Ask Emma Merchant Agreement

Last update: 20 May 2018

 

This Merchant Agreement (“Agreement”) is a legal agreement between you (“you,” “your”) and Infinity Mobile NV, and in conjunction with the Ask Emma Terms of Use and the Privacy Policy, governs your use of the Ask Emma application and website, documentation, and other related products and services (together, the “Services”). Please read this Agreement, the Ask Emma Terms of Use and the Privacy Policy, carefully. To use the Services, you must accept all of the terms of this Agreement, Ask Emma Terms of Use and the Privacy Policy.

By accepting these terms, you acknowledge that they constitute a legally binding contract between you and us (and, if relevant, any organisation on whose behalf you are acting). If you are acting on behalf of any organisation, you confirm that you have the requisite authority, power and right to fully bind that organisation. If you (or, if relevant, your organisation) do not agree to all of these terms (or if you do not have the right to bind your organisation), you are not permitted to access or use the Services, and you should not click to accept these terms, and you should not proceed further.

Definitions

“Buyer” means any person that enters into a cash or mobile payment transaction with a Merchant.

“Dispute” means any claim, controversy, or dispute (whether involving contract, tort, equitable, statutory, or any other legal theory) between you and Infinity Mobile including but not limited to any claims relating in any way to this Agreement (including its breach, termination, or interpretation), any other aspect of our relationship, and any use of Infinity Mobile’s software or services. “Dispute” also includes any claims that arose before this Agreement and that may arise after termination of this Agreement.

“Merchant” means any person/company that signs up for an Ask Emma Account to receive product orders.

“Ask Emma” means Ask Emma and its suppliers and licensors (and its and their respective affiliates, agents, directors and employees).

  1. Ask Emma Account Registration

You must open an account with Ask Emma (an “Ask Emma Account”) to use the Services. Our registration process will ask you for information including your name and other personal information. You must provide accurate and complete information in response to our questions. You must complete this and other processes to access the Services. You must also keep the information that you provide up-to-date. We reserve the right to suspend or terminate the Ask Emma Account of anyone who provides inaccurate, untrue, or incomplete information, uses the Ask Emma Account fraudulently or who fails to comply with the account registration requirements.

  1. Name

You must use your and your business’s (if any) true and accurate name when signing up for an Ask Emma Account.

  1. Verification and Inspection

If your request to open an Ask Emma Account is approved, Infinity Mobile may request additional information from you at any time.

  1. Your Ask Emma Account

You must use the Services in compliance with all applicable laws. By creating a Ask Emma Account, you also confirm that you will not accept payments in connection with any illegal activity or goods.

  1. Our Role

Facilitate the order of products (food, drinks) in a take-away (click-and-collect), eat-in, delivery or room service scenario. We facilitate payments for orders that customers create, however we do not do the handling of the payment. The collection and acquiring of money is solely done by an accredited Payment Service Provider. We work with different Payment Service Providers, like Worldline e-payments, Adyen and Mollie. We assist you in collecting, analysing and relaying information generated in connection with these orders.

As a Merchant you acknowledge that Payment Service Providers (PSP) can do chargebacks and refunds in case of credit cards and (less likely) debit cards. Chargebacks and refunds happen when Buyers are not happy with the products they bought from you. In case of refund, either you will get a charge from the PSP, either you will get a charge from us (in case you signed a contract via us as Merchant-of-Record). Most PSPs also charge a fine for the extra work a chargeback causes.

  1. Unauthorised or Illegal Use

If we reasonably suspect that your Ask Emma Account has been used for an unauthorised, illegal, or criminal purpose, you give us express authorisation to share information about you, your Ask Emma Account, and any of your transactions with law enforcement.

  1. Sale of alcohol

Alcohol will only be supplied to those aged 18+.

  1. Ask Emma Account History

Summaries of your Ask Emma Account activity, including monthly statements, are available on our website for up to one year of account activity. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your Ask Emma Account and your use of the Services, and (b) reconciling all transactional information that is associated with your Ask Emma Account. If you believe that there is an error or unauthorized transaction activity is associated with your Ask Emma Account, you agree to contact us immediately.

