Terms of Service

Effective date:
January 25, 2024

Intro

The Truss software-as-a-service Terms of Service (the “Terms of Service”, together with any attachments, exhibits, and/or addendums hereto, the “Agreement”) form an agreement between the customer accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Truss SaaS Services (as defined below) (such customer, the “Customer” or “you”) and Truss Holdings Ltd. (“Truss” or “we”), the supplier of the Truss SaaS Services, and is entered into on the earlier of the date Customer first uses any part of the Truss SaaS Services and the date Customer agrees to be bound by this Agreement (the “Effective Date”).  Each of Truss and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.

This Agreement sets forth the terms and conditions that govern the provision and use of: (a) the Truss SaaS Services for the digitization of business payments as described at https://www.trusspayments.com/; and (b) additional services made available by Truss in respect of the Truss SaaS Services.

BY USING THE TRUSS SAAS SERVICES (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 12(K).  IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE TRUSS SAAS SERVICES.  CUSTOMER REPRESENTS AND WARRANTS TO TRUSS THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT.  IF CUSTOMER IS USING THE TRUSS SAAS SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO TRUSS THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

THE TRUSS SAAS SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

TRUSS’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE TRUSS SAAS SERVICES, EXCEPT WITH TRUSS’S PRIOR WRITTEN CONSENT.

1. Truss SaaS Services

  1. Provisioning of the Truss SaaS Services.  Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Truss will make the Truss SaaS Services available to Customer and Permitted Users on the terms and conditions set out in this Agreement during the Term.
  2. Restrictions on Use.  Customer will not itself, and will not permit others to:
    1. sub-license, sell, rent, lend, lease or distribute the Truss SaaS Services or any Intellectual Property Rights therein, or otherwise make the Truss SaaS Services available to others other than Permitted Users;
    2. use the Truss SaaS Services to permit timesharing, service bureau use or commercially exploit the Truss SaaS Services;
    3. use or access the Truss SaaS Services: 
      1. in violation of any applicable law; 
      2. in a manner that threatens the security or functionality of the Truss SaaS Services; or 
      3. for any purpose or in any manner not expressly permitted in this Agreement;
    4. use the Services to create, collect, transmit, store, use or process any Customer Data:
      1. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
      2. that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
      3. that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
    5. Modify the Truss SaaS Services;
    6. reverse engineer, decompile or disassemble the Truss SaaS Services; 
    7. remove or obscure any proprietary notices or labels on the Truss SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
    8. access or use the Truss SaaS Services for the purpose of building a similar or competitive product or service; or
    9. perform any vulnerability, penetration or similar testing of the Truss SaaS Services.
  3. Permitted Purpose.  Customer may access and use the Truss SaaS Services solely for Customer’s internal business purposes. 
  4. Customer’s Responsibility for Permitted Users.  Customer is responsible for: (i) identifying and authenticating all Permitted Users; (ii) for ensuring that all appropriate "Know Your Client" documentation and processes are completed; (iii) for ensuring only Permitted Users access and use the Truss SaaS Services, and (iv) for Permitted Users’ compliance with this Agreement. 
  5. Suspension of Access; Scheduled Downtime; Modifications.  Truss may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
    1. suspend Customer’s access to or use of the Services or any component thereof:
      1. for scheduled maintenance;
      2. due to a Force Majeure;
      3. if Truss believes in good faith that Customer or any Permitted User has violated any provision of this Agreement; 
      4. to address any emergency security concerns;
      5. for non-payment of invoices and Fees for the Services; 
      6. if required to do so by a regulatory body or as a result of a change in applicable law; or
      7. for any other reason as provided in this Agreement. 
    2. make any Modifications to the Services.
  6. Subcontracting.  Truss may engage third parties to assist it in providing the Services or any part thereof.  Third-Party Products.  The Truss SaaS Services may permit access to products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Truss SaaS Services (“Third-Party Products”).  For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to Customer for acceptance within the Truss SaaS Services by website link or otherwise.  If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products

