Policies
Terms & Conditions
Terms of Use
These Terms of Use (the “Agreement”) are made between you, a legal entity, and Gynger, Inc., its subsidiaries, affiliates, agents and successors and assigns (“Gynger”), and governs the use of Gynger’s services, including mobile applications, websites, software, cloud-based solutions, and other products and services (the “Services”). “Vendors” use Gynger to facilitate payments for software, technology, or cloud solutions from their customers and obtain financial insights from Gynger. “Buyers” may obtain financing and initiate payments to their vendors through the Services. The Services include Gynger’s vendor platform services (the “Vendor Services”) and other Services that Gynger provides to you in your capacity as a Buyer (the “Buyer Services”). The Services are being provided to you expressly subject to this Agreement. Different portions of this Agreement may apply depending on whether you are acting as a Vendor or as a Buyer.
By accessing and/or using the Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement and to comply with all applicable laws and regulations. The terms and conditions of this Agreement form an essential basis of the bargain between you and Gynger, and this Agreement governs your use of the Services. You and Gynger may be referred to in this Agreement collectively as the “Parties” and individually as a “Party”. Defined terms used herein shall have the meanings attributed to them in Section 28 and elsewhere in this Agreement.
1. Acceptance of Agreement; General Representations & Warranties
Please carefully review this Agreement before using the Services. If you do not agree to these terms, you may not access or use the Services.
By accessing and/or using the Services, you represent, warrant, and covenant that:
You are duly organized, validly existing, and in good standing under the applicable laws of the United States;
You are not, and are not acting on behalf of, an individual consumer, sole proprietor, unincorporated partnership, or a company organized and registered outside the United States;
You have a valid U.S. Employer Identification Number (EIN);
The natural person who applies for a Gynger Account on your behalf (i) is authorized to provide information about you, (ii) submit the application on your behalf, (iii) enter into binding agreements on your behalf, (iv) manage your Gynger Account; and (v) is not, and is not affiliated with, any individual or organization that is subject to sanctions in the United States, identified on any lists maintained by U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or the U.S. Department of State, or is subject to any law, regulation, or other list of any government agency that prohibits or limits Gynger from providing a Gynger Account or Services to such person or from otherwise conducting business with the person;
All information you provide is and will be current, accurate, and complete;
You have full power and authority to enter into the Agreement and in doing so will not violate any law or any other agreement to which you are a party;
You will use your Gynger Account exclusively for business purposes and not for any personal, family, or household use; and
You have reviewed and agree to be bound by this Agreement.
2. Required Information
You must provide all requested information to apply for and maintain an online account with Gynger (a “Gynger Account”), to receive Services, and as requested by Gynger or a Program Partner from time to time.
3. Additional Terms
In certain circumstances, including where Gynger deems you to present a high risk to Gynger or where Gynger is required to do so by a Program Partner, Gynger may require you to execute additional agreements with Gynger or a Program Partner (“Additional Terms”). The availability of specific Services to you may be subject to these Additional Terms. Gynger may add or change the applicability of these requirements and the Additional Terms at any time. You may be required to enter into such Additional Terms in order to access or continue use of the Services. Required Additional Terms are provided separately from this Agreement.
4. Prohibited and Restricted Activities
The Services, including your Gynger Account, may not be (a) used for any purpose that is unlawful or prohibited by this Agreement, (b) used for any personal, family, or household use, (c) used for any transaction involving any illegal activities, (d) provided to or used for any transaction involving an individual, organization, country, or jurisdiction that is blocked or sanctioned by the United States, including those identified on any lists maintained by OFAC or the U.S. Department of State, (e) used by third parties unaffiliated with you, or (f) used for any purpose not related to your business (collectively, the “Restrictions”).
Gynger will not approve and may terminate any or all Gynger Accounts that Gynger knows or believes are engaged in any illegal activities or otherwise do not comply with the Restrictions. Gynger may limit your use of certain Services or require that you provide additional information to open or maintain your Gynger Account if it knows or believes you to be engaged in illegal activities.
5. Authorized Users
5.1 Appointment of an Administrator
You must specify at least one “Administrator” to manage your Gynger Account when submitting your application. Administrators must have, and you represent that any individual designated as an Administrator has, the requisite organizational power and authority to conduct business and manage your Gynger Account. In the event that an individual designated as an Administrator no longer has such requisite organizational power and authority, you must notify Gynger promptly and designate another Administrator for the Gynger Account.
5.2 Administrator Powers
Administrators may: (a) add, remove, or manage additional Administrators and authorize employees, contractors, or agents to use of the Services on your behalf (“Users”; the term “Users” also includes Administrators); (b) view transactions; (c) view and run reports and download statements; (d) provide or update Buyer Data; (e) connect Linked Accounts, Third-Party Services, and other accounts to your Gynger Account; (f) consent to any new or updated terms or conditions contained in this Agreement or other agreements or policies incorporated in this Agreement, supplemental agreements, or any Additional Terms; and (g) take actions specified in any Additional Terms and perform other tasks on your behalf.
