These terms outline the rules and regulations for the use of Blackcart's services.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES.BY INDICATING ACCEPTANT OF THIS AGREEMENT OR BY OTHER USING THE SERVICE, YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH BLACKCART. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT COMPLETE THE ONBOARDING PROCESS AND DO NOT USE THE SERVICE.
If you have any questions about these Terms of Service or the Services, please contact Blackcart Support
1.1 “Services” means Blackcart’s try before you buy order decisioning, checkout integration, automated fraud detection, returns management and payments systems.
1.2 “Try Before You Buy” means a customer receives an item to try before getting charged.
Blackcart may amend the Agreement from time to time due to changes to the Services or for any other reason. When material modifications are made, Blackcart may (and where required by law, will) send an email to you at the last email address you provided to us. Blackcart may require you to provide consent to the updated Agreement in a specified manner before further use of the Services (defined below) is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). Please regularly check Blackcart’s website to view the then-current terms.
3.1 General. Blackcart authorizes the Merchant to use the Services to sell Merchant products in accordance with the Agreement.
3.2 Merchant Registration. As part of the registration process, Merchant will create an administrative username and password for Merchant’s Blackcart account (“Account”). Blackcart reserves the right to refuse a Merchant’s registration.
3.3 Support. Subject to the terms hereof, Blackcart will provide Merchant with reasonable technical support services in accordance with Blackcart’s standard practice. Technical support will be available through the Blackcart website.
3.4 Exclusivity. Merchant warrants that during the Term (further defined below), Blackcart shall be the Merchant’s sole provider of Try Before You Buy. For the avoidance of doubt, this means the Merchant agrees that it will not integrate nor directly or indirectly offer, promote or otherwise facilitate any third-party services nor any of its own services (neither solely by itself nor in cooperation with any third party) that offer services similar to Try Before You Buy. For clarity, the Merchant is permitted to (a) continue offering services that allow customers to make an upfront payment in full,(b) continue or start using a returns management system, (c) continue or start using a payment installment system.
4.1 License for Services. Blackcart grants Merchant a revocable, non-exclusive, non-transferable, non-assignable license, to access and use the Services. The Blackcart platform, and the Services, are the property of Blackcart and its licensors and are protected from unauthorized copying and dissemination by copyright law, trademark law, and other intellectual property law. For certainty, Merchant will not acquire any ownership rights in the Services (in whole or part). The License shall terminate immediately, automatically, and without notice if Merchant attempts to circumvent any technical protection measures used in connection with the Services, or Merchant otherwise breaches any section of this Agreement.
4.2 Restrictions on Use of the Services. Merchant will not: (a) offer for sale or lease, or sell, resell, or lease, or in any way transfer the Services; (b) attempt to create a substitute or similar service through use of, or access to, the Services; or (c) access or use the Services in a way intended to avoid incurring Fees, misrepresent usage or performance data, misrepresent transaction amounts or item data, misrepresent user information, or knowingly permit Customers and third parties to engage in actions that are prohibited under the Agreement. In addition, Merchant will not, nor will Merchant allow any third party to (i) modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive source code from, or create derivative works based on, Blackcart IP, (ii) make unauthorized copies of Blackcart IP, (iii) modify or remove any proprietary notices, disclosures, disclaimers, or Blackcart Marks (defined below) from the Services or Blackcart IP, or (iv) use the Services or Blackcart IP in any manner or for any purpose other than for which the Services or Blackcart IP have been provided or incorporated.
4.4 Trademark License. Upon the terms and subject to the conditions of the Agreement, each Party (the “Licensor”) hereby grants to the other Party (the “Licensee”) a limited, revocable, non-exclusive, non-transferable license and right to use, reproduce, display, distribute, and transmit the Licensor’s name, logo, and any other trademarks, trade names, service marks, photographs, graphics, brand imagery, text, and other content, in each case provided by the Licensor, in any and all media formats, whether registered or unregistered (with respect to each Licensor, the “Marks”), in connection with the use and marketing of the Services during the Term. Licensee’s use of the Licensor’s Marks may be subject to usage guidelines and quality control standards that Licensor may provide to Licensee from time to time. Upon Licensor’s request, Licensee will provide to Licensor representative samples of Licensee’s use of the Marks, and Licensor reserves the right to reject any such use in the event that Licensor reasonably believes a deficiency exists in the manner of use of the Marks by Licensee. All goodwill arising out of the use of the Licensor’s Marks will inure to the benefit of the Licensor. Use of a Licensor’s Marks does not create in the Licensee any ownership interest in Licensor’s Marks. Neither Party will register or apply for registration of the other Party’s Marks (or any confusingly similar trademarks, trade names, service marks, logos, or names). Each Party agrees to reasonably cooperate with the other Party with respect to any infringement action regarding such rights.
4.6 Merchant shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Merchant shall also be responsible for maintaining the security of the Equipment, Merchant account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Accounts or the Equipment with or without Merchant customers’ knowledge or consent.
