Affiliate System Terms of Service Agreement
Last Updated: May 8, 2017
Acceptance of Agreement
This is an agreement between
Toccata, Inc., doing business as SegPay, a Florida corporation, and you, the
SegPay merchant requesting access to the SegPay Affiliate System service (the Service).
By using the Service, you agree to this agreement. If you choose to not agree to
this agreement, you must not use the Service.
Changes to Agreement
Right to Change Agreement
SegPay may, in its sole
discretion, change this agreement (updated agreement) on one or more
Notice of Updated Agreement
Unless SegPay makes a change
for legal or administrative reasons, SegPay will provide reasonable notice
before the updated agreement becomes effective. You acknowledge that SegPay may
notify you of the updated agreement by posting it on the Site.
Acceptance of Updated Agreement
Your use of the Service or
the Site after the effective date of the updated agreement constitutes your
agreement to the updated agreement. You should review this agreement and any
updated agreement before using the Service or the Site.
Effective Date of Updated Agreement
The updated agreement will
be effective as of the time of posting, or any later date as may be stated in
the updated agreement, and will apply to your use of the Service and the Site
from that point forward.
Description of Service
SegPay Affiliate System is a service that SegPay
offers to its merchants to help build an affiliate network. From the SegPay
Admin Suite, you can configure your affiliate program any number of ways to
increase traffic and sales, automatically payout for referred sales, and keep affiliates
in the loop through various reports and features. The Service gives you the
flexibility to adjust payout amounts and percentages as needed to maximize the
revenue potential of your referrals, while tracking every referral initiated
from each affiliate. Payout amounts to affiliates can be based on revenue
sharing, initial sales, or recurring sales, as determined by you. The Service
also includes comprehensive reporting for both you and your affiliates. Web
traffic, sales, and revenues can be analyzed as needed to maximize your
affiliate program. In addition, several tools designed to help you sign up new
affiliates or communicate with existing affiliates are available within the
During this agreement,
SegPay hereby grants you a limited, nonexclusive, non-assignable, and
nontransferable license to (a) access and use the Application solely to manage
and operate your affiliate program, (b) store Merchant Data on or through the Application,
and (c) allow your users and affiliates to access and use the Application for
the sole purposes set forth in clauses (a) and (b). Application means the
web-based application software made available by SegPay to you.
that SegPay owns the exclusive interest throughout the world in the Application
and any parts or copies of it, and all patents, trademarks, trade names,
copyrights, and trade secrets (including all related technical know-how)
(collectively, the Proprietary Rights). The licenses granted here will not
constitute a sale of the Application or the underlying software and Proprietary
Rights in the Application. You further acknowledge that any derivative products
or works, feedback, ideas, or suggestions made by you with regard to
improvements or modifications to the Application are, and will at all times be,
the property of SegPay, with all interest in it. You hereby assign, and will
cause each User and Affiliate to assign, SegPay all interest that you or any
User or Affiliate may have in and to any derivative products or works,
feedback, ideas, or suggestions, and in and to any improvements or
modifications to the Application resulting from them. For purposes of this
agreement, (a) User means any employee or independent contractor of you that
is authorized by you to access and use the Application for and on your behalf
in accordance with this agreement, and (b) Affiliate means any
entity that is not a User that is authorized by you to access and use the
Application in accordance with this agreement. You acknowledge that you will
remain liable for all actions and omissions of your Users and Affiliates under
this agreement or under any applicable separate agreement.
All rights not
expressly granted to you under this agreement are expressly reserved to SegPay.
You will not and will not permit any User or third party (including any Affiliate)
to, directly or indirectly: (a) reverse engineer, decompile, disassemble, or
otherwise attempt to discover the source code or underlying ideas or algorithms
of the Application; (b) modify, translate, or create derivative works based on
the Application; (c) install, sublicense, rent, lease, distribute, sell,
resell, assign, or otherwise transfer the rights to access and use the
Application to any third party as a service or any other means; or (d) remove
any proprietary notices, trademarks, or labels contained on or within the
Application or any graphical representation of it.
