talech Terms of Service
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Talech International Limited is a private limited company incorporated in Ireland with it's registered office at 5th Floor Beaux Lane House, Mercer Street Lower, Dublin 2, Ireland ("talech").
In these Terms, the following expressions shall have the following meanings:
“Acceptance” - with regard to an Application for talech's Services, means acceptance in written or electronic form.
“Account Data” - means any of your account data or information used with, stored in or by the Services (or any part of them).
“Application” - means an application made by a Merchant to subscribe to and use the Combined Solution.
“Applicable Data Protection Law” - means the Data Protection Acts 1988, 2003 and 2018 (the “Acts”), the GDPR and any binding codes of practice or regulations or other legislation made under or separate to the Acts and/or the GDPR relating to the processing of personal data.
“Application Form” - means the application form completed by you and submitted to Elavon to apply to become a new user of the Combined Solution.
“Card Payment Service Provider” - means Elavon or a Reseller or a Partner.
“Customer” - means a customer of a Merchant.
“Customer Data” - means personal information of a Customer, including but not limited to his or her name, email address, telephone number and certain financial information.
“Combined Solution” - means the integrated mobile payment solution, the component elements of which will be provided to a Merchant by talech in accordance with these Terms and Elavon in accordance with a Merchant Agreement.
“Commencement Date” - subject to Acceptance, means the date from which the Services will be provided to and made available to a Merchant by talech pursuant to these Terms.
“Disclosing Party” - means a party which discloses its Proprietary Information solely for the purposes of or in connection with the Services.
“Elavon” - means Elavon Financial Services Limited incorporated in Ireland (Registered No. 418442).
“Equipment” - means any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, tablet devices, hardware, server, software, operating system, networking, web servers, broadband, long distance and local telephone service.
“Fee” or “Fees” - means the fee or fees as set out from time to time in the Application Form and payable by a Merchant to talech in connection with the Services. The Fees will be collected by Elavon on behalf of talech.
“GDPR” - means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data as applicable as of 25 May 2018, as may be amended from time to time.
“including” - means including but not limited to, unless expressly stated otherwise.
“Initial Service Term” - means the period of thirty (30) days from the Commencement Date, unless terminated earlier in accordance with these Terms.
“Merchant” or “you” or “your” - means the merchant defined in the Application Form who requires use of the Services (or any part of the Software) for its own use.
“Merchant Agreement” - means the agreement between a Merchant and Elavon in connection with the supply of the Elavon elements of the Combined Solution.
“Merchant Personal Data” - any personal data provided by or on behalf of the Merchant to talech in connection with the performance of this Agreement, including Customer Data.
“Partner” - means a partner organisation authorised by talech, including but not limited to EVO Payments International GMBH incorporated in Ireland (Registered No. 907681) and SumUP Payments Limited incorporated in the UK (Registered No. 7836562)
“Proprietary Information” - means the business, technical, financial, confidential or other commercially sensitive information relating to the Disclosing Party’s business.
“Receiving Party” - means a party to which Proprietary Information is disclosed solely for the purposes of or in connection with the Services.
“Reseller” - means a reseller of the Services, other than Elavon.
“Renewal Term” - means successive periods each of thirty (30) days in duration continuing to automatically renew month to month, unless terminated earlier in accordance with these Terms.
“Services” - means talech’s Insights Service, which comprise the talech elements of the Combined Solution, as accessed at the point of sale through on-premises client software and which provides a feature set and key information to allow Merchant customers of talech to better manage and control certain aspects of their business, and additional modules or Premium Service upgrades from time to time, which may include (for an additional fee) software analytics that support better Customer targeting of offers, discounts and special promotions.
“SDK” - means the software development kit used in connection with the Combined Solution for the processing of payment transactions.
“Software” - means the source code, object code or underlying structure, ideas or algorithms of the Services, including for the avoidance of doubt the talech elements of the Combined Solution (excluding the SDK), or any software, documentation or data related to the Services to the extent owned and/or controlled by talech and made available to you by talech, its authorised resellers or licensees in connection with the Services.
“talech” or “we” or “our” or “us” - means talech International Limited a private limited company incorporated in Ireland with its registered office at 5th Floor Beaux Lane House, Mercer Street Lower, Dublin 2, Ireland.
“talech Account” - an account which is created by you or assigned to you to use some of the Services.
