Terms and Conditions

These Terms of Service (the “Agreement” or the “Terms”) describes the terms and conditions by which you, the entity agreeing to this Agreement (“you” or “your”) may access the MarginEdge Platform and/or receive the products and services offered by MarginEdge, Co. (“MarginEdge”, “we”, “our”, or “us”) pursuant to the MarginEdge Platform, including the Services. 

This Agreement is a contract between you and MarginEdge. You must read this Agreement carefully as it governs your access to and use of the Services. By accessing or using any of the Services, you (on behalf of yourself and the entity that you represent, if any): (a) signify that you have read, understand, and agree to be bound by, this Agreement in its entirety and that you have read and understood our Privacy Policy , and (b) represent and warrant that you have the willingness, right, authority, and capacity lawfully to enter into, and be bound by, this Agreement.  In addition, the individual executing this Agreement represents that they are of sufficient age to execute this Agreement and that they possess the legal authority to execute this Agreement on behalf of you, the entity. If either such individual or such entity do not agree with the foregoing, you are not authorized to access or use any of our Services and should not use our Services. All users and others who access or use the Services through you are subject to the terms of this Agreement.

SECTION 14 (DISPUTE RESOLUTION; ARBITRATION) CONTAINS AN ARBITRATION AGREEMENT AND CLASS ACTION/JURY TRIAL WAIVERS WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN ACCORDANCE WITH SECTION 14(F) (RIGHT TO OPT OUT), (A) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST MARGINEDGE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (B) YOU ARE AGREEING TO MANDATORY INDIVIDUAL ARBITRATION FOR THE RESOLUTION OF DISPUTES AND WAIVING YOUR RIGHT TO A JURY TRIAL ON YOUR CLAIMS. PLEASE NOTE THAT YOUR USE OF THE SERVICES IS SUBJECT TO THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT USE ANY PRODUCT IN ANY MANNER.

1. Definitions

In addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

1. “End Users” means any person who is of the age of majority and is registered for the Service and authorized by you to access and use the Services under your Subscription. End Users may include you and your employees, consultants, contractors, and agents.

2. “MarginEdge Platform” means the online application provided by MarginEdge, the mobile application(s) provided by MarginEdge, and the underlying servers and software used to provide such applications.

3. “Payment Service Fees” means the fees you incur using the payment Services, as they may change from time to time, as set forth in the fee schedule available on the MarginEdge Platform.

4. “Services” means (i) access to, and use of, the MarginEdge Platform, and (ii) the use of any services delivered to you through the MarginEdge Platform, including payment Services if you elect to have us facilitate the payment of invoices through the MarginEdge Platform.

5. “Subscription” means the right to access the Services during the Term.

2. Eligibility Requirements; Usage Terms

a. Eligibility

You may use the Services only if you can form a legally binding contract with us, and only in compliance with all applicable local, state, national, and international laws, rules and regulations, including, without limitation, any applicable sanctions laws, export control laws, securities or other financial regulatory laws, anti-money laundering laws, or privacy laws (collectively, “Applicable Laws”) and this Agreement. 

If your access to or use of the Services is prohibited by any Applicable Laws and/or this Agreement, then you are not authorized to, and you may not, use the Services. MarginEdge is not, and will not be, responsible or liable for any access to or use of the Services in violation of any Applicable Laws. 

YOU ARE SOLELY RESPONSIBLE FOR REVIEWING AND COMPLYING WITH ALL APPLICABLE LAWS AND ALL OTHER ELIGIBILITY REQUIREMENTS FOR THE SERVICES (COLLECTIVELY, “ELIGIBILITY REQUIREMENTS”). YOU EXPRESSLY RELIEVE MARGINEDGE FROM ANY AND ALL LIABILITY ARISING FROM ANY NONCOMPLIANCE WITH ANY ELIGIBILITY REQUIREMENTS, AND MARGINEDGE IS NOT AND WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF ANY NONCOMPLIANCE WITH ANY ELIGIBILITY REQUIREMENTS.

