Terms & Conditions
Last updated: December 9, 2019
BY USING OUR SERVICES, YOU: (A) REPRESENT AND WARRANT THAT: (I) YOU HAVE REACHED THE AGE OF 18, (II) YOU HAVE THE CAPACITY TO ENTER INTO BINDING OBLIGATIONS, AND (III) ALL INFORMATION SUPPLIED BY YOU TO US IS TRUE, ACCURATE, CURRENT AND COMPLETE; (B) AGREE TO BE BOUND BY AND COMPLY WITH OUR TERMS OF SERVICE AND PRIVACY POLICY, AS UPDATED FROM TIME TO TIME; AND (C) AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS OF SERVICE AND PRIVACY POLICIES OF OUR THIRD PARTY PARTNERS, FOR EXAMPLE, PAYMENT PROCESSORS, CARD NETWORKS, ISSUING AND ACQUIRING BANKING INSTITUTIONS AND DATA WAREHOUSING PROVIDERS. IF YOU ARE USING OUR SERVICES ON BEHALF OF ANOTHER PERSON OR A CORPORATE ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO OUR TERMS OF SERVICE AND PRIVACY POLICY.IF YOU ARE AN EMPLOYEE OR INDEPENDENT CONTRACTOR THAT IS ACCESSING OR USING OUR PLATFORM OR SERVICES ON BEHALF OF A THIRD PARTY PARTNER OF THE COMPANY, YOU MAY NOT ACCESS OR USE OUR PLATFORM OR SERVICES UNLESS THE THIRD PARTY PARTNER HAS ENTERED INTO A MASTER SERVICES AND PLATFORM AGREEMENT WITH US. PLEASE CAREFULLY READ ALL DISCLAIMERS AND LIMITATIONS OF LIABILITY, INCLUDING THOSE RELATED TO DIGITAL WALLETS, DATA STORAGE WAREHOUSES AND PRIVATE PLACEMENTS.

Terms of Service 1.

Acceptance of the Terms of ServiceThe following Terms of Service (the “Terms”) govern your relationship to DataBillity, LLC (the “Company”) and access to and use of: (a) our proprietary platform that facilitates customer digital experiences, data acquisition, storage, analysis and visualization referred to as DataBillity (the “Platform,” “DataBillity,” or “DataBillity Platform”). These Terms of Service form an agreement between DataBillity, LLC. (“DataBillity,” “Company,” "Technology Service Provider," “us,” “we,” “our”), our payment technology and processing partner, including Fiserv, Inc. ("Payment Processor,” “Payment Processing Partner” or “Fiserv”), our merchant banking partner, including Wells Fargo (“Bank Partner,” “Merchant Bank” or “Acquiring Bank”), our data storage and analytics service provider Microsoft (“Microsoft” or “Azure”), our data visualization partner Tableau Corporation (“Tableau”)(collectively “Partners” or “partners”), and you. The term “you,” “user,” and “client” refer to the person or entity accessing or otherwise using the Platform (“use” or “using” in these Terms of Service will mean any of the foregoing). By using our Platform, or by clicking to accept or agree to the Terms of Service when this option is made available to you, you accept and agree to be bound and abide by these Terms of Service and our Privacy Policy, incorporated herein by reference. If you do not agree to these Terms of Service or the Privacy Policy, do not access or use the Platform.

2. DataBillity Services

The Platform is intended to facilitate the acquisition of customer data, namely payment data at the point of sale or online payment gateway via an e-commerce shopping cart, the secure storage of data, the normalization of the data, the  of the data, the visualization of the data for you and the personalization of customer experiences based on the data.

3. Licensing and Jurisdiction

DataBillity is not a licensed bank, trust company or money transmitter. The Company is a data science service provider who partners with CRM providers, Social Network platforms, other technology companies, payment processors and regulated financial institutions that are fully registered and licensed to operate as banks, trust companies, or money transmitters in their respective jurisdictions.Access to the Platform from jurisdictions where the contents or practices of the Platform are illegal, unauthorized or penalized is strictly prohibited.

