Merchant Terms and Conditions

THIS AGREEMENT AND THE ORDER FORM GOVERNS YOUR LICENCE AND USE OF OUR SERVICE. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU WARRANT AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OUR SERVICES.

THE AGREEMENT COMMENCES EITHER ON THE DATE YOU COMPLETE YOUR REGISTRATION OR WHEN YOU SIGN THE ORDER FORM AND CONTINUES UNTIL TERMINATED BY EITHER PARTY. WE MAY FROM TIME TO TIME AMEND THESE TERMS OF BUSINESS. WE WILL POST THE REVISED TERMS OF BUSINESS ON OUR WEBSITE. YOUR CONTINUED USE OF THE SERVICE AFTER THE DATE ON WHICH WE POST ANY REVISED TERMS OF BUSINESS ON OUR WEBSITE SHALL MEAN YOU HAVE AGREED TO ANY SUCH CHANGES.

1. DEFINITIONS

Agreement

this agreement and the Order Form.

Aggregated Ratings Data

tthe output of the aggregation of Raw Ratings Data (other than Raw Ratings Data relating to TR’s Questions) to a minimum of two ratings per row to protect the anonymity of the end consumer, created by us to give to you.

Analytical Output

any data (excluding the Aggregated Ratings Data we create for you) created by TruRating through aggregation or combination of any Raw Ratings Data with other data, and any data created out of or derived from the combination of any Raw Ratings Data.

Consumer Site

a recommendations website and/or mobile application aimed at consumers showcasing businesses that use the Service.

Fees

the fees payable per Store, associated with your Service Plan.

Intellectual Property Rights

all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress, rights in goodwill, unfair competition rights, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Merchant Content

all content which you provide or make available to us, including through the Website and/or the Consumer Site.

Merchant”,“you” and “your

the person (including a legal person) on behalf of whom you are entering into this Agreement with us.

Merchant Portal

your dedicated online account on the Website.

Order Form

means the order form or the online registration form specifying the Services to be provided under this Agreement that is entered into between you and us.

Non-Ratings Data

any non-rating, data captured via the TruRating Application or via the TruRating API, and any reference information or data provided by you.

Raw Ratings Data

the raw ratings data inputted by your merchants into a payment device or your ecommerce platform (as the case maybe) in response to questions, or which identifies when no question is asked or skipped, which is then collected by TruRating.

Service

means the service that is ordered by you under an Order Form or provided to you.

Service Period

the duration of your Service Plan as set out in your Order Form.

Store

any location (both physical and virtual) which has been registered with TruRating and receives a single set of questions that can be viewed independently on the TruRating Merchant Portal. An Store can contain one or more payment terminals that capture Raw Ratings Data. Many Stores can exist within a single physical geographical address.

Taxes

all sales, use and excise taxes, and other similar taxes, duties and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by you hereunder.

Third Party Providers

the service providers (such as your payment provider) that helps to facilitate the implementation of the TruRating Application.

TruRating Application Fee

software applications (including as applicable TruRating Online Application) provided by TruRating to you and/or Third Party Providers.

TruRating Data

TruRating’s standardized questions, questions which you have customized, and TR Questions.

TruRating Online Application

means the application developed and/or provided by TruRating which appears after payment on your ecommerce website and/or mobile application that enables TruRating to capture Raw Ratings Data and other data from you’re your ecommerce platform and/or mobile application.

TR Questions

has the meaning given in Section 5.1.

We”,“us” or “our

means the TruRating entity described in Section 8.1 (who you are contracting with, notices, governing law and jurisdiction).

Website

the TruRating website at www.trurating.com and/or mobile application.