2. User Accounts

  1. In order  to send and receive payments through the Truss SaaS Service, Customer must create an account (the “Customer User Account”). Customer may only create one Customer User Account and it is non-transferable. Customer agrees to provide accurate, current and complete information when creating a Customer User Account and to update such information as necessary to ensure it remains accurate. 
  2. Customer will ensure that Permitted Users only use the Truss SaaS Services through the Customer User Account.  Customer will not allow any Permitted User to share the Customer User Account with any other person.  Customer will promptly notify Truss of any actual or suspected unauthorized use of the Truss SaaS Services.  Truss reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.  Customer will ensure that all individual users of the Truss SaaS Services, including Permitted Users, are contractually bound to terms and conditions with Customer that are no less restrictive or protective of Truss’s rights than those set forth in this Agreement.
  3. In order for Truss to issue the Customer User Accounts, Truss will perform background verifications in order to comply with applicable laws, regulatory obligations, industry practices, and internal business purposes to limit fraud and manage risk.  Such background verifications may include anti-money laundering, credit score and history and more general “know your client” information.  By completing the account sign-up process, you consent to Truss’s background verifications for the purposes described above.
  4. Customer hereby consents to Truss conducting credit investigations from time to time at Truss’s discretion, including such requests for and exchange of information to and from consumer reporting agencies or credit grantors as it may require in relation to the Truss SaaS Services.

3. Linked Accounts

  1. Customer may link external accounts at third-party financial institutions (each a “Linked Account”) to enable Customer to make and receive payments through the Truss SaaS Services. 
  2. Customer may link a Linked Account with Customer’s User Account by logging into Customer’s financial institution through the Services. Truss may also verify Customer’s control of the Linked Account by requiring Customer to submit proof of ownership of the Linked Account.
  3. All Linked Accounts must be with financial institutions in the United States. Truss may decline the use of any Linked Account that Truss believe may present a risk to Customer and/or Truss.
  4. By linking Customer’s Linked Account to Customer’s User Account, and by subsequently logging into Customer’s Linked Account through the Services, Customer authorizes Truss and our third party service providers to view Customer’s account history and profile, including, but not limited to, Customer’s account and routing details, authentication details, balance, transaction history, contact information, and other related information made available by such external financial institution; and Customer understands this information may be used to transact on Customer’s behalf and perform other services subject to Truss’s Privacy Policy.
  5. When adding a Linked Account, Customer represents and warrants that the Linked Account is not a joint account, and that Customer is the sole owner of and has the right to access, use and authorize Truss and its Third Party Service Providers to use the Linked Account for information and funds transfer purposes.
  6. If Customer closes the Linked Account, Customer is responsible for removing it as an account eligible for the linking service to avoid any transaction failure and possible charges related to a failed transaction.
  7. Truss is not responsible for any acts or omissions by the external financial institution or other provider of any Linked Account, including, without limitation, any modification, interruption, or discontinuance of any Linked Account by such financial institution.
  8. CUSTOMER ACKNOWLEDGES AND AGREES THAT WHEN TRUSS AND OUR THIRD PARTY SERVICE PROVIDERS ARE EFFECTING A TRANSFER FROM OR TO CUSTOMER’S LINKED ACCOUNT, TRUSS AND OUR THIRD PARTY SERVICE PROVIDERS ARE ACTING AS CUSTOMER’S AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF ANY THIRD PARTY.
  9. CUSTOMER AGREES THAT TRUSS SHALL NOT BE LIABLE FOR ANY COSTS, FEES, LOSSES OR DAMAGES OF ANY KIND INCURRED AS A RESULT OF (1) TRUSS’S AND OUR THIRD PARTY SERVICE PROVIDERS’ ACCESS TO THE LINKED ACCOUNT; (2) TRUSS’S THIRD PARTY SERVICE PROVIDERS’ DEBIT AND/OR CREDIT OR INABILITY TO DEBIT AND/OR CREDIT THE LINKED ACCOUNT IN ACCORDANCE WITH CUSTOMER INSTRUCTIONS; (3) ANY INACCURACY, INCOMPLETENESS OR MISINFORMATION CONTAINED IN THE INFORMATION RETRIEVED FROM THE LINKED ACCOUNT; (4) ANY CHARGES IMPOSED BY THE FINANCIAL INSTITUTION OR ANY OTHER PROVIDER OF THE LINKED ACCOUNT AND (5) ANY FUNDS TRANSFER LIMITATIONS SET BY THE FINANCIAL INSTITUTION OR OTHER PROVIDER OF THE LINKED ACCOUNT.