SegPay will calculate and process commission payouts to your Affiliates two weeks in arrears. The minimum payout requirement is $150. SegPay will roll over accrued commissions totaling less than the minimum payout requirement until the payment
owed satisfies the minimum payout requirement. SegPay will remove refunds and chargebacks from the Affiliates commissions before disbursing the payout. SegPay will make payouts meeting the minimum payout requirement bimonthly, on the 5th and
20th of each month. The Affiliate is responsible for all costs associated with the payment method selected by the Affiliate. SegPay will deduct these costs from the Affiliates payout. SegPay supports the following payment methods: ACH, Paxum,
Wire Transfer, and Payoneer.
SegPay may stop supporting a payment method at any time and for any reason without notice. SegPay may change the payout schedule or minimum payout requirement at any time and for any reason without notice. SegPay may increase the holdback
percentage called for under the merchant services agreement as security against chargebacks, refund fees, or any other obligations incurred under this agreement.
You acknowledge that SegPay will pay your Affiliates before SegPay pays you. You further acknowledge that SegPay is not liable to your Affiliates for an affiliate commission.
This agreement begins on the date that you electronically
sign this agreement and continues until terminated by either party in
accordance with section
Technical Support Services
During this agreement, SegPay will provide you
technical support for issues arising in connection with your standard
day-to-day use of the Application. This support will be provided during
SegPays normal business hours and may be provided in the form of email or
telephone support at SegPays sole discretion. SegPay will not provide
technical support to Affiliates, which will be your responsibility at your own
Data Ownership, Aggregation, and Storage
Data consists of information input into the Application by you, your
Users, or any Affiliate, and your, User, and Affiliate behavior on the
Application, as captured by the Application. You will own all Merchant Data.
You are ultimately responsible for making and keeping current copies of all
Merchant Data and related information. SegPay will not disclose the Merchant
Data to any third party unless (a) directed by you; (b) disclosure is made by
SegPay in response to a court order, subpoena, or other legal process, on condition
that SegPay has given you reasonable notice of that court order, subpoena, or
other legal process; or (c) is in aggregate nonpersonally identifiable form.
You hereby grant SegPay a royalty-free, worldwide, perpetual, irrevocable, and
fully transferable license to use the Merchant Data in connection with the
creation and development of analytical and statistical analysis tools related
to collected data.
Data includes any information, tracking data, or tracking
methodologies, other than Merchant Data, generated by the Application,
regardless of whether the information, tracking data, or tracking methodology
was generated as a result of your use of the Application. All data and
information that is not Merchant Data (including SegPay Data) is owned by
SegPay, with all interest in it.
You will not and
you will cause each of your Users and Affiliates not to, directly or
indirectly, in connection with their business practices or activities, or on or
in connection with any websites controlled or operated by them, or on or in
connection with any websites in which they use the Application: (a) participate
in, undertake, encourage or display any political hate-mongering, racial,
ethnic, fraudulent, misleading, or otherwise objectionable content or false
advertising; (b) participate in, undertake, encourage, or display any hacking
or software pirating; (c) participate in, undertake, encourage, or display any
activity in violation of any applicable state, federal, or international laws,
rules, or regulations; (d) participate in, undertake, encourage, or display any
activity that violates the federal CAN-SPAM Act of 2003 or other applicable
state or international SPAM laws, as amended on one or more occasions.
If any advertising,
lead generation, or website content or materials are considered by SegPay, in
its sole discretion, to not meet the letter or spirit of the standards set out
in this agreement, SegPay may request that you make changes to bring that
content and materials into compliance. If you fail to promptly make the
necessary changes on request, and without limiting any of the other remedies
available to SegPay at law or in equity, SegPay is authorized to remove the
content or materials, suspend any applicable campaign, or terminate this
agreement immediately, without liability to you. You acknowledge that SegPay
may audit on one or more occasions the content and material you are promoting,
distributing, or displaying on or through the Application or in connection with
the use of it.
