Last updated January 9, 2023
Welcome to Tekmetric. These Payment Processing Terms of Service and incorporated documents and terms (collectively, “Payment Terms”) provided by Tekmetric constitute a legally binding contract between Sparkplug Studios, LLC (“Tekmetric,” “we” and “us”) and the entity or sole proprietor on whose behalf a Tekmetric account is created (“you” and “your”) to receive certain mobile and technology-enabled payment services offered by Tekmetric to commercial businesses (“Payment Services”) through the Tekmetric websites (including without limitation www.tekmetric.com and/or related websites, the “Website”), as well as the Tekmetric software and mobile application, including without limitation, all related software, hardware, algorithms, and technology (such services, applications, and the Website are collectively referred to as the “Platform”). These Payment Terms set forth the terms and conditions that apply to your use of the Payment Services. You must agree to and accept the Payment Terms, or you do not have the right to use the Payment Services. Capitalized terms have the meanings set forth in Schedule 1—Definitions, or the meaning otherwise set forth in these Payment Terms.
IMPORTANT: PLEASE READ THESE PAYMENT PROCESSING TERMS OF SERVICE CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN TEKMETRIC AND YOU, WHICH GOVERNS YOUR USE OF THE PAYMENT SERVICES. YOUR USE OF THE PAYMENT SERVICES CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO ALL OF THE TERMS AND CONDITIONS HEREIN AND YOUR REPRESENTATION THAT YOU ARE AN INDIVIDUAL WHO CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW.
PLEASE BE ADVISED: THESE PAYMENT TERMS SUPPLEMENT THE TEKMETRIC TERMS OF SERVICE AND ARE ALSO SUBJECT TO THE SAME DISPUTE RESOLUTION MECHANISMS (INCLUDING ARBITRATION) SET FORTH IN THE TERMS OF SERVICE. YOU WILL BE PERMITTED TO PURSUE CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WILL BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY ON AN INDIVIDUAL BASIS.
You acknowledge and agree that you have read, understood and agree to be bound by these Payment Terms, located in your Tekmetric Account, as may be updated from time to time. You are bound by these Payment Terms on the earlier of: (a) the date you accept these Payment Terms by clicking an “accept” or similar button or checking a box captioned with acceptance language, or (b) the date you first access or use these Payment Services. We may amend these Payment Terms at any time without specific notice to you. Your continued use of these Payment Services in any way constitutes your agreement to any amended or updated version of these Payment Terms, and such Payment Terms will remain in effect as long as you use the Payment Services. You represent and warrant that the Representative accepting these Payment Terms on your behalf is your authorized representative with the requisite authority to bind you to these Payment Terms.
2.1 Services, Providers & Terms
Certain functionalities available through or in connection with the Payment Services will be provided by third party providers and will require that you to enter into ancillary agreements with such third parties directly in order to enable or access such functionality. For example, you are required to enter into a payment processing agreement with the Payment Processor in order to accept credit and debit card payments for goods or services from your customers through the Payment Services. Throughout these Payment Terms, such third party providers (including but not limited to Payment Processor and Bank) are referred to as “Third Party Providers”, the products and services provided by Third Party Providers are referred to as “Third Party Services”, and the agreement(s) that you enter into directly with such Third Party Providers with respect to Third Party Services (including the Merchant Agreement, as defined in Section 3 below) are referred to as “Third Party Terms.”
Third Party Providers, and not Tekmetric, provide the Third Party Services to you. The applicable Third Party Terms will control with respect to the applicable Third Party Services. Your use of the Third Party Services shall be subject to (and you agree you are bound by) such Third Party Terms as they may be modified from time to time, including, but not limited to, the Third Party Terms with Payment Processor; if you are processing through Stripe, Inc., you will be bound by the Stripe Services Agreement (United States) which is located at https://stripe.com/legal/ssa and the Stripe Connected Account Agreement which is located at https://stripe.com/legal/connect-account. You are required to agree to all Third Party Terms indicated by us in order to receive the Payment Services. Certain Third Party Terms may be posted or linked on the Website or in your Tekmetric Account. You are responsible for checking the Website for updates, and any use by you of any Third Party Services following a change to the respective Third Party Terms shall constitute acceptance of such change. You must not use the Payment Services for any activity prohibited by applicable law or your Third Party Terms. You are responsible for ensuring the information in your Account Profile is accurate and complete at all times.