2. PAYMENT

  • 2.1 You will be charged a monthly fee for your access to the Service for each Store.
  • 2.2 Your Service Plan will renew automatically at the end of the Service Period.
  • 2.3 You agree to pay us the Fees from commencement of this Agreement and on renewal of your Service Plan. Fees are charged in advance, in accordance with your Service Plan as agreed in your Order Form.
  • 2.4 You authorize us to charge the Fees to the payment mechanism which you have provided to us on a monthly basis. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice you monthly in advance.
  • 2.5 If you do not pay the Fees within 10 days of the date they are due (including if we are, for any reason, unable to charge the Fees to the payment mechanism which you have stored with us), we will notify you. We may charge you late interest on the overdue amount at a rate of 2% of the outstanding balance per month, or the maximum rate permitted by law whichever is the lower and We may, at our discretion, suspend some or all of your access to the Service until Fees are paid.
  • 2.6 All Fees are shown exclusive of Taxes. You agree to pay or reimburse us for Taxes that we are required to collect on the sale of Services sold to you under this Agreement, it being understood that this obligation is without prejudice to any statutory obligation that either party may owe to a taxing authority. In the event that we are subject to audit by any taxing authority and we have not collected Taxes from you, you shall provide us with documentary evidence that you have paid the Taxes to the relevant taxing authority. We are hereby authorized to share such documentary evidence with relevant taxing authorities.
  • 2.7 If you terminate this agreement and termination takes effect during a Service Period, you are not entitled to any refund.

3. YOUR OBLIGATIONS

  • 3.1 You must purchase a separate subscription for each Store (including your first Store) in which you plan to use the Service. We reserve the right to audit your usage of the TruRating Application from time-to-time. If you are using a single subscription in more than one Store then we may, at our discretion: (a) require you to pay the additional fees required and/or (b) terminate this agreement.
  • 3.2 You will register all your locations as Stores (including any new locations as they begin trading) as soon as reasonably practicable after commencement of the Agreement unless you have agreed with us in writing otherwise. You must ensure that the relevant TruRating Application is switched on and, as applicable, running on each of your payment terminals in all such Stores during normal business hours.
  • 3.3 Where Third Party Providers are involved in enabling the Service to be provided to you, you will work with the Third Party Providers to facilitate the provision of the Service to you.
  • 3.4 You must notify us as soon as possible if you intend to switch Third Party Provider or change your payment terminals. If you switch Third Party Provider and the TruRating Application is no longer available to you, we may terminate this Agreement, without penalty, by emailing you and you will not be entitled to any refund of any fees already paid to us.
  • 3.5 You must complete your profile on the Merchant Portal and the Consumer Site, if applicable and keep it up to date and accurate. If you do not do so in a timely manner, we may build your profile using publicly available information, images and photographs (for example, information, images and photographs published on your own website) and you give us, and those working on our behalf, permission to do so.
  • 3.6 You warrant that you have all rights (including Intellectual Property Rights) and consents necessary to publish and/or make publicly available the Merchant Content on the Website and to grant the licenses granted under this Agreement. Although we have no obligation to review or approve any Merchant Content, we reserve the right to remove any content from the Merchant Portal and/or the Consumer Site that we, in our sole discretion, find objectionable or believe may be infringing.
  • 3.7 In using and accessing the Service, you agree that you will:
    • 3.7.1 co-operate with us in all matters relating to the Service;
    • 3.7.2 ensure your staff can explain the Service to consumers at your physical Stores;
    • 3.7.3 at all times maintain the anonymity of consumers using the TruRating Application and not attempt to match any data and/or information we provide you to specific consumers;
    • 3.7.4 permit and facilitate the addition of a TruRating acknowledgment to appear on your receipts and/or electronic confirmations (as applicable); and
    • 3.7.5 not sub-license or re-sell any TruRating Application or any data obtained from the TruRating Application.
  • 3.8 You will notify us promptly upon learning of any unauthorized use of your Merchant Portal or any breach of security.
  • 3.9 You must not, and will ensure that your staff members, directors, partners, contractors, agents and anyone acting under your instruction do not:
    • 3.9.1 enter any ratings into a TruRating Application, in any Store or online, except where they are acting as a genuine paying consumer of your goods and/or services outside the course of business or employment; or
    • 3.9.2 misuse any TruRating Application, or attempt by any means to generate false ratings.
  • 3.10 If you become aware or suspect that TruRating Application have been used in breach of Section 3.8, you will notify us promptly by emailing support@trurating.com and you will cooperate with us to remedy the effect of the breach. On becoming aware of the breach, we may at our discretion suspend your access to the Service and/or terminate this Agreement, with prior notice is practicable and may remove your profile from the Consumer Site without liability to you.
  • 3.11 You and/or anyone acting under your instruction agree, you will not (i) copy, modify, adapt, translate or otherwise create derivative works of the TruRating Application or Merchant Portal; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the TruRating Application; (iii) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the TruRating Application or Merchant Portal; (iv) introduce or attempt to introduce any virus or other contaminant to the TruRating Application or the Website or any of our software or systems; or (v) attempt to alter the look, feel and position of any TruRating Application.
  • 3.12 For so long as you receive and use the Service, you agree you will not receive, use or make available any other point of sale rating mechanism which is equivalent or similar to the Service.
  • 3.13 If we provide you with any promotional materials, or you produce any promotional materials relating to the Service or TruRating as agreed with us, you agree to use promotional materials to make clear to consumers that you use the Service, and will display it in a prominent location within your physical Store, and in accordance with any instructions which we might provide.
  • 3.14 At our request, you will provide us with promotional examples describing how our Service has been used to make improvements to Your business based on consumer feedback.
  • 3.15 You grant us the right and licence to use your name and logo for the limited purpose of identifying you as a customer of TruRating on our website and in our promotional materials, such as press releases.
  • 3.16 If your purchase TruRating Online Application, these additional provisions shall apply:
    • 3.16.1 You will be responsible for managing and securely storing encryption keys issued by TruRating in relation to the TruRating Online Application. If you know or suspect that an encryption key has been disclosed to an unauthorised third party, you must notify us immediately so that we can revoke the encryption key. We may from time to time revoke and re-issue encryption keys at our discretion;
    • 3.16.2 You agree to implement or facilitate the implementation of any technical changes that would impact on the functionality of existing integrations of the TruRating Online Application promptly on being notified of such change. Where the TruRating Online Application is integrated through a self-hosted shopping cart solution, you will make sure that the most recent and up to date version of the TruRating Online Application module specific to your shopping cart solution is installed;
    • 3.16.3 You will ensure that your ecommerce server timestamp is accurate, as we will use this for security token timestamp validations;
    • 3.16.4 You must take all necessary measures to prevent fraudulent use of the TruRating Online Application and you shall not attempt to circumvent or disable any technological protection measures contained in or used to protect the TruRating Online Application; and
    • 3.16.5 You must supply us with an up to date email address to which any customer comments submitted should be sent. If you want to change the email address you must email us at support@trurating.com. It may take up to ten working days to change the email address.