4.7 Marketing Materials. Blackcart may provide marketing language and material to Merchant to offer and market the Services. Merchant agrees to display Blackcart Marks on Merchant sites and in Merchant marketing materials, and include Blackcart Marks wherever Merchant markets, offers, or promotes the Services. Merchant permits and agrees to obtain any third-party licenses or consents required to enable Blackcart to use Merchant Marks in marketing or promotional materials in connection with the Services, at no additional cost to Blackcart. If Merchant breaches its obligations under this Section 4.7, Merchant will immediately cure such breach.
5.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, customer or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Blackcart includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Merchant includes without limitation non-public data provided by Merchant customers to Blackcart to enable the provision of the Services (“Merchant customer data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and in no case less than the steps it takes to protect its own Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
5.2 Merchant shall own all right, title and interest in and to the Merchant customer data, as well as any data that is based on or derived from the Merchant customer data and provided to Merchant customer as part of the Services. Blackcart shall own and retain all right, title and interest in and to (a) the Services improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed by Blackcart in connection with implementation services or support and (c) all intellectual property rights related to any of the foregoing, excluding Merchant customer data or intellectual property developed by the Merchant, which shall be owned by Merchant.
5.3 Notwithstanding anything to the contrary, Blackcart shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Merchant data and data derived therefrom), and Blackcart will be free during the term hereof to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Blackcart offerings, and (ii) disclose such data solely in aggregate or other de-identified form solely in performance of its obligations under this Agreement and within the terms of this Agreement. No rights or licenses are granted except as expressly set forth herein.
5.4 Privacy and data Protection. Blackcart acknowledges that it may be granted access to personally identifiable information of Merchant personnel and Merchant customers (the “Personal Information”). Blackcart agrees to safeguard such Personal Information to the same standards as it safeguards its own proprietary information, and to no less than the standards in its industry. Blackcart represents and warrants that it will comply with all applicable privacy and data protection laws and regulations including but not limited to those applying to Personal Information.
BY PROVIDING PERSONAL INFORMATION ABOUT ITS PERSONNEL OR OTHER PERSONS, THE MERCHANT WARRANTS, REPRESENTS AND UNDERTAKES THAT IT (A) HAS OBTAINED ANY NECESSARY CONSENT OF ITS PERSONNEL OR OTHER PERSONS TO DISCLOSURE AND USE OF SUCH data FOR THE PURPOSES AND IN THE WAYS DESCRIBED HEREIN AND (B) HAS THE RIGHT TO DISCLOSE SUCH data.
6.1 Merchant will pay Blackcart the then applicable fees described during onboarding for the Services in accordance with the terms therein (the “Fee”). Blackcart reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon thirty (30) days prior notice to Merchant (which may be sent by email). If Merchant believes that Blackcart has charged Merchant incorrectly, Merchant must contact Blackcart no later than 60 days after which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Blackcart merchant support team via www.blackcart.com.
6.2 Fees. Merchant agrees to pay a Service Fee that's calculated as a percentage of the total initial order amount for all Try Before You Buy products, excluding products fully paid for by the customer at time of checkout, excluding discounts and excluding sales tax (“Service Fee”). The Service Fee is charged regardless of whether the customer keeps or returns each Try Before You Buy product.
Merchant also agrees to pay a Transaction Fee for payment processing services. The Transaction Fee is calculated as a percentage of the total order value, inclusive of Try Before You Buy and fully paid products, and inclusive of tax, shipping and any other Merchant fees charged to the customer (“Transaction Fee”).
6.3 If Merchant decides to refund a payment, BlackCart retains the original fees but charges no additional fees for the refund. BlackCart will handle all payments to the user to complete the refund. The full refund amount will be paid by the Merchant to the Merchant’s Customer via BlackCart.
6.4 Unless otherwise specified in this Agreement, all references to currency, monetary values and dollars set forth herein will be in the currency the Merchant selects in their Blackcart merchant account.
7.1 Blackcart accepting a Merchant’s customer order constitutes a binding agreement by Merchant to provide the product purchased in the transaction to the customer (the “Transaction”). When a payment for a Transaction is received and processed by Blackcart, such payment less any applicable Fees shall be transferred to Merchant Bank account by Blackcart as soon as reasonably practicable (a “Settled Transaction”). Blackcart shall not bear the financial risk for Merchant loss of inventory; including without limitation (1) Blackcart inability to secure payment for products delivered and not returned by Merchant’s customers, (2) chargebacks initiated by Merchant’s customers, (3) payment processor disputes related to stolen identity and (4) any other form of third-party fraud, (a “Loss of Inventory Transaction”).
7.2 Blackcart relies on third party systems that utilize Electronic Funds Transfer (EFT) and other methods to facilitate Settled Transactions. Transactions typically settle two (2) to three (3) business days after the customer payment date. Blackcart will then process a daily payout for all settled funds. The payout typically takes one (1) to two (2) business days to settle into the Merchant's bank account, depending on the receiving bank. Notwithstanding the foregoing, in the event that Blackcart cannot convert a Transaction into a Settled Transaction due to (1) not having received payment, (2) a stop order placed by a payment processor or (3) any other factor beyond Blackcart control causing a material delay in delivery or processing of payment, such payout schedule for that transaction may be materially delayed.