“Term” - means the Initial Service Term and any Renewal Term(s).
“the Terms” or “these Terms” - means these Terms of Service, including the talech Policies, as may be amended from time to time.
“Your Content” - means your content, like a logo, images, text or other materials, which you submit to, upload on, or display in connection with the Services.
2. Using our Services
2.1 Your use of our Services
- Your use of the Services is subject to your compliance with these Terms.
- You may use our Services only as expressly set forth in these Terms and in all cases in accordance with all applicable export and re-export control laws and regulations, data protection and privacy laws and all other applicable laws and regulations.
- You must comply with any policies made available to you in connection with the performance of the Services, including but not limited to the talech Policies.
- Although talech has no obligation to monitor your use of the Services, talech may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of these Terms.
2.2 Restrictions and Responsibilities
2.2.1 You shall:
- not remove, obscure or alter any labels or proprietary notices (including copyright notices) affixed to or contained within any Software;
- not directly or indirectly attempt to copy, duplicate, modify, convert, create derivative works from or distribute all or any portion of any Software (except to the extent expressly set out in these Terms or allowed by any applicable law which is incapable of exclusion by agreement between the parties);
- not directly or indirectly attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (except allowed by any applicable law which is incapable of exclusion by agreement between the parties);
- only use the Software for your own internal organisational purposes (except as expressly set out in these Terms);
- not interfere with our Services or try to access them (or any part of them) by using a method other than the interface and the instructions we provide;
- not use or prevent any unauthorised access to, or use of, the Software and immediately notify talech of any such unauthorised access or use; and not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party.
- not enter or process any personal data revealing (i) racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership; (ii) data concerning health or sex life or sexual orientation; or (iii) genetic data or biometric data onto the Services other than as necessary for the provision of your services to the Customer, and provide that you shall have and maintain a valid legal basis and satisfy the other conditions set out in data protection legislation to process these special categories of personal data.
2.2.2 You will:
- be responsible for obtaining and maintaining the Equipment. You will also be responsible for maintaining the security of the Equipment, your talech Account and Account Data (including administrative and user passwords) and files, and for all uses of your talech Account and/or the Equipment with or without your knowledge or consent.
2.3 IP Acknowledgement and Third Party Content
- IP Acknowledgment. Using our Services (or any part of the Software) does not give you ownership of any copyright or other intellectual property rights in or to the Services (or any part of the Software) or the content you access. You may not use content from our Services unless you obtain permission from its owner or are otherwise permitted by law. These Terms do not grant you the right to use any branding or logos used in our Services without our permission. Don’t remove, obscure, or alter any legal notices displayed in or along with our Services.
- Third Party Content. Our Services display some content that is not talech’s. This content is the sole responsibility of the entity that makes it available. We may (but are not obligated to) review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law.
2.4 Service announcements and other material
3. About Software in our Services
3.1When a Service requires or includes Software, this Software may update automatically on your device once a new version or feature is available.
3.2With respect to any Software that is distributed or provided to a Merchant for use on a Merchant premises device, talech hereby grants to Merchant a non-exclusive, non-transferable, non-sublicensable licence to use such Software solely as embedded on such device only in connection with the Services for the duration of the Term, all of the foregoing shall be subject to the provisions of these Terms and in consideration of the Merchant’s payment of the Fees. This licence will give you a personal, non-assignable, non-transferrable, non-sublicensable and non-exclusive right to use the Software in connection with the Services solely for your internal business purposes for the relevant Term.
3.3Some Software used in our Services may be offered under an open source licence that we will make available to you. There may be provisions in the open source licence, to the extent applicable to that open source software, that expressly override some of these Terms.
3.4Neither talech nor its authorised resellers or licensees grant to you or any third party any title, interest, licence or rights that are not expressly granted in these Terms (or the Merchant Agreement, as the context requires).
3.5For the avoidance of doubt, the SDK does not form part of the Software licensed under these Terms and your rights and licence to use the SDK shall be as set out in and subject to the Merchant Agreement.
4. Getting Started
4.1 Your talech Account
- You may need a talech Account in order to use some of our Services. If you are using a talech Account assigned by an administrator, authorised reseller or licensee, additional terms may apply, including in the case of the Elavon, the Merchant Agreement.
