BLISNESS – TERMS OF SERVICE
MERCHANT TERMS & CONDITIONS
Any reference to “you” in these Terms shall include yourself and any person that accesses or uses the Site or App, or the services we make available via the Site or App on your behalf, whether as a guest or a registered user.
Please read these Terms carefully before using this Site, as they contain important information about your rights and obligations. By using our Site or by downloading our app, you confirm that you have read these Terms, accept them and agree to comply with them. Your agreement to comply with and be bound by these Terms is deemed to occur upon your first use of our Site. If you do not agree to these Terms, you must not use our Site.
(1) BARGOPAY LLC incorporated and registered at 1 E Mount Vernon PL, Baltimore 21202.
(2) The person or business whose details are set out in the Subscription Particulars (the Merchant).
(A) BARGOPAY LLC is in the business of, inter alia, marketing and licensing a software application and platform which it makes available to Merchants via the internet, certain mobile and POS devices and/or various digital marketplaces for the purpose of the Merchant running a loyalty program for its clientele (defined below).
(B) In connection with the functionality and operation of the Service, BARGOPAY LLC is able to provide the Merchant with the functionality of an online platform through which they can operate their loyalty program in-store and online.
(C) The Merchant is a retailer or service provider and wishes to use BARGOPAY LLC’s service in its business operations. BARGOPAY LLC has agreed to provide and the Merchant has agreed to take and pay for BARGOPAY LLC’s service subject to these Terms.
1.1 The definitions and rules of interpretation in this clause apply in these Terms.
App(s): any mobile application released by BARGOPAY LLC to Merchants, Clientele or the public as part of the Service.
Business Day: any day which is not a Saturday, Sunday, or Christmas Day.
Customer: the customer of the products or services sold or re-sold by a Merchant who uses the Company’s Software and Services.
Clientele: the customers or users of the products or services sold or re-sold by the Merchant, and who take part to the Merchant’s loyalty program, by either providing their details or by downloading the Blismo or Blisness App.
Customer Data: the data inputted by the Clientele or BARGOPAY LLC on the Clientele’s behalf for the purpose of using the Services or facilitating the Clientele’s use of the Services.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.
Merchant Data: the data inputted by the Merchant or BARGOPAY LLC’s on the Merchant’s behalf for the purpose of using the Services or facilitating the Merchant’s use of the Services.
Documentation: any documents made available to the Merchant by BARGOPAY LLC online via the Site relating to the Services.
Effective Date: the date that the Merchant signs up for the Service, either by signing up via the Blismo Site, or by installing the service on a mobile or POS device.
Improvements: any technical advances, modifications, enhancements, development, methods, processes which change, improve or further develop the relevant product or service.
Marketplace: A Site or other online platform that allows Merchants to download and/or install the Services for a subscription price.
Services: the subscription services provided by BARGOPAY LLC to the Merchant under these Terms, as more particularly described on the Site.
Site: www.blismo.com or other Marketplace or such other web address notified by BARGOPAY LLC to the Merchant from time to time which sets out a description of the Services and the user instructions for the Services.
Software: the online software applications and platforms provided by BARGOPAY LLC as part of the Services.
Subscription Fees: the subscription fees payable by the Merchant to BARGOPAY LLC for the Services, as set out in the Subscription Particulars.
Subscription Term: commencing on the Effective Date and ending on termination of these Terms.
Subscription Particulars: means the particulars displayed on the Site or marketplace listings relating to the Services.
Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, Subscription Particulars and paragraph headings shall not affect the interpretation of these Terms. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and (where relevant) that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Words in the singular shall include the plural and vice versa. A reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to writing or written includes faxes but not e-mail. References to clauses are to the clauses of these Terms.
2.1 Subject to the restrictions set out in this clause 2 and the other terms and conditions of these Terms, BARGOPAY LLC hereby grants to the Merchant a non-exclusive, non-transferable right to use the Services and the Documentation during the Subscription Term solely for the Merchant’s business operations.