5.3 Administrator Duties
Administrators must monitor your Gynger Account activity and statements as required by any applicable Additional Terms. Certain Services include additional permission levels and authorizations. If you use such Services, Administrators on your Gynger Account will be able to authorize and assign Users these permission levels and authorizations.
6. Consent to Electronic Signature and Communications; Notices
You agree that submitting your application for a Gynger Account and/or indicating consent to this Agreement constitutes your electronic signature. You also agree that such electronic consent has and will have the same legal effect as a physical signature. You consent to Gynger providing Notices to you electronically and, if applicable, account statements to you electronically. You also understand that this consent has the same legal effect as would a physical signature.
Notices regarding payments, legal terms, and any other important Notices related to your Gynger Account will be sent through your Gynger Account or via email and are considered received 24 hours after they are sent. You understand that you may not use the Services unless you consent to receive Notices electronically. You may only withdraw consent to receive Notices electronically by closing your Gynger Account.
Gynger may send Notices to your Gynger Account electronically and to mobile phones associated with your Gynger Account, through push notifications, email, text or SMS messages to the mobile phone numbers provided to Gynger by Administrators or Users. These Notices may include alerts about Services or transactions, and may allow Administrators and Users to respond with information about transactions or your Gynger Account. You authorize Users to take any available actions, subject to limitations based on permissions and authorization. Users may elect to not receive certain Notices via text or SMS, but this will limit the use of certain Services and may increase the financial risks to you including losses caused by lost or stolen Credentials.
Gynger may send text or SMS messages to Users in connection with use of Credentials (such as through multi-factor authorization), to allow Gynger to verify their identity, to provide other information about your Gynger Account or in connection with the Services, and for any other purposes that Gynger may identify and that are available through your Gynger Account or the Services.
You consent to receive SMS messages (including text messages), and telephone calls (including prerecorded and artificial voice and autodialed) from Gynger, its agents, representatives, affiliates, or anyone calling on its behalf at the specific number(s) provided to Gynger by you or a User. You agree to promptly alert Gynger whenever you or a User stop using a telephone number associated with your Gynger Account or the Services.
7. Safeguards and Credentials
7.1 Safeguarding Credentials
You will keep your Gynger Account secure and only provide access to individuals that you have authorized to use the Services on your behalf. You will take all reasonable steps to safeguard the privacy, confidentiality, and security of your and User’s login credentials including usernames, passwords or other identifiers used to assist Gynger in identifying and authenticating you or a User with regard to your use of the Services (“Credentials”). You will ensure that each User has their own unique set of Credentials, keeps those Credentials secure, does not share those Credentials with any other person or third party, and does not reuse Credentials for other services. You will not allow any unauthorized person to use the Services. You will closely and regularly monitor the activities of Users who access the Services, and will use all reasonable means to protect checks, mobile devices, web browsers, and anything else used to access or utilize the Services. You will immediately disable User access to the Services or limit permissions where you know or suspect your Gynger Account has been compromised or may be misused or where you know or believe a User’s Credentials are compromised or lost; and you will promptly notify Gynger of any unauthorized access or use of your Gynger Account or the Services.
7.2 Liability
You remain responsible and liable for any action taken through your Gynger Account. You are liable for any breach or violation by your Users of this Agreement or any of the agreements, terms, and policies incorporated by reference. You are further responsible for ensuring that Users communicate respectfully and will refrain from using any form of disrespectful, harassing, abusive, or hate speech with Gynger team members or with any customers in any communications, including both written and oral, relating to or arising out of this Agreement or the Services. If Gynger receives reports of any such behavior, Gynger may suspend your access to the Services, or close your Gynger Account.
8. Security Procedures
You are responsible for assessing the security requirements of your business and selecting and implementing procedures and controls that are intended to help secure and protect your Gynger Account and data from misuse, fraud, and theft (“Security Procedures”) appropriate to mitigate your exposure to potential security incidents. This responsibility includes selecting appropriate administrative, procedural, and technical controls that are appropriate to protect your financial accounts.
Gynger may provide or suggest that you implement certain Security Procedures in connection with your use of the Services. You understand that your responsibility for the security of your business is not diminished by any Security Procedures that Gynger provides or suggests. You agree to review all of the Security Procedures Gynger suggests and choose those that are appropriate to protect against unauthorized transactions. If you believe that the Security Procedures Gynger suggests are insufficient, then it is your sole responsibility to independently implement additional controls that meet your needs.
Gynger may update the Security Procedures at any time, and your continued use of the Services constitutes your agreement to the updated Security Procedures. You agree to review the Security Procedures regularly and contact Gynger with any questions about the Security Procedures.
By using the Services, you represent that you have reviewed the Security Procedures and that those you have chosen are commercially reasonable for you to protect against unauthorized transactions. You assume all liability arising from disabling, opting out of, or failing to properly use Security Procedures made available to you or implemented at your discretion.
9. Privacy Policy
Collection, use, and handling of information, including Buyer Data and Personal Data, is described in Gynger’s privacy policy (“Privacy Policy”) which is available at https://app.gynger.io/privacypolicy and is incorporated into this Agreement.
10. Service Level Agreement (SLA)
Gynger provides email support from 9:00 A.M. to 5:00 P.M. Eastern Time (Monday – Friday). Emails received outside of these hours will be collected, but responses cannot be guaranteed until the next business day.
