June 5, 2023
1. THE SERVICES
Percents is a technology platform that provides payments orchestration between credit and debit card issuers and merchants. By using Percents, card issuers and merchants can reward users with merchant-locked currency. Importantly, however, Percents is not a financial institution and does not provide any underlying financial services.
2. WHAT IS THIS AGREEMENT?
2.1. This Agreement is a Contract.
These Terms of Use (the “Terms”) describe a contractual relationship (this "Agreement")between you ("you" or "your") and Percents, Inc. (including its subsidiaries, affiliates, agents, and assigns) ("Percents,""we," "us," or "our"), regarding your use of this website (the "Website"), any Percents API and/or SDK (the“Integration Tools”), your use of any services or products offered through the Website and Integration Tools, and your access and use of any Percents accounts (collectively, the "Percents Service(s)" or "Service(s)"). This Website and the Services are being provided to you expressly subject to this Agreement. By accessing, browsing and/or using this Website or any Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement and to comply with all applicable laws and regulations.
2.2. Changes to this Agreement.
We reserve the right to amend this Agreement at any time and will notify you of any such changes by posting the revised Agreement on the Website. All changes shall be effective upon posting, provided, however, such changes will not impose additional obligations on you for actions you took before the change became effective. Your continued use of the Website or Services after any change to this Agreement constitutes your agreement to be bound by the updated Agreement for any actions taken after such posting. We may terminate, suspend, change, or restrict access to all or any part of this Website or Services without notice or liability.
2.3. Use of Services and Termination of Your Account.
Use of the Services is void where prohibited. By using the Services, you represent, warrant and covenant that (a) all information you submit through this Website or Integration Tools is truthful and accurate; (b) you will maintain the accuracy of such information and either update or notify us of any changes; (c) you are 18 years of age or older; (d) your use of the Services does not violate any applicable law or regulation to which you are subject; (e) you will conduct yourself in a reasonable manner when dealing with us and provide information as requested; and (f) you do not and will not engage in any deceitful or fraudulent behavior in connection with the use of our Services. Your profile may be deleted and your account may be terminated at any time, and for any reason, including if we believe, in our sole discretion, that you have violated any of the Terms.
4. HOW DOES PERCENTS PROVIDE ITS SERVICES?
4.1. Communication & Notification.
You agree that Percents may provide you communications about your account and the Percents Service electronically or in writing. Standard mobile, message, or data rates may apply and you are responsible for any such fees. Any electronic communications will be considered to be received by you at the time we email it to you or otherwise send it to your attention (such as via SMS or other online or mobile notification). Notwithstanding this provision, Percents's delivery of any disclosures governed by the Percents E-Sign Consent shall be governed by your consent or withdrawal of consent to receiving such disclosures in electronic form.
4.2. Links to Other Websites.
Links to non-Percents websites are provided solely as pointers to information on topics that may be useful to users of the Services, and Percents has no control over the content on such non-Percents websites. Percents makes no warranties concerning the content of such websites, including the accuracy, completeness, reliability of said websites or the information provided therein. You agree that you will not hold Percents responsible for any liability or losses arising from any use of non-Percents websites. If you choose to follow a link to a website not controlled by Percents, you do so at your own risk. Links to non-Percents websites do not imply any endorsement of or responsibility for the opinions, ideas, products, information or services offered at such sites, or any representation regarding the content at such websites.
5. WHAT ARE YOUR OBLIGATIONS.
5.1. Agreement to Provide Accurate Information.
When you provide information to Percents or in connection with the Percents Services, you agree to provide only true, accurate, current and complete information and you agree not to misrepresent your identity or your account information. You acknowledge that Percents will be relying on any information that you provide.
5.2. Requirements for using the Services.
By using the Percents Services, you agree that you will not:
· Engage in any activities related to or involving your use of the Services that violate any applicable law, statute, regulation, or ordinance or breach this Agreement or any other agreement you have with Percents;
· Modify, copy, or create derivative works based on the Services;
· License, sell, resell, lease, distribute, or otherwise commercially exploit as a standalone product, or make available to any third party, the Services or any component of the Services;
· Reverse engineer, decompile, or otherwise derive the source code and other intellectual property underlying the Services or attempt to do any of the foregoing (except to the extent applicable law prohibits restrictions on reverse engineering);
· Distribute via, or store on, the Services unlawful, offensive, or tortious material;
· Use the Services or the Content, or cause the Services or the Content, to infringe upon or violate any third-party intellectual property, proprietary, privacy, or other right;
· Commit unauthorized use of Percents's Website and systems including but not limited to unauthorized entry into Percents's systems, or misuse of any information posted to a site; and
· Access or search, or attempt to access or search, the Services or the Content by any means (automated or otherwise) other than through currently available, published interfaces
· Probe, scan, or test the vulnerability of any system or network related to the Services or breach or circumvent Percents’ security measures;
· Take any action that imposes an unreasonable or disproportionately large load on our infrastructure, including but not limited to denial of service attacks, "spam" or any other such unsolicited overload technique;
· Interfere with or disrupt the integrity or performance of the Services, the data contained therein, or the servers or networks connected to the Services;
· Use any device, software, routine, file or other tool or technology, including but not limited to any viruses, trojan horses, worms, time bombs or cancelbots, intended to damage or interfere with the Services or to surreptitiously intercept or expropriate any system, data or personal information from the Services;
· Use the Services or the Content to spam, phish, pharm, pretext, spider, crawl, or scrape;
· Alter, remove, or suppress any copyright, trademark, or other proprietary notice displayed by the Services;
· Access the Services in order to build a competitive product or service or copy any features, functions, or other component of the Services;
· Use the Services to harass, defame, slander, or intimidate.
