talech Terms of Service
Welcome to talech!
Thanks for using our websites, applications and related merchant products and services.
Talech International Limited is a private limited company incorporated in Ireland (Registered No. 549445) with its registered office at 6th Floor, 2 Grand Canal Square, Dublin 2, Ireland.
These Terms of Service (the “Terms”) set out the terms and conditions governing your use of the Services made available to you by or for talech, including the implementation of any on-boarding, maintenance and related support services by talech in relation to the Software, as applicable. For information about our privacy practices, and our use of cookies and how you can manage or disable them, please see the talech Policies. By using and/or subscribing to the Services, you are agreeing to these Terms. Please read them carefully.
1. Definitions
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.
“Accessible Services” means the services accessible through the talech Application and shall include any additional services we make available, including but not limited to, the Online Ordering Services and Gift Card Services.
“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, where relevant, an application made by a Merchant to subscribe to and use the Services.
“Applicable Data Protection Law” means collectively all data protection, data security and data privacy requirements imposed by law, including, the General Data Protection Regulation (“GDPR”) (Regulation 2016/679/EC), the Data Protection Acts 1988 to 2018 (Ireland), the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (SI 336/2011) (Ireland) the Data Protection (Amendment) Act 2003 or other national legislation implementing or replacing the EU Data Protection Directive 95/46/EC, Directive 97/66/EC concerning the processing of personal data and the protection of privacy in the telecommunications sector, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, and the Data Protection Act 2018 (UK) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (UK), the General Data Protection Regulation and all legislation (applicable national or EU law) that implements or is enacted in connection with the General Data Protection Regulation GDPR and other data protection or privacy legislation in force from time to time in any relevant jurisdiction which is applicable to the provision of services under the Terms, together with any similar provisions of the card scheme rules, including the data security standards and any regulation and regulatory guidance issued by a Competent Authority.
“Applicable Law” means all laws, including but not limited to Applicable Data Protection Law, legislation, rules, regulations, directives, and recommendations applicable to a party to these Terms, for the time being in force in any jurisdiction, including anything issued by any Competent Authority, and any amendments, extensions or re-enactments to the same from time to time.
“Application Form” means the application form completed by you and submitted in accordance with section 5.1 to apply to become a new user of the Services.
“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.
“Communications Network” means any telecommunications, wireless, radio, television, cable, satellite or terrestrial networks currently in existence or which may be developed in the future including without limitation the Internet, intranets, extranets, mobile phones, handheld communications devices, interactive television or comparable electronic media services or platforms.
“Competent Authority” means any government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with these Terms.
“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.
“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 DAC incorporated in Ireland (Registered No. 418442) operating in the UK via its UK Branch (Branch Registration Number: BR022122).
“Elavon Payment Gateway” means the Elavon owned and operated service and online portal that processes MO/TO Transactions and Internet Transactions having the functionality set out in the Merchant Agreement.
“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 (where applicable) the fee or fees as set out from time to time in [ ] and payable by a Merchant to talech in connection with the Services. For the avoidance of doubt, the Fees will be collected by Elavon in respect of the Elavon Payment Gateway.
“Force Majeure” means any failure in performance of the Terms by either party if the failure arises out of any cause beyond the reasonable control of that party, including, but not limited to, the unavailability or faulty performance of Communication Networks or energy sources, any act of God, any act or omission of governmental or other competent authority, fires, strikes, industrial dispute, riots, war, inability to obtain materials, embargo, refusal of licence, theft, destruction, denial of service (DoS) attacks, unauthorised access to computer systems or records, programs, equipment, data, or services or any disaster affecting a third party, for which a substitute third party is not reasonably available.
“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.
“Gift Card Services” means (where applicable), the Gift Card program setup and services as described in Schedule 1, Appendix A, provided by talech to the Merchant.
“including” means including but not limited to, unless expressly stated otherwise.
“Internet Transactions” has the meaning given in the Merchant Agreement.
“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, (as applicable), the agreement between a Merchant and Elavon in connection with the Elavon Payment Gateway and any other required terms that the Merchant is required to enter into by Elavon or talech as a condition of use of the Services and Elavon Payment Gateway.
“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.
“MO/TO Transactions” has the meaning given in the Merchant Agreement.
“Online Ordering Services” means (where applicable), the services as accessed at the point of sale through the client software and which provides a feature set to allow Merchant customers of talech sell their products via an online talech hosted webpage, whilst on the Premium software package and is integrated to Elavon through the Elavon Payment Gateway.
“Poynt Device” means a handheld small form-factor [P5] or larger countertop [P61] device. The product accepts all standard Elavon payment types and features an App Marketplace to enhance the capabilities through self-discovered or Elavon preferred apps, such as talech.
“Privacy Policy” means the Talech privacy policy set out at Schedule 2, as may be updated from time to time.
“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.
“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 the:
talech Application and;
(where applicable), the Accessible Services ;
“Software” means the source code, object code or underlying structure, ideas or algorithms of the Services, 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 and for the avoidance of doubt shall include the talech Application.
“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.
“talech Application” means talech’s application Point of Sale solution which allows you to create orders, apply discounts, manage inventory and get real-time analytics including (where applicable ) an integrated Online Ordering Services.
“talech Policies” means the talech policies in force and published from time in connection with the Services, including but not limited to the talech Privacy Policy and the talech Cookie Policy.
“Term” means the Initial Service Term and any Renewal Term(s).
“the Terms” or “these Terms” means these Terms of Service applicable to your use of
talech Terms of Service
Welcome to talech!
Thanks for using our websites, applications and related merchant products and services.
Talech International Limited is a private limited company incorporated in Ireland (Registered No. 549445) with its registered office at 5th Floor Beaux Lane House, Mercer Street Lower, Dublin 2, Ireland.
