter for which you are required to indemnify Pineapple and
you agree to cooperate with our defense of such claims. You agree not to settle
any such claim without Pineapple’s prior written consent. Pineapple will use
reasonable efforts to notify you of any such claim, action or proceeding upon
becoming aware of it.
11. WARRANTY DISCLAIMERS
(a)
THE SERVICES ARE
PROVIDED “AS IS” AND “AS AVAILABLE” AND PINEAPPLE AND ITS LICENSORS AND
SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.
(b)
PINEAPPLE AND ITS
LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT
THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH
YOUR NETWORK OR COMPUTER SYSTEM; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED,
TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PINEAPPLE
OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
12. WAIVER OF SUBROGATION
You should protect against
any risk of loss with the appropriate insurance coverage, and you are
responsible for obtaining all insurance coverage you believe is necessary. TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND THE APPLICABLE POLICY OR
POLICIES OF INSURANCE YOU OBTAIN AND MAINTAIN, YOU RELEASE PINEAPPLE AND ITS LICENSORS
AND SUPPLIERS FROM ALL LIABILITY FOR ANY LOSS, OCCURRENCE, EVENT OR CONDITION
COVERED BY YOUR INSURANCE.
13. LIMITATION OF LIABILITY
IN NO
EVENT SHALL PINEAPPLE OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES,
SHAREHOLDERS, PARTNERS, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT,
PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES WHATSOEVER
(INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS
INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE,
ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THE PRODUCTS OR
SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE),
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN EVERY EVENT, PINEAPPLE'S
TOTAL MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PRODUCTS OR
SERVICES SHALL BE LIMITED TO ONE MONTH OF FEES PAID BY YOU FOR THE SERVICES.
THE CONSIDERATION BEING PAID HEREUNDER
DOES NOT INCLUDE ANY CONSIDERATION FOR PINEAPPLE TO ASSUME ANY RISKS BEYOND
THOSE EXPRESSLY ASSUMED HEREIN AND IF ANY SUCH RISKS WERE TO BE ASSUMED BY
PINEAPPLE, PINEAPPLE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT
CHARGING SUBSTANTIALLY HIGHER FEES.
SOME STATES AND JURISDICTIONS
DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES MAY NOT APPLY TO YOU.
14. ACCOUNT SECURITY;
DATA
(a)
You agree to:
a.
Not allow anyone
else to have or use your password details and to comply with all reasonable
instructions we may issue regarding account access and security. In the event
you share your password details, Pineapple will not be liable to you for losses
or damages;
b.
Keep your personal
details up to date. We may be unable to respond to you if you contact us from
an address, telephone number or email account that is not registered with us;
and
c.
Take all
reasonable steps to protect the security of the personal electronic device
through which you access the Services (including, without limitation, using PIN
and/or password protected personally configured device functionality to access
the Services and not sharing your device with other people).
(b)
You agree to
comply with applicable data privacy and security requirements under the Payment
Card Industry Data Security Standard (“Association PCI DSS Requirements”) and
any applicable Association data security requirements (including those made
available by Visa, MasterCard, American Express and Discover) with regards to
your use, access, and storage of certain credit card non-public personal
information. Additionally, you agree to comply with its obligations under any
applicable law or regulation as may be in effect or as may be enacted, adopted
or determined regarding the confidentiality, use, and disclosure of cardholder
information. You must report any customer data breach or incident affecting the
Services to Pineapple and Associations immediately after discovery of the
incident. You also agree to ensure data quality and that any Customer Data is
processed promptly, accurately and completely, and complies with the
Associations’ technical specifications. “Associations”
means, collectively, Visa, MasterCard, Discover, American Express, any ATM or
debit network, and the other financial service card organizations.
15. FEES AND PAYMENT; TAXES
Certain
Services may be provided for a fee. You
shall pay all applicable fees regarding the Services.
You
shall pay, indemnify, and hold Pineapple harmless from (i)
any sales, use, excise, import or export, value-added, or similar tax or duty,
and any other tax or duty not based on Pineapple’s income, and (ii) all
government permit fees, customs fees and similar fees which Pineapple may incur
with respect to these Terms. Such taxes, fees and duties paid by you shall not
be considered a part of, a deduction from, or an offset against, payments due
to Pineapple hereunder.
16. GOVERNING LAW
These Terms are governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania
and the United States of America, without regards to their respective
principles of conflicts of law. You agree
to the exclusive personal jurisdiction by the federal and state courts located
in Pittsburgh, Commonwealth of Pennsylvania, United States of America, in any
matter arising from or related to these Terms and your use of the Products and
Services, including any disputes relating to the existence or validity of these
Terms, and you waive any jurisdictional,
venue, or inconvenient forum objections to such courts.
17. GENERAL
We
reserve the right to make changes to these Terms. Any changes we make to these Terms will be
effective immediately upon notice, which we may provide by any means including,
without limitation, posting on the Pineapple websites or the Web-based
Services. Your use of the Products and
Services after such notice will be deemed acceptance of such changes.
If any provision of these
Terms is found to be unlawful, void, or for any reason unenforceable, then that
provision shall be deemed severable from these Terms and shall not affect the
validity and enforceability of any remaining provisions.
These Terms set out the
entire agreement between us relating to the subject matter herein and supersede
and any all prior or contemporaneous written or oral agreements between
us. These Terms are not assignable,
transferable or sub-licensable by you except with Pineapple’s prior written
consent. These Terms shall not be construed as a teaming, joint venture, or
other such arrangement, unless the parties expressly and explicitly execute an
agreement to that effect. No waiver by
either party of any breach or default hereunder shall be deemed to be a waiver
of any preceding or subsequent breach or default. Any heading, caption or section title
contained in these Terms is inserted only as a matter of convenience and in no
way defines or explains any section or provision hereof.