We aim to respond to service-related incidents within the following time frames:
High Priority: Within 8 business hours
Medium Priority: Within 48 hours
Low Priority: Within 5 business days
Customers are responsible for providing reasonable availability to assist in resolving issues. Gynger will notify customers of any scheduled maintenance. This SLA will be reviewed periodically and may be updated as needed.
For questions, contact support@gynger.io.
11. Buyer-Specific Terms
If you are engaging with Gynger as a Buyer, you agree to the following terms and conditions.
11.3 Buyer Information Requirements
Buyer Data and Personal Data. If you seek to use the Services as a Buyer to obtain financing, you must provide certain Personal Data, including the names, contact information, personal addresses, social security numbers, and dates of birth of Administrators, Users, Beneficial Owners, and Control Persons. Gynger may also require that Buyer provide certain documentary information used to verify Buyer Data and Personal Data, including corporate registration certificate, proof of address, or personal identification. At any time during the term of this Agreement and Buyer’s use of the Buyer Services, Gynger may require additional information from Buyer.
Linked Accounts. Buyer must connect at least one Linked Account. Buyer authorizes Gynger to verify that the account details Buyer provided for Buyer’s Linked Account(s) are correct and the Linked Account belongs to Buyer by making a deposit to and corresponding debit from the Linked Account via ACH or by other similar means. Buyer represents and warrants that it has (i) authority to transact on any such Linked Account, and (ii) ownership of funds in the Linked Account.
Use of Data. To help the government fight the funding of terrorism and money laundering activities, U.S. federal law requires that financial institutions obtain, verify, and record Buyer Data and Personal Data identifying Buyers and their Beneficial Owners and Control Persons. Buyer agrees to provide the required information to open and maintain Buyer’s Gynger Account and agrees to keep such information current. Gynger and its Program Partners rely on the accuracy of the information that Buyer provides when opening and maintaining Buyer’s Gynger Account. Buyer acknowledges and agrees that Gynger may use and provide Buyer Data and Personal Data to Program Partners and Third-Party Service Providers to validate the information Buyer has provided and determine Buyer’s eligibility for the Services, as described in the Privacy Policy. Buyer may be required to verify information previously provided or provide additional information in the course of applying for or receiving certain Services.
Provision of Services. Gynger, or a Program Partner as applicable, may approve or deny Buyer’s application for credit or grant Buyer provisional access to Services while Buyer’s application is pending additional review. Gynger, or a Program Partner as applicable, may deny Buyer’s application, interrupt provision of Services to Buyer, or suspend or close Buyer’s Gynger Account where the information Buyer provided is incomplete, inaccurate, or out of date.
Consent. Buyer acknowledges that Buyer has obtained or will obtain appropriate consent and authorization of any person whose Personal Data Buyer provides before sharing such data with Gynger.
11.4 Responsibility for Use
Buyer is responsible and liable for any actions or failure to act on the part of Users and those using Credentials issued to Users to access Buyer’s Gynger Account. Buyer is responsible for:
Ensuring that Users are aware of and agree to abide by the terms of this Agreement, the applicable Additional Terms, and all applicable laws in connection with their use of the Services;
Obtaining appropriate consent and authorization to provide Users’ personal information, and ensuring that Users are aware of and have reviewed the Privacy Policy and understand how Gynger processes their personal information;
Ensuring that Users are aware of, accept, and comply with Additional Terms; and
Ensuring that Users use the Services only for valid, lawful business purposes and not for any personal, family, or household use.
11.1 Transactions and Activities
Though Gynger may provide Security Procedures, Gynger cannot guarantee that Buyer will not become a victim of fraud. Buyer is solely responsible for all transactions initiated through the Services using Credentials and for all transactions initiated in Buyer’s name that are authenticated using the Security Procedures Buyer chooses.
Buyer will be bound by any transaction (including any transfer, instruction, or payment order Gynger receives related to the Services), even if it is not authorized, if the transaction is initiated under Buyer’s Credentials or processed in accordance with Buyer’s instructions.
Gynger may help Buyer resolve unauthorized transactions, but Buyer acknowledges and understands that Buyer is responsible for any financial loss caused by Users or other persons given access to the Services or Buyer’s Gynger Account, and any financial loss due to compromised Credentials or due to any unauthorized use or modification of Buyer’s Gynger Account or the Services. Gynger is not liable or responsible to Buyer, and Buyer waives any right to bring a claim against Gynger, for any such losses.
Gynger may suspend access to Buyer’s Gynger Account or the Services at any time and for any reason, in Gynger’s sole and absolute discretion, without prior Notice. Some of the reasons Gynger may suspend access to Buyer’s Gynger Account include: if Gynger believes Buyer’s Gynger Account has been compromised; if Gynger believes that not doing so may pose a risk to Buyer, Gynger, or any third parties; if Buyer Data or Personal Data is incomplete, inaccurate, or out of date; if Gynger believes Buyer has violated this Agreement or any applicable law; or if Gynger is required to do so by a Program Partner or by any applicable law.