4. Anti-Money Laundering, Counter Terrorist Financing, and Sanctions

DataBillity and its payment processor and Banking Partner are committed to providing you with safe, compliant and reputable services through the Platform. Accordingly, both DataBillity and our banking partners insist on a comprehensive and thorough customer due diligence process and implementation as well as ongoing analysis and reporting. This includes monitoring of and for suspicious transactions and mandatory reporting to international regulators.Our Banking Partner and all other regulated financial institutions and money transmission partners of DataBillity reserve the right  to refuse registration to, or to bar transactions from or to,  anyone from or in jurisdictions that do not meet international AML–CTF standards as set out by the Financial Action Task Force (“FATF”) or other high-risk jurisdiction; to anyone that is a Politically Exposed Person within the meaning of the FATF’s 40+9 Recommendations; or that fails to meet any of our customer due diligence standards, requests, or requirements; or to anyone that is on the Specially Designated Nationals List of the U.S. Office of Foreign Assets Control (“OFAC”); any Canadian designated persons list, including the Consolidated Canadian Autonomous Sanctions List; any UN Sanctions List; or other applicable sanctions or watchlist. The Banking Partner or Payment Processing Partner may also refuse registration to, or bar transaction from or to, anyone from, resident in, or transacting from a country subject to UN, US, Canadian or other applicable economic sanctions. In lieu of refusing registration, we may perform enhanced customer due diligence procedures. At all times, you may be subject to enhanced customer due diligence procedures in your use of the Platform and any related service.Our Banking Partner and all other regulated financial institutions and money transmission partners of DataBillity reserves the right to prohibit specific users from using the Platform or any of components thereof offered by DataBillity or its partners if properly directed to do so by law enforcement or a court of competent jurisdiction. The Company will cooperate with applicable law enforcement and regulatory authorities where it is required to do so and will share information if there are grounds to believe that the Platform is being used for illegal purposes.

5. Changes to these Terms of Service and DataBillity Platform

Except where prohibited by applicable law, we reserve the right to change these Terms of Service at any time without notice. Your continued access to or use of the Platform after any changes to these Terms of Service indicates your acceptance of such changes. It is your responsibility to review these Terms of Service regularly. We reserve the right to change the Platform at any time, without notice.

6. Accessing the Platform

a. We reserve the right to amend the Platform, and any service or material we provide on the Platform, in our sole discretion without notice.

b. We will use commercially reasonable efforts to make available the Platform to you in accordance with these Terms of Service. Notwithstanding the foregoing, the Company and its Banking Partners and Payment Processing Partners reserve the right to deny access to the Platform to anyone or cancel an account for any reason, including but not limited to violations of our Terms of Service, applicable laws and/or regulations, or engaging in any Prohibited Uses, or for scheduled maintenance, or to address any emergency security concerns and at any time, at our sole discretion. If we terminate your account for any reason, we’ll provide you with notice of our actions and make any unrestricted funds available for redemption.

c. The Banking Partner and Payment Processing Partner reserves the right to prohibit the processing of any specific transaction. Users will be accountable for any payment related chargeback.

7. Account Security

You are solely responsible for maintaining the confidentiality of your account information, as well as any and all activities that occur under your account. You must immediately notify us of any unauthorized use of your account and any other such security breach. We will not be liable for any loss that may occur as a result of someone else using your account or password, with or without your knowledge. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.We have the right to disable any account at any time in our sole discretion if, in our opinion, you have violated any provision of these Terms of Service.Furthermore, to minimize loss and damages arising out of potential cyber attacks, account breaches and fraud, we reserve the right to place and adjust upper limits on transaction amounts. For example, if there is an immediate or potential risk of an account hack on our Platform or other Platforms of similarly situation companies are known to be under cyber or internal company security and account breaches, we may take immediate action by, not limited to, limiting all or select buy/sell order to $100 per transaction.

8. Data You Upload to Us

You grant to us an irrevocable, worldwide, non-exclusive, royalty-free, fully paid-up, transferable and sublicensable license during the Term (defined below) to access, collect, store and use any data, information, records and files  that: (a) you load, transmit to or enter into the DataBillity Platform; or (b) that we collect from your usage of the DataBillity Platform ((a) and (b), collectively, the “User Data”), to: (i) develop, enhance and make available the Platform; and (ii) to produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Statistical Information”). Our operational relationship requires us and permits use to improve the system of being free to create, use and disclose Aggregated Statistical Information for any purpose and without obligations of any kind.

9. Ownership

All rights, title and interest, including intellectual property rights, in the Platform, Aggregated Statistical Information and all other materials provided by us hereunder, and any update, adaptation, translation, customization or derivative work thereof, will remain with us (or our third party suppliers, if applicable). The Platform and all materials provided by us hereunder are licensed and not “sold” to you. All rights not expressly granted to you in these Terms of Service are reserved.