These Terms of Service (the “Terms”) set out the terms and conditions governing your use of the Services made available to you by or for talech, including the implementation of any on-boarding, maintenance and related support services by talech in relation to the Software, as applicable. For information about our privacy practices, and our use of cookies and how you can manage or disable them, please see the talech Policies. By using and/or subscribing to the Services, you are agreeing to these Terms. Please read them carefully.
1. Definitions
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.
“Accessible Services” means the services accessible through the talech Application and shall include any additional services we make available, including but not limited to, the Online Ordering Services and Gift Card Services.
“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, where relevant, an application made by a Merchant to subscribe to and use the Services.
“Applicable Data Protection Law” means the Data Protection Acts 1988-2018 (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.
“Applicable Law” means all laws, including but not limited to Applicable Data Protection Law, legislation, rules, regulations, directives, and recommendations applicable to a party to these Terms, for the time being in force in any jurisdiction, including anything issued by any Competent Authority, and any amendments, extensions or re-enactments to the same from time to time.
“Application Form” means the application form completed by you and submitted in accordance with section 5.1 to apply to become a new user of the Services.
“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.
“Communications Network” means any telecommunications, wireless, radio, television, cable, satellite or terrestrial networks currently in existence or which may be developed in the future including without limitation the Internet, intranets, extranets, mobile phones, handheld communications devices, interactive television or comparable electronic media services or platforms.
“Competent Authority” means any government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with these Terms.
“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.
“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 DAC incorporated in Ireland (Registered No. 418442) operating in the UK via its UK Branch (Branch Registration Number: BR022122).
“Elavon Payment Gateway” means the Elavon owned and operated service and online portal that processes MO/TO Transactions and Internet Transactions having the functionality set out in the Merchant Agreement.
“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 (where applicable) the fee or fees as set out from time to time in [ ] and payable by a Merchant to talech in connection with the Services. For the avoidance of doubt, the Fees will be collected by Elavon in respect of the Elavon Payment Gateway.
“Force Majeure” means any failure in performance of the Terms by either party if the failure arises out of any cause beyond the reasonable control of that party, including, but not limited to, the unavailability or faulty performance of Communication Networks or energy sources, any act of God, any act or omission of governmental or other competent authority, fires, strikes, industrial dispute, riots, war, inability to obtain materials, embargo, refusal of licence, theft, destruction, denial of service (DoS) attacks, unauthorised access to computer systems or records, programs, equipment, data, or services or any disaster affecting a third party, for which a substitute third party is not reasonably available.
“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.
“Gift Card Services” means (where applicable), the Gift Card program setup and services as described in Schedule 1, Appendix A, provided by talech to the Merchant.
“including” means including but not limited to, unless expressly stated otherwise.
“Internet Transactions” has the meaning given in the Merchant Agreement.
“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, (as applicable), the agreement between a Merchant and Elavon in connection with the Elavon Payment Gateway and any other required terms that the Merchant is required to enter into by Elavon or talech as a condition of use of the Services and Elavon Payment Gateway.
“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.
“MO/TO Transactions” has the meaning given in the Merchant Agreement.
“Online Ordering Services” means (where applicable), the services as accessed at the point of sale through the client software and which provides a feature set to allow Merchant customers of talech sell their products via an online talech hosted webpage, whilst on the Premium software package and is integrated to Elavon through the Elavon Payment Gateway.
“Poynt Device” means a handheld small form-factor [P5] or larger countertop [P61] device. The product accepts all standard Elavon payment types and features an App Marketplace to enhance the capabilities through self-discovered or Elavon preferred apps, such as talech.
“Privacy Policy” means the Talech privacy policy set out at Schedule 2, as may be updated from time to time.
“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.
“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 the:
talech Application and;
(where applicable), the Accessible Services ;
“Software” means the source code, object code or underlying structure, ideas or algorithms of the Services, 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 and for the avoidance of doubt shall include the talech Application.
“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.
“talech Application” means talech’s application Point of Sale solution which allows you to create orders, apply discounts, manage inventory and get real-time analytics including (where applicable ) an integrated Online Ordering Services.
“talech Policies” means the talech policies in force and published from time in connection with the Services, including but not limited to the talech Privacy Policy and the talech Cookie Policy.
“Term” means the Initial Service Term and any Renewal Term(s).
“the Terms” or “these Terms” means these Terms of Service applicable to your use of the Services, 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
2.1.1
Your use of the Services is subject to your compliance with these Terms
and compliance with the provisions of any Appendices to these Terms.
2.1.2
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.
2.1.3
You must comply with any policies made available to you from time to
time in connection with the performance of the Services, including but
not limited to the talech Policies.
2.1.4
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;
2.2.2
You shall 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);
2.2.3
You shall 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);
2.2.4
You shall only use the Software for your own internal organisational purposes (except as expressly set out in these Terms);
2.2.5
You shall 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;
2.2.6
You shall not use or prevent any unauthorised access to, or use of, the Software and immediately notify talech of any such unauthorized 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;
2.2.7
You shall not rent, lease, sub-license, loan, translate, merge, adapt, vary or modify any Software, nor attempt to do any such thing;
2.2.8
You shall not make alterations to, or modifications of, the whole or any part of any Software, or permit any Software or any part of it to be combined with, or become incorporated in, any other programs, nor attempt to do any such thing;
2.2.9
You shall keep all copies of any Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of any Software;
2.2.10
You shall include our, and our licensors’, copyright notices on all entire and partial copies you make of any Software on any medium;
2.2.11
You shall not provide or otherwise make available any Software in whole or in part (including object and source code), in any form to any person;
2.2.12
You shall comply with all Applicable Laws and regulatory requirements relating to the use of any Software including all technology control or export laws and regulations that apply to the technology used or supported by any Software or any Service;
2.2.13
You shall 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.
2.2.14
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
2.3.1
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.