Buyer’s Gynger Account is commercial in nature, and Buyer acknowledges and understands that certain consumer protection laws (including the Electronic Funds Transfer Act and Regulation E) and consumer-specific rules (including NACHA rules specific to consumers) do not apply to transactions made through Buyer’s Gynger Account or Buyer’s use of the Services.
11.2 Notification of Corporate and Business Changes
Buyer will promptly notify Gynger in writing if any of the following occur:
There is any change of Beneficial Owners or Control Persons;
There is any material change in the control or ownership of Buyer’s business (whether direct or indirect) or Buyer transfers or sells 25% or more of Buyer’s total assets;
There is any planned or anticipated liquidation, or voluntary or involuntary bankruptcy or insolvency proceeding;
Buyer is the subject of an inquiry, proceeding, investigation, or enforcement action promulgated by any regulatory authority;
Buyer is party to a litigation in which claims are asserted that would, if sustained in a legal proceeding or alternative dispute resolution forum, result in a material impact to Buyer’s financial condition; or
Buyer receives a judgment, writ or warrant of attachment or execution, lien, or levy against 25% or more of Buyer’s total assets.
11.1 Gynger Limit
Gynger may limit the maximum amount of credit that Buyer can receive through the Services, regardless of whether Gynger or a third-party originates such credit (the “Gynger Limit”). For clarity, the Gynger Limit may decrease as you draw down on approved financing and replenish as you repay such financing. Individual credit products available through the Services may also have credit limits that are independent of the Gynger Limit, which may be equal to, or less than the Gynger Limit. A Buyer may view its Gynger Limit in their dashboard of their Gynger Account. Buyer’s Gynger Limit may be set by Gynger, and any applicable Program Partner, in their sole discretion. Gynger, and any applicable third-party lender may increase or decrease the Gynger Limit at any time based on risk, credit, or compliance considerations in accordance with applicable law.
11.2 Partial Financing
Buyers may obtain partial financing for an invoice through the Services. “Partial Financing” occurs when a Buyer pays a portion of an invoice directly through their Gynger Account or outside of the Gynger platform, and (ii) simultaneously, obtains financing through the Services for the remaining portion of the invoice. For avoidance of doubt, the availability of Partial Financing is at Gynger and Program Partner’s sole discretion. If available, Buyer can only obtain Partial Financing if the financing being sought does not exceed Buyer’s available Gynger Limit and Buyer meets all applicable eligibility criteria for the financing.
Note: the sub-section numbering above (11.1–11.4) repeats as it appears in the source document.
12. Vendor-Specific Terms
If you are engaging with Gynger as a Vendor, you agree to be subject to the following terms and conditions.
12.3 Vendor Marketing of Gynger Services
Gynger agrees that Vendor may refer Vendor’s customers (each, a Buyer and a “Customer”) to Gynger’s Buyer-facing Services in accordance with the following terms.
Distribution of the Gynger Link. Gynger may provide Vendor with a unique code and/or a unique website link, that, when utilized by a Customer, will direct that Customer to the Gynger platform (the “Gynger Link”). Customer may then choose to apply for financing from Gynger or a Program Partner and otherwise utilize the Buyer Services in order to finance and/or pay Vendor’s unpaid invoice (“Unpaid Invoice”) or the invoice of another Vendor. Vendor may provide the Gynger Link to its Customers only as expressly allowed by this Agreement. Gynger may suspend or terminate the Gynger Link at any time in its sole discretion. Additionally, Vendor may send Gynger a direct request for Customer financing of a particular Vendor invoice.
Vendor Request for Customer Financing.
Specific Request for Customer Financing. In addition to distribution of the Gynger Link, Vendor may send Gynger a request for financing of a specific Customer’s Unpaid Invoice (a “Request”).
Information to be Provided to Gynger. If Vendor sends Gynger a Request, Vendor agrees to provide Gynger with: (i) Customer’s legal business name and address; (ii) contact information for the Customer’s primary point of contact; and (iii) details about and a copy of the Unpaid Invoice (“Customer Information”).
Authorization to Provide Customer Information. Vendor represents and warrants that its disclosure of any Customer Information to Gynger in connection with a Request complies with applicable law, and to the extent Vendor provides Customer contact information to Gynger, that Vendor has obtained sufficient authorization from the Customer for Gynger to contact the Customer regarding the Customer Services.
Customer’s Financial Status. Vendor agrees that it will not make Requests involving Customers that (i) have notified Vendor of their bankruptcy or intention to declare bankruptcy; or (ii) have violated an agreement with Vendor other than violations arising from such customer’s failure to make timely payment of an Unpaid Invoice.
Validity of Invoice. Vendor represents and warrants, at the time of making each Request, that with respect to the Customer that is the subject of the Request, the Unpaid Invoice is a valid and enforceable obligation of the Customer to Vendor.
12.4 Limits on Vendor Activities
No Negotiation on Gynger’s Behalf. Vendor may not negotiate or enter into any agreement with any person on behalf of Gynger. Vendor may not make any representations or warranties concerning any Services to any person except as expressly permitted herein.
