Dated: November 6, 2023
Last Updated: November 7, 2023
IMPORTANT – PLEASE READ CAREFULLY
Welcome to the BlueOrange Payments, Inc. dba Optimus reseller portal account (the “Reseller Account”). The Reseller Account is a password-protected web-based tool that will enable you to access your commission calculations, to send merchant boarding links, and to provide Optimus with your banking instructions. You will be able to upload certain documentation and manage your account profile with Optimus.
1. Modifications and Updates
2. Term and Termination
Your access to the Reseller Account will start on the date of the creation of your portal account and will end ten (10) business days after you have asked a Optimus team member to close your Reseller Account. You agree that Optimus will have the right to change, suspend, or discontinue some or all aspects of the Reseller Account or terminate this Agreement for any reason at our sole discretion and at any time without further liability to you by providing you with seven (7) days advance notice. Optimus reserves the right to terminate your access to the Reseller Account immediately if you are in breach of the Acceptable Use of the Reseller Account and User Restrictions contained herein or if we have a reasonable need to do so, such as to prevent unauthorized access to your account.
3. Access and Use
You are responsible for maintaining the confidentiality of passwords used to access the Reseller Account in accordance with industry standard best practices, and you will only share your password or login information with your authorized employees. Accordingly, you agree that you are solely responsible to Optimus for all activities that occur under your Reseller Account. If you become aware of any unauthorized use of your password or of your Reseller Account, you will change your password and notify Optimus immediately at firstname.lastname@example.org.
3.2. Acceptable Use of the Reseller Account and User Restrictions
You agree that:
3.3. Suspension of Your Access to the Reseller Account
Optimus may suspend a user’s account or remove or disable any content which Optimus reasonably and in good faith believes is in violation of this Agreement or any applicable laws or regulations. Optimus agrees to provide you with reasonable notice of any such suspension or disablement before its implementation unless immediate suspension or disablement is necessary to comply with legal process, regulation, order, or prevent imminent harm to the Reseller Account or any third party, in which case Optimus will notify you to the extent allowed by applicable law of such suspension or disablement, as soon as reasonably practicable thereafter.
4. Third Party Software Providers and Data Residency
As part of providing you access to the Reseller Account, Optimus may enter into software license agreements with several third-party software providers (the Third-Party Software Providers) for the use of third-party software. The Reseller Account is hosted on Amazon’s AWS cloud-computing platform (the Platform) and may utilize applications and software tools that integrate with the Platform (each an App or collectively the Apps) (collectively, the Platform and Apps will be collectively referred to as Third-party Software). A list of Third-Party Software Providers and Third-Party Software can be requested at email@example.com.
By using the Reseller Account, you acknowledge that the Reseller Account is integrated with or may otherwise interact with the Third-party Software and agree to the use of the Third-party Software by Optimus. You acknowledge and agree that data being uploaded/downloaded via the Reseller Account will traverse Third-Party Software and may therefore be accessed by Third-Party Software Providers. It may also transit through servers located outside of Canada, including the United States and, in such cases, the affected Third-Party Software Providers could be required to disclose data, including personal information, in its custody to such foreign government, government agencies, courts, or law enforcement or regulatory agencies pursuant to the laws of the country in which the data has transited. Optimus will impose confidentiality obligations upon the Third-Party Software Providers that are as strict as we are able to negotiate, but we do not have control over their conduct and Optimus will not be liable for any loss or damage arising from your or Optimus’s use of the Third-party Software or the Reseller Account, including any losses relating to a Third-party Software Provider’s collection, use, disclosure, or loss of your data.
6. Content Security
During the Term of this Agreement, Optimus will implement and maintain commercially reasonable administrative, physical, and technical safeguards and measures to protect against unauthorized access to your data on the Reseller Account.
We reserve the right to log, review, and otherwise examine any information stored on or passing through the Reseller Account, including on our networks, servers, or systems and on our partners’ networks, servers or systems.