2.3.2
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.
In connection with your use of the Services, we may send you service
announcements, administrative messages, and other information. You may opt
out of some of those communications. For more information, please see our
Privacy Policy.
3. About Software in our Services
3.1
When a Service requires or includes Software, this Software may update
automatically on your device once a new version or feature is available.
3.2
With 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 license 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. This license 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.
3.3
For clarity, the license granted to Merchant herein does not include
any right to make or distribute copies of the Software, to use the
Software for the benefit of any third party or to monetise use of the
Software. The talech Application is accessible only with a valid
account number, user identification, and password and only after
execution of a separate Merchant Agreement with Elavon or a services
agreement with an alternative processor. Merchant agrees not to
associate, input or upload to or through any Software any virus, Trojan
horse, worm, time bomb or other computer programming routines that (i)
are intended to damage, interfere with, intercept or expropriate the
Software or technology or (ii) infringe the intellectual property
rights of another.
3.4
Some Software used in our Services may be offered under an open source
license that we will make available to you. There may be provisions in
the open source license, to the extent applicable to that open source
software, that expressly override some of these Terms.
3.5
Neither talech nor Elavon or their licensees grant to you or any third
party any title, interest, license or rights that are not expressly
granted in these Terms (or the Merchant Agreement, as the context
requires).
4. Talech Account
4.1. Your talech Account
4.1.1
You will need a talech Account in order to use the Services. If you are
using a talech Account assigned by an administrator or licensee,
additional terms may apply, including in some instances, a Merchant
Agreement.
4.1.2
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.
4.1.3
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 unauthorized
access to and use of any of your Account Data.
4.1.4
You shall ensure that any changes in your account details (including
without limitation: contact name; address; email address) are promptly
notified to both Talech and Elavon
4.1.5
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 authorized 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 unauthorized use of your login,
password, Account or Account Data, you must notify us immediately at eusupport@talech.com.
4.1.6
In the event that you experience any problems with the Services then
you may contact the support helpdesk.
5. Applications and Registration Process
5.1 Merchant Registration
5.1.1
Registration for the Services shall be made by following the process
set out by the Elavon sales manager or Elavon customer account manager
during the sales process between you and Elavon (“Registration”).
5.1.2
Application and Registration for the Services and Elavon Payment
Gateway are subject to Acceptance by both talech and Elavon.
5.1.3
Your Application for the Elavon Payment Gateway will be dealt with by
Elavon in accordance with the Merchant Agreement.
5.1.4
As a condition of Acceptance for the talech Services, you must be
successfully on-boarded in accordance with the procedures outlined
below in this section 5.
5.1.5
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.
5.1.6
You understand that, provided you meet talech’s on-boarding
criteria, a binding agreement is entered into between you and
talech in connection with the Services.
5.2 Merchant On-boarding (Services)
5.2.1
talech and Elavon are independent contractors and no party has the
authority to act as agent of or to bind the others. talech has no
control over Elavon’s on-boarding processes (or the data or Customer
Data collected by Elavon during its 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.
5.2.2
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 Registration and Application without further explanation
even where a Merchant has satisfied Elavon’s on-boarding and acceptance
criteria for the Elavon Payment Gateway.
5.2.3
Elavon has its own processes for the on-boarding of any Merchant or
proposed user of the Elavon Payment Gateway. 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.
5.3 Merchant Acceptance with Elavon
5.3.1
In order to connect to and use the Elavon Payment Gateway you must be
on-boarded by us and by Elavon. You will also be required to separately
enter into a Merchant Agreement with Elavon.
5.3.2
Each proposed new user of the Elavon Payment Gateway will be subject to
certain on-boarding checks (including know-your customer, anti-money
laundering and credit checks) applicable from time to time.
5.3.3
Nothing in these Terms shall affect the provisions of the Merchant
Agreement.
6. Merchant Personal Data
6.1
When you use our Services, you may provide Merchant Personal Data in
order for us to provide the Services requested by you.
6.2
You agree that you have and will abide by a privacy policy that
complies with all Applicable Data Protection Legislation and industry
standards. The policy must provide notice of your use of technology that
collects, uses, and stores Merchant Personal Data. You will make your
privacy policy accessible to your Customers before you use the Services to
collect and process any Merchant Personal Data.
6.3
You are the controller of the Merchant Personal Data except in respect
of any referral data provided to talech by the Merchant for our
Registration and on-boarding purposes, in which case talech will be the
controller. You are responsible for ensuring that you have all necessary
consents in place, or another valid lawful basis (within the meaning of
Applicable Data Protection Legislation), before you use the Services to
collect, process, use and transfer Merchant Personal Data to us for use in
accordance with these Terms.
6.4
Without 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;
6.4.4
not transfer any Merchant Personal Data outside of the European Economic Area unless 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 UPDATE FCand allow you or your designated auditor on reasonable
notice to audit our records to the extent necessary to verify our
compliance.
6.5
Nothing 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.
6.6
You agree that talech may appoint talech affiliates as sub-processors and that both talech and talech’s affiliates may appoint third party sub-processors in connection with the provision of the Talech Services, provided in each case that equivalent obligations to those contained in this clause 6 are included in a written contract with all sub- processors.
6.7
You acknowledge and agree that Talech may transfer personal data to countries outside of the UK, the European Union and/or the European Economic Area including the United States of America in connection with the provision of the Services provided that proper precautions to safeguard the security and confidentiality of such data are taken.
6.8
talech’s Privacy Policy sets out further information about how we process personal data. A copy of our current Privacy Policy is appended to these Terms. We reserve our right to amend and/or update our Privacy Policy, as necessary, from time to time.
7.
Your Content in our Services
7.1
Some 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.
7.2
When you upload or otherwise submit Your Content to our Services, you
give talech (and those we work with, including Elavon or their affiliates)
a worldwide, non-exclusive, royalty-free license 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 license 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 license 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.