4. Ownership; Reservation of Rights

  1. As between Truss and Customer, Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Truss a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose and transmit Customer Data to: 
    1. provide the Services; 
    2. improve and enhance the Services and its other offerings;
    3. produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”).  
    Truss may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind.  As between Truss and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Truss.
  2. Truss or its licensors retain all ownership and Intellectual Property Rights in and to: 
    1. the Services;
    2. anything developed or delivered by or on behalf of Truss under this Agreement;
    3. all other Truss’s Confidential Information, including but not limited to, any reports generated from the Truss SaaS Services or any Aggregated Data;
    4. any Modifications to the foregoing (i), (ii) and (iii) (collectively “Truss Property”).
  3. Customer grants to Truss and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Truss SaaS Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of Truss’s affiliates’ services (“Feedback”).  Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Truss is not obligated to use any Feedback.
  4. All rights not expressly granted by Truss to Customer under this Agreement are reserved.

5. Privacy

Customer understands that Personal Information, including the Personal Information of Permitted Users, will be treated in accordance with Truss’s privacy policy located at https://www.trusspayments.com/privacy-policy.

6. Fees and Payment

  1. Fees.  Unless otherwise agreed to in writing between the parties, all fees (“Fees”) identified at: https://www.trusspayments.com and in the Business Deposit Agreement and any other agreements between the Parties are in United States dollars.  If Customer’s use of the Truss SaaS Services requires the payment of additional Fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and Customer will pay the additional Fees in accordance with this Agreement.
  2. Platform Fees. Truss reserves the right to charge additional Fees (the “Platform Fees”) to payors using certain payment methods and otherwise in Truss’s sole discretion. The amount of any Platform Fees will be disclosed to the payor in advance of the payment being authorized and added to the total payment amount or charged separately. If the payor chooses to proceed with a payment that includes Platform Fees, such Platform Fees shall be for the sole account of Truss and shall not be payable to the payee. Platform Fees are non-refundable. 
  3. Changes to the Fees.  Truss reserves the right to change the Fees and institute new Fees upon notice to Customer.  
  4. Payment Methods.  If Customer is required to pay Fees under this Agreement, Customer must provide a valid method of payment. Customer agrees and acknowledges that Truss may bill Customer’s payment method in accordance with this Agreement. All credit card payments through Truss are processed by Stripe. Truss Customers who utilize the credit card payment system will be charged for their use according to Stripe’s Checkout Terms of Service and Privacy Policy.
  5. Phone Payments. If Customer chooses to accept card payments via phone, Customer undertakes that Customer will: (i) obtain sufficient information from the payor to be able to verify the payor’s identity; (ii) directly enter the payor’s card information into the Services and not write it down or note it elsewhere; (iii) obtain the payor’s affirmative consent in advance of each charge to the payor’s card; (iii) disclose the entire amount that will be charged to the payor, including any Platform Fees, in advance of charging the payor’s card; and (iv) only save the payor’s card details in the Services with payor’s consent.
  6. Chargebacks and Reversed Payments. In the event that Truss receives a chargeback, clawback or ACH return with Customer as recipient, Customer authorizes Truss to debit Customer’s payment method on file for the amount of the chargeback plus any associated fees or to withhold funds from future distributions. Payments may be invalidated and reversed by Truss if, among other reasons, Truss credited the payment to Customer in error, the funding transaction is declined or reversed, the payment was unauthorized or unfunded, or if the payment was for activities that violated these Terms of Service or any other agreement with Truss. As the sender or recipient of a payment that is later invalidated for any reason, Customer may be liable to Truss for the full amount of the payment and Truss may recover the amount of the payment (plus any fees and costs associated with such recovery, including attorneys’ fees) from Customer. Truss may recover the amount of the payment from either the sender or the recipient of an invalidated payment in our discretion (subject to applicable law). For example, if Customer sends a payment funded by a bank account and the bank informs Truss it cannot cover the payment due to a lack of funds or a dispute, Truss may hold Customer liable for the payment, or if Customer were the recipient of that payment, Truss may reverse that payment from Customer’s User Account to cover the liability. When recovering the amount of an invalidated payment from Customer, Truss may apply any money sent to Customer through the Truss SaaS Services or withdraw the amount from Customer’s Linked Account. If Customer adds money to Customer’s User Account, Truss may apply that money to amounts owed. Truss may suspend Customer’s access to the Services while any unpaid liabilities remain outstanding or close Customer’s account in its sole discretion. 
  7. Late Payment.  Customer may not withhold or setoff any amounts due under this Agreement.  Without limiting Truss’s other rights, Truss may suspend Customer’s access to the Services, if Customer has not paid the applicable Fees within 30 days of the date that such Fees become due.
  8. Taxes.  The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes.  Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of Truss.
  9. Suspension and Closure. Any suspension of the Services or closure of a Customer’s account by Truss pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

