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Terms of Service
Effective from 25 November 2018 (Last updated 20th January 2023)
- Agreement to Terms
By using BinderPOS, you are agreeing to abide by the following terms. These Terms specify the agreement between You and BinderPOS Limited (“BinderPOS”) regarding the Services. They set out our obligations as a service provider and Your obligations as a customer. Please read them carefully:
- If You are using the Services on behalf of another person (e.g. a business or other entity), You represent to us that You have authority to agree to these Terms on that person’s behalf and that by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
- Capitalized words and phrases used in these Terms are defined in the clause titled “Defined Terms.” The Services are provided for the length of term chosen by You when you select your plan, subject to Your right to cancel Your account or terminate the Services in accordance with clause 7 and Our right to suspend the Services or terminate this Agreement in accordance with clause 8 1.6. While BinderPOS prohibits unauthorized conduct and content on the Services as indicated below, you may be exposed to such materials and you agree to use the Services at your own risk.
- Access to Services
- BinderPOS grants You the right to access and use the Services You have purchased via the Website and according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.
- Changes to the Services
- BinderPOS may modify the Services, the BinderPOS Software Materials and Technology and/or the manner in which the Services are delivered at any time. We will notify You if we make a significant change to the Services.
- Restrictions on Use
- You must only use the Services and Website for lawful purposes, and in accordance with this Agreement and any notice sent by BinderPOS.
- You must not operate or use the Services if You are under the age of 16.
- As a condition of access, when accessing and using the Services, You must:
- not collect or attempt to collect any information or communication about any other users of the Services including, but not limited to, monitoring or intercepting any process or communication initiated by the Services;
- not attempt to undermine the security or integrity of BinderPOS computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
- not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
- not transmit, or input into the Services or the Website, any files that may damage any other person's computing devices or software (including introducing any malicious software or code);
- not input into the Services or the Website any content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which You do not have the right to use);
- not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website;
- not grant or assign rights in the Services or the Website in any way. Your subscription and Our Service Fees are “per user.” The maximum number of users You are allowed to have access the Services is specified in your subscription plan. Only one person may be associated with a user account. You may swap out, delete or suspend a user, and then assign a new user to Your account, but you must not exceed the number of users registered and paid for in any way.
- Fees and Payment
- The Website sets out the Service Fees. You must pay the Services Fees in advance as specified in the applicable order form.
- You may pay by credit card or PayPal. Late payments of one month or more may result in Your account suspension and subsequent cancellation.
- No refunds will be made for partial months of service or unused subscriptions.
- All fees charged are exclusive of local sales taxes which are Your responsibility to pay.
- We may change the Services Fees at any time. Any changes will commence at the beginning of any further or renewal terms after your current subscription term.
- Your Account Information
- You agree to provide us with accurate and complete registration and account information, and to maintain and promptly update that information in the event of any changes to ensure it is current at all times.
- You agree to keep Your login details confidential and secure and will not share them with others.
- You are solely responsible for all activity in connection with access to the Services and/or Website through your account or using your login.
- If You know or suspect that Your login information has or is likely to become used in an unauthorized way You must immediately change Your password. If You are unable to change Your password, You must immediately notify BinderPOS. We may request that you change your password(s) in connection with the Services at any time, and you will promptly comply with any such request and all reasonable directions We issue in relation to the Services.
- You can cancel Your account and/or terminate the Services at any time by sending an email to [email protected].
- If You cancel Your account or terminate the Services before the end of Your subscription term, BinderPOS will not provide any refund for any remaining prepaid period for that term.
- Suspension and Termination
- You breach any of these Terms and the breach is not capable of being remedied;
- You breach any of these Terms where the breach is capable of being remedied but You do not remedy the breach within 14 days after receiving notice of the breach;
- You or Your business become insolvent, go into liquidation, have a receiver or manager appointed, make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction;
- BinderPOS has not received payment for services within 30 days after the due date, and You have failed to remedy the non-payment within 14 days of receiving notice of the non-payment;
- as determined by BinderPOS, Your use of the Services may result in material harm to BinderPOS services or any of its users;
- BinderPOS decides, at its sole discretion, to terminate this Agreement and/or Your use of the Services and the Website;
- then BinderPOS may, at its sole discretion:
- terminate this Agreement and/or Your use of the Services and the Website; or
- suspend for any definite or indefinite period of time, Your access to and use of the Services and the Website.
- Where We take any action under this clause 8, We will promptly notify you.
- Consequences of Termination
- Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
- remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- immediately cease to use the Services and the Website.