b. Certain Representations and Warranties

Without limiting any other section of this Agreement, if you access or use the Services, you represent and warrant that:

• • your access to or use of the Services is not prohibited by, and does not otherwise violate or assist you to violate, any Applicable Laws;

  • you are not, and for the duration of the time you use the Services, will not be (i) the subject of economic or trade sanctions administered or enforced by any governmental authority or otherwise designated on any list of prohibited or restricted parties (including but not limited to the U.S. Department of Treasury) (collectively, “Sanctioned Person”), or (ii) a citizen, resident, or organized in a jurisdiction or territory that is the subject of comprehensive country-wide, territory-wide, or regional economic sanctions by the United States (collectively, “Restricted Territories”);

  • you do not intend to, and will not, transact with any Sanctioned Person or any person in any Restricted Territory;

  • you do not, and will not, use a virtual private network or any other privacy or anonymization tools or techniques to circumvent, or attempt to circumvent, any restrictions that apply to the Services; and

  • all information that you provide in connection with the Services is and will at all times remain current, complete, and accurate.

c. Certain Covenants

Without limiting any other section of this Agreement, if you access or use the Products, you agree that:

• • you are solely responsible for your use of the Services, including without limitation all transactions you engage in using the Services;

  • you are solely responsible for maintaining the security and confidentiality of any authentication credentials that you use in connection with the Services;

  • except as otherwise specifically set forth in this Agreement, MarginEdge does not and will not act as an agent for you or any other user of the Services, and all transactions you engage in using the Services are considered unsolicited, which means that they are solely initiated by you; 

  • MarginEdge has no control over, or liability for, the delivery, quality, safety, legality, or any other aspect of any transactions that you engage in using the Services, and MarginEdge is not responsible for ensuring that any counterparty with whom you transact completes the transaction or is authorized to do so; and

  • you are solely responsible for reporting and paying any and all taxes applicable to your use of the Services, including without limitation any transactions that you engage in using the Services.

d. Prohibited Uses and Activities

Except to the extent a restriction is prohibited by any Applicable Laws, you agree that you will not: 

• • use the Services in any way that violates, or promotes the violation of, any (i) Applicable Laws, (ii) contractual obligation, or right of any person, including, but not limited to, intellectual property and other proprietary rights, or (iii) the terms of this Agreement;

  • use any device, software or routine that interferes with the proper working of any Service;

  • attempt to probe, scan or test the vulnerability of the Services, or otherwise seek to interfere with or compromise the integrity, security, or proper functioning of the Services;

  • attempt to interfere with the proper working of the Services, or interfere with, damage, or disrupt any parts of the Services, the server(s) from which the Services is provided, or any server, computer or database connected to the Services; 

  • attempt to transfer stolen items, fraudulently obtained items, items taken without authorization, and/or any other illegally obtained items;

  • further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or 

  • encourage, induce or assist any third party to engage in any of the activities described in this section.

3. Registration; Provision of the Services

1. Registration. When registering for a paid Subscription, you (including any individuals registering on your behalf) must provide complete and accurate information during the registration process, including a valid credit card number or bank account (for ACH debit) that you are authorized to use.

2. Term. The term of this Agreement (the “Term”) begins on the date you complete the registration and we activate Services for you. This Agreement will continue from month to month until terminated by either party pursuant to the terms hereof, unless provided otherwise in a supplemental terms signed by your and our authorized representatives.

3. Order Acceptance Policy. Your successful submission of your order on the MarginEdge Platform signifies acceptance by MarginEdge of your order and the provision of your Account.

4. Services. MarginEdge shall make the Services available to you and your End Users pursuant to this Agreement during the Term.  

5. Support. Support via email and phone is available to End Users in connection with an active Subscription.

6. Use of Services. You must follow any policies made available to you within the Services. You agree you will not misuse our Services. For example, don’t interfere with our Services or try to access them using a method other than the interface and the instructions that we provide. You may use our Services only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct.