2.2 The Merchant undertakes that only its employees shall access and use the Services.
2.3 The Merchant shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) causes damage or injury to any person or property; and BARGOPAY LLC reserves the right, without liability to the Merchant, to disable the Merchant’s access to any material that breaches the provisions of this clause.
2.4 The Merchant shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under these Terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties except its own Clientele; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise make the Services and/or Documentation available to any third party, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.
2.5 The Merchant shall:
(a) follow all reasonable instructions of BARGOPAY LLC from time to time including but without limitation in connection with the use and marketing of the Service to the Clientele;
(b) comply with the Documentation;
(c) use reasonable endeavors to ensure that all Merchant Data is at all times up to date and accurate;
(d) not engage in any conduct which in the reasonable opinion of BARGOPAY LLC is prejudicial to the business and/or goodwill of BARGOPAY LLC; and
(e) use all reasonable endeavours to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify BARGOPAY LLC.
2.6 The rights provided under this clause 2 are granted to the Merchant only, and shall not be considered granted to any subsidiary or holding company of the Merchant.
3.1 BARGOPAY LLC shall, during the Subscription Term, use reasonable endeavors to provide the Services on and subject to the terms of these Terms provided always that BARGOPAY LLC may change, suspend, or discontinue all or part of the Services at any time, with or without reason. The Merchant acknowledges that the operation of the Service may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and BARGOPAY LLC shall not be responsible to the Merchant or any other party for any such interruptions, errors or problems or an outright discontinuance of the Service. BARGOPAY LLC has no obligation to continue producing or releasing new versions of the Service.
3.2 Subject always to Clause 3.1, BARGOPAY LLC shall use reasonable endeavors to keep the Services operational and available 24 hours a day, seven days a week, except for:
(a) planned maintenance of which BARGOPAY LLC shall use reasonable endeavors to provide prior notice; and
(b) unavailability of the Services caused by circumstances beyond BARGOPAY LLC’s control included but not limited to, act of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems or internet service provider failures or delays.
4. CUSTOMER & MERCHANT DATA
4.2 The Parties shall fulfill all of their obligations under the General Data Protection Regulation (GDPR). The Merchant warrants that it is fully compliant with the GDPR and shall remain compliant throughout the Subscription Term.
4.3 The Merchant acknowledges and agrees that the personal data may be transferred or stored outside of the country where the Merchant is located in order to carry out the Services and BARGOPAY LLC’s other obligations under these Terms.
4.4 The Merchant shall ensure that the Merchant is entitled to transfer the relevant personal data to BARGOPAY LLC so that BARGOPAY LLC may lawfully use, process and transfer the personal data in accordance with these Terms on the Merchant’s behalf.
4.5 The Merchant shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.
4.6 BARGOPAY LLC shall process the personal data only in accordance with the terms of these Terms and any lawful instructions reasonably given by the Merchant from time to time.
4.7 Each party shall take appropriate technical and organizational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
5. THIRD PARTY PROVIDERS
6.1 BARGOPAY LLC:
(a) does not warrant that the Merchant’s use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Merchant through the Services will meet the Merchant’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Merchant acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.2 These Terms shall not prevent BARGOPAY LLC from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms.
7. MERCHANT’S OBLIGATIONS
The Merchant shall:
(a) comply with all applicable laws and regulations with respect to its activities under these Terms;
(b) ensure that the Merchant and its staff use the Services and the Documentation in accordance with the terms and conditions of these Terms and shall be responsible for any user’s breach of these Terms;
(c) obtain and shall maintain all necessary licenses, consents, and permissions necessary for BARGOPAY LLC, its contractors and agents to perform their obligations under these Terms, including without limitation to the Services;
(d) ensure that its network and systems comply with the relevant specifications provided by BARGOPAY LLC from time to time; and
(e) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to BARGOPAY LLC’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Merchant’s network connections or telecommunications links or caused by the internet.