No Brokering. Vendor agrees that it shall not (i) participate in any financing negotiation; (ii) counsel or advise Customers about financing options from Gynger; (iii) participate in the preparation of any Gynger financing documents, including financing applications, on behalf of Customer; (iv) gather Customer financing application documentation or deliver the documentation to Gynger; (v) communicate financing decisions or inquiries from Gynger to its Customers; or (vi) obtain a Customer’s signature on financing documents.
No Misrepresentations. Vendor will not mislead, or attempt to mislead, anyone regarding the Vendor Services, Buyer Services, or Vendor’s relationship with Gynger, whether by affirmative representation, implication, or omission. In particular, Vendor agrees that it will not impersonate any person, suggest that an affiliation or partnership exists with a third party where none exists, or create websites, domains, URLs, social media handles or email addresses containing the word “Gynger.” Vendor agrees not to make any representations or warranties concerning Gynger, Vendor Services, Buyer Services, or the likelihood of approval for financing to any Customer without written approval from Gynger. Vendor agrees not to mislead any person regarding Gynger or Gynger’s relationship with Vendor, whether by affirmative representation, implication, or omission.
No Spamming. Vendor may not “spam” anyone with the Gynger Link, and agrees to comply with the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (“CAN-SPAM”), the Telephone Consumer Protection Act (“TCPA”), as applicable, and all other applicable laws. The following specific activities are prohibited: (i) mass emailing, texting or messaging Buyers or potential Buyers without a business relationship to Vendor or adequate authorization to do so; and (ii) use of automated systems, dialers, or bots through any channel to distribute the Gynger Link.
Prohibited Content. Vendor shall not post, in connection with Gynger, the Gynger Link, or Vendor’s or Gynger’s performance under this Agreement, any of the following: (i) disparaging or defamatory content concerning Gynger or third parties; (ii) offensive, abusive, intimidating or harassing content; (iii) content that is sexually explicit, obscene, and/or contains nudity; (iv) names or marks of Gynger’s competitors; (v) images of celebrities or other public or private figures without written consent from Gynger and the applicable celebrity or public or private figure; and (vi) the brand name or intellectual property of another party without written consent from Gynger and such party.
Press Releases and Publicity. Vendor shall not issue any press release or disseminate similar publicity with respect to this Agreement or the relationship between the parties including, without limitation, by means of the internet, without the express prior written approval of Gynger. Vendor shall not use any trademark, service mark, trade name, or other commercial symbol of Gynger in any manner without prior written approval through Gynger.
12.5 Vendor Obligations
Marketing Rights. Vendor hereby grants to Gynger for the term of this Agreement a limited, revocable, non-exclusive, non-transferable license and right to use, reproduce, display, distribute and transmit Vendor’s name, logo(s), and trademark(s) solely in connection with the Vendor Services and the Buyer Services and in accordance with the terms of this Agreement and such other terms and conditions of which Vendor may hereafter notify Gynger in writing. Vendor also agrees to work with Gynger in good faith on a joint press release, and similar marketing materials or activities, regarding the partnership.
No Liability for Vendor Obligations. Vendor agrees that Gynger shall in no event be liable or have any responsibility to Customer in connection with Vendor’s products and services under Vendor’s agreement with any Customer. Vendor shall be solely responsible for performing the obligations under such Customer agreements and shall comply with all of the terms and conditions of its Customer agreements.
12.6 Gynger Obligations
No Obligation to Finance. Neither Gynger nor any Program Partner shall have any obligation whatsoever to provide financing or any Buyer Service to any Customer.
Program Partner Information Sharing. Gynger may facilitate Customer’s payment or an extension of financing by a Program Partner to Customer to satisfy the Customer’s Unpaid Invoice. Vendor acknowledges and agrees that Gynger may provide any information to such Program Partner as Gynger reasonably deems necessary to facilitate the financing or payment request and Buyer Services.
Performance Reporting. If Customer consents to such data sharing, Gynger will share with Vendor a report that includes a list of Customers that have been approved for financing through Gynger’s platform and the status of any such application.
12.7 Vendor Fee
For each Customer that (i) is approved for financing through the Buyer Services using the Gynger Link; or (ii) is approved for financing based on Vendor’s Request to Gynger, Gynger shall pay Vendor the amount of the relevant Unpaid Invoice directly (or, in the event of Partial Financing, the relevant portion of the Invoice), on behalf of the Customer, minus a service fee equal to an amount agreed upon separately by the Parties (the “Vendor Fee”). Vendor agrees that such payment shall fully satisfy Customer’s liability to Vendor with respect to the Unpaid Invoice or, in the event of Partial Financing, in the amount of such Partial Financing. The Vendor Fee shall be non-refundable and shall not be subject to any rights of offset. The Vendor Fee is exclusive of any state, local or otherwise applicable sales, use, or similar taxes that shall be paid exclusively by Vendor. Any unfinanced amount from the Unpaid Invoice that is paid through the Gynger platform will be paid to the Vendor using Stripe’s payment processing services. Additional fees may apply, in each case as agreed to by the applicable parties before the transaction.
12.8 Notification of Corporate Changes
Vendor will promptly notify Gynger in writing if there is any planned or anticipated liquidation, or voluntary or involuntary bankruptcy or insolvency proceeding of Vendor.