7. Assistance; Suspension. You will assist us if we are required to ascertain your compliance with any Rules or Applicable Laws or the Privacy Policy. We may, within our sole discretion, suspend Services for a reasonable period of time necessary to investigate suspicious or unusual activity, and we shall have no liability for any losses you may attribute to any suspension of remits or funds disbursement. We may reverse transactions that we deem to be in violation of the Agreement and you agree to reimburse us for any such reversal.

4. Provision of Payment Services  

1. Payment Services.  As part of the payment Services, MarginEdge permits you to make payments to your vendors through the MarginEdge Platform.  Payments are made from either your Designated Account (as defined below) or from your credit card and will be delivered to vendors through printed checks, ACH, or virtual credit cards.  Depending on the vendor and payment type, payments will be processed through either an FBO (for the benefit of) account maintained at a third-party financial institution partner of MarginEdge or directly from your Designated Account. In all cases, you are responsible for verifying the accuracy of vendor and payment details prior to scheduling payments.

2. Payment Service Fees.  You understand and agree that MarginEdge may charge Payment Service Fees for use of the payment Services. Fees may be charged to your payment method, either in a separate transaction from any principal payments or in a single transaction including both amounts, depending on applicable rules. Recipient fees may also be deducted from the payment amount received by Recipients, upon their approval.  Fees are based on the rate table available in the MarginEdge Platform, as they may change from time to time, and may vary depending upon factors including but not limited to the payment’s recipient, the payment method, and other variables both which may or may not be controlled by MarginEdge. Fees are subject to change at any time without prior notice and are calculated in real time and presented to you during review of your payment, prior to submission or edit.

3. Electronic Funds Transfer Agreement. In connection with the payment Services, you authorize us to initiate, process, transmit, and settle ACH debits or credits to the deposit account you specify (your “Designated Account”). Your authorization will remain in effect, even after termination of the Subscription, until we, in our sole discretion, decide that all of your financial obligations have been fully satisfied. You irrevocably authorize us to debit the Designated Account for the amount of any chargebacks, ACH returns, fines, losses, and costs that we may incur because of your use of the Services.

4. Required Information. In order to use the Services, you are required to provide us with certain information relating to your identity, End Users, vendors, transactions, and financial statements. You must provide us with accurate and complete information and keep the information up to date. We rely on this information for underwriting and to meet our obligations under Applicable Laws and agreements with our sponsor financial institutions. If the scope or nature of your business changes, you must notify us immediately; your failure to do so will be considered a breach of this Agreement. You authorize MarginEdge, directly or through third parties, to make any inquiries we consider necessary to verify your or your business’ identity. This may include asking you for further information and requiring you to take additional steps. If MarginEdge cannot verify your or your business’ identity, MarginEdge reserves the right to deny you use of the Services or to limit the use of your Account. You agree to provide MarginEdge with your taxpayer identification number, or other tax-related information if MarginEdge is required to provide any tax reporting as a result of your use of the Services.

5. Vendor Setup. To set up a vendor to receive payments from you through the payment Services, you may need to provide certain information about the vendor to MarginEdge. Alternatively, vendors may elect to provide payment information to MarginEdge. Depending on the vendor information obtained by MarginEdge, MarginEdge will, in its discretion, select a payment method for each vendor. We are not responsible or liable for losses or damages due to your failure to provide complete or accurate vendor information to us, or resulting from any delays in payment (including lost checks). 

6. Satisfaction in Goods or Services Prior to Paying. By submitting your payment for processing through the Services, you represent, warrant, and agree that the goods or services you received under the applicable invoice you are paying have already been rendered to your satisfaction. You hereby forfeit any future claims regarding insufficient or unexpected quality or untimely delivery of the goods and services provided for which you have paid using the Services.