2.2 Third Party Permissions
2.3 Third Party Interactions Generally
You acknowledge and agree that Tekmetric has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or Third Party Services or by any third party that you interact with through the Payment Services. By using the Payment Services, you release and agree to indemnify, defend and hold Tekmetric harmless from any and all liability arising from your use of any of the foregoing. Similarly, you acknowledge that the Third Party Providers do not endorse and are not responsible for the Tekmetric Payment Services.
2.4 Third Party Fees; Indemnity
2.5 Relationship with Third Party Providers
You acknowledge and agree that Tekmetric is not a bank or other chartered depository institution. Any Transactions are between you, your customers, and the applicable Third Party Provider only and not with Tekmetric or any Affiliates. Tekmetric is an independent contractor for all purposes for these Payment Terms and is not your agent or trustee unless expressly stated otherwise. Tekmetric does not have control of, or liability for, the products or services that are provided, sold, or paid for through the Payment Services.
2.6 Change in Service Providers
Tekmetric has the right to change any of its Third Party Providers at any time, in its sole discretion. You agree to cooperate with Tekmetric and the applicable Third Party Providers selected by Tekmetric as reasonably required for Tekmetric or such Third Party Providers to perform the Payment Services and/or Third Party Services and authorize Tekmetric to the necessary action to effectuate the migration to the replacement Third Party Provider.
You understand that any Acceptance Transactions you submit to the Payment Processor through the Platform are between you and your customer, and any issues relating to the Acceptance Transaction shall be solely between you and your customer. Additionally, the processing services with respect to such Acceptance Transaction are performed by Payment Processor, not Tekmetric. Tekmetric is not responsible for tax receipts, lost payments, identity theft, chargebacks, fraud or refunds. Your submission of Acceptance Transactions for processing will be governed under the merchant agreement entered into between you and the Payment Processor (and/or its acquiring bank) (the “Merchant Agreement”). The funds processed in connection with your Acceptance Transactions will be settled to you by the Payment Processor (or Bank, as the case may be) in accordance with your Merchant Agreement. You understand and agree that your settlement funds may be held by the Payment Processor, Bank, or another financial institution in a pooled account. You authorize Tekmetric to instruct the Payment Processor or Bank to deposit the transaction funds to a pooled account held for the benefit of you and other customers of Tekmetric held at any financial institution so that such funds may be combined and aggregated with other funds that are ultimately settled to you by such financial institution. You understand and agree that Tekmetric does not process, receive or hold funds from your customers at any time in connection with Acceptance Transactions and that Tekmetric is not a bank, money transmitter, or other money services business (as such terms are defined by the Bank Secrecy Act or any state law). To the extent Tekmetric is deemed to hold or receive funds (constructively or otherwise) from your customer at any point in time, you hereby irrevocably appoint Tekmetric as your non-fiduciary agent for the limited purpose of collecting, receiving, holding and settling funds from your customer on your behalf. In such event, such funds shall be deemed received by you upon receipt by Tekmetric and shall satisfy your customer’s obligation to you in connection with such Acceptance Transaction for the services provided by you. If Tekmetric fails to remit such funds to you, your sole recourse for such event is solely against Tekmetric and not against the customer or the customer’s financial source.
