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Gateway Merchant Services Agreement
PAYMENT GATEWAY MERCHANT SERVICES AGREEMENT
Enovative Lab, LLC, dba CollectDesk referred to herein as “Payment Gateway”, offers various payment processing and other value-added products and services directly, and through Third Party Service Providers. In order for you, on behalf of your company (hereinafter, “MERCHANT”) to obtain or continue using these products or services, which services are described at www.collectdesk.com (which descriptions may be changed from time to time)(the “Payment Gateway Services”), you must agree to and accept the terms and conditions of this Payment Gateway Merchant Services Agreement (the “Agreement”). By accepting the terms of this Agreement, either by continuing to use any of the Payment Gateway Services and/or by clicking on the “Create account” or similar button within any Payment Gateway account, MERCHANT agrees to be bound by the terms and conditions of the same. MERCHANT further agrees that MERCHANT has had the time to thoroughly read and understand this Agreement, has had the opportunity to have the same reviewed by counsel, and has had the opportunity to ask questions regarding the same.
NOW THEREFORE, MERCHANT agrees as follows:
1. DEFINITIONS:
“Acquirer” or “Acquiring Bank” or “Acquiring Institution” means a financial institution that supplies MERCHANT with the ability to accept credit cards for payments, for which the financial institution charges fees.
“ACH” or “Automated Clearing House” means an electronic network that allows the exchange and settlement of electronic payments between financial institutions.
“PARTNER” means any third party through whom Payment Gateway may offer the Payment Gateway Services to MERCHANT, including but not limited to an “ISO” or “Independent Sales Organization”, Merchant Service Provider (“MSP”), Value Added Reseller (“VAR”), Application Service Provider (“ASP”), Acquiring Bank or Financial Institution.
“API” or “Application Programming Interface” means a computer interface allowing integration with a programmable software package or platform.
“AVS” or “Address Verification Service” for the purposes of this agreement shall mean the response generated by the Issuing Bank, which response provides the level of accuracy of a given address based on the billing address of the customer's credit card.
“Batch” means any bulk processing of Transactions, or a bulk settlement submitted to a Processor by Payment Gateway including credit card, ACH, and other related transactions.
“Card Association” for the purposes of this Agreement means a network of Issuing Banks and Acquiring Banks that process payment cards of a specific brand. The Card Association includes American Express, Discover Financial Services, JCB International, MasterCard International Inc., Visa Inc., and Visa International Inc., among others.
“Close Batch” means the process of sending a batch of transactions for settlement. “Confidential Information” means any information, whether oral or in writing, whether tangible or electronic, that includes but shall not be limited to data, trade secrets, know-how derived through the inspection of samples, equipment or facilities, and includes past, present and future research, products, product plans, services, services documentation (in whatever form provided) customers, customer lists, contracts or other legal documents, financial or other business information, formulas, inventions, revenue, markets, software code and/or hardware configuration, marketing, marketing materials, user data, or the parties to or financial terms of this Agreement.
“Discount Rate” means the fee charged by MERCHANT financial institution for services associated with processing card transactions, or fees charged by Payment Gateway for ACH or other payment methods.
“Effective Date” means the earlier of the date MERCHANT agrees to the terms and conditions of the
Agreement by (i) clicking the “I AGREE” button associated with the Agreement (if in electronic format); (ii) by using Payment Gateway Services; or (iii) by acknowledging MERCHANT acceptance of the Agreement by any other method, including without limitation execution of a Merchant Account Application that incorporates this Agreement by reference.
“Fee Schedule” means a list of fees and charges that is accepted by MERCHANT and paid by MERCHANT to Payment Gateway.
“Interchange Fee” means the fee set by and collected by the Card Association from MERCHANT financial institution (Acquiring Bank) and paid to the issuing financial institution (Issuing Bank) to cover expenses incurred in billing the cardholder.
“IP Address” means an internet address represented in series of four numbers separated by commas (e.g. 127.1.1.0).
“Issuing Bank” means the financial institution that issues Card Association branded Payment Cards directly to consumers.