8. CHARGES AND PAYMENT
8.1 The Merchant shall pay the Subscription Fees to BARGOPAY LLC in accordance with this clause 8 and the Subscription Particulars.
8.2 Subject to the Subscription Particulars, the Subscription Fees are payable monthly or yearly in advance on the date of each month/year corresponding to the date of the month whence service commenced, and in accordance with any policies relating to payment referred to in the Subscription Particulars and/or Site.
8.3 If BARGOPAY LLC has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of BARGOPAY LLC, BARGOPAY LLC may, without liability to the Merchant, disable the Merchant’s password, account and access to all or part of the Services and BARGOPAY LLC shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
8.4 All amounts and fees stated or referred to in these Terms are (a) non-cancellable and non-refundable; and (b) are exclusive of value added tax or other applicable sales taxes, which shall be added to BARGOPAY LLC’s invoice(s) at the appropriate rate.
9. PROPRIETARY RIGHTS
9.1 The Merchant acknowledges and agrees that BARGOPAY LLC and/or its licensors own all intellectual property rights in the Services, Apps and the Documentation. Except as expressly stated herein, these Terms do not grant the Merchant any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services, Apps or the Documentation.
9.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Terms.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. A party’s Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) is or becomes publicly known other than through any act or omission of the receiving party; (c) was in the other party’s lawful possession before the disclosure; (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (e) is independently developed by the receiving party, which independent development can be shown by written evidence; or (f) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of these Terms. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Terms.
10.3 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.4 The Merchant acknowledges that details of the Services, and the results of any performance tests of the Services, constitute BARGOPAY LLC’s Confidential Information. BARGOPAY LLC acknowledges that the Merchant Data is the Confidential Information of the Merchant.
10.5 This clause 10 shall survive termination of these Terms, however arising.
11.1 The Merchant shall defend, indemnify and hold harmless BARGOPAY LLC against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with (a) the Merchant’s use of the Services and/or Documentation, and/or (b) the Merchant’s breach of these Terms; and/or (c) any claim made by the Clientele against BARGOPAY LLC resulting from the acts or omissions of the Merchant including but without limitation as a result of the Merchant providing incorrect or out of date information or failing to provide any information at all for the Service.
11.2 BARGOPAY LLC shall, subject to clause 11.5, defend the Merchant, its officers, directors and employees against any claim that the Services or Documentation infringes any United States patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Merchant for any amounts awarded against the Merchant in judgment or settlement of such claims, provided that:
(a) BARGOPAY LLC is given prompt notice of any such claim;
(b) the Merchant provides reasonable co-operation to BARGOPAY LLC in the defense and settlement of such claim, at BARGOPAY LLC’s expense; and
(c) BARGOPAY LLC is given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any claim, BARGOPAY LLC may procure the right for the Merchant to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these Terms on 2 Business Days’ notice to the Merchant without any additional liability or obligation to pay liquidated damages or other additional costs to the Merchant.
11.4 In no event shall BARGOPAY LLC, its employees, agents and sub-contractors be liable to the Merchant to the extent that the alleged infringement is based on: (a) a modification of the Services or Documentation by anyone other than BARGOPAY LLC; or (b) the Merchant’s use of the Services or Documentation in a manner contrary to the instructions given to the Merchant by BARGOPAY LLC; or (c) the Merchant’s use of the Services or Documentation after notice of the alleged or actual infringement from BARGOPAY LLC or any appropriate authority.
11.5 The foregoing states the Merchant’s sole and exclusive rights and remedies, and BARGOPAY LLC’s (including BARGOPAY LLC’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. LIMITATION OF LIABILITY
12.1 Subject to the provisions of clause 11.5 this clause 12 sets out the entire financial liability of BARGOPAY LLC (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Merchant in respect of: (a) any breach of these Terms; (b) any use made by the Merchant of the Services and Documentation or any part of them; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
12.2 Except as expressly and specifically provided in these Terms:
(a) the Merchant assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Merchant, and for conclusions drawn from such use. BARGOPAY LLC shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to BARGOPAY LLC by the Merchant in connection with the Services, or any actions taken by BARGOPAY LLC at the Merchant’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms; and
(c) the Services and the Documentation are provided to the Merchant on an “as is” basis.