8. Downtime and Service Suspensions
Your access to the Reseller Account may be suspended for the duration of any anticipated, unanticipated, scheduled or unscheduled downtime, maintenance, system updates, malfunction, or other unavailability of any portion or all of the Reseller Account and services for any reason, including as a result of power outages, system failure or other interruptions.
9. License to Use the Reseller Account
Optimus grants you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Reseller Account as part of the services being provided to you by Optimus. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Reseller Account and services. You may not copy, modify, or extract the source code of the Reseller Account. Unless Optimus has given you written permission to do so, you may not assign your rights to use the Reseller Account. Notwithstanding the foregoing, you are granted limited administrative rights to provide access to the Reseller Account in your reasonable discretion to those authorized parties who would reasonably need to access information located on the Reseller Account. You remain solely responsible for the use of the Reseller Account by anyone to whom you have granted rights to use the Reseller Account.
10. Intellectual Property
The content on the Reseller Account including, without limitation, the text, software, scripts, graphics, photos, sounds, videos, interactive features and the like (Optimus Content) and trademarks, service marks, and logos contained therein (Marks), are owned by or licensed to Optimus, subject to copyright and other intellectual property rights under Canadian and foreign laws and international conventions. Content on the Reseller Account is provided to you as an as-is basis for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners of the Optimus Content. Optimus reserves all rights not expressly permitted herein. You agree not to circumvent or otherwise interfere with security-related features of the Reseller Account.
11. Warranty Disclaimers and Limitation of Liability
Except as specifically set forth in this Agreement, neither Optimus nor its partners, agents, affiliates nor each of their respective officers, directors, employees, agents, contractors, subcontractors, or the like (collectively the Optimus Associates) make no other representations or warranties, express or implied, including without limitation, any warranty of merchantability or fitness for a particular purpose, with respect to the Reseller Account. You agree that use of the Reseller Account is at your sole risk. THE RESELLER PORTAL IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. UNDER NO CIRCUMSTANCES WILL OPTIMUS OR THE OPTIMUS ASSOCIATES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE RESELLER PORTAL SITE OR ANY WEBSITE LINKED TO THE RESELLER PORTAL, INCLUDING BUT NOT LIMITED TO, RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE RESELLER PORTAL SITE THAT RESULTS IN MISTAKES, OMISSIONS, DELETION OR CORRUPTION OF FILES, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, ANY FAILURE OF PERFORMANCE, ANY LOSS OF PROFIT, LOSS OF GOODWILL OR DATA, OR OTHER INTANGIBLE LOSS SUFFERED. The Reseller Account utilizes industry accepted security systems in an attempt to eliminate unauthorized access to private information. By using the Reseller Account, you agree to not hold Optimus and the Optimus Associates liable in the event of unauthorized access and subsequent use of your company and/or personal information. The foregoing Limitation of Liability will apply in any action, whether in contract, tort, or any other claim, even if an authorized representative of Optimus has been advised of or should have knowledge of the possibility of such damages.
You agree to defend, indemnify, and hold Optimus and the Optimus Associates harmless from any claims, damages, losses, liabilities, costs, and expenses (including but not limited to reasonable attorney’s fees) arising from: (i) your use of or access to the Reseller Account; (ii) your violation of any term of this Agreement; or (iii) your violation of any third-party right, including without limitation any privacy, copyright, or other intellectual property right. This defense and indemnification obligation will survive this Agreement and your use of the Reseller Account.
All notices will be made pursuant to the Reseller Agreement between you and BlueOrange Payments, Inc. dba Optimus.
14.1. Entire Agreement
If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions will be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement will remain in full force and effect.
The failure by us to enforce any provision of the Agreement will in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
14.4. Successors and Assigns
This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Optimus without restriction.
Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership, or any employer/employee or fiduciary relationship between you and Optimus.
14.7. Applicable Law and Jurisdiction
This Agreement will be construed and enforced according to the laws of the province of Ontario. You agree that all claims you may have arising from or relating to the operation or use of the Reseller Account will be heard and resolved in the courts of Toronto, Ontario. Notwithstanding this, you agree that Optimus will still be entitled to apply for any necessary injunctive remedies in any jurisdiction.