“MERCHANT’s Marks” means all common law and/or registered trademark(s), service mark(s), trade name(s), trade dress rights, moral rights, rights of publicity and/or similar or related rights under any laws of any country or jurisdiction, including but not limited to the United States of America, whether existing now or hereafter adopted, belonging to MERCHANT, and includes such other trademarks as MERCHANT may from time to time designate as “MERCHANT’s Marks”.
“PCI DSS” means Payment Card Industry Data Security Standard.
“Payment Gateway Marks” means all common law and/or registered trademark(s), service mark(s), trade name(s), trade dress rights, moral rights, rights of publicity and/or similar or related rights under any laws of any country or jurisdiction, including but not limited to the United States of America, whether existing now or hereafter adopted, belonging to Payment Gateway, and includes trademarks that Payment Gateway may from time to time as being “Payment Gateway Marks”.
“Privacy Policy” means the then current Payment Gateway Privacy Policy which can be found on the internet at www.collectdesk.com/privacy-policy
“Return Payment Fee” is a fee charged by Payment Gateway on each occurrence when Payment Gateway is unable to collect fees on MERCHANT Account for any reason, including but not limited to insufficient funds, a closed account, or other negative response.
“Third Party Service Provider” for purposes of this Agreement means an entity that provides bank and/or merchant payment services including but not limited to billing, reporting, customer service, authorization, and/or settlement services.
“Trademark(s)” means all common law and/or registered trademark(s), service mark(s), trade name(s), trade dress rights, moral rights, rights of publicity and/or similar or related rights under any laws of any country or jurisdiction, including but not limited to the United States of America, whether existing now or hereafter adopted.
“Transaction(s)” means any billable occurrence completed or submitted under MERCHANT’s Account including but not limited to capture, authorization, validation, updating, or a sale, void, refund, credit, offline force, or settlement regardless of whether approved or declined.
“VAR” or “Value Added Reseller” means any third-party vendor that enhances, modifies or existing hardware or software, thereby adding value to the services provided by the gateway processor or acquirer.
2. AUTHORITY:
By accepting the terms and conditions of this Agreement, MERCHANT represents and warrants that (a) the person executing this Agreement on MERCHANT’s behalf is 18 years of age or older, (b) all information MERCHANT has provided in connection with this Agreement is true and correct in all respects, and (c) MERCHANT will update any information that becomes outdated by notifying Payment Gateway of any changes to such information. MERCHANT further represents and warrants that the undersigned individual has the legal authority to accept the terms and conditions of this Agreement and that
such acceptance will be binding on MERCHANT. Payment Gateway reserves its right, in its sole discretion, to refuse to provide MERCHANT with any service based if MERCHANT have supplied any information which is misleading, untrue, inaccurate or incomplete.
3. TERM:
This Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated pursuant to Section 10.
4. PAYMENT GATEWAY SERVICES RIGHTS OF USE:
4.1 Payment Gateway Grant of Rights
(a) MERCHANT is hereby granted a non-exclusive right to use the Payment Gateway Services during the Term so long as MERCHANT’s account is paid and current as to any of the fees or charges referenced in Sections 8 & 9 hereof, which right is subject to the restrictions contained in this Agreement.
(b) In connection with the exercise of MERCHANT’s rights and obligations under this Agreement including, but not limited to any related to individual privacy, MERCHANT will comply, at MERCHANT’s expense, with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having authority or jurisdiction over activities described in this Agreement. MERCHANT shall not use the Payment Gateway Services in any manner, or in furtherance of any activity, the exposes Payment Gateway to liability or potential liability for any legal or regulatory action. A non-exclusive list of prohibited purposes for which MERCHANT may not use Payment Gateway’s Services is attached hereto as Exhibit “A”.
(c) MERCHANT’s use of the Payment Gateway Services shall be restricted to MERCHANT. MERCHANT shall not process orders on behalf of any other entity or individual. Any attempt by MERCHANT to use the Payment Gateway Services on behalf of another entity or individual may result in MERCHANT’s obligation to pay Payment Gateway additional fees and charges. Payment Gateway may further revoke MERCHANT’s right to use the Payment Gateway Services and terminate this Agreement.
(d) MERCHANT shall comply with Payment Gateway’s current policies, procedures, and guidelines pertaining to the Payment Gateway Services. Payment Gateway reserves the right to amend, modify or change its rules, policies, procedures, and guidelines at any time, in its sole discretion.