4. OUR OBLIGATION

  • 4.1 Subject to your compliance with the terms in this Agreement, we will:
    • 4.1.1 provide the Service to you in accordance with your Service Plan; and
    • 4.1.2 for the purposes of peer reporting in the Merchant Portal, only use Raw Ratings Data: (i) when that data is merged with at least five other merchants; or (ii) when that data is merged with a minimum of five separate Stores and where a single merchant does not provide more than 50% of the ratings; or (iii) with your prior consent.
  • 4.2 With respect to the Merchant Portal and/or the Consumer Site, we will use commercially reasonable endeavours to make sure that it is available and accessible at all times, however there will be times when access will be disrupted for maintenance, upgrades or repairs or for other reasons as may be necessary from time to time. We are not liable for any delay or interruption to availability of the Merchant Portal and/or the Consumer Site caused by us or any third party.
  • 4.3 If you request for TruRating to undertake POS installation on your behalf, we will only do so on the basis that we accept no liability for the work that we undertake with regards to such installation and we will charge you a fee which we will agree in advance in writing.
  • 4.4 We reserve the right to immediately and without notice to you, amend and remove any questions which are put into rotation as part of your Service (whether you have customised the questions or not), at our sole discretion.

5. DATA

  • 5.1 In the provision of the Service, we may add our own questions (“TR Questions”) into the rotation of questions. On average, our custom questions will not be put before consumers more frequently than as follows: 1 in 100 questions at any Store that is on a paid subscription and 1 in 10 at an Store that is on a not paid for subscription. The TR Questions will always be simple, fair and decent, in our sole opinion, acting reasonably.
  • 5.2 You hereby grant us a non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable and transferable license to use and publicly display the Merchant Content on, through or in connection with the Service in any media formats and through any media channels. This license will continue even after this Agreement has terminated.
  • 5.3 We own all rights including Intellectual Property Rights in and to Raw Ratings Data, Analytical Output, and TruRating Data.
  • 5.4 You own all rights including Intellectual Property Rights in and to Aggregated Ratings Data and Non-Ratings Data. You agree that you will use Aggregated Ratings Data solely for your internal business purposes provided such use is in compliance with all applicable laws and regulations, this Agreement and any reasonable instructions we may issue.
  • 5.5 You hereby grant us a non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable and transferable license to use, copy, distribute, publish, adapt, aggregate and prepare derivative works of the Non-Ratings Data for any purpose in connection with the Service, and for the purposes of reporting, data aggregation, analysis and commentary, and other analogous or connected uses.
  • 5.6 We hereby grant you a non-exclusive license to use Analytical Output as made available to you by us, solely for your internal business purposes unless otherwise agreed with TruRating, provided such use is in compliance with all applicable laws and regulations, this Agreement and any reasonable instructions we may issue