13. Payment Services
Certain payment processing services for Gynger Accounts are provided by Stripe and are subject to Stripe Treasury Terms – Connected Accounts and Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or continuing to operate a Gynger Account, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Gynger enabling payment processing services through Stripe, you agree to provide Gynger accurate and complete information about you and your business, and you authorize Gynger to share it and transaction information related to your use of the payment processing services provided by Stripe.
14. Changes to the Services
Gynger may add Services or modify existing Services at any time. Some of these Services may be subject to separate Additional Terms.
Gynger does not guarantee that each of the Services will always be offered to you, that they will be available to you, or that you will qualify or be able to utilize any particular Service. Services will change from time to time, and certain Services may be discontinued or others may be added.
15. Gynger Property and Licenses
Gynger owns all Gynger Property. You agree that you and Users will not, and will not permit any of your personnel, employees, or contractors with access to the Services to: (i) modify, reverse engineer, disassemble, decompile, decode, adapt or attempt to discover or derive or gain access to the source code of or any software components of the Gynger Property; (ii) copy, modify, or create derivate works of the Gynger Property; (iii) rent, lease, lend, sell, time share, broker, license, sublicense, assign, distribute, publish, transfer, or otherwise make available to third parties the Gynger Property or access to the Services; (iv) access or use the Services or Gynger Property other than for your internal business purposes; (v) remove or obscure any proprietary notices from the Gynger Property; (vi) access or use the Services or Gynger Property in any manner or for any purpose that infringes, misappropriates, or otherwise violates the intellectual property rights of any third party or in violation of any applicable laws or regulations; (vii) use the Services or Gynger Property for any purpose not expressly authorized in this Agreement; or (viii) use the Services or Gynger Property to create a product or service that competes with Gynger.
Gynger grants you a nonexclusive and nontransferable license to use Gynger Property as provided through the Services and as permitted by this Agreement. This license terminates upon termination of this Agreement unless terminated earlier by Gynger.
Except for the limited license set forth herein, you shall not receive or have any right or interest in Gynger Property. Any modifications, customizations, updates, upgrades, amendments, or changes to or derivatives works of the Gynger Property shall be the sole and exclusive property of Gynger. You agree that you will not claim any interest or title to any of the Gynger Property except for the limited license granted hereunder. You shall execute and deliver and shall take such other steps as are reasonably requested by Gynger to evidence and effect the purposes and intent of this Section.
For those engaging with Buyer Services, Gynger will not share any Buyer Data with third parties for marketing unaffiliated products without Buyer’s consent, but may use Buyer Data to identify Services, Third-Party Services, and other products that Gynger believes may be of interest to Buyer, including as part of a rewards or benefits program. Gynger may include data derived from Buyer Data that has been anonymized or aggregated with other data and that can no longer be used to identify a specific company or individual in both public and private reports. Buyer grant Gynger a worldwide, irrevocable license to use, modify, distribute, copy, and create derivative works from Buyer Data for the purposes identified in this Agreement.
16. Publicity
Gynger may publicly reference you as a Gynger Buyer or Vendor on its website or in other communications during the term of this Agreement. You grant Gynger a limited license to use Vendor or Buyer trademarks or service marks for this purpose.
17. Content
Information provided on Gynger’s website and in other communications from Gynger is for information purposes only. Gynger believes it to be reliable, but it may not always be entirely accurate, complete or current. Gynger may change or update information from time to time without Notice. You should verify all information on Gynger’s website and in other communications from Gynger before relying on it. You are solely responsible for all of your decisions based on information provided on Gynger’s website and in other communications from Gynger, and Gynger have no liability for such decisions.
Information Gynger provides on its website and in other communications may contain third-party content or links to third-party sites and applications. Gynger does not control any such third-party content, sites, or applications, and Gynger is not responsible or liable for the availability, accuracy, completeness, or reliability of third-party content or for damages, losses, failures, or problems caused by, related to, or arising from such third-party content or the products or practices of third parties.
18. Assignment
You may not transfer or assign (by operation of law or otherwise) this Agreement or any of your rights or obligations hereunder, or operation of your Gynger Account, without Gynger’s prior express written consent. Gynger may assign, pledge, or otherwise transfer this Agreement or any of its rights and powers under this Agreement without restriction and without providing Notice.
19. Term and Termination
This Agreement will continue until terminated by either you or Gynger, in accordance with Additional Terms or as set forth in this Agreement.
You may terminate this Agreement by ceasing to use the Services, paying all amounts owed to Gynger or a Program Partner, and providing notice to Gynger. Gynger may decline to close your Gynger Account if you have a negative balance in respect of any Service, or if Gynger believes that the Gynger Account is being closed to evade any legal or regulatory requirement or investigation.
Gynger may terminate this Agreement and terminate access to your Gynger Account or the Services at any time and for any reason by providing Notice. If Gynger believes you violated this Agreement or the applicable Additional Terms, or if required by a Program Partner or by law, Gynger may terminate access to your Gynger Account without prior Notice.