5. DATA SECURITY, TRANSFER, COLLECTION, RETENTION & DESTRUCTION: 5.1 MERCHANT’s Obligations
(a) MERCHANT agrees that it will comply at all times with all applicable and then-current legal obligations and security measures, including without limitation those issued by the United States Government, those required by federal, state and/or municipal laws and ordinances, and those required by the Card Association, the Federal Trade Commission (“FTC”), PCI DSS or any other governing body of competent jurisdiction. MERCHANT agrees that MERCHANT will comply with all Payment Gateway security protocols, notices and safeguards in effect during the term of this Agreement. MERCHANT warrants that MERCHANT has taken such precautions as are necessary to ensure that MERCHANT’s data and MERCHANT’s customer data is protected and that MERCHANT’s computer systems are secure from breach, intrusion or compromise by unauthorized third parties. MERCHANT
shall have policies and procedures in place that limits employees’ use of and access to MERCHANT’s data or Transaction Data. In the event that MERCHANT’s system is breached, and/or an unauthorized third party has access to or has accessed Data or Transaction data, MERCHANT shall immediately notify Payment Gateway, and such other parties as are required to receive notice under any applicable law or industry guideline. In the event of a breach or compromise of MERCHANT’s systems MERCHANT shall take immediate action to prevent an additional or continuing breach of its systems or loss of its data or Transaction data.
(b) MERCHANT is solely responsible for the security of data residing on MERCHANT’s server(s), or those of Third Party Service Providers, or any other third party designated by MERCHANT (e.g., a web hosting company, processor, or other service provider), including credit card numbers and any other personal data. MERCHANT shall further comply with all applicable laws and regulations concerning the collection, retention and use by MERCHANT of credit card and other financial information. MERCHANT agrees to have Privacy Policies and Terms of Use documents on its website, in a clear and conspicuous manner, that informs MERCHANT’s customers how their data is used, including disclosures concerning uses governed by this Agreement.
(c) MERCHANT agrees that MERCHANT is solely responsible for verifying the accuracy and completeness of all Transactions submitted to and processed by Payment Gateway associated with MERCHANT’s account, and for verifying that all corresponding funds are processed accurately. MERCHANT acknowledges that the fees Payment Gateway earns by and through transactions processed through MERCHANT’s account are earned in full and non-refundable. MERCHANT acknowledges that Payment Gateway shall not be liable for any improperly processed or unauthorized Transactions, or for illegal or fraudulent access to MERCHANT’s account, Data or Transaction data. Payment Gateway’s liability for unauthorized Transactions or improperly processed Transactions solely attributable to the negligence of Payment Gateway is limited pursuant to Section 13.
(d) MERCHANT agrees not to use, disclose, sell or disseminate any card, cardholder or ACH information obtained in connection with any Transaction except for the purposes of completing or settling a Transaction, and/or for the purpose of resolving chargebacks, retrievals or similar issues involving a Transaction, unless required to do so by a subpoena, warrant, request for production, or other order of any governmental body of competent jurisdiction. In the event that MERCHANT is served with any such subpoena, warrant, request for production, or other order, whether informally or from a court or governmental body of competent jurisdiction, MERCHANT shall immediately notify Gateway Provider that such information is being sought, such that the Gateway Provider may seek appropriate injunctive relief, quash such subpoena or warrant, or otherwise take legal action to protect its interests, in Gateway Provider’s sole discretion.
5.2 Payment Gateway’s Obligations
(a) MERCHANT understands that Payment Gateway will collect, retain, use and share information and data collected from MERCHANT and MERCHANT’s customers in accordance with Payment Gateway’s Privacy Policies. MERCHANT hereby consents, as a condition of MERCHANT’s enrollment in and use of the Payment Gateway Services, to the collection, use, processing and transfer of personal data as described in this Section 5 and Payment Gateway’s Privacy Policies.
(b) MERCHANT further understands that Payment Gateway may obtain various consumer reports regarding MERCHANT from third parties, perform a credit check, or otherwise obtain personal or credit information about MERCHANT in evaluating MERCHANT’s eligibility for, and for the purpose of providing and administering the Payment Gateway Services.