6. LIABILITY

  • 6.1 We:
    • 6.1.1 give no warranty as to, and are not liable for, the functionality or availability of the TruRating Application, the Merchant Portal or Consumer Site, and are not responsible to you for any delays, delivery failures, or other loss or damage resulting from the use of the TruRating Application, or the transfer of data over communications facilities;
    • 6.1.2 are not responsible for any problems, issues and/or errors caused by the act or omission of a third party; and
    • 6.1.3 are not liable for any delay or failure to comply with our obligations under this Agreement if the failure results from your or any of your staff’s, or any third party’s delay or failure to perform any obligation.
  • 6.2 Save as expressly set out in this Agreement, all other conditions, warranties or other terms which might have effect between you and us or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the extent permitted by law, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
  • 6.3 Nothing in this Agreement limits or excludes our liability for death or personal injury caused by our negligence; fraud or fraudulent misrepresentation; or any other liability which cannot be limited or excluded by applicable law.
  • 6.4 EXCEPT AS PROVIDED IN SECTION 6.3, IN NO EVENT WILL OUR COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL SUM PAID BY YOU IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  • 6.5 IN NO EVENT WILL WE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE RELEVANT PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  • 6.6 If the Service or any portion of the Service becomes or is in our opinion likely to become, subject to an infringement claim, then we may, at our sole option and expense take any of the following steps to avoid or mitigate any potential losses:
    • 6.6.1 Procure a licence to enable you to continue using the Service;
    • 6.6.2 Modify or replace software within the Service with software that is functionally equivalent; or
    • 6.6.3 Let you know to stop using the Service and we will refund any prepaid fees for services not provided after this date.

    If you become aware or suspect that a TruRating Application has been used in breach of this clause 6.5, you will notify TruRating immediately, and you will cooperate with TruRating to remedy the effect of the breach. On becoming aware of the breach, TruRating may at its discretion suspend your access to the Service and/or terminate this Agreement for material breach in accordance with clause 15.1 and may remove your Profile from the Consumer Site.

  • 6.7 This Section 6, sets out our sole liability and entire obligation and your exclusive remedy for any action related to our Service and any allegation of infringement.