5.3. Feedback That You Provide.
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. If we accept your submission, we do not waive any rights to use similar or related ideas or feedback previously known to us, developed by our employees, or obtained from sources other than you.
6. THE SERVICES.
6.1. Percents is not a financial institution and does not provide underlying financial services. It is not responsible for the provision of such financial services. All financial services related to the Services are coordinated, provided and/or offered by one or more third-party financial institutions that use Percents technology platform.
7. OTHER MATTERS
7.1. Operations.
Percents operates and controls the Services from its offices in the United States. Percents makes no representation that the Services are appropriate or available in other locations. The information provided on the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Percents to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.Software from the Services may be subject to United States export controls. The privileges granted to you under these Terms will terminate immediately and automatically without notice from Percents if, in our sole discretion, you fail to comply with any term or provision of these Terms. Neither the course of conduct between the parties nor trade practice will act to modify these Terms. You may not assign these Terms without Percents's prior written consent, but Percents may assign these Terms and its rights and obligations hereunder to any party at any time without any notice to you. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Upon Percents's request, you will furnish Percents any documentation, substantiation or releases necessary to verify your compliance with these Terms. You agree that these Terms will not be construed against Percents by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.
7.2. Enforceability and Governing Law.
The failure of Percents to exercise or enforce any right or provision of these Terms does not constitute a waiver of such right or provision. These Terms supersedes any previous terms that may have existed between you and cannot be changed or modified by you. If you do not agree to these Terms, please do not use the Services. If any provision of this Agreement is held to be unenforceable, the unenforceable term or provision shall be replaced by an enforceable term or provision that comes closest to the intention underlying the unenforceable term or provision and the remaining provisions shall be enforced. To the extent that anything in or associated with the Services is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. The laws of the State of Delaware govern your access to, and use of, the Services and the Terms.
7.3.Intellectual Property.
All content, design, graphics, compilation, magnetic translation, digital conversion and other matters to the Services are protected under applicable copyrights, trademarks and other proprietary rights (including but not limited to intellectual property rights) and owned by Percents. The copying, redistribution, use or publication by you of any part of the Services, unless expressly permitted in this Agreement, is strictly prohibited. Use of theServices does not give you ownership of any intellectual property rights in any of the content, documents or other materials you access. The posting of information or materials on the Services does not constitute a waiver of any right in such information and materials.
7.4.Trademark.
"Percents"is the marketing name for certain financial services activities of Percents,Inc. as operator of the Services. Other featured words or symbols may be the trademarks of their respective owners.
7.5. Indemnification.
You agree to indemnify and hold harmless Percents from and against any and all claims, losses, expenses, demands or liabilities, including attorneys’ fees and costs, incurred by Percents in connection with any claim by a third party (including any intellectual property claim) arising out of (i) materials and content you submit to, post to, or transmit through the Website, or (ii) your use of the Website and Services in violation of this Agreement or in violation of any applicable law. You further agree that you will cooperate fully in the defense of any such claims. Percents reserves the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any such claim or matter without the written consent of Percents.
7.6. DISCLAIMER OF WARRANTY.
PERCENTS AND ITS AFFILIATES MAKE NO COMMITMENTS OR WARRANTIES ABOUT (i) THE CONTENT, RELIABILITY, OR AVAILABILITY OF THE SERVICES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICES OR (ii) THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT ON THE WEBSITE, APP OR SERVICES. PERCENTS AND ITS AFFILIATES DISCLAIM, WITHOUT LIMITATION, ANY WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTY REGARDING NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. PERCENTS AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS OR THE SERVICES.
7.7.LIMITATION OF LIABILITY.
PERCENTS AND ITS AFFILIATES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY PRODUCT AVAILABLE FROM OR THOUGH THE WEBSITE OR THE USE OF THE SERVICES. IN PARTICULAR,BUT NOT AS A LIMITATION THEREOF, PERCENTS AND ITS AFFILIATES ARE NOT LIABLE FOR ANY COMPENSATORY, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION,OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT,PRODUCT LIABILITY OR OTHERWISE; NOR ARE PERCENTS AND ITS AFFILIATES LIABLE FOR ANY THIRD PARTY CLAIMS OF ANY NATURE, EVEN IF ADVISED OF THE POSSIBILITY OFSUCH DAMAGES OR CLAIMS. NONE OF THE SERVICES WOULD BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, YOU OBTAIN FROMUS FROM OR THROUGH THE WEBSITE OR SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. NEITHER PERCENTS NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND THE REASONABLE CONTROL OF SUCH PARTY.
7.8.Statute of Limitations.
You and Percents both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services,Terms, or Privacy Policy must be filed within one year after such claim or cause of action arose or be forever barred. PLEASE CAREFULLY READ THIS AGREEMENT BEFORE USING THE PERCENTS WEBSITE OR USING OUR SERVICES. BY ACCESSING THIS WEBSITE OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE DO NOT ACCESS THIS WEBSITE OR USE THE SERVICES.