7. Confidential Information

  1. Definitions.  For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations. 
  2. Confidentiality Covenants.  The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement: 
    1. disclose Confidential Information of the Discloser to any person, except to:
      1. in the case of Customer to its own employee having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writings; or
      2. in the case of Truss to Truss’s employees, consultants, agents or affiliates or Third Party Service Providers, having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; to such other recipients as the Discloser may approve in writing; and to its subcontractors or contractors to perform the Services; 
    2. use Confidential Information of the Discloser; or 
    3. alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry-standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type. 
  3. Exceptions to Confidentiality.  Notwithstanding Section 7(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.
  4. Return of Confidential Information.  Upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 11(d) below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices.  Notwithstanding the foregoing, Truss may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.

8. Warranty and Disclaimer

  1. Customer Warranty.  Customer represents and warrants to and covenants with Truss that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions, and otherwise has all authority, in each case as required by applicable laws, to enable Truss to provide the Truss SaaS Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Truss and to or from all applicable third parties. 
  2. GENERAL DISCLAIMER. TRUSS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY TRUSS TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRUSS HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, TRUSS EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

9. Indemnities

  1. Truss’s Indemnity.  
    1. Truss will indemnify, defend, and hold harmless the Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the Truss SaaS Services infringe any third-party Intellectual Property Right in the United States.  The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any Truss SaaS Services into, or any combination, operation, or use of any Truss SaaS Services with, any products or services not provided or authorized by Truss, unless such infringement would also have resulted solely from the use of the Truss SaaS Services without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of any Truss SaaS Services other than by Truss or with Truss’s express written approval; (C) unauthorized use of the Truss SaaS Services; or (D) Customer’s indemnity in Section 9(b). 
    2. If the Truss SaaS Services are, or in Truss’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if the Customer’s use of any Truss SaaS Services is enjoined or threatened to be enjoined, Truss may, at its option and sole cost and expense:
      1. obtain the right for the Customer to continue to use the affected Truss SaaS Services materially as contemplated by this Agreement;
      2. modify or replace Truss SaaS Services, in whole or in part, to seek to make the Truss SaaS Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Truss SaaS Services under this Agreement; or
      3. if Truss determines that neither of the foregoing two options are reasonably available, by written notice to the Customer, terminate the Services, in whole or in part, and require the Customer to immediately cease all use of the terminated Services or part or feature thereof and refund any unused prepaid Fees for the terminated Services, if applicable. This Section 9(a) states the Truss’s sole liability to, and the Customer Indemnitees exclusive remedy against, Truss for any third party claim described in this section.
  2. Customer Indemnity.  The Customer will defend, indemnify and hold harmless Truss, and its officers, directors, employees and agents (each, a “Truss Indemnitee”) from and against any and all Losses incurred by a Truss Indemnitee arising out of or relating to any Action by a third party (other than an affiliate of a Truss Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Services by the Customer or any Permitted User; or (iv) use of the Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service.  Customer will fully cooperate with Truss in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Truss.
  3. Indemnification Procedure.  Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 9. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense.  The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense.  The Indemnitee’s failure to perform any obligations under this Section 9(c) will not relieve the Indemnitor of its indemnity obligations under this Section 9 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.  The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

11. Term and Termination

  1. Term.  A subscription to Truss SaaS Services will commence on the Effective Date and will continue in full force and effect until terminated by either Party pursuant to this Agreement (the “Term”). 
  2. Termination by Truss.  Truss may, at its discretion, terminate the Truss SaaS Services at any time by providing at least 30 days advance notice to Customer.  Truss may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if: (i) Truss suspects or becomes aware of any fraudulent, illegal, or suspicious transactions; (ii) Customer ceases to process payments or otherwise use the Truss SaaS Services for a period of 366 days; or (iii) Customer breaches this Agreement, becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
  3. Termination by Customer.  Customer may, at its discretion, terminate this Agreement by contacting Truss and requesting termination. 
  4. Effect of Termination.  Upon expiration or termination of this Agreement, Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the Services (without right to refund of any Fees) and Customer shall delete or, if requested by Truss, return any Truss Property in its possession and certify in writing to the Truss that the Truss Property has been deleted or destroyed.  No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle the Customer to any refund.  All Fees due and payable and any amounts due to Truss are immediately due and are to be immediately paid by Customer to Truss.  After termination, Truss will have no obligation to maintain or provide any Customer Data and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.  Notwithstanding the foregoing, Truss will not be required to remove any Customer Data maintained in accordance with its standard backup procedures or record retention policies until such time as such backups are scheduled to be deleted provided that in all cases Customer Data will continue to be protected in accordance with this Agreement.
  5. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 4 (Ownership; Reservation of Rights), Section 5 (Privacy), Section 6 (Fees and Payment), Section 7 (Confidential Information), Section 8 (Warranty and Disclaimer), Section 9 (Indemnities), Section 10 (Limitation of Liabilities), Section 11(e) (Survival), and Section 12 (General Provisions).