7. TERMINATION

  • 7.1 You may suspend your access to the Service or terminate this Agreement by providing us with written notice (the length of which will be as set out in your Order Form) as set out in section 8.2. We will cancel your Service within two business days (in your territory) of receipt of your instruction, and termination takes effect at that point. If you suspend your access to the Service, this will not affect your obligation to pay the Fees.
  • 7.2 We may suspend your access to the Service or terminate this Agreement by giving you 2 business days’ notice (in your territory) by email. If we suspend your access to the Service, this will not affect your obligation to pay the Fees.
  • 7.3 We may suspend your access to the Service or terminate this Agreement immediately by emailing you if:
    • 7.3.1 you are in material breach of this Agreement and, for a breach that can be remedied, have failed to remedy it within 14 days of receiving written notice;
    • 7.3.2 TruRating becomes aware of or reasonably suspects you are using any TruRating Application in a fraudulent manner;
    • 7.3.3 you become insolvent or unable to pay your debts as they mature;
    • 7.3.4 you make an assignment for the benefit of your creditors;
    • 7.3.5 your company is dissolved or liquidated, or takes any corporate action for those purposes;
    • 7.3.6 you have a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of your property or business;
    • 7.3.7 you seek relief or if proceedings are commenced against you, or on your behalf, under any bankruptcy, insolvency or debtors’ relief law and those proceedings have not been fully stayed within seven days or vacated or set aside within 30 days after the commencement of those proceedings;
    • 7.3.8 if we determine in our sole discretion that any website on which you are running a TruRating Application or any website that you are promoting via the Consumer Site contains material that is objectionable, and you have failed to remove such objectionable material within seven (7) days of us requesting you to do so;
    • 7.3.9 a Third Party Provider terminates their relationship with us, which means the Service and/or the TruRating Application are no longer available to you; or
    • 7.3.10 if we are no longer able to provide the Service to you.
  • 7.4 If we terminate this Agreement under Section 7.3 or you terminate this Agreement under Section 7.1, you will not be entitled to a refund of any Fees paid.
  • 7.5 On termination or expiry of this Agreement for any reason, whether by you or by us:
    • 7.5.1 we will deactivate the applicable TruRating Application so that no further data can be collected;
    • 7.5.2 You will no longer have access to the Merchant Portal (and information contained within it) or any Aggregated Ratings Data and Non-Ratings Data;
    • 7.5.3 We will not export any data to you after the termination date that is stored within the Merchant Portal;
    • 7.5.4 we may remove references to you on either or both the Consumer Site and Website; and
    • 7.5.5 any and all licenses granted by us under this Agreement will terminate with immediate effect.
  • 7.6 Any provision of this Agreement that is intended to come into or continue in force on or after termination remains in force, including Sections 2.7, 3.11, 5.2, 5.5, 6, 7.5-7.7,8.1 ,8.2 and 9.1-9.4 .
  • 7.7 Except as set out in Section 7.5.5, termination of this Agreement does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.

8. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION

  • 8.1 Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and which courts have jurisdiction over any such dispute or lawsuit, depend on where You are domiciled:

    If You are domiciled in:

    You are contracting with:

    Notices should be addressed to:

    The governing law is:

    The courts having exclusive jurisdiction are:

    The United States of America

    TruRating, inc.

    160 Greentree Drive, Suite 101
    Dover, Delaware 19904, USA
    Email: support.usa@trurating.com

    The laws of the State of Delaware

    The federal and state courts located in the City of Wilmington within the State of Delaware.

    Canada

    TruRating Canada Limited

    40 King Street West
    Suite 5800
    P.O Box 1011
    Toronto, ON M5H 3S1
    Email: support.canada@trurating.com

    Ontario and controlling Canadian federal law

    Toronto, Ontario, Canada

    A Country in Europe (including U.K.)

    TruRating Limited

    Pendragon House, 65 London Road,
    St. Albans, Hertfordshire, United Kingdom
    AL1 1LJ
    Email: support@trurating.com

    England and Wales

    England and Wales

    Australia and New Zealand

    TruRating Australia Pty Limited

    Level 3, 37 Pitt Street, Sydney, NSW
    2000, Australia
    Email: support.australia@trurating.com

    The laws of New South Wales, Australia

    New South Wales, Australia

  • 8.2 Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You and shall be sent by email. All other notices to You will be addressed to your merchant representative designated by You.
  • 8.3 Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

9. GENERAL TERMS

  • 9.1 Both Parties shall fully comply with their obligations under all applicable privacy and data protection laws. If we process personal data on your behalf, we will do so in accordance with our privacy policy , as may be amended from time to time.
  • 9.2 Neither party will have any liability to the other party if it is prevented from, or delayed in, performing its obligations or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control.
  • 9.3 If any provision of this Agreement becomes invalid, illegal or unenforceable, it will be deemed modified to the extent necessary to make it valid, legal and enforceable.
  • 9.4 This Agreement constitutes the entire agreement between you and us and supersedes and extinguishes all previous agreements between you and us relating to its subject matter.
  • 9.5 We may assign, transfer, charge, sub-contract or deal in any other manner with any of our rights or obligations under the Agreement. You may not do these things without our prior written consent.
  • 9.6 No one other than a party to this Agreement, their successors and assignees, will have any right to enforce its terms.
  • 9.7 Except as provided elsewhere in this Agreement, no addition to, variation of, exclusion or attempted exclusion of any term of this Agreement or any document incorporated by reference shall be binding on either party unless it is in writing (excluding email) and signed by a duly authorised representative of each party.

A PDF copy of these terms and conditions is available here