7. Risk of Late Payment. You will be solely responsible for scheduling payments and selecting a process date for each payment that allows sufficient time for the payment to be delivered on or prior to the bill’s due date. Any expected delivery timeframe is a projected estimate only based on MarginEdge’s historical performance for a given disbursement channel, and there is no guarantee that longer processing times will not occur. You agree that MarginEdge is not liable for any damages that result from any delay in payment.

8. Processing Limits. From time to time, we may apply limits to your payments, including a maximum dollar amount per transaction and a maximum dollar amount for transactions over a given period of time. If certain processing volume thresholds are exceeded by your use of payment Services, you may be required to enter into an additional agreement with our sponsor financial institution.

9. Limits to Payment Transactions. You may only use the payment Services to pay for vendors supplying inventory and supplies for your business. Notwithstanding the foregoing, we may impose additional limits on the goods and services that you can purchase through the payment Services. Specifically, the payment Services may only be used by you for valid and lawful purposes and will not be used for gambling, online gaming, illicit drug transactions, or any unlawful purposes, including without limitation (i) illegal purchases of goods or services, regardless of whether such transaction violates the laws applicable in the territory where the transaction was initiated or the merchant is located, or (ii) purchases that are prohibited by local law. In addition, the payment Services may not be used in any way that would cause MarginEdge or our financial institution partners to violate any Applicable Law.

10. Payment Consent. When we receive a payment instruction from an End User through the payment Services, you authorize each our financial institutions to debit your payment method on file with us and to remit funds on your behalf. You also authorize us and our financial institutions to credit your payment method for payments returned to us and to resubmit any ACH debit that is returned for insufficient or uncollected funds, or any other reason. By any End User submitting a request for payment through the Services, you authorize us and our financial institutions to follow the payment instructions that are received from such End User. In order to process payments more efficiently and effectively, our financial institutions, at our instruction, may submit payments to the best-known address. When necessary, our financial institutions, at our instruction, may alter payment data or data formats or change or reformat your vendor’s account number to match the account number or format required by your vendor for electronic payment processing. Once MarginEdge or its financial institutions have begun processing a payment, it cannot be cancelled, rescheduled, or modified, and you must submit a stop payment request.

11. Control and Ownership of Funds. Payments to your vendors (other than fees payable to us) are not controlled by MarginEdge and such funds do not pass into MarginEdge’s legal ownership at any time, including with respect to any refunds or returns of such payments. Accordingly, you acknowledge that MarginEdge does not possess any money transmission licenses that would be required if MarginEdge assumed control of such funds.

12. Funds Sufficiency. You agree at all times to maintain sufficient funds in your payment method on file at MarginEdge to satisfy all or your obligations, including returns, reversals, and associated fees, and to add funds immediately if MarginEdge notifies you that your funds are insufficient. Without limiting any other available remedies, if any payment initiated from your payment method is returned because of insufficient funds, you must reimburse MarginEdge (or to the extent applicable, our financial institutions) for any corresponding payment amount immediately upon demand, plus exception processing fees, plus any bank fees, charges or penalties for return items. MarginEdge or its financial institution partners also reserve the right to debit your vendor’s account for money paid to the vendor on your behalf if your payment is returned because of insufficient funds or any other reason. MarginEdge reserves the right to withhold funds from a payment to a vendor if you have an outstanding balance with MarginEdge. You shall be solely responsible for all penalties, interest charges, late payment fees and service fees resulting from such a debit to the vendor.

13. Vendor Billing Authorization. Per the Agreement, we are not liable for the contents of your agreement with any vendor. However, if we are providing you with payment Services, you may be required to include a payment authorization provision acceptable to us in your vendor agreements. Failure to include an acceptable payment authorization provision in your vendor agreements could result in payment Services being delayed or terminated. You agree to hold us harmless for any liability arising under or in connection with your vendor agreements, including but not limited to the payment authorization provision.