If your domain or
IP (Internet Protocol) is blacklisted for SPAM, SegPay may require that you
immediately suspend and permanently remove the applicable advertising campaign,
links, or websites (including landing pages) on notice to you. If the matter is
not promptly resolved by you, including by suspending and permanently removing
the applicable advertising campaign, links, or websites, SegPay may (without
limiting any of the other remedies available to it at law or in equity) independently
suspend your domain or IP; the campaign, links, or websites (to the extent
accessible by SegPay); your access to the Application; take any other steps it
considers necessary or appropriate under the circumstances; or terminate this
agreement (and your use of the Application) immediately, without liability to
you, in all events, in SegPays sole discretion.
that this agreement does not create any relationship between SegPay and your
Affiliates. You further acknowledge that your Affiliates are to resolve all
issues with you and not SegPay. You also acknowledge that you, and not SegPay,
are responsible for supporting your Affiliates.
agreement for three years afterwards, each party receiving Confidential Information
(the Receiving Party) of the other party (the Disclosing Party) will:
(a) treat that Confidential Information as the confidential property of the
Disclosing Party and be responsible for any breach of this agreement by itself
or any authorized person who receives Confidential Information of the
Disclosing Party on its behalf (including, in the case of you, any breach by a
User or Affiliate); (b) not use the Confidential Information except in
connection with this agreement; (c) not disclose or otherwise make available
the Confidential Information of the Disclosing Party to any third party (except
as authorized in this agreement and other than to that partys employees or
independent contractors who (i) have a need to know that Confidential Information,
(ii) have been advised of the confidential nature of that information and the
obligations that apply to them in connection with it, and (iii) are subject to
obligations of confidentiality with respect to that information as stringent as
those set forth in this agreement); and (d) maintain the confidentiality of the
Confidential Information of the Disclosing Party as it would its own most
highly confidential information, but in no event will the Receiving Party use
less than reasonable care.
Information means, with respect to a given party, that partys
formulas, methods, know how, processes, designs, new products, developmental
work, marketing requirements, business and marketing plans, customer names,
prospective customer names, any data relating to any research project, work in
process, engineering, manufacturing, marketing, servicing, financing or
personnel matter, data relating to that partys present or future products,
sales, suppliers, clients, customers, employees, investors or business partners
(including any confidential information of those suppliers, clients, customers,
employees, investors, or business partners), and all information clearly
identified in writing at the time of disclosure as confidential, and in the case
of SegPay, the Application. Confidential Information does not include
information that: (a) was or is in the public domain before the date of
disclosure; (b) was or is lawfully received by the Receiving Party from a third
party who is not subject to an obligation of confidentiality with respect to
that information; (c) was or is already known by or in the possession of the
Receiving Party; or (d) is required to be disclosed under applicable law or by
a governmental our court order, decree, regulation, or rule, on condition that
the Receiving Party gives written notice to the Disclosing Party to the extent
legally permissible before disclosure.
Party acknowledges that the Disclosing Party will incur irreparable damage if
the Receiving Party should breach any of the provisions of this section
. Accordingly, if a Receiving Party or any of its respective agents
or representatives breaches or threatens to breach any of the provisions of
, the Disclosing Party will be entitled, without prejudice, to all
the rights and remedies available to it, including any injunctive relief
restraining any potential breach of the provisions of this section
by the Receiving Party, without having to prove damages or post a
bond or other security.
SegPay operates the Service in the United States. SegPay is not making any statement that the Service or the Application is accessible or appropriate outside the United States. Access to the Service or the Application might not be legal by certain
persons or in certain countries. If you access the Service or the Application from outside the United States, you do so on your own initiative and are responsible for complying with all applicable local laws.
Application is provided as is and without any other expressed or implied
warranty. SegPay is not making any warranty, express or implied, concerning the
Application or the operation or use of it. SegPay is not making any implied
warranty to the extent permitted by law, including any implied warranty arising
by statute or otherwise in law or from a course of dealing or usage or trade.
SegPay is not making any implied warranty of merchantability, of fitness for a
particular purpose, or of noninfringement concerning the Application and
operation or use of it. SegPay is not making any warranty that the Application
will meet all your business requirements or that the operation of the
Application will be uninterrupted or error free.
To the greatest extent permitted by
applicable law, SegPay will not be liable under any theory of tort, contract,
or strict liability for any special, indirect, incidental, consequential,
punitive, or exemplary damages, including loss of profits, data, or goodwill,
regardless of whether SegPay knew or should have known of the possibility of
those damages. To the greatest extent permitted by applicable law, SegPays
total cumulative liability for damages under this agreement (regardless of the
form of action, whether in contract, tort, strict liability, or otherwise) will
not exceed $500.