7.3
You can find more information about how talech uses and stores content
in our Privacy Policy or additional terms for particular Services. If you
submit feedback or suggestions about our Services, we may use your feedback
or suggestions without obligation to you.
8. Your Warranties and Representations
8.1 You hereby represent, covenant and warrant to talech that:
8.1.1
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;
8.1.2
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;
8.1.3
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);
8.1.4
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 and Elavon, (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, authorisations and clearances from your Customers
to collect, use, process, store, disclose this information; and
8.1.5
you will use the Services only in compliance with these Terms
(including the talech Policies).
9. Modifying and Terminating our Services
9.1
We 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. Talech will not be
liable to the Merchant or any third party should talech exercise its right
to modify or discontinue the talech Application or any Accessible Services.
9.2
Except 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:
9.2.1
destroy or return to talech the Software together with all documents
and materials (and any copies) containing, materially interpreting or
incorporating the Software;
9.2.2
permanently erase the Software from your computer systems; and
9.2.3
certify in writing to talech that you have complied with the
requirements of this paragraph.
10. Indemnity
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 legal fees.
Without limitation to the foregoing, if you use the Services (including any Software) to send invoices to your customers, you are solely responsible for the accuracy and completeness of such invoices and you shall indemnify talech and its affiliates officers, agents, and employees against any claim arising from or related to your use of the Services (including any Software). talech has no responsibility to oversee your business activities, use of the Services (including any Software) nor your issuance of any invoices or to advise or otherwise inform you of any regulatory matters.
11. Confidentiality
11.1
Each 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.
11.2
The 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.
11.3
The 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.
11.4
Notwithstanding 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 Payment
12.1
For Talech on Poynt pre-load the Starter Plan will be for free and a talech app Application Form is not required. If a customer is a Poynt customer only, then the talech Starter Plan shall be free of charge. For Customer’s using alternative POS devices then the Fee shall be £/€29.99 per month for a main license
12.2
The Fee for the Standard Plan shall be £/€49.99 per month for a main
license and £/€24.99 for any additional licenses
12.3
The Fee for the Premium Plan shall be £/€69.99 per month for a main
license and £/€29.99 for any additional licenses
12.4
All Fees, contributions or costs referred to in these Terms are net
amounts exclusive of the applicable value added tax or other taxes which
may be levied thereon.
12.5
Fees, if any, in respect of the Elavon Payment Gateway shall be
collected by Elavon under the Merchant Agreement.
13. Term and Termination
13.1
Subject 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.
13.2
In 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.
13.3
Where applicable, Merchant 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 in accordance with section 12 of these Terms, subject to and
in accordance with these Terms and the Application Form.
13.4
Upon 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.
13.5
Immediately 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
13.5. 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
14.1
talech shall use reasonable efforts consistent with prevailing
industry standards to maintain the Services in a manner which minimizes
errors and interruptions in the Services.
14.2
Services 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.
14.3
However, Talech does not warrant that the Services and/or the Software
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 to the extent possible, but not
limited to, implied warranties of satisfactory quality, fitness for a
particular purpose and non-infringement.
15. Limitation of Liability
15.1
Notwithstanding anything to the contrary, except for personal injury
of a person, fraud or fraudulent misrepresentation and to the maximum
extent permitted by Applicable Law, talech its licenses and suppliers
(including but not limited to technology suppliers), officers, affiliates,
representatives, contractors, and employees shall not be responsible or
liable with respect to you or ant third party in contract, tort (including
negligence) for breach of statuturoy duty or otherwise for any of the
following: (A) for any error or interruption of use of Services or for loss
or inaccuracy or corruption for data, or cost of procurement of substitute
services or technology, or loss of business; (B); for any indirect,
exemplary, incidental, special or consequential damages; (C) for any
matters beyond talech’s reasonable control; or (D) for any amount that,
together with amounts associated with all other claims, exceed the sum of
£10,000.
15.2
In 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.
15.3
To the maximum extent permitted by Applicable Law, talech shall not be
responsible for loss of 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. Miscellaneous
17.1
talech 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.
17.2
If 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.
17.3
These 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.
17.4
Without 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).
17.5
No 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.
17.6
In any action or proceeding to enforce rights under these Terms, the
prevailing party will be entitled to recover costs and legal fees.
17.7
All 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.
17.8
Neither party shall be liable to the other by reason of any failure in
performance of the Terms if the failure arises from an event of Force
Majeure.
17.9
A person who is not a party to these Terms has no right under the
Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce it.
17.10
A waiver by either party of any breach by any other party of any
other terms, provisions or conditions of these Terms or the acquiescence of
such party and any act (whether by commission or omission) which but for
such acquiescence would be a breach as aforesaid shall not constitute a
general waiver of such term, provision or condition or of any subsequent
act contrary thereto.
17.11
These Terms shall be governed by the laws of the England and Wales
without regard to its conflict of laws provisions and Merchant agrees to
submit to the exclusive jurisdiction of the courts of England and Wales.
18. About these Terms
18.1 Changes and Updates.
18.1.1
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. 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.
18.1.2
If there is a conflict between these Terms and the Appendices, the
latter will control for that conflict.
18.2 talech 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 eusupport@talech.com.
SCHEDULE 1 – ADDITIONAL TERMS
APPENDIX A – GIFT CARD SERVICES
1. Definitions
1.1
"Customer means “
has the meaning given in the main part of these Terms above and in
addition includes any customer of a Merchant who elects to conduct
a payment transaction with you through presentation of a payment
device, or who uses a Gift Card.
1.2
“Platform”
means the systems hosted directly or indirectly by talech through
which (i) you establishes your Gift Card program, and (ii) the Gift
Card Services are provided to you.