You authorize Tekmetric and its Third Party Providers (including Tekmetric’s Affiliates and successors or assigns) to debit your External Account for any fees due to Tekmetric (including Tekmetric’s Affiliates and successors or assigns) or any Third Party Provider. Such authorization will remain in effect until you cancel it in writing, or until all amounts due from you to Tekmetric (including its Affiliates, successors and assigns) and all Third Party Providers have been paid in full. You represent and warrant that (a) you own or are an authorized signatory on the External Account; (b) you are authorized to make the Funds Transfer Transactions you request; (c) your External Account is issued or established by and held at a U.S. financial institution; and (d) your External Account is a commercial or business account (not a personal account). You acknowledge and agree that you will provide accurate information to us about your External Account, and that we have no responsibility to verify the information you provide to us about your External Account, or any liability for any loss resulting from a mistake, error or omission in the information you provide us.
You agree to cooperate with all requests made by us or any other third parties in connection with your Tekmetric Account to identify you (and your authorized representatives, directors, officers, etc.), authenticate your identity, or validate your funding sources or Transactions. Tekmetric reserves the right to close, suspend or limit access to your Tekmetric Account and/or the Payment Services in the event we are unable to obtain or verify such information. You authorize Tekmetric, directly or through third parties, to make any inquiries we consider necessary to validate your identity. This may include asking you for further information, requiring you (and your authorized representatives, directors, officers, etc.) to provide date of birth, a taxpayer identification number and other information that will allow us to reasonably identify you, including requiring you to take steps to confirm ownership of your email address or Payment Instruments or verifying your information against third party databases or through other sources. We may also ask to see your (and your authorized representatives, directors, officers, etc.) driver’s license or other identifying documents at any time; however, we will not access your credit report without first obtaining your consent. You must notify us before any change of control or sale of all or substantially all of your assets or equity.
You are responsible for confirming the accuracy of the applicable payment information for each Transaction submited. Any information or Content posted or transmitted through the Payment Services or Platform is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk.
It is your responsibility to determine what, if any, taxes apply to the goods and services you provide to your customers and the payments you make or receive, and it is your responsibility to collect, report and remit the correct tax to the appropriate taxing authority. Tekmetric is not responsible for determining whether taxes apply to your Transaction, or for collecting, reporting or remitting any taxes arising from any Transactions. You hereby agree to comply with any and all applicable tax laws in connection with your use of the Payment Services, including without limitation, the reporting and payment of any taxes arising in connection with Transactions made through the Payment Services, if any.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TEKMETRIC, ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TEKMETRIC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TEKMETRIC’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE PAYMENT TERMS EXCEED ONE HUNDRED DOLLARS ($100.00). THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.
We reserve the right to change, suspend or discontinue any aspect of the Payment Services at any time, including hours of operation or availability of the Payment Services or any Payment Services feature, without notice and without liability. We also reserve the right to impose limits on certain Payment Services features or restrict access to some or all of the Payment Services in our sole discretion, without notice and without liability. Without limiting the foregoing, you acknowledge that the operation of the Payment Services may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors, and Tekmetric shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Payment Services. Tekmetric has no obligation to maintain or update the Payment Services or to continue producing or releasing new versions of the Payment Services.
Tekmetric or you may terminate these Payment Terms at any time and without cause upon providing thirty (30) days written notice to the other party. The termination of these Payment Terms will not affect any of our rights or your obligations arising under these Payment Terms. The termination of these Payment Terms does not necessarily result in the termination of your Third Party Terms.
After termination of these Payment Terms, your Tekmetric Account or the Payment Services, you shall continue to be liable for chargebacks, refunds, fees, card network liabilities, credits and adjustments resulting from or relating to Transactions processed pursuant to these Payment Terms. Any Reserve Account (as defined in Section 11) imposed will remain in effect until the aforementioned liabilities are resolved in Tekmetric’s sole discretion. Any remaining stored funds will be refunded to your External Account or to you in a manner elected by Tekmetric in a timely fashion. Tekmetric may inform applicable Third Party Providers of the termination of these Payment Terms, your Tekmetric Account, and/or your Payment Services.