- Clauses 5, 9.2, 11, 17, 18, 19, 20, 21, and 23 survive the expiry or termination of these Terms.
- Service Availability and Support
- BinderPOS aims to provide a Service availability of 99.99%. In the event of an outage or server access issue, BinderPOS will act to restore customer server access.
- BinderPOS aims to provide updates to card pricing twice a day. In the event of an update not occurring, BinderPOS will act to provide the update.
- While BinderPOS makes all commercially reasonable efforts to prevent any disruption to Services during any update or upgrade, there may be times where the Services are inaccessible for a period of time.
- BinderPOS is committed to providing excellent customer service, we aim to answer most support issues within one working day but BinderPOS makes no guarantee on the period of time before support is provided.
- In the event that urgent support is required, we will take all practical steps to assist. Email support is available 24/7.
- Links to Third Party Websites or Services.
- We may provide links to third party websites or services for You to access. You acknowledge that any access is at Your sole discretion and for Your information only. We do not review or endorse any of those websites or services. We are not responsible in any way for: (a) the availability of, (b) the privacy practices of, (c) the content, advertising, products, goods or other materials or resources on or available from, (d) the compliance with legal requirements, or (e) the use to which others make of these other websites and services. We are also not responsible for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on such websites or services.
We are not responsible for ensuring that third-party content, software/tools, widgets, Add-ins, APIs, etc., which are not owned by us but are otherwise located on or linked to our website or other websites, conform to WCAG 2.0 Level AA, and we shall not be liable if they are not compliant with WCAG 2.0 Level AA or otherwise compliant with the Americans with Disabilities Act of 1990 or related rules, regulations, or legislation.
- This Website may provide certain features that enable You to:
- Link from Your own or certain third party websites to certain content on this Website.
- Send e-mails or other communications with certain content, or links to certain content, on this Site.
- Cause limited portions of content on this Website to be displayed or appear to be displayed on Your own or certain third party websites.
You may use these features solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions We provide with respect to such features. Subject to the foregoing, You must not:
- Establish a link from any website that is not owned by You.
- Cause the Website or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.
- Link to any part of the Website other than the homepage.
- Otherwise, take any action with respect to the materials on this Website that is inconsistent with any other provision of these Terms.
- The website from which You are linking, or on which you make certain content accessible, must comply in all respects with these Terms. You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice. We may disable all or any social media features and any links at any time without notice in our discretion.
- Intellectual Property
- You acknowledge and agree that BinderPOS or its licensor is and remains the owner of, and retains all Intellectual Property Rights in the BinderPOS Materials and Technology, the Services, the Website and any derivative works of them. Except for the right to access the Services and the Website provided for in this Agreement, You do not obtain any rights in the BinderPOS Materials and Technology or the Services.
- Each party consents to the other party’s use of its brand for the purpose of promoting the use of the BinderPOS services by other potential customers. There is no charge associated with such use and use must be in accordance with any brand use guidelines notified by the owning party from time to time.
- As between You and BinderPOS:
- BinderPOS owns the rights, title, interest and Intellectual Property Rights in the BinderPOS Data. BinderPOS grants You the right, for the term of this Agreement, to access and use any BinderPOS Data that We supply to You in relation to the Services; and
- You own the rights, title, and interest and Intellectual Property Rights in the Customer Data. You grant BinderPOS the right to access and use the Customer Data in relation to the Services, to provide the Services, to improve the Services, and to provide support.
- Where You incorporate or enter data into the Services You must ensure, in relation to such data, that:
- You collect and maintain any Personal Information in the data in compliance with Applicable Data Protection Law;
- You obtain any necessary third party permissions or consents;
- You provide an appropriate and current privacy notice;
- You comply with any applicable third party license terms; and
- the data does not incorporate any unlawful, illegal, fraudulent or harmful data.
- BinderPOS does not pre-screen any content but reserves the right (but not the obligation) to refuse or remove any content available via the Services that violates our Terms.
- Subject to clause 13.5, You may export or delete Your Customer Data at any time. If You delete information it will be held for 30 days and then permanently deleted.
- On Your cancellation of Your account or termination of Services in accordance with clause 7 or Our termination of this Agreement or Your access to the Services in accordance with clause 8, Your Customer Data will be held for 3 months or as otherwise required by law, and then permanently deleted unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.
- You may elect to enter into the purchase of goods offered by Your customers for sale through the BinderPOS services. Any transactions entered into are the sole responsibility and liability of You.