1.3
“Supported Hardware”
means the equipment, systems and hardware, including point of sale
devices, necessary for you to make use of the Gift Card Services.
1.4
“Web Portal”
means a web-based portal provided by talech through which you may
obtain information and guides pertaining to the Gift Card Services
and Platform, and may access your specific program metrics via
dashboards, view information about a Customer’s purchase
transactions, create additional Customer offers and retrieve
reports regarding your Gift Card program.
2. General Provisions.
2.1
Talech will host and make available to you the Web Portal.
2.2
You must use Supported Hardware in order to make full use of the Gift
Card Services, and certain or all Gift Card Services may be unavailable
or may function improperly if you do not use them in connection with
Supported Hardware. You may obtain a current list of Supported Hardware
from talech upon request, which talech may update from time to time.
Talech will have no responsibility or liability in connection with the
performance or non-performance of the Gift Card Services, including in
connection with any errors or malfunctions that may occur in connection
with the Gift Card Services, if you uses the Gift Card Services with
any Point of sale devices that are not Supported Hardware.
2.3
You will (i) cooperate with talech in connection with the Gift Card
Services, and (ii) provide talech with reasonably requested information
and access (which may be remote access) to equipment and to your
personnel for purposes of facilitating setup of point of sale devices
for use in connection with the Gift Card Services.
2.4
You will use all reasonable means to prevent any unauthorised access to
or use of the Platform and the Gift Card Services, and if such access
or use occurs, you will notify talech immediately.
2.5
You acknowledge and agree that it is your sole responsibility to comply
with all Applicable Laws relating to the Gift Cards, including those
relating to consumer protection. Talech does not provide legal advice
with respect to all Applicable Laws, and you should consult your own
legal counsel if you have questions regarding compliance.
2.6
You acknowledge and agree that talech has no responsibility for
recording or storing any Merchant Personal Data or information related
to the sale of any Gift Card until such information has been received
and validated by talech.
2.7
You understand and agree that your data security obligations under
these Terms apply to any Merchant Personal Data you collect or receive
in connection with the Gift Card Services, and you agree to comply with
such data security obligations with respect to all Merchant Personal
Data you may collect, access or receive in connection with the Gift
Card Services.
2.8
You will exclusively use talech (including talech-designated service
providers) for Gift Card Services similar to the Gift Card Services,
and you will not receive Gift Card Services similar to the Gift Card
Services from any third parties not approved by talech in writing.
2.9
If a particular location closes or changes its Merchant Identification
Number (MID), then talech may bill any open location for any fees
associated with subsequent transactions processed on Gift Cards
activated by the closed MID. This would apply to any system generated
transactions, including deduction transactions. Monthly fees billed for
Gift Card Services provided with respect to the closed location may
also be billed to any open location.
2.10
For the avoidance of doubt, the Gift Card Services do not
constitute a payment service under the Payment Services Regulations
2017 and you may not use them to issue electronic money as defined in
the Electronic Money Regulations 2011 or to offer any activity
regulated by the Financial Conduct Authority. Customers must be able to
redeem Gift Cards only with you and for the goods or services you sell.
You warrant that you are not, and undertake not to become, a relevant
person for the purposes of the Money Laundering, Terrorist Financing
and Transfer of Funds (Information on the Payer) Regulations 2017. On
request, you must give us all information we reasonably request about
your business and activities.
3. Fees
The Gift Card Services are a feature of the Premium Plan and are only available to such Customers. The Fees for the Gift Card Services are included within the Premium Plan.
4. Processing Gift Card Transactions
In connection with processing Gift Card transactions, you must comply with the following requirements:
4.1
Supply talech with all information and data required by talech to
perform Gift Card Services related to your acceptance of Gift Cards,
including the location of point of sale devices and Customer Data.
4.2
Maintain all transaction receipts and any other receipts as required by
all Applicable Laws.
4.3
Establish procedures to verify the identity of a person who purchases
Gift Cards worth £10,000 or more during any one day and obtain
identifying information concerning such a person, including name, date
of birth, address, and identification number. You must retain such
identifying information for five years from the date of the sale of the
Gift Cards.
4.4
Ensure that no fees or expiration dates apply to the Gift Cards.
4.5
When you sell a Gift Card from your physical location or locations,
including sales completed via electronic commerce, you are responsible
for the collection and settlement of all funds relating to the sale of
the Gift Card, including processing costs associated with such purchase
(such as any credit card transaction fees or bank service fees, where
applicable).
4.6
You agree that all Gift Cards will be printed by talech or a
talech-approved vendor.
5. Gift Card Processing Services
5.1
Electronic processing of transactions and purchases made using Gift
Cards. Talech will confirm electronically that the person presenting the Gift
Card for the purchase of goods or services through you has an active
Gift Card account on the Platform and that there is sufficient value
associated with the Gift Card to allow the person to complete the
purchase. Talech will adjust the Gift Card account through either a
debit or credit, as applicable, in the amount of any approved
transaction.
5.2
Transaction Record Maintenance.
Talech will maintain an accessible electronic record of the
transactions conducted using a Gift Card for the lifetime of the card
balance and after the balance on the card has been depleted for a
period not less than sixty (60) days.
5.3
Downtime.
You may not process Gift Card transactions if your system, the
Platform, or our system is down and we are not able to verify the
validity and available balance on a Gift Card as a result. You will be
solely liable for any losses or damages incurred if you processes a
Gift Card transaction without receipt of such verification.
the Services, 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
2.1.1
Your use of the Services is subject to your compliance with these Terms
and compliance with the provisions of any Appendices to these Terms.
2.1.2
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.
2.1.3
You must comply with any policies made available to you from time to
time in connection with the performance of the Services, including but
not limited to the talech Policies.