  1. Receipts

You should provide your Buyers a written receipt upon request during the take-away pickup, or the eat-in or room-service. Ask Emma will only register an order, and facilitate the payment of this order, however Ask Emma is not a cash register and will not provide written (printed) receipts. We do send digital receipts via chat, however you acknowledge these have no legal power. You acknowledge that it is your responsibility to provide Buyers with receipts, proof of purchase or tax invoices, in each case as required by applicable law, and we accept no responsibility or liability for the form, content, accuracy or provision of such receipts, proof of purchase or tax invoices.

  1. Taxes

You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with your use of our software and services (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Infinity Mobile specifically disclaims any liability for Taxes.

  1. Customer Service

You are solely responsible for all customer service policies and issues relating to your goods or services, including pricing, order fulfillment, cancellations or no shows by you or a Buyer, returns, refunds and adjustments, rebates, functionality and warranty, and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us. As between you and us, we are solely responsible for customer service issues relating to your Ask Emma account only.

  1. Your Privacy

Your privacy is very important to us. Upon acceptance of this Agreement, you confirm that you have read, understood and accepted the Ask Emma Privacy Policy. In relation to the EU GDPR regulation, we have created a separate Data Processing Addendum. The use of our Services means accepting this DPA.

  1. Privacy of Others

By using the Services, you may receive information about Buyers or other third parties. You must keep such information confidential and only use it in connection with the Services. You may not disclose or distribute any such information to a third party or use the information for marketing purposes unless you receive the express consent of the Buyer or other third party. You are solely responsible for compliance with any privacy laws applicable to your use of the Services.

  1. Your Content

In connection with your Ask Emma Account, any business listing, and your use of the Services, you may be able to upload or provide photos, logos, products, promotions, and other materials or information (“Seller Content”). You agree that you will not upload or provide any Seller Content unless you have created that content yourself or you have permission from the content owner to do so.

You grant us and our subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display your Seller Content throughout the world in any media in order to provide and promote the Services and Ask Emma’s business, with or without attribution or reference to you. You retain all rights in your Seller Content, subject to the rights granted to Ask Emma in this Agreement. You may modify or remove your Seller Content via your Ask Emma Account or by terminating your Ask Emma Account.

You agree not to upload or provide Seller Content or otherwise post, transmit, distribute, or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy or trademark; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Ask Emma‘s or its partners’ products and services, as determined by Infinity Mobile in its sole discretion; or (f) in Infinity Mobile’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose Infinity Mobile, its affiliates, its customers, or Buyers to harm or liability of any nature.

Although Infinity Mobile has no obligation to screen, edit, or monitor any Seller Content, Infinity Mobile reserves the right, and has absolute discretion, to remove, screen, edit, or disable any Seller Content at any time and for any reason without notice. You understand that by using the Services, you may be exposed to Seller Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any Seller Content, including any loss or damage to any of your Seller Content.

  1. Copyright and Trademark Infringement

Infinity Mobile respects the copyright and trademark rights of others and asks you to do the same.

  1. Security

We have implemented technical and organisational measures designed to secure your personal information from accidental loss and from unauthorised access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

  1. Termination

If your Ask Emma Account is terminated or suspended for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Services, (c) that the licence provided under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (e) that Infinity Mobile shall not be liable to you or any third party for termination or suspension of access to the Services or for deletion of your information or account data.

  1. Your Right to Terminate

You may terminate this Agreement and other Infinity Mobile’s agreements by closing your Ask Emma Account at any time.

  1. Suspension or Termination by Us

We may terminate this Agreement or suspend or close your Ask Emma Account for any reason or no reason at any time upon notice to you. We may also immediately (and without notice) suspend or terminate the Services and access to your Ask Emma Account if you (a) have violated the terms of this Agreement, any other agreement you have with Infinity Mobile, or Infinity Mobile‘s policies, (b) pose an unacceptable credit or fraud risk to us, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.

  1. Effect of Termination

We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or in connection with any termination or suspension of the Services.