10. No Unlawful or Prohibited Use

Without limiting the generality of the foregoing, you will not (and will not attempt to), as applicable:

a.   Send, upload, collect, transmit, store, use, post, publish, or otherwise communicate on the Platform any data, information, pictures, videos, music, or other materials or content that:

i.           Contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data.
ii.          You do not have the lawful right to send, upload, collect, transmit, store, use, publish or otherwise communicate.
iii.         Is false, intentionally misleading or impersonates any other person.
iv.         Is bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual
.v.          Is harmful to minors in any way or targeted at minors.
vi.         Is related to human trafficking.
vii.        Violates any applicable laws, or 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).
viii. Encourages any conduct that may violate any applicable laws or would give rise to civil or criminal liability.

b.   Disables, overly burdens, impairs, or otherwise interferes with servers or networks connected to the Platform (e.g., a denial of service attack).

c.     Attempts to gain unauthorized access to the Platform.

d.   Uses any data mining, robots, or similar data gathering or extraction methods, or copies, modifies, reverse engineers, reverse assembles, disassembles, or decompiles the Platform or any part thereof or otherwise attempts to discover any source code.

e.   Uses the Platform for the purpose of building a similar or competitive product or service.

f.      Uses the Platform for any criminal activity or unlawful purposes.

11. Privacy

Please click here to review our current Privacy Policy, which contains important information about our practices in collecting, storing, using and disclosing information about identifiable individuals (“ Personal Information ”), and which is hereby incorporated into and forms a part of these Terms of Service.The Platform may provide links to third party websites or applications. These links are provided solely for your convenience and for the convenience of other users of the Platform. We do not endorse the information, products, or services described on those websites or applications; or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability or fitness for any purpose. The content in any linked website or application is not under our control, and if you choose to access any such website or application, you do so entirely at your own risk.

12. Fees

There are no separate fees for users to use the Platform other than as outlined in our fee schedule below. Our fee schedule is subject to future changes without notice but we will make every best effort to inform existing account holders of such decision in a reasonable amount of time before it happens.

a. Payment Processing: The payment processing fees, based on a Card Network, i.e. Visa, Mastercard interchange plus model, are available to subscribers through direct request as fees are variable and based on the User’s industry, card volume and risk exposure.

b. Reporting Dashboard: The following fees apply to Users of the Platform: 

Account opening fee: $1,000 USD
Account maintenance fee: $200 USD per month
Custom Report fee: Case-by-case 

13. Billing

Per these Terms, you understand and agree that in order to carry-out and account for the Services rendered to you as a User and account-holder, you may receive separate billing from the Company and its regulated financial institution or money transmission business partners.

14. Communications Not Confidential

We do not guarantee the confidentiality of any communications made by you through the Platform. We do not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Platform.

15. Warranty

You represent and warrant to, and covenant with us that all User Data will only contain Personal Information in respect of which you have obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable us to provide the Platform and exercise our rights under these Terms of Service.

16. Disclaimers

The laws of certain jurisdictions, including Quebec, do not allow the exclusion or limitation of legal warranties, conditions or representations. If these laws apply to you, some or all of the exclusions or limitations of legal warranties, conditions or representations. If these laws apply to you, some or all of the exclusions or limitations in these Terms of Service (including the following disclaimers) may not apply and you may have additional rights. Without limiting the foregoing, you acknowledge, understand, and agree that:The Platform is provided “as is” and “as available”, with all faults and without warranties or conditions of any kind. To the fullest extent permitted by applicable law, we disclaim all warranties, representations and conditions of any kind with respect to the Platform whether express, implied, statutory or collateral, including, without limitation, the warranties and conditions of merchantability, merchantable quality, compatibility, title, security, reliability, completeness, quiet enjoyment, accuracy, reliability, currency, timeliness, quality, integration, fitness for a particular purpose and non-infringement, or any warranties or conditions arising out of course of dealing or usage of trade, or that the Platform is or will be error free or will operate without interruption.

17. Limitation of Liability

To the  maximum  extent permitted by applicable law, in no event will we, or that of our  third party service providers and contractors, be liable whether based on warranty, contract, tort, negligence, strict liability or any other legal theory, for any damages of any kind (including, without limitation, direct, indirect, incidental, consequential, special, exemplary or punitive damages, lost profits, loss of use, loss of data, personal injury, fines, fees, penalties or other liabilities), whether or not we were advised of the possibility of such damages, resulting from or related to these Terms of Service. This limitation of liability also includes any loss or damages arising out of offline and cyber-security attacks on the company or platform. To the extent that the foregoing limitation is not permitted by applicable law, in no event will our total aggregate liability in connection with or under these Terms of Service, or your use of, or inability to make use of, the Platform exceed $100 USD. For greater certainty, the existence of one or more claims under these Terms of Service will not increase this maximum liability amount.