14. Compliance with Applicable Laws and Rules. You agree to comply with all Applicable Laws applicable to your use of the Services and your business, and you agree to comply with the applicable National Automated Clearing House Association (“NACHA”) rules (the “Rules”) as they may change from time to time in connection with your use of the payment Services. Copies of the NACHA Operating Rules and Guidelines are available for review online at www.achrulesonline.org. You are responsible for all claims, demands, losses, liabilities and expenses (including attorneys’ fees and costs) that result directly or indirectly from your failure to perform your obligations under the Rules and you indemnify MarginEdge and our financial institutions for the same.  

15. Chargebacks and Refunds. The intent of the payment Services is to complete payments that are accurate, complete, and final.  However, in the rare event that you need to initiate a chargeback or ACH return outside of the MarginEdge Platform for a payment that has already been transmitted to the recipient vendor, you agree to assign to MarginEdge any claims against your recipient vendor associated with such chargeback or ACH return. You further agree that we may contact your vendor directly to request reimbursement for any payment that has been transmitted to the vendor and for which you have initiated a chargeback or ACH return. You acknowledge and agree that your Account and access to the payment Services may be suspended or limited pending resolution of the chargeback or ACH return process resolution. In certain situations, following a payment submission, you may request a refund by contacting MarginEdge at billpay@marginedge.com. The availability of refunds and processes for their execution are dependent on the disbursement channels by which payments are delivered to your vendor. MarginEdge is unable to issue partial refunds of payments. MarginEdge is also unable to initiate refunds in cases where your vendor has already received your payment. If this is the case, you should contact your vendor directly to request a refund, pursuant to their payment terms and refund policies. In the event that MarginEdge issues a payment refund, MarginEdge will generally not refund the MarginEdge Fee. In addition, if you effect a payment refund via chargeback mechanisms, MarginEdge will not refund any portion of the MarginEdge Fee. MarginEdge may refund electronic payments, including those delivered via electronic fund transfer, ACH, and card network providers, prior to their disbursement.

16. Prohibited Practices. You (i) will not present for processing any transaction you know or should know to be fraudulent or not authorized by the End User; (ii) must not request an ACH transfer that violates the Rules or Applicable Laws; (iii) will not use the payment Services to accept or pay amounts representing the refinancing of an existing uncollectible obligation or debt; and (iv) may not process transactions for, receive payments on behalf of, or (unless required by Applicable Laws) redirect payments to, a third party.

17. ACH Processing. To enable you to make and accept ACH payments, you authorize us to originate credit or debit records for the purpose of a funds transfer (“Entries”) into the ACH network. We will use reasonable efforts to originate Entries on your behalf in accordance with the Agreement. You must only submit Entries for bona fide transactions made in the ordinary course of business in accordance with the Agreement, Rules, and Applicable Laws.

18. No Liability for Errors. Neither MarginEdge nor its financial service providers have responsibility nor will have liability for any consequences resulting from your interactions or contracts with your vendors to whom you direct payments using the Services, including but not limited to payment terms, the proper and timely delivery of goods or services, and any associated disputes which may arise, including resulting from any delays in payment processing. 

5. Your MarginEdge Account

You are required to have a MarginEdge account (an “Account”) in order to use the Services. Your Account may be assigned to you by an administrator or by MarginEdge. If you are using an Account assigned to you by an administrator, different or additional terms may apply, and your administrator may be able to access or disable your account. It is the responsibility of the account administrator to activate and inactivate users. You agree that you will take reasonable precautions to safeguard your password and other authentication details and keep them confidential. You are responsible for all activity that occurs in association with your Account. MarginEdge is not liable for any loss or damages caused by your failure to maintain the confidentiality of your Account credentials. 

6. Privacy Policy

You agree that the Privacy Policy governs your and our respective obligations regarding its subject matter, which Privacy Policy is expressly incorporated into the Agreement. 

7. Disclaimers

a. Third-Party Services

The Services may enable you to access, use, or otherwise interact with products, services, promotions, resources, or other content provided by one or more third parties that are not owned or controlled by us (collectively, “Third-Party Services”), and certain functionalities of the Services may require your use of Third-Party Services.