- You must identify a valid administrative user name and password for your talech Account. talech reserves the right to refuse registration of or cancel passwords it deems inappropriate.
- It is your sole responsibility to ensure that your Account numbers, passwords, security questions and answers, login details and any other security or access information used by you to use or access the Services are kept safe and confidential. You must prevent unauthorised access to and use of any of your Account Data.
- You are responsible for electronic communications sent to us or to any third party containing Account Data and for all uses of the Services in association with your Account Data, whether or not authorised by you. When we receive communications containing your Account Data, we assume you sent it to us. You grant us permission to anonymously combine your Account Data with that of other users of the Service to improve our services to you. If you learn of any unauthorised use of your login, password, Account or Account Data, you must notify us immediately at firstname.lastname@example.org.
5. Applications and the Approval Process
5.1 Making an Application
- Applications for the Services can be made in one of three ways:
- by submitting a completed Application Form directly to us;
- by submitting a completed Application Form to Elavon; or
- by submitting a completed Application Form to one of our Resellers or Partners;
- All Applications for the Combined Solution are subject to Acceptance by both talech and the relevant Card Payment Service Provider.
- Your Application for the transactional elements of the Combined Solution will be dealt with by the relevant Card Payment Service Provider in accordance with the Merchant Agreement.
- As a condition of Acceptance for the talech Services, you must be successfully on-boarded in accordance with the procedures outlined below.
- talech’s Acceptance of your Application will be deemed to occur when confirmed in writing to you by talech, usually by way of a welcome e-mail. Immediately upon the successful completion of the on-boarding process below and Acceptance of your Application, you agree to and will become bound by these Terms in relation to the Services and any other talech elements of the Combined Solution.
- You understand that, provided you meet talech’s on-boarding and Acceptance criteria, a binding agreement is entered into between you and talech in connection with the Services.
5.2 Merchant On-boarding
- In order to connect to and use the Services, you must be on-boarded by us and/or by a Partner or a Reseller.
- Each proposed new user of the Combined Solution with a Partner or a Reseller may be subject to certain on-boarding checks applicable from time to time.
- Each Partner and Reseller has its own processes for the on-boarding of any Merchant or proposed user of the Combined Solution.
- talech and each Partner or Reseller are independent contractors and no party has the authority to act as agent of or to bind the others. talech has no control over its Partner’s or Reseller’s on-boarding processes (or the data or Customer Data collected by a Partner or Reseller during its on-boarding process). However, it may be a condition of our on-boarding process from time to time that you meet our Partner’s or Reseller’s on-boarding and Merchant suitability checks, and vice versa.
- Nothing in these Terms shall affect the provisions of the Merchant Agreement.
- We will be under no obligation to on-board you or any Merchant or other new user where you fail to meet our on-boarding and Merchant suitability checks. Talech retains the right, at is discretion, to decline any Application without further explanation.
5.2 Merchant On-boarding with Elavon
- In order to connect to and use the Combined Solution you must be on-boarded by us and by Elavon. You will also be required to separately enter into a Merchant Agreement with Elavon.
- Each proposed new user of the Combined Solution will be subject to certain on-boarding checks (including know-your customer, anti-money laundering and credit checks) applicable from time to time.
- Each of talech and Elavon has its own processes for the on-boarding of any merchant or proposed new user of the Combined Solution.
- talech and Elavon are independent contractors and neither party has the authority to act as agent of or to bind the other. talech has no control over Elavon’s on-boarding process (or the data or Customer Data collected by Elavon during its on-boarding process) and Elavon has no control over talech’s on-boarding process (or the data, including any data or Merchant Personal Data collected by us during our on-boarding process). However, it may be a condition of our on-boarding process from time to time that you meet Elavon’s on-boarding and Merchant suitability checks, and vice versa.
- Nothing in these Terms shall affect the provisions of the Merchant Agreement.
- We will be under no obligation to on-board you or any Merchant or other new user where you fail to meet our on-boarding and Merchant suitability checks. Talech retains the right, at is discretion, to decline any Application without further explanation, even where a Merchant has satisfied Elavon’s on-boarding and Acceptance criteria.
6. Merchant Personal Data
6.1When you use our Services, you may provide Merchant Personal Data in order for us to process payments on your behalf or otherwise provide the Services requested by you.
6.3You are the controller of the Merchant Personal Data except in respect of any referral data provided to talech by the Merchant for our on-boarding purposes, in which case talech will be the controller.