- Prior to purchasing goods offered for sale through the BinderPOS services, You must confirm the seller is the legal owner of the item.
- You represent and warrant that You have the authority to sell and/or purchase the items You transact via the “Buy List” or “Trade In” feature.
- BinderPOS is not liable for any such transaction, the failure of such transaction, any negligent or wrongful act related to the transaction, or any result thereof.
- All shipping and handling charges that result from transactions are the sole responsibility of You.
- BinderPOS does not assume and shall not have any “Risk of Loss” or other obligations as it relates to the transactions. You agree that all transactions You enter into with third parties in connection with the Services will be managed exclusively through BinderPOS and You will not circumvent BinderPOS and conduct such transactions outside of the Services.
- Your customers may be given the opportunity to make binding offers to buy or sell one or more products at a specific price. You acknowledge and agree that if You utilize the “Buy” or “Sell” feature on the Services, the purchase or sale of the applicable product is binding once You and Your customer agree to a specified price.
- In the event that Your buy/sell offer is accepted through BinderPOS, You must complete the agreed upon Transaction.
- By utilizing the Buy List or Sell List feature of BinderPOS, You represent and warrant that the contents of Your buy list and sell list will be accurate and that You will honor the offers represented by such buy list and/or sell list.
- Data Processing Addendum
- The Data Processing Addendum applies to the extent that BinderPOS is processing Personal Information that is subject to the data protection laws of the European Union or the United Kingdom in the course of the performance of the Services.
- Security and Privacy
- We will endeavor to provide a secure environment to protect the integrity and security of the Services and of Your information and to prevent data loss. However, except where We are liable under the Applicable Data Protection Law, We provide no guarantee or warranty in relation to data loss or data breaches. You are responsible for backing up the Customer Data.
- In the event of a security incident or privacy breach, We will take reasonable and necessary measures and actions to mitigate the incident or breach and/or impact of its effects and We will notify You of any subsequent changes to the Website or Services.
- Each party's obligations under this clause will survive termination of these Terms. Unless the relevant party has the prior written consent of the other or unless required to do so by law:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
- Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, other than as contemplated by these Terms.
- Clause 17.1.1 will not apply to any information which:
- No Warranty. Limitation of Liability.
THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BINDERPOS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR ANY CONTENT ON THE SERVICES, WHETHER PROVIDED OR OWNED BY BINDERPOS OR BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION, YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES AND BINDERPOS DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT ANY OF THE SERVICES OR ANY CONTENT AVAILABLE THROUGH ANY OF THE SERVICES IS ACCURATE, COMPLETE, AVAILABLE, CURRENT, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DEFECTS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BINDERPOS SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
IN NO EVENT WHATSOEVER SHALL BINDERPOS, ITS AFFILIATES, OR SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES, BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, INCLUDING BUT NOT LIMITED TO LOSS OF SALES, PROFIT, REVENUE, GOODWILL, OR DOWNTIME, (ARISING UNDER TORT, CONTRACT, OR OTHER LAW) REGARDLESS OF SUCH PARTY’S NEGLIGENCE OR WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND AGREE THAT THE DOWNLOAD OF ANY MATERIALS IN CONNECTION WITH THE SERVICES IS DONE AT YOUR DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY MATERIAL. BINDERPOS NEITHER ASSUMES, NOR DOES IT AUTHORIZE ANY OTHER PERSON TO ASSUME ON ITS BEHALF, ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF THE SERVICES. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THESE TERMS, BINDERPOS IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF ANY SERVICES, BINDERPOS’ LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF (1) THE TOTAL OF ANY FEES PAID BY YOU TO BINDERPOS IN THE SIX (6) MONTHS PRIOR TO THE DATE THE CLAIM IS ASSERTED FOR ANY OF THE SERVICES OR FEATURE RELEVANT TO THE CLAIM, OR (2) US$500.00.
THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY ARE MADE TO THE FULLEST EXTENT PERMITTED BY LAW.
- You agree to indemnify BinderPOS against all claims, costs, damage and losses arising from Your breach of any of these Terms, your use of the Services, or any obligation You may have to BinderPOS, including any third party claims and any costs relating to the recovery of any fees that are due but have not been paid.
- We may amend these Terms at any time without notice, by posting the revised version on the Website, by notifying you or by communicating it to You through the Services). Revised terms will be effective from the time they are posted, but will not apply retroactively. Your continued use of the Services after the posting of revised terms constitutes Your acceptance of such revised terms.
- BinderPOS will deliver all notices under this Agreement by email sent to the email address used by You to register for the Services. You will deliver any notice by email sent to [email protected].