8.1 Term. Unless otherwise specified on an applicable order form, this Agreement commences on Merchant's registration for an account, and shall continue in effect for one (1) year (“Initial Term”), unless terminated earlier in accordance with this Section 8. After the Initial Term of this Agreement, this Agreement will automatically renew for additional and successive terms of one year (each a “Renewal Term”), until terminated in accordance with the terms herein. The Merchant can terminate the Agreement at the conclusion of the Initial Term or the conclusion of a Renewal by providing written notice to Blackcart of the termination with at least 60 days notice to firstname.lastname@example.org prior to the end of the Term. The Initial Term and any Renewal Term are collectively referred to under the Agreement as the “Term.” Termination of this Agreement shall result in the automatic termination of any Order Form effective as of the date of termination of this Agreement, subject to the obligations herein.
8.2 Termination with Cause. Notwithstanding anything to the contrary in this Agreement, either Party may terminate this terms of service for a material breach by the other party that is not cured within thirty (30) days after written notice by the non-breaching party or immediately upon notice of termination in the event of a material breach that by its nature cannot be remedied within thirty (30) days. Either party may terminate this Agreement immediately if the other party (i) terminates its business operations; (ii) becomes insolvent; (iii) suffers the appointment of a receiver or makes an assignment for the benefit of creditor; or (iv) enters into any voluntary or involuntary bankruptcy proceedings. In addition, either party may terminate this Agreement immediately if (a) it discovers that the other party has misrepresented, omitted or falsified any information or documentation provided to it, including, but not limited to, its financial records, inventory records, or any Customer information; (b) the other party engages in conduct that damages or disparages its reputation or goodwill (or the reputation of its services or personnel); or (c) it violates any applicable laws.
8.3 Obligations Upon Termination. Termination will not release either party from financial obligations owed to the other party for services previously delivered or payments owed prior to termination, and the parties shall cooperate with each other to complete all outstanding obligations to Merchant Customers in a mutually agreed fashion.
9.1 Blackcart shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Blackcart or by third-party providers, or because of other causes beyond Blackcart’s reasonable control, but Blackcart shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. HOWEVER, BLACKCART DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY & FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.1 Blackcart shall hold Merchant harmless from liability to third parties resulting from infringement by the Services of any patent, copyright, trademark, misappropriation of any trade secret, or misappropriation or infringement of any other intellectual property, provided Blackcart is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Blackcart will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Blackcart, (ii) made in whole or in part in accordance with Merchant specifications, (iii) that are modified after delivery by Blackcart, (iv) where Merchant continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Merchant’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Blackcart to be infringing. Blackcart may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Merchant a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Merchant’s rights hereunder and provide Merchant a refund of any prepaid, unused fees for the Service.
10.2 Each party hereby agrees to indemnify, defend and hold the other party, its affiliates, its licensees, its licensors, and its and their officers, directors, employees, consultants, contractors, sublicensees and agents (collectively, “Representatives”) harmless from and against any and all damages or other amounts payable to a third party claimant, as well as any reasonable attorneys’ fees and costs of litigation (collectively, “Damages”) arising out of or resulting from any claim, suit, proceeding or cause of action (each, a “Claim”) brought by a third party against a party or its Representatives based on the indemnifying party’s: (a) breach of any representation or warranty contained in this Agreement, (b) breach of any applicable law, statue, regulation, policy or guidelines, or (c) gross negligence or willful misconduct by such indemnifying party, its affiliates, or their respective employees, contractors or agents.
11.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, BLACKCART AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY MERCHANT TO BLACKCART FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT BLACKCART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.1 Except for each party’s payment obligations, neither party will be responsible for any failure or delay in performance due, in whole or in part, directly or indirectly, to any contingency, delay, failure, or cause of any nature beyond its reasonable control, including, without in any way limiting the generality of the foregoing, fire, terrorism, epidemic, earthquake, storm, flood or other weather, unavailability of necessary utilities or raw materials, strike, lockout, unavailability of components, war, riot, acts of God, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement). In the event of the happening of such a cause, the party whose performance is so affected will give prompt, written notice to the other party, stating the period of time the same is expected to continue. Such delay will not be excused under this Section 12 for more than ninety (90) days.
13.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
13.2 Occasionally, there may be information on the Services that contain typographical errors, inaccuracies, or omissions in connection with the Service. Blackcart reserves the right to correct any errors, inaccuracies or omissions, and to change or update the Service at any time without prior notice.
13.3 This Agreement is not assignable, transferable or sublicensable by Merchant except with Blackcart’s prior written consent. Blackcart may transfer and assign any of its rights and obligations under this Agreement without consent of Merchant.
13.4 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
13.5 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Merchant does not have any authority of any kind to bind Blackcart in any respect whatsoever.
13.6 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
13.7 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Our address for such Notices is: Blackcart 510 Front Street West, Unit 400, Toronto Ontario M5V 1B6 Attention: Legal, or by email to email@example.com.
13.8 This Agreement shall be governed by the laws of the Province of Ontario without regard to its conflict of law’s provisions. Merchant agrees to reasonably cooperate with Blackcart to serve as a reference account upon request.