6.4Without prejudice to or limiting your obligations under section 6.5, to the extent talech acts as a processor for the Merchant Personal Data in performing or delivering the Services to you, talech shall:
- 6.4.1 process the Merchant Personal Data only on the documented instructions of the Merchant in connection with the performance or delivery of the Services, unless talech is required by Applicable Data Protection Legislation to otherwise process that personal data. Where talech is relying on the laws of a member of the European Union or European Union Law as the basis for processing such personal data, talech shall promptly notify the Merchant of this before performing the processing required by Applicable Data Protection Legislation unless Applicable Data Protection Legislation prohibits talech from doing so;
- 6.4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Merchant Personal Data and against accidental loss or destruction of, or damage to, such personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
- 6.4.3 ensure that all talech personnel who have access to and/or process the Merchant Personal Data are obliged to keep it confidential; and
- 6.4.4 not transfer any Merchant Personal Data outside of the European Economic Area unless your prior written consent has been obtained and we comply with our obligations under Applicable Data Protection Legislation to ensure an adequate level of protection for such Merchant Personal Data;
- 6.4.5 assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with the your obligations under Applicable Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- 6.4.6 notify you without undue delay on becoming aware of a personal data breach while the Merchant Personal Data is in our possession or control;
- 6.4.7 at your written direction, delete or return the Merchant Personal Data and copies thereof to you on termination of the Services unless required by Applicable Data Protection Legislation to store it; and
- 6.4.8 maintain complete and accurate records and information to demonstrate its compliance with this section 6 in relation to the Merchant Personal Data and allow you or your designated auditor on reasonable notice to audit our records to the extent necessary to verify our compliance.
6.5Nothing in this section 6 will relieve, remove or replace your obligations under Applicable Data Protection Legislation as controller. The expressions “personal data”, “controller”, “processor” “data subject” and “processing” have the meanings given to them under Applicable Data Protection Legislation, and the expression “process” or “processes” in this context shall be construed accordingly.
7. Your Content in our Services
7.1Some of our Services allow you to submit, upload or display Your Content. You retain ownership of any intellectual property rights that you hold in that Content.
7.2When you upload or otherwise submit Your Content to our Services, you give talech (and those we work with, including Elavon and its affiliates) a worldwide, non-exclusive, royalty-free licence to use, host, store, modify (only to ensure that Your Content works better with our Services), publish, and display Your Content. The rights you grant in this licence are for the limited purpose of operating, providing, promoting, and improving our Services, and to develop new ones. Make sure you have the necessary rights to grant us this licence for any of Your Content that you provide to talech; by providing Your Content to us, you are representing and warranting to us that you have all such necessary rights.
8. Your Warranties and Representations
8.1You hereby represent, covenant and warrant to talech that:
- you have all necessary right, power and authority to enter into the agreement contemplated by these Terms, to perform the acts required of you hereunder and to permit talech to perform the Services contemplated by these Terms;
- your use of the Services, the delivery and performance by you of these Terms, does not and will not conflict with or violate any agreement or other instrument with a third party applicable to you or otherwise infringe upon the rights of any third party;
- you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including policies and laws relating to spamming, data protection, privacy, intellectual property, consumer and child protection, obscenity or defamation);
- to the extent that you collect, process, use, store, transfer or otherwise disclose any personal information or other information regarding individuals in connection with the Services, including but not limited to the Merchant Personal Data, you have and will have all necessary permissions and consents to do so and that all such collection, processing, transferring (including transfers to talech, its affiliates, authorised resellers and licensees (some of which may be located from time to time outside of the European Economic Area) for use in relation to the provision of the Services (or any part thereof) and/or storage is and shall be undertaken in full compliance with all applicable laws, rules and regulations in all relevant jurisdictions, including all Applicable Data Protection Legislation and will have and maintain any and all necessary consents, authorizations and clearances from your Customers to collect, use, process, store, disclose this information; and
- you will use the Services only in compliance with these Terms (including the talech Policies).
9. Modifying and Terminating our Services
10.1We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop the Services, or any portion of the Services, altogether.