(c) MERCHANT understands that Payment Gateway may collect and hold personal or non-public information about MERCHANT and MERCHANT’s customers, including but not limited to: MERCHANT’s name, address, telephone number, e-mail address, social security number and/or tax identification number, and payment data as well as MERCHANT’s customers' names, mailing & shipping addresses, email addresses, phone number, types of purchases and descriptions of purchases (“Data”) for the purpose of considering MERCHANT’s eligibility for and use of the Payment Gateway Services. MERCHANT also understands and agrees that Payment Gateway, its subsidiaries, PARTNERs, Third Party Service Providers, suppliers and/or their agents and/or contractors may transfer Data among themselves as necessary for the purpose of provisioning and managing the Payment Gateway Services. MERCHANT further agrees that Payment Gateway may further transfer Data (i) to and from non-affiliated entities that assist Payment Gateway in providing products and services that MERCHANT requested; (ii) to and from companies that provide support services to Payment Gateway; (iii) to and from companies that provide marketing services on behalf of Payment Gateway; or (iv) where otherwise provided by law.
(d) With Respect to the Payment Gateway Services, to the extent applicable to Payment Gateway, Payment Gateway will maintain Payment Card Industry Data Security Standard (PCI DSS) compliance at all times during the Term of this Agreement.
(e) MERCHANT further understands that while Payment Gateway uses commercially reasonable efforts to safeguard Data and Transaction data transmitted by and through the Payment Gateway Services, Payment Gateway provides no warranty, express or implied, that Data and Transaction data will be transported without unauthorized interception or modification, or that Data or Transaction data will not be accessed or compromised by any unauthorized third parties.
(f) MERCHANT agrees that MERCHANT is solely responsible for compiling and retaining permanent records of all Data and Transaction data for future reference. Except as otherwise provided herein, Payment Gateway shall have no obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or other Data collected or processed by Payment Gateway. MERCHANT acknowledges that Payment Gateway shall have no obligation to provide MERCHANT with any Data or Transaction data upon termination of this Agreement. MERCHANT agrees that MERCHANT shall implement industry standard policies and procedures that limit access to Data or Transaction data. Prior to discarding data or Transaction data MERCHANT shall render all such data or Transaction data unreadable or encrypted, and abide by all laws or regulations imposed on MERCHANT pertaining to Data or Transaction data destruction and/or disposal.
5.3 MERCHANT’s Username and Password
(a) In connection with MERCHANT’s rights as described herein, Payment Gateway or PARTNER will issue to MERCHANT, or permit MERCHANT to use, a username and password that enables MERCHANT and/or MERCHANT’s employees and/or agents to access MERCHANT’s gateway account and use the Payment Gateway Services. MERCHANT shall restrict access to such username, password, and account to only those of MERCHANT’s employees and/or agents who have reasonable need for such information. MERCHANT shall ensure that each such employee and/or agent accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement.
(b) MERCHANT is solely responsible for maintaining adequate security and control of any and all usernames, passwords, or any other codes that are issued by Payment Gateway or PARTNER to MERCHANT, or selected by MERCHANT, for the purpose of accessing the Payment Gateway
Services. Payment Gateway shall be entitled to rely on information it receives from MERCHANT and may assume that all such information was transmitted by or on behalf of MERCHANT.
6. INTELLECTUAL PROPERTY AND REVERSE ENGINEERING:
The parties hereby agree that Payment Gateway owns and retains all right, title and interest in and to the Payment Gateway Services, Trademarks, copyrights, technology and any and all related technology or intellectual property utilized under or in connection herewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to MERCHANT or any other entity or person under this Agreement. MERCHANT shall not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets of any of Payment Gateway’s Services or related technology.
7. TRADEMARKS:
7.1 Use of Trademarks
(a) Payment Gateway hereby grants to MERCHANT the right to use, reproduce, publish, perform and display the Payment Gateway Marks as follows: (a) on MERCHANT’s web site in connection with MERCHANT’s offering of Payment Gateway Services to its customers; and (b) in promotional and marketing materials and electronic and printed advertising, publicity, email correspondence, press releases, newsletters and mailings about or related to any of the Payment Gateway Services.