Sections 9 (Privacy Policy), 10.2 (Responsibility for Use), 10.3 (Transactions and Activities), 10.4 (Notification of Corporate and Business Changes), 11.3(b) (No Liability for Vendor Obligations), 11.6 (Notification of Corporate Changes), 17 (Assignment), 18 (Term and Termination), 20 (Limitation of Liability), 21 (Disclaimer of Warranties by Gynger), 22 (Indemnification), 23 (Governing Law and Venue), 24 (Binding Arbitration), and 25 (Legal Process) together with the provisions of the Additional Terms that identify continuing obligations, and all other provisions of this Agreement or the agreements, terms, and policies incorporated herein giving rise to continuing obligations of the parties, will survive termination of this Agreement.
If you are a Vendor, upon termination of this Agreement, any request for financing by Customers seeking to pay Vendor’s Unpaid Invoices, will be managed in accordance with Gynger’s agreement with such Customer and shall not be subject to the terms of this Agreement.
Note: the cross-references in the paragraph above (e.g., “10.2”, “11.3(b)”) appear exactly as written in the source document and do not match this document’s own section numbers — this inconsistency exists in the original PDF.
20. Independent Contractors
Except to the extent specifically provided herein or as hereafter agreed in writing by you and Gynger, nothing in this Agreement shall be construed to create any relationship between you and Gynger or their respective agents and employees other than one of independent contractors, and you and Gynger shall take such action as may be reasonably necessary to ensure such treatment.
21. Limitation of Liability
GYNGER IS NOT LIABLE TO YOU UNDER ANY LEGAL THEORY FOR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS, OR LOST REVENUE ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE SERVICES, LOST PROFITS OR REPUTATIONAL HARM, PHYSICAL INJURY OR PROPERTY DAMAGE, CLAIMS OF THIRD PARTIES ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICES, OR ANY OTHER LOSSES OR HARM, HOWEVER CAUSED, ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY TERMS, AGREEMENTS, OR POLICIES INCORPORATED BY REFERENCE, WHETHER OR NOT GYNGER WAS ADVISED OF THEIR POSSIBILITY BY YOU OR THIRD PARTIES.
GYNGER’S MAXIMUM LIABILITY TO YOU UNDER THIS AGREEMENT AND ANY ADDITIONAL TERMS, AGREEMENTS, OR POLICIES INCORPORATED BY REFERENCE, IS LIMITED TO $5,000. THESE LIMITATIONS APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH YOUR CLAIM IS BASED. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
22. Disclaimer of Warranties
THE SERVICES ARE PROVIDED TO YOU AS IS AND AS AVAILABLE. GYNGER DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES OF NON-INFRINGEMENT OF THE SERVICES. NOTHING IN THIS AGREEMENT WILL BE INTERPRETED TO CREATE OR IMPLY ANY SUCH WARRANTY.
THIRD-PARTY SERVICES ARE NOT PROVIDED OR CONTROLLED BY GYNGER. GYNGER DOES NOT PROVIDE SUPPORT FOR AND DISCLAIMS ALL LIABILITY ARISING FROM FAILURES OR LOSSES CAUSED BY THIRD-PARTY SERVICES.
GYNGER DISCLAIMS ALL WARRANTIES AND DOES NOT GUARANTEE THAT (A) SERVICES AND DATA PROVIDED UNDER THIS AGREEMENT ARE ACCURATE OR ERROR-FREE; (B) THE SERVICES WILL MEET YOUR SPECIFIC NEEDS OR REQUIREMENTS; (C) THE SERVICES WILL BE USABLE BY YOU, ADMINISTRATORS, OR USERS AT ANY PARTICULAR TIME OR LOCATION; (D) SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE FROM HACKING, VIRUSES, OR MALICIOUS CODE; AND (E) ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, EVEN WHEN GYNGER IS ADVISED OF SUCH DEFECTS.
GYNGER IS NOT LIABLE FOR AND DISCLAIMS LIABILITY FOR ANY DAMAGES, HARM OR LOSSES TO YOU ARISING FROM UNAUTHORIZED ACCESS OR USE OF YOUR GYNGER ACCOUNT OR THE SERVICES OR YOUR FAILURE TO IMPLEMENT APPROPRIATE SECURITY PROCEDURES.
23. Indemnification
You agree to indemnify, defend, and hold harmless Gynger and its respective affiliates, directors, employees, agents, and representatives, from and against all losses, liabilities, claims, demands, or expenses, including reasonable attorney’s fees, arising out of or related to: proceedings, suits, or actions brought by or initiated against Gynger by any third party due to (a) your breach or alleged breach of this Agreement, any terms, agreements, or policies incorporated by reference, or any other agreements with Gynger; (b) any agreement with Program Partners, (c) acts or omissions of Users, or of your other employees or agents; (d) your actual or alleged infringement of a third party’s intellectual property rights; (e) your use of Third-Party Services; or disputes over charges. This paragraph shall exclude any suits, claims, and liability arising solely from Gynger’s gross negligence or willful misconduct.
24. Governing Law and Venue
This Agreement will be governed by, and all Disputes resolved in accordance with, the laws of the State of New York exclusive of its conflict or choice of law rules except to the extent that U.S. federal law controls. Subject to the good faith binding arbitration requirement provisions contained in Section 24, all litigation will be brought in the state or federal courts located in New York.