10.2Except to the extent expressly provided herein, you may stop using our Services at any time and talech may stop providing Services to you, or add or create new limits or other terms or requirement to or for our Services at any time. If talech stops providing Services to you, and/or terminates these Terms for any reason, you shall immediately:
- destroy or return to talech the Software together with all documents and materials (and any copies) containing, materially interpreting or incorporating the Software;
- permanently erase the Software from your computer systems; and
- certify in writing to talech that you have complied with the requirements of this paragraph.
You shall hold harmless and indemnify talech and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Services (including any Software) or violation of these Terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.
11.1Each Receiving Party understands that the Disclosing Party has disclosed or may disclose business, Proprietary Information of the Disclosing Party. Proprietary Information of talech includes non-public information regarding features, functionality and performance of the Services and/or the Software.
11.2The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person (except as expressly permitted herein) any such Proprietary Information.
11.3The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required by law to be disclosed.
11.4Notwithstanding anything to the contrary in these Terms, talech shall have the right to collect and analyse data and other information relating to the use and performance of various aspects of the Services and related systems and technologies, and talech will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other talech offerings, and (ii) disclose and otherwise exploit such data in aggregate or other de-identified form for any lawful purpose.
12. Fees and Payments to Elavon
12.1Unless otherwise indicated, you shall pay all Fees in respect of the Services to the relevant Card Payment Service Provider, who shall collect the Fees on behalf of talech, as and when they fall due during the Term.
12.2Unless a valid exemption applies, Merchant shall be responsible for Value Added Tax and all other applicable taxes associated with Services and in any instances where the Services are provided to a European Union based Merchant established outside the Republic of Ireland, the Merchant shall be responsible for any Value Added Tax related liabilities that may arise where an obligation arises to self-account for local value added tax under a 'reverse charge' procedure.
12.3The Fees may be amended by talech at any time on notice in writing to you.
13. Term and Termination
13.1Subject to earlier termination as provided below or elsewhere in the Terms, the Terms will commence on the Commencement Date and continue for the duration of the Term.
13.2In addition to any other remedies it may have: (a) either party may also terminate these Terms upon thirty (30) days’ notice (or three (3) days’ notice in the case of non-payment), if the other party materially breaches any of these Terms or conditions; and (b) talech may also terminate these Terms on thirty (30) days’ written notice to Merchant in the event of: (i) any proceeding, whether voluntary or involuntary, in bankruptcy or insolvency by or against Merchant; (ii) any appointment, with or without Merchant’s consent, of a receiver, liquidator or assignee for the benefit of creditors; or (iii) Merchant suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business. For the avoidance of doubt, any failure by you to remit payment of the Fees as and when they fall due under these Terms shall be an event which, if not remedied by you on notice, may give rise to termination of the Services by talech.
13.3Merchant will pay in full for the Services up to and including the last day on which the Services are provided. All payments shall be made to Elavon, who collects the Fees on behalf of talech, subject to and in accordance with these Terms and the Application Form.
13.4Upon request by Merchant made within thirty (30) days after the effective date of any termination of these Terms, talech will make available to Merchant electronically all Merchant-specific data stored by talech in connection with the Services. Thereafter, talech may, but is not obligated to (except as expressly required by law), delete archived data.
13.5Immediately upon termination: (a) all licenses granted by these Terms shall terminate; (b) you shall cease to use the Software; (b) you shall destroy or return the Software in your possession or control, together with all documents and materials (and copies) containing, materially interpreting or incorporating the Software; (c) you shall permanently erase the Software from your computer systems; and (d) each Receiving Party shall return and make no further use of any Proprietary Information belonging to the Disclosing Party. Upon talech’s request, you shall confirm in writing to talech that you have complied fully with the provisions of this section 14.5. All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
14. Warranty and Disclaimer
14.1talech shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services.