18. Prohibited Businesses

In addition to the prohibited uses described above, the following categories of businesses, business practices, and sale items are barred from the Platform ("Prohibited Businesses"). The specific types of use listed below are representative, but not exhaustive. If you are uncertain as to whether or not your use of the Platform involves a Prohibited Business, or have questions about how these requirements apply to you, please contact us at info@databillity.com. By using the Platform, you confirm that you will not use it in connection with any of following businesses, activities, practices, or items:1.     Unfair, predatory or deceptive practices: Investment opportunities or other services that promise high rewards; Sale or resale of a service without added benefit to the buyer; resale of government offerings without authorization or added value; sites that we determine in our sole discretion to be unfair, deceptive, or predatory towards consumers.2.      High risk businesses: any businesses that we believe poses elevated financial risk, legal liability, or violates card network or bank policies.

19. No Class Proceedings

Any party hereto may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless the parties agree otherwise, any adjudicator of any claim—whether judicial or otherwise—may not consolidate or join more than one party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Any adjudicator of any claim may award relief, including monetary, injunctive, and declaratory relief, only in favor of the party seeking relief, and only to the extent necessary to provide relief necessitated by that party’s claim(s). Any relief awarded cannot affect other users of the Platform or of any Services.

20. Indemnification

You will defend, indemnify and hold harmless us and all of our officers, directors, investors, employees and agents from and against any third party claims, causes of action, demands, recoveries, losses, damages, fines, penalties, or other costs or expenses of any kind or nature including reasonable legal and accounting fees arising out of or in connection with:1.          Your breach of your warranties described hereunder.2.  Your violation of any applicable law or the rights of a third party (including intellectual property rights).3.      Your use of the Platform contrary to these Terms of Service or other instructional manuals, guidelines or documentation made available by us to you.

21. Term and Termination; Survival

These Terms of Service will commence on the day you first use the Platform and will continue into force until terminated by either party (the “Term”). Either party may terminate these Terms of Service as follows: (a) we may terminate these Terms of Service at any time and with immediate effect by giving notice to you, at our discretion, by email (at your current email  address on file with us) or through the Platform; (b) you  may  terminate these Terms of Service at any time and with immediate effect by requesting (by email or through any then-available interfaces on the Platform) that your account with us be deleted.The following Sections, together with any other provision of these Terms of Service which expressly or by its nature survives termination or expiration, or which contemplates performance  or observance subsequent to termination or expiration of these Terms of Service, will survive expiration or termination of these Terms of Service for any reason: 9 (Ownership), 11 (Privacy), 13 (Communications Not Confidential), 15 (Disclaimers), 16 (Limitation of Liability), 20 (Indemnification), 21 (Survival), and 22 (General Provisions) 

22.
  General Provisions

1. Choice of Law:
Except as restricted by applicable law, these Terms of Service will be governed by the laws of the State of Washington and the federal laws of the United States applicable therein and such laws apply to your access to or use of the Platform, notwithstanding your domicile, residency or physical location. You will only use the Platform in jurisdictions where the Platform may lawfully be used. Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction of the State of Washington and venue of courts in the State of Washington in all disputes arising out of or relating to the use of the Platform.

2. Entire Agreement:
These Terms of Service constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Platform. A printed version of these Terms of Service and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

3. Waiver:
Our failure to insist upon or enforce strict performance of any provision of these Terms of Service will not be construed as a waiver of any provision or right. A waiver of any provision of these Terms of Service must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

4. Severable:
If any of the provisions contained in these Terms of Service are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision will be severed from these Terms of Service and all other provisions of these Terms of Service will remain in full force and effect.

5. Assignment:
You will not assign these Terms of Service to any third party without our prior written consent. We may assign these Terms of Service or any rights under these Terms of Service to any third party without your consent. Any assignment in violation of this Section will be void. The terms of these Terms of Service will be binding upon permitted assignees. These Terms of Service will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees.

6. Force Majeure:
We will not be liable for delays caused by any event or circumstances beyond our reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service failures or delays.

7. Taxes:
You are solely liable for all the taxes, fees, and commissions resulting from use of the Platform. These Terms of Service alone do not create a joint venture, partnership, or principal-agent relationship between you, the Company and our partners, or any other users, and nothing in these Terms of Service may be used to imply such a relationship. You agree to indemnify, defend, and hold the Company and our partners harmless from any liability for, or assessment of, any claims or penalties with respect to such taxes, labor, or employment requirements, including any liability for, or assessment of taxes imposed on the Company or our partners by the relevant taxing authorities with respect to any fees paid to you as the result of using the Platform.

You may contact us via email about privacy questions, comments, or concerns at: info@databillity.com.