You will pay SegPay for any loss of SegPays that is
caused by (a) your breach of this agreement; (b) any act or omission by you or
your Users or Affiliates; (c) your goods or services; (d) any Affiliates or
Users business practices or advertising practices; or (e) the use of the
Application by you or your Users or Affiliates. But you are not required to pay
if the loss was caused by SegPays intentional misconduct.
means an amount that SegPay is legally responsible for or pays in any form.
Amounts include, for example, a judgment, a settlement, a fine, damages,
injunctive relief, staff compensation, a decrease in property value, and
expenses for defending against a claim for a loss (including fees for legal
counsel, expert witnesses, and other advisers). A loss can be tangible or
intangible; can arise from bodily injury, property damage, or other causes; can
be based on tort, breach of contract, or any other theory of recovery; and
includes incidental, direct, and consequential damages.
A loss is caused
by an event if the loss would not have happened without the
event, even if the event is not a proximate cause of the loss.
SegPays Duty to Notify
SegPay will use reasonable efforts to notify you
before the 30th day after SegPay knows or should reasonably have known of a
claim for a loss that you might be compelled to pay. But SegPays failure to
give you timely notice does not end your obligation, except if that failure
prejudices your ability to mitigate losses.
Legal Defense of a Claim
SegPay has control over defending a claim for a loss (including
settling it), unless (a) you elect to control the defense, or (b) SegPay directs
you to control the defense. On receiving notice of a claim for a loss, you may
take control of the defense by notifying SegPay. If you take control, each of
the following applies: (a) you may choose and retail legal counsel; (b) SegPay
may retain its own legal counsel at its expense; and (c) you must not settle
any litigation without SegPays written consent if the settlement imposes a
penalty or limitation on SegPay, admits SegPays fault, or does not fully release
SegPay from liability. You and SegPay must cooperate with each other in good
faith on a claim.
SegPays rights under this section
do not affect other rights that SegPay might have.
Compliance with Applicable Laws
You will comply
with all applicable federal, state, county, and local laws, ordinances,
regulations, and codes and will procure all required permits, approvals,
inspections, and certificates to operate your business in compliance with all
During this agreement, you hereby grant SegPay a nonexclusive, nontransferable license to use, reproduce, publicly and digitally display and broadcast your name, trademarks, trade names, service marks, logos, URLs (the Merchant Trademarks) to advertise and promote SegPay, its business, and its Application. SegPay acknowledges that nothing in this agreement will give any interest in the Merchant Trademarks other
than the right to use the Merchant Trademarks in the manner contemplated by this agreement. Nothing in this agreement gives you the right or license to use the SegPay logo or any other SegPay trademarks, trade names, service marks, or logos
without SegPays advance written approval.
Either party may terminate this agreement at any time and for any reason by notifying the other party in writing. You may also terminate this agreement by discontinuing your use of the Service and the Application. SegPay may top offering or
supporting the Service at any time.
On notice from SegPay that a User or Affiliate of yours is in violation or breach of this agreement, you will promptly terminate that Users or Affiliates use of the Application. If any User, Affiliate, or you, uses the Application in any way
that violates any applicable law, ordinance, rule, regulation, or treaty, jeopardizes SegPays network connection, or jeopardizes SegPays business in any way, in each case as determined by SegPay in its sole discretion, SegPay may suspend or
terminate your use of the Application.
On termination of this agreement, you will: (a) discontinue, and will ensure that each User and Affiliate discontinues, all use of the Application; and (b) except as prohibited by applicable law or legal process, return to SegPay or destroy
its Confidential Information and all copies of it. SegPay will: (a) except as prohibited by applicable law or legal process, return to you or destroy your Confidential Information and all copies of it; and (b) return to you all content in
SegPays possession and all copies of it.
Either party may elect to litigate the following type
of case or controversy: (a) an action seeking injunctive relief, (b) an action
seeking to enforce or protect intellectual-property rights, or (c) a suite to
compel compliance with this dispute resolution procedure.