2.1.4
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;
2.2.2
You shall 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);
2.2.3
You shall 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);
2.2.4
You shall only use the Software for your own internal organisational purposes (except as expressly set out in these Terms);
2.2.5
You shall 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;
2.2.6
You shall not use or prevent any unauthorised access to, or use of, the Software and immediately notify talech of any such unauthorized 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;
2.2.7
You shall not rent, lease, sub-license, loan, translate, merge, adapt, vary or modify any Software, nor attempt to do any such thing;
2.2.8
You shall not make alterations to, or modifications of, the whole or any part of any Software, or permit any Software or any part of it to be combined with, or become incorporated in, any other programs, nor attempt to do any such thing;
2.2.9
You shall keep all copies of any Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of any Software;
2.2.10
You shall include our, and our licensors’, copyright notices on all entire and partial copies you make of any Software on any medium;
2.2.11
You shall not provide or otherwise make available any Software in whole or in part (including object and source code), in any form to any person;
2.2.12
You shall comply with all Applicable Laws and regulatory requirements relating to the use of any Software including all technology control or export laws and regulations that apply to the technology used or supported by any Software or any Service;
2.2.13
You shall 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.
2.2.14
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
2.3.1
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.
2.3.2
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.
In connection with your use of the Services, we may send you service
announcements, administrative messages, and other information. You may opt
out of some of those communications. For more information, please see our
Privacy Policy.
3. About Software in our Services
3.1
When a Service requires or includes Software, this Software may update
automatically on your device once a new version or feature is available.
3.2
With 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 license 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. This license 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.
3.3
For clarity, the license granted to Merchant herein does not include
any right to make or distribute copies of the Software, to use the
Software for the benefit of any third party or to monetise use of the
Software. The talech Application is accessible only with a valid
account number, user identification, and password and only after
execution of a separate Merchant Agreement with Elavon or a services
agreement with an alternative processor. Merchant agrees not to
associate, input or upload to or through any Software any virus, Trojan
horse, worm, time bomb or other computer programming routines that (i)
are intended to damage, interfere with, intercept or expropriate the
Software or technology or (ii) infringe the intellectual property
rights of another.
3.4
Some Software used in our Services may be offered under an open source
license that we will make available to you. There may be provisions in
the open source license, to the extent applicable to that open source
software, that expressly override some of these Terms.
3.5
Neither talech nor Elavon or their licensees grant to you or any third
party any title, interest, license or rights that are not expressly
granted in these Terms (or the Merchant Agreement, as the context
requires).
3.6
You acknowledge that you have no right to have access to the Software in source-code form.
3.7
In the event that it is alleged that the Software infringes any third party intellectual property rights we, or our licensors, shall be responsible for the investigation, defence, settlement and discharge of any such claim.
4. Talech Account
4.1. Your talech Account
4.1.1
You will need a talech Account in order to use the Services. If you are
using a talech Account assigned by an administrator or licensee,
additional terms may apply, including in some instances, a Merchant
Agreement.
4.1.2
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.
4.1.3
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 unauthorized
access to and use of any of your Account Data.
4.1.4
You shall ensure that any changes in your account details (including
without limitation: contact name; address; email address) are promptly
notified to both Talech and Elavon
4.1.5
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 authorized 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 unauthorized use of your login,
password, Account or Account Data, you must notify us immediately at eusupport@talech.com.
4.1.6
In the event that you experience any problems with the Services then
you may contact the support helpdesk.
5. Applications and Registration Process
5.1 Merchant Registration
5.1.1
Registration for the Services shall be made by following the process
set out by the Elavon sales manager or Elavon customer account manager
during the sales process between you and Elavon (“Registration”).
5.1.2
Application and Registration for the Services and Elavon Payment
Gateway are subject to Acceptance by both talech and Elavon.
5.1.3
Your Application for the Elavon Payment Gateway will be dealt with by
Elavon in accordance with the Merchant Agreement.
5.1.4
As a condition of Acceptance for the talech Services, you must be
successfully on-boarded in accordance with the procedures outlined
below in this section 5.
5.1.5
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.
5.1.6
You understand that, provided you meet talech’s on-boarding
criteria, a binding agreement is entered into between you and
talech in connection with the Services.
5.2 Merchant On-boarding (Services)
5.2.1
talech and Elavon are independent contractors and no party has the
authority to act as agent of or to bind the others. talech has no
control over Elavon’s on-boarding processes (or the data or Customer
Data collected by Elavon during its 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.
5.2.2
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 Registration and Application without further explanation
even where a Merchant has satisfied Elavon’s on-boarding and acceptance
criteria for the Elavon Payment Gateway.
5.2.3
Elavon has its own processes for the on-boarding of any Merchant or
proposed user of the Elavon Payment Gateway. 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.
5.3 Merchant Acceptance with Elavon
5.3.1
In order to connect to and use the Elavon Payment Gateway you must be
on-boarded by us and by Elavon. You will also be required to separately
enter into a Merchant Agreement with Elavon.
5.3.2
Each proposed new user of the Elavon Payment Gateway will be subject to
certain on-boarding checks (including know-your customer, anti-money
laundering and credit checks) applicable from time to time.
5.3.3
Nothing in these Terms shall affect the provisions of the Merchant
Agreement.
6. Merchant Personal Data
6.1
When you use our Services, you may provide Merchant Personal Data in
order for us to provide the Services requested by you.
6.2
You agree that you have and will abide by a privacy policy that
complies with all Applicable Data Protection Legislation and industry
standards. The policy must provide notice of your use of technology that
collects, uses, and stores Merchant Personal Data. You will make your
privacy policy accessible to your Customers before you use the Services to
collect and process any Merchant Personal Data.
6.3
You are the controller of the Merchant Personal Data except in respect
of any referral data provided to talech by the Merchant for our
Registration and on-boarding purposes, in which case talech will be the
controller. You are responsible for ensuring that you have all necessary
consents in place, or another valid lawful basis (within the meaning of
Applicable Data Protection Legislation), before you use the Services to
collect, process, use and transfer Merchant Personal Data to us for use in
accordance with these Terms.