YOUR ACCESS TO AND/OR USE OF ANY THIRD-PARTY SERVICE, INCLUDING BUT NOT LIMITED TO ANY INTERACTION OR TRANSACTION BY YOU WITH, ON, OR THROUGH ANY THIRD-PARTY SERVICE, IS SUBJECT TO THE APPLICABLE THIRD-PARTY SERVICE’S TERMS AND CONDITIONS AND/OR ANY OTHER TERMS MADE AVAILABLE ON OR AGREED TO BY YOU IN CONNECTION WITH SUCH THIRD-PARTY SERVICE, AND ANY TRANSACTION AND/OR INTERACTION BY YOU WITH, ON OR THROUGH A THIRD-PARTY SERVICE IS SOLELY BETWEEN YOU AND THE APPLICABLE THIRD PARTY. IF YOU ACCESS, USE, OR INTERACT WITH A THIRD-PARTY SERVICE IN ANY WAY, YOU DO SO AT YOUR OWN RISK, AND YOU UNDERSTAND THAT THIS AGREEMENT DOES NOT APPLY TO YOUR USE OF SUCH THIRD-PARTY SERVICES. 

MARGINEDGE DOES NOT APPROVE, MONITOR, ENDORSE, WARRANT, OR ASSUME ANY RESPONSIBILITY FOR ANY THIRD-PARTY SERVICES, AND MARGINEDGE IS NOT AND WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF ANY THIRD-PARTY SERVICE, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE PRODUCTS OR ANY THIRD-PARTY SERVICES.

YOU EXPRESSLY RELIEVE MARGINEDGE FROM ANY AND ALL LIABILITY RELATING TO YOUR ACCESS TO, USE OF, OR INTERACTION WITH, OR RELIANCE ON, ANY THIRD-PARTY SERVICE.

b. NO WARRANTIES

EACH OF OUR SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ANY REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF EACH OF OUR PRODUCTS IS AT YOUR OWN RISK. WE DO NOT REPRESENT OR WARRANT THAT ACCESS TO ANY OF OUR PRODUCTS WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR SECURE; THAT THE INFORMATION CONTAINED IN ANY OF OUR PRODUCTS WILL BE ACCURATE, RELIABLE, COMPLETE, OR CURRENT; OR THAT ANY OF OUR PRODUCTS WILL BE FREE FROM ERRORS, DEFECTS, VIRUSES, OR OTHER HARMFUL ELEMENTS. NO ADVICE, INFORMATION, OR STATEMENT THAT WE MAKE SHOULD BE TREATED AS CREATING ANY WARRANTY CONCERNING ANY OF OUR PRODUCTS. 

8. Intellectual Property Rights

a. General

The Services and their entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection, and arrangement thereof), are owned by us, our licensors or other providers of such material and are protected by copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Neither this Agreement nor your use of the Services transfers to you or any third party any rights, title, or interest in or to such intellectual property rights, except as indicated otherwise. 

Subject to the terms of this Agreement, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the Services solely in accordance with this Agreement. You agree that you will not use, modify, distribute, tamper with, reverse engineer, disassemble or decompile any of the Services for any purpose other than as expressly permitted pursuant to this Agreement. Except as set forth in this Agreement, we grant you no rights to any of our Services, including any intellectual property rights. 

b. Feedback

If you provide us with any feedback or suggestions regarding the Products (“Feedback”), you hereby assign to us all rights in such Feedback and agree that we have the right to use and fully exploit such Feedback and related information in any manner we deem appropriate. Any Feedback you provide will be treated as non-confidential and non-proprietary, and we will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment, attribution, or compensation to you. 

c. Use of Intellectual Property 

By using the Services, you agree that MarginEdge, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, in presentations, marketing materials, customer lists, financial reports and web site listings for the purpose of advertising, promoting or publicizing MarginEdge and/or the Services. 