14.2Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by talech or by third-party providers, or because of other causes beyond talech’s reasonable control, but talech shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
14.3HOWEVER, TALECH DOES NOT WARRANT THAT THE SERVICES AND/OR THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES AND/OR THE SOFTWARE. THE SERVICES AND THE SOFTWARE ARE PROVIDED “AS IS” AND TALECH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
15. Limitation of Liability
15.1NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, FRAUD OR FRAUDULENT MISREPRESENTATION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TALECH, ITS AUTHORISED RESELLERS, REFERRAL PARTNERS, LICENSEES AND SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OF SERVICES, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, EQUIPMENT OR TECHNOLOGY, OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND TALECH’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE AGGREGATE FEES RECEIVED PAID BY THE MERCHANT FOR THE SERVICES IN THE SIX MONTHS PRIOR TO THE DATE THE CLAIM AROSE, IN EACH CASE, WHETHER OR NOT TALECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ALL CASES, TALECH, ITS AUTHORISED RESELLERS, REFERRAL PARTNERS AND LICENSEES, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
15.2IN NO EVENT SHALL TALECH BE RESPONSIBLE FOR THE AVAILABILITY, RELIABILITY, TIMELINESS OR ACCURACY OF ANY THIRD PARTY MATERIAL OR OTHER CONTENT AVAILABLE IN CONNECTION WITH OR REFERENCED IN THE SERVICES. WE MAKE NO WARRANTIES OR REPRESENTATIONS WHATSOEVER REGARDING THE ACCURACY, ADEQUACY, TRUTHFULNESS, COMPLETENESS, RELIABILITY OR USEFULNESS OF SUCH INFORMATION. EACH OF THE THIRD PARTY MATERIALS AND/OR CONTENT MAY BE GOVERNED BY LEGAL NOTICES AND PRIVACY POLICIES WHICH DIFFER FROM OURS. THE VIEWS AND OPINIONS EXPRESSED IN SUCH THIRD PARTY MATERIALS AND/OR CONTENT, OR ANY PART OF THEM, DO NOT NECESSARILY REFLECT TALECH’S VIEWS OR OPINIONS.
15.3WHERE THE COMBINED SOLUTION IS BEING PROVIDED AS A PILOT RELEASE, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NEITHER TALECH NOR ITS AUTHORISED RESELLERS OR LICENSEES MAKE ANY WARRANTIES OR OTHER REPRESENTATIONS WITH RESPECT TO THE COMBINED SOLUTION, WHICH IS PROVIDED SOLELY “AS IS”.
15.4SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE ALL WARRANTIES.
15.5TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TALECH, AND TALECH’S AUTHORISED RESELLERS, REFERRAL PARTNERS AND LICENSEES, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
16. Government Matters
To the extent Merchant’s servers are located in the United States or otherwise applicable, Merchant may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by these Terms and will be prohibited except to the extent expressly permitted by these Terms.
17.1talech may (a) issue a “customer win” press release announcing the relationship between the parties; (b) make available for marketing purposes case studies regarding the implementation of the talech Services by Merchant; and (c) mention Merchant and the parties’ relationship in talech’s marketing collateral, website, and other promotional materials; provided that talech gives Merchant a reasonable opportunity to review and comment on any such disclosures prior to public release. Merchant also agrees to participate in a reasonable number of customer reference calls upon talech’s request.
17.2If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. The Terms are not assignable, transferable or sublicensable by Merchant except with talech’s prior written consent. talech may transfer and assign any of its rights and obligations hereunder without consent.
17.3These Terms, and all documents referred herein, are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter hereof.
17.4Without prejudice to our rights under the Terms (or any part of them) or any other remedies available to us at law, we may suspend or stop providing our Services to you if you do not comply with the Terms, or if we are investigating suspected misconduct by you. If you do not comply with these Terms, and we don’t take action right away, this doesn’t mean that we are waiving or giving up any rights that we may have (such as taking action in the future).
17.5No agency, partnership, joint venture, or employment is created as a result of these Terms and Merchant does not have any authority of any kind to bind talech in any respect whatsoever.
17.6In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and solicitors’ fees.
17.7All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt (or its equivalent) requested.
17.8These Terms shall be governed by the laws of the Republic of Ireland without regard to its conflict of laws provisions and Merchant agrees to submit to the exclusive jurisdiction of the Irish courts.
18. About these Terms
18.1Changes and Updates
- We may modify these Terms or any additional terms that apply to a Service to, for example, to reflect changes to the law or changes to our Services. You should look at the Terms regularly. We will post notice of material modifications to these Terms at our website www.talech.com. We will post notice of modified additional terms in the applicable Service. Changes will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service.
- If there is a conflict between these Terms and the additional talech terms, the additional talech terms will control for that conflict.
18.2talech and Elavon
These Terms control the relationship between talech and you, each as an independent contractor of the other. They do not create any third party beneficiary rights.
19. Contacting Us
For information about these Terms or how to contact talech, please email us at email@example.com.