6.4
Without 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;
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 UPDATE FCand allow you or your designated auditor on reasonable
notice to audit our records to the extent necessary to verify our
compliance.
6.5
Nothing 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.
6.6
talech’s Privacy Policy sets out further information about how we process personal data. A copy of our current Privacy Policy is appended to these Terms.
6.7
We reserve our right to amend and/or update our Privacy Policy, as necessary, from time to time.
7.
Your Content in our Services
7.1
Some 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.
7.2
When you upload or otherwise submit Your Content to our Services, you
give talech (and those we work with, including Elavon or their affiliates)
a worldwide, non-exclusive, royalty-free license 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 license 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 license 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.
7.3
You can find more information about how talech uses and stores content
in our Privacy Policy or additional terms for particular Services. If you
submit feedback or suggestions about our Services, we may use your feedback
or suggestions without obligation to you.
8. Your Warranties and Representations
8.1 You hereby represent, covenant and warrant to talech that:
8.1.1
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;
8.1.2
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;
8.1.3
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);
8.1.4
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 and Elavon, (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, authorisations and clearances from your Customers
to collect, use, process, store, disclose this information; and
8.1.5
you will use the Services only in compliance with these Terms
(including the talech Policies).
9. Modifying and Terminating our Services
9.1
We 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. Talech will not be
liable to the Merchant or any third party should talech exercise its right
to modify or discontinue the talech Application or any Accessible Services.
9.2
Except 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:
9.2.1
destroy or return to talech the Software together with all documents
and materials (and any copies) containing, materially interpreting or
incorporating the Software;
9.2.2
permanently erase the Software from your computer systems; and
9.2.3
certify in writing to talech that you have complied with the
requirements of this paragraph.
10. Indemnity
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 legal fees.
11. Confidentiality
11.1
Each 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.
11.2
The 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.
11.3
The 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.
11.4
Notwithstanding 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 Payment
12.1
For TOP pre-load the Starter Plan will be for free and a talech app
Application Form is not required. If a customer is a Poynt customer only,
then the talech Starter Plan shall be free of charge. For Customer’s using
alternative POS devices then the Fee shall be £/€29.99 per month for a main
license
12.2
The Fee for the Standard Plan shall be £/€49.99 per month for a main
license and £/€24.99 for any additional licenses
12.3
The Fee for the Premium Plan shall be £/€69.99 per month for a main
license and £/€29.99 for any additional licenses
12.4
All Fees, contributions or costs referred to in these Terms are net
amounts exclusive of the applicable value added tax or other taxes which
may be levied thereon.
12.5
Fees, if any, in respect of the Elavon Payment Gateway shall be
collected by Elavon under the Merchant Agreement.
13. Term and Termination
13.1
Subject 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.
13.2
In 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.
13.3
Where applicable, Merchant 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 in accordance with section 12 of these Terms, subject to and
in accordance with these Terms and the Application Form.
13.4
Upon 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.
13.5
Immediately 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
13.5. 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
14.1
talech shall use reasonable efforts consistent with prevailing
industry standards to maintain the Services in a manner which minimizes
errors and interruptions in the Services.
14.2
Services 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.
14.3
However, Talech does not warrant that the Services and/or the Software
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 to the extent possible, but not
limited to, implied warranties of satisfactory quality, fitness for a
particular purpose and non-infringement.
15. Limitation of Liability
15.1
Notwithstanding anything to the contrary, except for personal injury
of a person, fraud or fraudulent misrepresentation and to the maximum
extent permitted by Applicable Law, talech its licenses and suppliers
(including but not limited to technology suppliers), officers, affiliates,
representatives, contractors, and employees shall not be responsible or
liable with respect to you or ant third party in contract, tort (including
negligence) for breach of statuturoy duty or otherwise for any of the
following: (A) for any error or interruption of use of Services or for loss
or inaccuracy or corruption for data, or cost of procurement of substitute
services or technology, or loss of business; (B); for any indirect,
exemplary, incidental, special or consequential damages; (C) for any
matters beyond talech’s reasonable control; or (D) for any amount that,
together with amounts associated with all other claims, exceed the sum of
£10,000.
15.2
In 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.
15.3
To the maximum extent permitted by Applicable Law, talech shall not be
responsible for loss of 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 252.2277014 (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. Miscellaneous
17.1
talech 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.
17.2
If 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.
17.3
These 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.
17.4
Without 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).
17.5
No 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.
17.6
In any action or proceeding to enforce rights under these Terms, the
prevailing party will be entitled to recover costs and legal fees.
17.7
All 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.
17.8
Neither party shall be liable to the other by reason of any failure in
performance of the Terms if the failure arises from an event of Force
Majeure.
17.9
A person who is not a party to these Terms has no right under the
Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce it.
17.10
A waiver by either party of any breach by any other party of any
other terms, provisions or conditions of these Terms or the acquiescence of
such party and any act (whether by commission or omission) which but for
such acquiescence would be a breach as aforesaid shall not constitute a
general waiver of such term, provision or condition or of any subsequent
act contrary thereto.
17.11
These Terms shall be governed by the laws of the England and Wales
without regard to its conflict of laws provisions and Merchant agrees to
submit to the exclusive jurisdiction of the courts of England and Wales.
18. About these Terms
18.1 Changes and Updates.
18.1.1
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. 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.
18.1.2
If there is a conflict between these Terms and the Appendices, the
latter will control for that conflict.
18.2 talech 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 eusupport@talech.com.