You agree to pay us the processing fees in connection with the Payment Services as set forth in your Tekmetric Account. These fees shall be subject to the same terms and conditions set forth in Section 3 of the Terms of Service (including as it pertains to changes of such fees) and may be deducted from funds that would otherwise be settled by Processor or Bank to your account, debited from your External Account, or added to your monthly invoices, at Tekmetric’s discretion. None of the fees charged by us in connection with the Payment Services excuse your payment of any other fees you have agreed to pay us. In addition, you are solely responsible for all liabilities associated with your payment processing activity and use of the Payment Services (including, for example, chargebacks, refunds or any assessments or fees imposed by Processor, Bank, the card networks or any applicable third party). For the avoidance of doubt, if you are processing with Stripe, only the fees provided to you in your Tekmetric Account are applicable, and any fees that may be set forth on Stripe’s website are not applicable.
Tekmetric may instruct the applicable Third Party Providers to condition the offering of Payment Services to you upon the establishment, funding, and maintenance of a reserve account to be held by Bank satisfactory to Tekmetric in connection with the Payment Services provided to you or on your behalf (“Reserve Account”). To the extent not legally prohibited, Tekmetric or Third Party Providers, as applicable, may instruct such funds in the Reserve Account to be applied toward, and set off any funds that would otherwise be payable by Tekmetric or the Third Party Provider from such reserve amounts, including amounts due from you pursuant to these Payment Terms. Funds in the Reserve Account will not bear interest, and may be commingled with other funds, but will be accounted for separately. You shall have no interest in the Reserve Account other than a contingent right to receive funds, as set forth in your Merchant Agreement.
As between you and Tekmetric, Tekmetric owns all Transaction data and all data submitted into or generated from the Tekmetric Account, including your customer data. Tekmetric can use such data for any purpose including but not limited to marketing and advertising. You agree to be compliant with the Payment Card Industry Data Security Standards (“PCI-DSS”). You are solely responsible for any liability related to or arising out of your use of cardholder data.
Tekmetric and its Third Party Providers may monitor your Transactions for the purpose of determining fraudulent activity and whether you are in good standing with Tekmetric. Such monitoring if conducted, will be for the benefit of Tekmetric only. Tekmetric does not undertake any obligation to monitor Transactions on your behalf. Based on our methods, which are subject to change without notice, Tekmetric may decide to suspend your Tekmetric Account, or in other ways limit your privileges. Tekmetric will use all available information to help combat fraud on our system. Without limiting the foregoing, Tekmetric may delay, in its sole discretion, or at the direction of a Third Party Provider sending instructions on your behalf if we have reason to believe that your instructions may involve fraud or misconduct, or violate applicable law, these Payment Terms, or other applicable Tekmetric policies, as determined in Tekmetric’s sole and absolute discretion.
If you believe your Tekmetric Account has been opened or used in an unauthorized manner in connection with a Transaction or otherwise, you must notify us immediately.
If you become aware of any unauthorized charge occurring through your Tekmetric Account, contact Tekmetric customer support as soon as possible. To the extent that the charge relates to Third Party Services, you should contact the applicable Third Party Provider as identified in the applicable Third Party Terms. If Tekmetric suspects unauthorized Transactions, Tekmetric reserves the right to suspend your use of the Payment Services, except as prohibited by the applicable Third Party Terms.
The Choice of Law provision set forth in Section 15 of the Terms of Service shall be incorporated by reference herein and shall apply to the Payment Terms.
The Dispute Resolution and Arbitration provision set forth in Section 16 of the Terms of Service shall be incorporated by reference herein and shall apply to disputes arising out of or in connection with the Payment Terms.
The Payment Terms and any incorporated terms or agreements constitute the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersede all prior or contemporaneous agreements or understandings written or oral, relating to its subject matter.
You may not assign your rights and/or obligations under these Payment Terms to any other party without our prior written consent. We may assign our rights and/or obligations under these Payment Terms at any time and to any other party at our discretion. All portions of these Payment Terms that would reasonably be believed to survive termination shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Representation and Warranties, Licensing, Indemnification, and Dispute Resolution sections.