9. Authorization to Act on your behalf

You, as a restaurant customer, authorize MarginEdge to act on your behalf with your suppliers for the purposes of data collection and order submission. MarginEdge will gather data including, but not limited to supplier items, prices, pack/size, brand, etc. However, MarginEdge is not party to your transactions. The services are intended to facilitate business communications and sales and purchase transactions between you acting as either a Restaurant and/or Registered User acting as either a Restaurant or Supplier. MarginEdge is only a conduit through which a Restaurant and Supplier can negotiate, submit and track orders for the purchase and sale of Supplier’s products and services. However, MarginEdge does not represent either Restaurant or Supplier in connection with any transactions facilitated through the MarginEdge Platform, and MarginEdge is not a party to any transaction between any Restaurant and Supplier.

10. Modifications of this Agreement or the Services

a. Modifications of this Agreement

We reserve the right, in our sole discretion, to modify this Agreement from time to time. If we make any material modifications, we will notify you by updating the date at the top of this Agreement. All modifications will be effective when they are posted, and your continued access to or use of any of the Services will serve as confirmation of your acceptance of those modifications. If you do not agree with any modifications to this Agreement, you must immediately stop accessing and using all of the Services.

b. Modifications of the Services 

We reserve the following rights, which do not constitute obligations of ours: (i) with or without notice to you, to modify, substitute, eliminate or add to any of the Services; (ii) to review, modify, filter, disable, delete, and remove any and all content and information from any of the Services.  

11. Indemnification 

To the fullest extent permitted by Applicable Laws, you agree to indemnify, defend and hold harmless MarginEdge, as well as its affiliates and service providers, and each of their respective past, present and future officers, directors, members, employees, consultants, representatives and agents, and each of their respective successors and assigns (the “Indemnified Parties”) from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, taxes, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to: (a) your access and use of any of the Services; (b) your violation of any term or condition of this Agreement, the right of any third party, or any Applicable Laws; (c) any other party’s access and use of any of the Services with your assistance or using any device or account that you own or control; (d) any dispute between you and (i) any other user of any of the Services or (ii) any of your own customers or users; and (e) your negligence or willful misconduct. You agree to promptly notify us of any Claims and cooperate with the Indemnified Parties in defending such Claims. You further agree that the Indemnified Parties shall have the right to control the defense or settlement of any Claims if the applicable Indemnified Party so chooses.  

12. Limitation of Liability

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAWS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL THE INDEMNIFIED PARTIES OR ANY OF THEM BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR:  (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION; (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF ONE-HUNDRED ($100) DOLLARS; OR (D) ANY MATTER BEYOND THE REASONABLE CONTROL OF THE INDEMNIFIED PARTIES OR ANY OF THEM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

YOU AGREE THAT MARGINEDGE SHALL NOT BE LIABLE FOR DAMAGES INCURRED, OR SUMS PAID, WHEN THE MARGINEDGE PLATFORM IS TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO MARGINEDGE’S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS OR AS A RESULT OF THE DISCONNECTION FROM OR UNAVAILABILITY OF ANY NETWORK.

THE MARGINEDGE PLATFORM RELIES ON OPTICAL CHARACTER RECOGNITION TECHNOLOGY THAT INHERENTLY MAY MAKE ERRORS IN ITS ATTEMPTS TO TRANSLATE IMAGES INTO TEXTUAL DATA AND OTHER DATA INPUT THAT MAY BE INCORRECT OR OTHERWISE INACCURATE. CONSEQUENTLY, YOU AGREE THAT IT IS SOLELY YOUR RESPONSIBILITY TO ENSURE THAT DATA ADDED TO THE MARGINEDGE PLATFORM, REGARDLESS OF THE MEANS OF TRANSMISSION, IS ACCURATE AND COMPLETE, AND THAT YOU ARE SOLELY LIABLE FOR THE CONSEQUENCES OF ANY BUSINESS DECISIONS MADE USING ANY INFORMATION OR RESULTS OBTAINED THROUGH USE OF THE MARGINEDGE PLATFORM.