  1. Your Licence

Infinity Mobile grants you a personal, limited, non-exclusive, revocable, non-transferable licence, without the right to sublicence, to electronically access and use the Services solely to manage your products, payment means, point of sale data, provide email receipts to your customers and utilize such other Services as Infinity Mobile may make available through the Register application from time to time, in accordance with this Agreement. The Services include our website and any mobile applications, software, programs, documentation, tools, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by Infinity Mobile.

While we want you to enjoy the Services, you may not, nor may you permit any third party to do any of the following: (i) access or monitor any material or information on any Infinity Mobile system using any manual process or robot, spider, scraper, or other automated means unless you have separately executed a written agreement with Infinity Mobile referencing this Section 20(i) that expressly grants you an exception to this prohibition; (ii) copy, store, reverse engineer, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way software, material or information from Infinity Mobile; (iii) permit any third party to use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) violate the restrictions in any robot exclusion headers on the Services or any Infinity Mobile service or product, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) use the Services other than as expressly allowed under this section.

All rights granted to you under this Agreement shall terminate immediately in the event that you are in breach of any term or condition hereof.

  1. Ownership

The Services are licenced and not sold or assigned. Infinity Mobile reserves all rights not expressly granted to you in this Agreement. The Services are protected by copyright, trademark, trade secret and other intellectual property laws. Infinity Mobile owns the title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Services and all copies of the Services. This Agreement does not grant you any rights to Infinity Mobile’s trademarks or service marks.

For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

  1. Indemnity

You will indemnify, defend, and hold us (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies; (b) your unauthorized, wrongful or improper use of the Services; (c) any transaction submitted by you through the Services (including without limitation the accuracy of any Seller Content or product, service, or transaction information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (e) any other party’s access and/or use of the Services using your unique name, log-in, password or other appropriate security code.

  1. Representation and Warranties

You represent and warrant to us that: (a) you have attained the legal age of majority in your jurisdiction; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) if you are registering and using the Services on behalf of an organisation, you have the authority, power and right to act on the organisation’s behalf under this Agreement; (d) the name identified by you when you registered is your name or business name under which you sell goods and services; (e) you and all transactions initiated by you will comply with all national, federal, state, and local laws, rules, and regulations applicable to you and/or your business and employees, including any applicable tax, employment, wage and hour, and tip laws and regulations, in your jurisdiction; (f) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (g) your use of the Services will be in compliance with this Agreement.

  1. No Warranties

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM INFINITY MOBILE OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, INFINITY MOBILE, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.

INFINITY MOBILE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND INFINITY MOBILE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

25a. Limitations of Liability and Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INFINITY MOBILE, ITS SUPPLIERS, OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL INFINITY MOBILE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORISED ACCESS OR USE OF THE SERVICE OR YOUR ASK EMMA ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INFINITY MOBILE, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICE; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORISED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) SELLER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.

IN NO EVENT SHALL INFINITY MOBILE, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, BREACH OF STATUTORY DUTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF INFINITY MOBILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

The Services are controlled and operated from facilities in Belgium. Infinity Mobile makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable Belgian and local laws and regulations, including but not limited to export and import regulations.

25b. Third Party Products

Subject to the additional third party terms from third party platform providers, all third party hardware and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. INFINITY MOBILE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL INFINITY MOBILE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.

  1. Disputes

If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact Ask Emma Support with any dispute. If we cannot resolve your concerns, we agree to an informal and inexpensive dispute resolution process requiring individual arbitration.

  1. Governing Law

This Agreement and any Dispute will be governed by Court of Ghent, Belgium.

  1. Right to Amend

We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our website at askemma.eu, Twitter or any other website maintained or owned by us for the purposes of providing services in terms of this Agreement. Any use of the Services after our publication of any such changes shall constitute your acceptance of this Agreement as modified. However, any Dispute that arose before the modification shall be governed by the Agreement that was in place when the Dispute arose.

  1. Assignment

This Agreement, and any rights and licences granted hereunder, may not be transferred or assigned by you, but may be assigned by Infinity Mobile without restriction.

  1. Other Provisions

Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and Infinity Mobile, and they describe the entire liability of Infinity Mobile and its vendors and suppliers (including processors) and your exclusive remedy with respect to your access and use of the Services. In the event of a conflict between this Agreement and any other Infinity Mobile agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.