12. General Provisions

  1. Notices.  Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given.  Notices must be sent: (i) if to Truss, to the following Truss’s address and email contact: 
    ‍
    2261 Market St #4415, San Francisco, CA 94114
    ‍
    help@trusspayments.com
  1. and (ii) if to Customer, to the current mailing or email address that Truss has on file with respect to Customer.  Truss may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer.  Customer is solely responsible for keeping Customer’s contact information on file with Truss current at all times during the Term.
  2. Assignment.  Customer may not assign this Agreement to any third party without Truss’s prior written consent.  Any purported assignment or delegation by Customer in violation of this Section will be null and void.  Truss may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent.  This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
  3. Governing Law.  This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the State of Delaware and any applicable federal laws of the United States, without regard to conflicts of law principles.  Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction in the Court of Chancery of the State of Delaware or any court of the United States located in the State of Delaware, for any action, proceeding or investigation in any court or before any governmental authority. This choice of jurisdiction does not prevent Truss from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction. 
  4. Export Restrictions.  Customer will comply with all export laws and regulations that may apply to its access to or use of the Truss SaaS Services.  Truss makes no representation or warranty that the Truss SaaS Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.  
  5. Construction.  Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise.  The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.  The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
  6. Force Majeure.  Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control (except for a failure by Customer to pay Fees or Customer’s indemnities under this Agreement), including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure”).  For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement.
  7. Severability.  Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
  8. Waiver.  A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
  9. Independent Contractors.  Truss’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other.  Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
  10. Entire Agreement.  This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
  11. Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, TRUSS MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY TRUSS, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
  12. Costs. In the event of any dispute or legal or equitable action arising out of or relating to this Agreement, the prevailing Party will be entitled to recover all of its out-of-pocket expenses and costs (including reasonable attorneys’ fees) from the losing Party. In addition, if Truss refers the collection of your account balance to an attorney, you agree to pay our attorneys’ fees, in addition to any other fees, costs, or charges permitted under applicable law.

13. Definitions

  1. “Aggregated Data” has the meaning in Section 4(a)(iii).
  2. “Agreement” has the meaning in the preamble.
  3. “Amendment” has the meaning set out in Section 12(k).
  4. “Confidential Information” has the meaning set out in Section 7(a).
  5. “Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the Truss SaaS Services, including but not limited to Personal Information, excluding Aggregated Data and any other Truss Property.
  6. “Customer User Account” has the meaning set out in Section 2(a).
  7. “Discloser” has the meaning set out in Section 7(a).
  8. “Feedback” has the meaning set out in Section 4(c).
  9. “Fees” has the meaning set out in Section 6(a).
  10. “Force Majeure” has the meaning set out in Section 12(f).
  11. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  12. “Linked Account” has the meaning set out in Section 3(a).
  13. “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. 
  14. “Truss SaaS Services” means: (i) the services provided by Truss under this Agreement that are detailed on Truss’s website available at https://www.trusspayments.com/; and (ii) any component or Modification of the services referred to in (i).
  15. “Truss Property” has the meaning set out in Section 4(b).
  16. “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
  17. “Party” has the meaning set out in the preamble.
  18. “Permitted User” means those employees, agents and independent contractors of Customer who are authorized by Customer to use the Truss SaaS Services through Customer’s User Account.
  19. “Personal Information” means information about an identifiable individual. 
  20. “Recipient” has the meaning set out in Section 7(a).
  21. “Services” means the products and services that are ordered by Customer and made available online by Truss, including Truss SaaS Services.
  22. “Term” has the meaning set out in Section 11(a).
  23. “Terms of Service” has the meaning set out in the preamble.
  24. “Third-Party Products” has the meaning set out in Section 1(g).
  25. “Website” means any websites used by Truss to provide the Truss SaaS Services, including the website located at https://www.trusspayments.com/.

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