13. Governing Law

This Agreement is governed by and will be construed under the laws of the State of Delaware, excluding its body of law controlling conflict of laws. Any arbitration conducted pursuant to this Agreement shall be governed by the Federal Arbitration Act. You agree that any judicial proceeding will be brought in the courts located in the Commonwealth of Virginia.

14. Dispute Resolution; Arbitration

PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT (THIS “ARBITRATION AGREEMENT”) CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

1. Applicability of this Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to this Agreement or to any aspect of your relationship with us, will be resolved by binding arbitration, rather than in court, except that (i) you may assert claims or seek relief in small claims court if your claims qualify, and (ii) you or we may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.  

2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to MarginEdge 1069 W Broad St, #913 Falls Church VA 22046 United States. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require us to pay the additional cost. You are responsible for your own attorneys’ fees unless the arbitration rules and Applicable Laws provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, we will pay the remaining filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorney’s fees in certain cases. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11). The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before JAMS, the arbitrator, or a court of competent jurisdiction.

3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement, and (ii)  resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator will decide the rights and liabilities, if any, of you and us. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, provided that the arbitrator shall also be empowered to consolidate claims raised between the same parties to a single arbitration proceeding. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under Applicable Laws, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.

4. Waiver of Jury Trial. YOU HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14(a) (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to limited review.

5. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If a decision is issued stating that Applicable Laws preclude enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the courts of the British Virgin Islands. All other disputes, claims, or requests for relief shall be arbitrated.

6. Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to MarginEdge 1069 W Broad St, #913 Falls Church VA 22046 United States within 30 days after you first use the Services. Your notice must include your name and address, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, (i) all other parts of this Arbitration Agreement will continue to apply to you, and (ii) we will not be bound by this Arbitration Agreement. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

7. Severability. Except as provided in Section 14(e) (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such specific part or parts shall be eliminated or limited to the minimum extent such that the remainder of the Arbitration Agreement shall continue in full force and effect.

8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with us.

9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, you may reject that change within 30 days of such change becoming effective by writing us at MarginEdge 1069 W Broad St, #913 Falls Church VA 22046 United States and expressly opting out of this Arbitration Agreement.

15. Miscellaneous

1. Entire Agreement. This Agreement, together with any additional terms, guidelines, and rules that are posted or otherwise made available on or through the Services, including our Privacy Policy, constitute the entire agreement between you and us with respect to the subject matter hereof. This Agreement supersedes any and all prior or contemporaneous written and oral agreements, communications, and other understandings (if any) relating to the subject matter of this Agreement.

2. Construction. The headings in this Agreement are for reference only and shall not affect the interpretations of the terms of this Agreement. The terms “for example,” “including” and/or “includes” shall be deemed to mean “for example, but not limited to,” “including, but not limited to” or “includes, but is not limited to,” as applicable.

3. Assignment. You may not assign or transfer this Agreement, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer this Agreement without our prior written consent shall be null and void. We may freely assign or transfer this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.

4. Notice. We may provide any notice to you under this Agreement using commercially reasonable means, including using public communication channels. Notices we provide by using public communication channels will be effective upon posting.

5. Severability. If any provision of this Agreement shall be determined to be invalid or unenforceable under any rule, law, or regulation of any local, state, or federal government agency, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any Applicable Laws and the validity or enforceability of any other provision of this Agreement shall not be affected.

6. This Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Neither MarginEdge nor you intend: (i) the benefits of this Agreement to inure to any third party; or (ii) any rights, claims or causes of action against a party to this Agreement to be created in favor of any person or entity other than the other party to this Agreement.

7. Non-Waiver. No waiver of the provisions hereto shall be effective unless in writing and signed by the party to be charged with such waiver.  No waiver shall be deemed to be a continuing waiver in respect of any subsequent breach or default either of similar or different nature unless expressly so stated in writing.  No failure or delay on the part of either party in exercising any power or right under this Agreement shall be deemed to be a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right.