Tekmetric reserves the right, at any time and in its sole and absolute discretion, to change, modify, add to, supplement or delete any of these Payment Terms and all referenced exhibits or policies. Tekmetric will notify you of the updated terms by posting them to the Website or your Tekmetric Account. Tekmetric may elect to provide specific notice to you of any material changes, but will not be required to do so, provided that Tekmetric will provide 30 days’ notice prior of any changes of fees for these Payment Services. If any future changes to these Payment Terms are unacceptable to you or cause you to no longer be in compliance with these Payment Terms, you must immediately stop using the Payment Services. Your continued use of Payments Services following any revision to these Payment Terms (including amended or added fees) constitutes your complete and irrevocable acceptance of any and all such changes.
Tekmetric is not responsible for any delay or failure in performance of the Payment Services, in whole or in part, for any cause or circumstance outside Tekmetric’s reasonable control, including, without limitation: fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, pandemics, transportation, utilities, services or supplies, governmental action, computer viruses, corruption of data, failures of a Third Party Provider, DDoS or other computer attacks, incompatible or defective equipment, software, or services, or otherwise.
Sections 17 (Severability), 18 (Non-waiver), and 23 (Electronic Communication) of the Terms of Service shall be incorporated by reference herein and shall apply to these Payment Terms.
Unless otherwise indicated, all notices required to be made of you to us must be in writing and sent to us at the following address:
Sparkplug Studios, LLC d/b/a Tekmetric
840 Gessner Rd Suite 740,
Houston, TX 77024
Notices shall be deemed given: (a) upon personal delivery; or (b) when received by Tekmetric if sent by a nationally recognized overnight courier or certified mail via the United States Postal Service (in both instances, receipt requested).
SCHEDULE 1 — DEFINITIONS
“Acceptance Transactions” means the credit and debit card payments that you accept from your customers in exchange for your goods and services that are submitted to Payment Processor for processing in connection with your Merchant Agreement.
“Account Profile” means the location on the Platform where you can, after logging in, view and manage your profile, including your Personal Information, Payment Instrument details, and your Tekmetric Account settings, including your notification preferences.
“Affiliates” are companies that are direct or indirect subsidiaries of Tekmetric or are otherwise related to Tekmetric through common ownership or control.
“Bank” means a Third Party Provider bank designated by Tekmetric that may be a party to your Merchant Agreement.
“Chargeback” means a request that a cardholder files directly with its issuing bank to invalidate a transaction made with a credit or debit card.
“Communications” means any Tekmetric Account or Transaction information that Tekmetric provides to you, including: any agreements and policies you agree to, (e.g., these Payment Terms) including updates to these agreements or policies; disclosures and notices, including prospectuses and reports for transaction receipts or confirmations; Tekmetric Account statements and history; and payments authorizations and transaction receipts or confirmations; documents; and any other information related to your Tekmetric Account or the Payment Services.
“Content” means the materials displayed or performed or available on or through the Payment Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, Platform user submissions, and so forth.
“Dispute” means a dispute with respect to the Payment Services (excluding Transactions).
“External Account” means that certain depository account owed and designated by you which is held at a financial institution.
“Funds Transfer Transaction” means the use of the Payment Services and/or Third Party Services to initiate and/or complete a transfer of funds, including instructing a third party to send or receive funds on your behalf.
“Payment Instrument” means your External Account or any other payment method designated by you in connection with the Payment Services or any other purpose under these Payment Terms.
“Payment Processor” means a Third Party Provider designated by Tekmetric that processes payment network card (e.g., Visa, Mastercard, Discover or American Express) Acceptance Transactions that may be a party to your Merchant Agreement.
“Personal Information” means any personally identifiable information or other information, including for example: name, email address, date of birth, tax identification number, billing/shipping address, phone number and financial information.
“Representative” means an individual who submitted your Application to receive the Payment Services.
“Tekmetric Account” means your personalized virtual account in the Platform to use the Payment Services upon approval of your Application.
“Transactions” means Acceptance Transactions and Funds Transfer Transactions, collectively.