You and Gynger hereby: (i) consent to service of process in any such action or proceeding by personal delivery or any other method permitted by law; and (ii) waive any and all rights to object to the jurisdiction and venue of any such court located in New York including any claims for forum non convenience, or to transfer or change the venue of such action or proceeding. At Gynger’s sole discretion and election, venue is also permissible in any court having jurisdiction over you or your assets.
25. Binding Arbitration
You and Gynger agree to resolve all Disputes arising under or in connection with this Agreement as provided in this Section. Any arbitration or other legal proceeding under this Agreement will only be on an individual basis. Neither party may join with other parties to bring a class arbitration, class action, or other action brought between multiple parties based on the same or similar legal claims, or the same or similar facts. Each party waives its rights (i) to file a lawsuit in court, (ii) to have its case decided by a jury, and (iii) to participate in a class arbitration, class action, or other action brought between multiple parties based on the same or similar legal claims, or the same or similar facts against the other party.
You and Gynger agree to first attempt to resolve Disputes in good faith and in a timely manner. Where no resolution can be found, Disputes will be resolved by arbitration in New York, New York before a single arbitrator, as provided in this Section, except that Disputes principally arising from protection of intellectual property rights or breach of confidential information will be resolved through litigation in accordance with Section 23.
Arbitration will be administered by the American Arbitration Association according to the rules and procedures in effect at the time the arbitration is commenced.
Either party may commence arbitration by providing a written demand for arbitration to the American Arbitration Association and the other party detailing the subject of the Dispute and the relief requested. Each party will continue to perform its obligations under this Agreement unless that obligation or the amount (to the extent in Dispute) is itself the subject of the Dispute. Nothing in this Agreement affects the right of a party to seek urgent injunctive or declaratory relief from a court of appropriate jurisdiction in respect of a Dispute or any matter arising under this Agreement.
The prevailing party is entitled to recover its reasonable attorneys’ fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
For avoidance of doubt, nothing in this Section 24 shall prevent either Party from resolving Disputes according to the Dispute resolution provisions of Additional Terms the parties have entered into; provided that the Dispute arises out of or is in relation to the applicable Additional Terms.
26. Legal Process
Gynger may respond to and comply with any legal order Gynger receives related to your use of the Services, including subpoenas, warrants, or liens. Gynger is not responsible to you for any losses you incur due to Gynger’s response to such legal order. Gynger may take any actions Gynger believes are required of it under legal orders including holding funds or providing information as required by the issuer of the legal order. Where permitted, Gynger will provide you reasonable Notice that Gynger has received such an order.
27. Changes to This Agreement
Gynger reserves the right to modify this Agreement or provide other agreements governing use of the Services or any portion of them. When Gynger makes material modifications to this Agreement, Gynger will post the revised Agreement through the Services and update the “Last Updated” date at the top of this Agreement and provide any other notices as required by applicable law. Your or any User’s continued use of the Services constitutes your consent to the revised Agreement. Gynger may terminate, suspend, change, or restrict access to all or any part of the Services without Notice or liability.
28. Miscellaneous
This Agreement and any applicable Additional Terms, are a complete statement of the agreement between you and Gynger regarding the Services. If any provision of this Agreement or any Additional Terms is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement does not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term.
29. Definitions
Defined terms in this Agreement, if not otherwise defined in this Agreement, are defined as follows:
“Beneficial Owner” means any individual who, directly or indirectly, owns 25% or more of the equity interests of Buyer or Vendor.
“Buyer Data” means information or documentation provided by Buyer to Gynger, and which includes Financial Data and any Personal Data provided by Buyer, Administrators, or Users.
“Control Person” means a single individual with significant responsibility to control, manage, or direct Buyer including (i) an executive officer or senior manager (e.g., a Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Managing Member, General Partner, President, Vice President, or Treasurer); or (ii) any other individual who regularly performs similar functions.
“Dispute” means any dispute, claim, or controversy arising from or relating to this Agreement, including any incorporated terms, agreements, and policies.
“Financial Data” means Buyer’s bank balance, transaction, and account information accessible to Gynger through Linked Accounts or Third-Party Services.
“Gynger Data” means all data developed or collected by Gynger through the development or provision of Services, or Third-Party Services, or generated or recorded by the Gynger platform, but which does not include Buyer Data.
“Gynger Property” means the Services and related technology; Gynger Data; and copyrights, patents, trade secrets, trade or service marks, brands, logos, and other intellectual property incorporated into each of the foregoing.
“Linked Account” means any account that is held with a financial institution and is linked to or authorized for use or payment through Buyer’s Gynger Account.
“Notice” means any physical or electronic communication, or legal notices related to this Agreement that are provided to Vendor, Buyer, Users, or Administrators through text or SMS, email, your Gynger Account, or by other means.
“Personal Data” means data that identifies or could reasonably be used to identify a natural person.
“Program Partner” means a bank, financial institution, or other partner that provides services directly related to one or more Programs.
“Third-Party Services” means services and data provided by third parties connected to or provided through the Services.
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