SCHEDULE 1 – ADDITIONAL TERMS
APPENDIX A – GIFT CARD SERVICES
1. Definitions
1.1
"Customer means “
has the meaning given in the main part of these Terms above and in
addition includes any customer of a Merchant who elects to conduct
a payment transaction with you through presentation of a payment
device, or who uses a Gift Card.
1.2
“Platform”
means the systems hosted directly or indirectly by talech through
which (i) you establishes your Gift Card program, and (ii) the Gift
Card Services are provided to you.
1.3
“Supported Hardware”
means the equipment, systems and hardware, including point of sale
devices, necessary for you to make use of the Gift Card Services.
1.4
“Web Portal”
means a web-based portal provided by talech through which you may
obtain information and guides pertaining to the Gift Card Services
and Platform, and may access your specific program metrics via
dashboards, view information about a Customer’s purchase
transactions, create additional Customer offers and retrieve
reports regarding your Gift Card program.
2. General Provisions.
2.1
Talech will host and make available to you the Web Portal.
2.2
You must use Supported Hardware in order to make full use of the Gift
Card Services, and certain or all Gift Card Services may be unavailable
or may function improperly if you do not use them in connection with
Supported Hardware. You may obtain a current list of Supported Hardware
from talech upon request, which talech may update from time to time.
Talech will have no responsibility or liability in connection with the
performance or non-performance of the Gift Card Services, including in
connection with any errors or malfunctions that may occur in connection
with the Gift Card Services, if you uses the Gift Card Services with
any Point of sale devices that are not Supported Hardware.
2.3
You will (i) cooperate with talech in connection with the Gift Card
Services, and (ii) provide talech with reasonably requested information
and access (which may be remote access) to equipment and to your
personnel for purposes of facilitating setup of point of sale devices
for use in connection with the Gift Card Services.
2.4
You will use all reasonable means to prevent any unauthorised access to
or use of the Platform and the Gift Card Services, and if such access
or use occurs, you will notify talech immediately.
2.5
You acknowledge and agree that it is your sole responsibility to comply
with all Applicable Laws relating to the Gift Cards, including those
relating to consumer protection. Talech does not provide legal advice
with respect to all Applicable Laws, and you should consult your own
legal counsel if you have questions regarding compliance.
2.6
You acknowledge and agree that talech has no responsibility for
recording or storing any Merchant Personal Data or information related
to the sale of any Gift Card until such information has been received
and validated by talech.
2.7
You understand and agree that your data security obligations under
these Terms apply to any Merchant Personal Data you collect or receive
in connection with the Gift Card Services, and you agree to comply with
such data security obligations with respect to all Merchant Personal
Data you may collect, access or receive in connection with the Gift
Card Services.
2.8
You will exclusively use talech (including talech-designated service
providers) for Gift Card Services similar to the Gift Card Services,
and you will not receive Gift Card Services similar to the Gift Card
Services from any third parties not approved by talech in writing.
2.9
If a particular location closes or changes its Merchant Identification
Number (MID), then talech may bill any open location for any fees
associated with subsequent transactions processed on Gift Cards
activated by the closed MID. This would apply to any system generated
transactions, including deduction transactions. Monthly fees billed for
Gift Card Services provided with respect to the closed location may
also be billed to any open location.
2.10
For the avoidance of doubt, the Gift Card Services do not
constitute a payment service under the Payment Services Regulations
2017 and you may not use them to issue electronic money as defined in
the Electronic Money Regulations 2011 or to offer any activity
regulated by the Financial Conduct Authority. Customers must be able to
redeem Gift Cards only with you and for the goods or services you sell.
You warrant that you are not, and undertake not to become, a relevant
person for the purposes of the Money Laundering, Terrorist Financing
and Transfer of Funds (Information on the Payer) Regulations 2017. On
request, you must give us all information we reasonably request about
your business and activities.
3. Fees
The Gift Card Services are a feature of the Premium Plan and are only available to such Customers. The Fees for the Gift Card Services are included within the Premium Plan.
4. Processing Gift Card Transactions
In connection with processing Gift Card transactions, you must comply with the following requirements:
4.1
Supply talech with all information and data required by talech to
perform Gift Card Services related to your acceptance of Gift Cards,
including the location of point of sale devices and Customer Data.
4.2
Maintain all transaction receipts and any other receipts as required by
all Applicable Laws.
4.3
Establish procedures to verify the identity of a person who purchases
Gift Cards worth £10,000 or more during any one day and obtain
identifying information concerning such a person, including name, date
of birth, address, and identification number. You must retain such
identifying information for five years from the date of the sale of the
Gift Cards.
4.4
Ensure that no fees or expiration dates apply to the Gift Cards.
4.5
When you sell a Gift Card from your physical location or locations,
including sales completed via electronic commerce, you are responsible
for the collection and settlement of all funds relating to the sale of
the Gift Card, including processing costs associated with such purchase
(such as any credit card transaction fees or bank service fees, where
applicable).
4.6
You agree that all Gift Cards will be printed by talech or a
talech-approved vendor.
5. Gift Card Processing Services
5.1
Electronic processing of transactions and purchases made using Gift
Cards. Talech will confirm electronically that the person presenting the Gift
Card for the purchase of goods or services through you has an active
Gift Card account on the Platform and that there is sufficient value
associated with the Gift Card to allow the person to complete the
purchase. Talech will adjust the Gift Card account through either a
debit or credit, as applicable, in the amount of any approved
transaction.
5.2
Transaction Record Maintenance.
Talech will maintain an accessible electronic record of the
transactions conducted using a Gift Card for the lifetime of the card
balance and after the balance on the card has been depleted for a
period not less than sixty (60) days.
5.3
Downtime.
You may not process Gift Card transactions if your system, the
Platform, or our system is down and we are not able to verify the
validity and available balance on a Gift Card as a result. You will be
solely liable for any losses or damages incurred if you processes a
Gift Card transaction without receipt of such verification.