Each party will allow the other a reasonable
opportunity to comply before it claims that the other has not met the duties
under this agreement. The parties will first meet and negotiate with each other
in good faith to try to resolve all disputes between the parties arising out of
or relating to the Service, the Application, or this agreement.
If the parties cannot settle a dispute arising out of
or relating to the Service, the Application, or this agreement through
negotiation after negotiating for at least 30 days, either party may, by notice
to the other party and the American Arbitration Association, demand mediation
under the Commercial Mediation Rules of the American Arbitration Association. Mediation
will take place in Broward
County, Florida. The language of the
mediation will be English. Each party will bear its own costs in mediation, and
the parties will share equally between them all third-party mediation costs
unless the parties agree differently in writing. Each party will participate
actively and constructively in mediation proceedings once started and will
attend at least one joint meeting between the mediator and the parties. Any
party may terminate mediation at any time after an initial meeting between the
mediator and the parties.
If the parties cannot settle a dispute through
mediation, the parties will settle any unresolved dispute arising out of or
relating to the Service, the Application, or this agreement by binding
arbitration administered by the American Arbitration Association in accordance
with its Commercial Arbitration Rules. A single arbitrator will preside over
the arbitration. The arbitrator, and not any federal, state, or local court or
agency, will have exclusive authority to resolve all disputes arising out of or
relating to the interpretation, enforceability, or formation of this agreement,
including any claim that all or any part of this agreement is void or voidable.
Unless the parties agree otherwise, the arbitration
will take place in Broward County, Florida.
Each party will be
responsible for paying any filing, administrative, and arbitrator fees
associated with the arbitration.
The award rendered by the arbitrator must include
costs of arbitration, reasonable legal fees, and reasonable costs for expert
and other witnesses, and any judgement on the award rendered by the arbitrator
may be entered in any court of competent jurisdiction.
Unless required by law, neither a party nor an
arbitrator will disclose the existence, content, or results of any arbitration
under these terms without the advance written consent of both parties.
The parties acknowledge that
breach by either party of the obligations under this agreement could cause irreparable
harm for which damages would be an inadequate remedy. If any breach occurs or
is threatened, the injury party may promptly seek enforcement of this agreement
by means of specific performance, injunction, restraining order, or any other
equitable remedy, in each case without posting a bond or other security and
without proof of actual money damages in connection with the claim.
Each party hereby
waives any claim that any proceeding brought in accordance with section
has been brought in an inconvenient forum or that the venue of
that proceeding is improper.
Jury Trial Waiver
Each party hereby waives its right to a trial by jury
in any proceedings arising out of, or relating to the subject matter of, this
agreement. Either party may enforce this waiver up to and including the first
day of trial.
All claims must be brought in the individual capacity,
and not as a plaintiff or class member in any purported class or representative
proceeding, and, unless SegPay agrees otherwise, the arbitrator must not
consolidate more than one persons claims.
A party will
not bring a claim arising out of or relating to the Service, the Application, or
this agreement more than one year after the cause of action arose. Any claim
brought after one year is barred.
This agreement and the applicable merchant services
agreement constitutes the entire agreement between you and SegPay about the Service
and the Application. It supersedes all earlier or contemporaneous agreements
between you and SegPay about the Service and the Application. A printed version
of this agreement will be admissible in any proceedings arising out of (or
relating to) this agreement to the same extent and subject to the same
conditions as other business documents and records originally generated and
kept in printed form.
SegPay may assign its rights or delegate any
performance under this agreement without your consent. You will not assign your
rights or delegate your performance under this agreement without SegPays
advance written consent. Any attempted assignment of rights or delegation of
performance in breach of this section
The parties may waive any
provision in this agreement only by a writing signed by the party or parties
against whom the waiver is sought to be enforced. No failure or delay in
exercising any right or remedy, or in requiring the satisfaction of any
condition, under this agreement, and no act, omission, or course of dealing
between the parties, operates as a waiver or estoppel of any right, remedy, or
condition. A waiver made in writing on one occasion is effective only in that
instance and only for the purpose stated. A waiver once given is not to be
construed as a waiver on any future occasion or against any other person.
parties intend as follows:
that if any provision of this
agreement is held to be unenforceable, then that provision will be modified to
the minimum extent necessary to make it enforceable, unless that modification
is not permitted by law, in which case that provision will be disregarded;
that if modifying or disregarding
the unenforceable provision would result in failure of an essential purpose of
this agreement, the entire agreement will be held unenforceable;
that if an unenforceable provision
is modified or disregarded in accordance with this section
, then the rest of the agreement
will remain in effect as written; and
unenforceable provision will remain as written in any circumstances other than
those in which the provision is held to be unenforceable.