12.3 Nothing in these Terms excludes the liability of BARGOPAY LLC: (a) for death or personal injury caused by BARGOPAY LLC’s negligence; or (b) for fraud or fraudulent misrepresentation.
12.4 Subject to clause 12.2 and clause 12.3:
(a) BARGOPAY LLC shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms; and
(b) BARGOPAY LLC’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
13. TERM AND TERMINATION
13.1 These Terms shall, unless otherwise terminated as provided in these Terms, commence on the Effective Date and shall continue indefinitely, unless (subject to clause 13.2) either party terminates at any time by cancelling, and the Merchant may cancel at any time as specified on the Site.
13.2 If these Terms are terminated for whatever reason, the Merchant shall not be entitled to any refund of any Subscription Fees paid by the Merchant in advance.
13.3 On termination of these Terms for any reason:
(a) all licenses granted under these Terms shall terminate at the end of the paid subscription period;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) the Merchant will be allowed to extract their user and transactional data for a period of one month, after this period BARGOPAY LLC may destroy or otherwise dispose of any of the Merchant data in its possession; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14.1 BARGOPAY LLC shall have no liability to the Merchant under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of BARGOPAY LLC or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Merchant is notified of such an event and its expected duration.
14.2 A waiver of any right under these Terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
14.3 Unless specifically provided otherwise, rights arising under these Terms are cumulative and do not exclude rights provided by law.
14.4 If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14.5 These Terms, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into these Terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these Terms or not) relating to the subject matter of these Terms, other than as expressly set out in these Terms.
14.6 The Merchant shall not, without the prior written consent of BARGOPAY LLC, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms. BARGOPAY LLC may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
14.7 Nothing in these Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
14.8 These Terms do not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
14.9 Any notice required to be given under these Terms shall be in writing and shall be sent by email to the other party at its address set out in the Subscription Particulars (in the case of the Merchant) and the e-mail address on the Site for BARGOPAY LLC. A notice delivered by email shall be deemed to have been received at the time of transmission.
14.10 These Terms and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of Maryland. The parties irrevocably agree that Maryland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
15. ADDITIONAL TERMS FOR SUBSCRIPTION LOYALTY (MEMBERSHIPS AND RECURRING PAYMENTS)
15.1 You may only use the Services for legitimate transactions with your Clientele. We are not responsible for the products or services you publicize or sell, or that your Customers purchase using the Services; or if you accept donations, for your communication to your Customers of the intended use of such donations. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to your Clientele.
15.2 We provide Services to you that allow you to submit charges to your Customers’ payment cards (“Charges”) but we have no way of knowing if any particular purchase, sale, donation, order, or other transaction (each a “Transaction”) is accurate or correct, or typical for your business. You are solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of the Services.
15.3 You may only submit Charges to your Customers through the Software that are authorized by your Customers.
15.4 You maintain the direct relationship with your Customers and are responsible for: (i) acquiring appropriate consent to submit Charges through the Software on your Customers’ behalf; (ii) providing confirmation or receipts for each Charge to your Customers; (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. BARGOPAY LLC 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.
16. ADDITIONAL TERMS FOR ONLINE ORDERING, LOYALTY CARDS, AND FEATURE REQUESTS
16.1 Merchant acknowledges that all prices, and discounts provided by the merchant on BARGOPAY LLC’s platform will be liable if the merchant does not provide this price or discount.
16.2 BARGOPAY LLC acknowledges feature requests and will develop as much as they choose, and are not liable if BARGOPAY LLC does not deliver merchant’s feature requests.
16.3 You agree to indemnify the Company, the Marketplaces, and all of the Company’s resellers and partners in relation to such laws and regulations if they exist in your territory.