- Data Migration Service
- BinderPOS reserves the right to refuse to complete a data migration if it considers, at its sole discretion, that the data is of insufficient quality to effectively migrate. In the event BinderPOS refuses to complete a data migration for this reason, You will receive a full refund.
- BinderPOS will only migrate images if they are able to be exported from its current system. BinderPOS will not migrate images that include the intellectual property of Your existing or previous provider(s).
- BinderPOS will only migrate clean data on its standard data migration platform.
- BinderPOS will complete data migration within seven working days of Our staff obtaining access to the data to be migrated.
- BinderPOS will communicate any issues with data quality or access to the data within two working days of obtaining access to the data.
- Custom Design and Development
- Unless mutually agreed in writing by authorized representatives, You will not have an exclusive right to any custom design or development.
- If a custom design or development You paid for is adopted as part of Our other services, You will be notified and You will receive BinderPOS store credit equal to the amount You paid for the custom design or development. If You are no longer a BinderPOS customer at the time the custom design or development is adopted as part of Our other services, You will surrender any store credit You would have otherwise accrued.
- Any timeframes for the custom design or development are calculated on the basis that You will communicate promptly with BinderPOS. BinderPOS reserves the right to extend the timeframes on the basis of a lack of customer communication.
- You may retain any Shopify website themes, including custom Shopify website themes, when You terminate the Services.
- You may continue to use themes from the BinderPOS theme beyond the term of this Agreement, however, BinderPOS remains the owner of, and retains all Intellectual Property Rights in, the BinderPOS theme.
- Delays: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
- No Assignment: You may not assign or transfer any rights to any other person without BinderPOS’s prior written consent.
- Waiver: The failure by any party to enforce any provisions of this agreement at any time shall not operate as a waiver of that provision in respect of the particular act or omission or any other act or omission.
- Governing law: Any claim against TCGplayer in relation to our marketplace shall be adjudicated in a court in New York County, New York and you agree to exclusive jurisdiction of these courts. This agreement shall be governed by New York law, without regard to conflict of laws principles thereof.
- Dispute Resolution. At our sole discretion, we may require you to submit any disputes arising from these Terms, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association. The arbitration shall be seated in New York, New York.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BINDERPOS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Jurisdictional Matters: If You are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and You are under such a jurisdiction and under such age limit, You may not enter into this Agreement and access or use the Services. If You are residing in a jurisdiction where it is forbidden by law to offer or use software for internet communication, You may not enter into this Agreement and You may not download, access or use the Services. By entering into this Agreement, You represent that You have verified in Your own jurisdiction that Your use of the Services is allowed.
- Interpretation and Definitions
- Interpretation: In these Terms, unless the context otherwise requires:
- the singular includes the plural and vice versa;
- a reference to materials means a reference to materials of any kind whether in the form of documentation, software or otherwise;
- a reference to either party includes reference to its successors and permitted assigns (and where the context so permits) its personnel and representatives;
- any agreement not to do a thing also constitutes an agreement not to suffer or permit or cause that thing to be done;
- the words “includes” and “including” are to be read as being followed by the words “without limitation”;
- a reference to any documentation and the Website includes as varied or substituted; and
- a reference to a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
Applicable Data Protection Law means all applicable data protection and privacy laws including, where applicable, data protection laws of the European Union or the United Kingdom or New Zealand privacy law or United States privacy laws, as applicable.
BinderPOS Data means all data collected by Us or inputted by Us into a Service or supplied by Us to You that is not Customer Data.
BinderPOS, We and Us means BinderPOS Limited (New Zealand Registered Company number 1439564) and includes its successors and assigns, related companies, officers, directors, employees and agents.
BinderPOS Materials and Technology means the materials and technology used by BinderPOS in relation to the Services including design and architecture, methodologies and tools, software and products and any online documentation.
Customer Data means any data inputted by You or with Your authority into the Website or the Services.
Data Processing Addendum means the data processing addendum attached to these Terms.
Online Documentation means the documentation available on the Website regarding the Services and use of the Services.
Parties means the customer and BinderPOS.
Personal Information means information about an identifiable, living person, and includes personal data, personally identifiable information and equivalent information under applicable data protection and privacy laws.
Services means the software related services supplied by BinderPOS Limited under the trading name BinderPOS.
Terms means these Terms of Service.
Website means BinderPOS’s website at https://binderpos.com.
You means you and, if clause 1.3 applies, the other person on whose behalf you are acting and Your has a corresponding meaning.