For a notice or other communication under this
agreement to be valid, it must be in writing and delivered by email. A valid
notice or other communication under this agreement will be effective when
received by the party to which it is addressed. It will be deemed to have been
received as follows: (a) when the party to which the email is addressed
acknowledges having received that email; and (b) if the party to which it is
addressed rejects or otherwise refuses to accept it, or if it cannot be
delivered because of a change in email address for which no notice was given,
then on that rejection, refusal, or inability to deliver. For a notice or other
communication to a party under this agreement to be valid, it must be addressed
to [email protected] if notifying SegPay
or the email address listed in your merchant account if notifying you.
The laws of the state of Floridawithout
giving effect to its conflicts of law principlesgovern all matters arising out
of or relating to this agreement, including the validity, interpretation,
construction, performance, and enforcement of this agreement. The predominant
purpose of this agreement is providing services and licensing access to
intellectual property and not a sale of goods.
SegPay is not responsible for any failure to perform
if unforeseen circumstances or causes beyond SegPays reasonable control delays
or continues to delay SegPays performance, including:
Acts of God,
including fire, flood, earthquakes, hurricanes, tropical storms, or other
War, riot, arson,
embargoes, acts of civil or military authority, or terrorism;
shortages in transportation, facilities, fuel, energy, labor, or materials;
Failure of the
telecommunications or information services infrastructure; and
Hacking, SPAM, DDOS
attacks, or any failure of a computer, server, network, or software.
No Third-Party Beneficiaries
This agreement is between SegPay and you, and it does
not, and the parties do not intend it to, confer any rights or remedies for the
benefit of any third party, whether directly or indirectly (including, if
applicable, any User or Affiliate accessing the Application by means of an
account established by you).
Relationship of the Parties
agreement does not, and the parties do not intend it to, create a partnership,
joint venture, agency, franchise, or employment relationship between the
parties and the parties expressly disclaim the existence of any of these
relationships between them. Neither of the parties is the agent for the other,
and neither party has the right to bind the other on any agreement with a third
This agreement inures to the benefit of, and is
binding on, the parties and their respective successors and assigns. This
does not address, directly or indirectly, whether a party may
assign rights or delegate obligations under this agreement. Section
addresses these matters.
Any affirmation, assent, or agreement you send through
the Service or the Application will bind you. You acknowledge that when you
click on an I agree, I consent, or other similarly worded button or entry
field with your mouse, keystroke, or other computer device, your agreement or
consent will be legally binding and enforceable and the legal equivalent of
your handwritten signature.
You acknowledge that in signing
this agreement, you do not rely and have not relied on any statement by SegPay
or its agents, except those statements contained in this agreement.
SegPay encourages you to
give feedback about SegPay, the Service, or the Application. But SegPay will
not treat as confidential any suggestion or idea you give, and nothing in this
agreement will restrict SegPays right to use, profit from, disclose, publish,
or otherwise exploit any feedback, without payment to you.
In this agreement, the following usages apply:
under this agreement may be taken at any time and on one or more occasions in
the actors sole discretion.
References to a
statute will refer to the statute and any successor statute, and to all
regulations promulgated under or implementing the statute or successor, as in
effect at the relevant time.
numbered sections in this agreement also refer to all included sections. For
example, references to section 6 also refer to 6.1, 6.1(a), etc.
References to a
governmental or quasi-governmental agency, authority, or instrumentality will
also refer to a regulatory body that succeeds to the functions of the agency,
authority, or instrumentality.
A or B means A
or B or both. A, B, or C means one or more of A, B, and C. The same
construction applies to longer strings.
including, but not limited to.