(b) MERCHANT hereby grants to Payment Gateway, its Third Party Service Provider and its PARTNERs the right to use, reproduce, publish, perform and display MERCHANT Marks as follows: (a) in connection with the development, use, reproduction, modification, adaptation, publication, display and performance of the Payment Gateway Services offered and/or accessible through MERCHANT web site; and (b) in promotional and marketing materials and electronic and printed advertising, publicity, email correspondence, press releases, newsletters and mailings about or related to any of the Payment Gateway Services.
7.2 Restrictions on Use
(a) Neither party shall create any derivative mark consisting of one or more Trademarks of each party, or otherwise use the other party’s Mark(s) as its own property. All uses of the other party's Trademarks shall inure to the benefit of the party owning such Trademark. Each party to this Agreement hereby acknowledges and agrees that the other party is the owner of the Trademarks identified such in any written notice provided to the other party pursuant to this Agreement. Either party may update or change the list of Trademarks usable by the other party hereunder at any time by written notice to the other party.
(b) A party to this Agreement must include a statement of ownership when displaying or reproducing the trademark(s) of the other. It is sufficient to state: “The trademark is the property of its respective owner.”
(c) MERCHANT shall not use (except as expressly provided for by this Agreement), register or attempt to register any Payment Gateway Trademarks or domain names that are in any manner confusingly similar to the Trademarks, marks or Domain Name(s) belonging to Payment Gateway. MERCHANT shall not take any action inconsistent with Payment Gateway’s ownership of its Trademarks, including registering any confusingly similar Trademarks, or in any way dispute the validity thereof. MERCHANT shall not use Payment Gateway’s Trademarks in any manner that would suggest that
MERCHANT is using Payment Gateway Trademarks other than as a licensee, or assist any third party do the same.
8. PAYMENT TERMS:
8.1 ACH Authorization and Payment Due Dates
(a) Payment Gateway’s fees shall commence on the Effective Date and MERCHANT shall be billed on the first business day of each month following the Effective Date for any and all amounts due and owing under this Agreement. If accrued fees owed by MERCHANT exceed $50.00 USD at any time in any given month, Payment Gateway will bill MERCHANT the full amount due more frequently than monthly, at Payment Gateway’s discretion.
(b) MERCHANT must authorize Payment Gateway to initiate transaction entries into MERCHANT’s depository account via ACH. This authority is to remain in full force and effect until (i) Payment Gateway has received written request from MERCHANT to terminate this arrangement, which request must be made with sufficient time to afford Payment Gateway and MERCHANT’s depository institution a commercially reasonable opportunity to acknowledge and respond to the same, and (ii) Payment Gateway has collected all fees due and owing under this Agreement. If Payment Gateway is unable to collect amounts due and owing from MERCHANT’s depository account, MERCHANT hereby authorizes Payment Gateway to charge MERCHANT’s credit card for any and all amounts due and owing under this Agreement. Any entry initiated to or from MERCHANT’s depository account will conform to the rules of the National Automated Clearing House Association (NACHA) and/or any other regulatory body or agency having jurisdiction over the subject matter hereof.
(c) MERCHANT must promptly update MERCHANT’s account information with Payment Gateway or PARTNER with current and accurate information. In the event MERCHANT fails to provide Payment Gateway or PARTNER with current and accurate depository account and/or credit card account information, Payment Gateway may immediately discontinue providing Payment Gateway Services to MERCHANT, without liability, until such information is provided to Payment Gateway, in which case Payment Gateway may also terminate this Agreement. MERCHANT acknowledges that any change in account information may not be effective until the month following the month in which Payment Gateway receives such notice. Termination of MERCHANT’s authorization shall result in termination of any and all Payment Gateway Services.
8.2 MERCHANT BILLS FROM PARTNER:
If MERCHANT is billed by a PARTNER for some or all of the Fees, MERCHANT shall pay PARTNER in the manner agreed upon between MERCHANT and PARTNER.
9. FEES:
9.1 Payment Gateway Service Fees
(a) MERCHANT shall pay Payment Gateway the fees set forth in the Fee Schedule provided to MERCHANT by Payment Gateway and/or, if applicable, to PARTNER. The Fee Schedule is hereby incorporated in its entirety into the terms of this Agreement by reference.
(b) Notwithstanding the foregoing, MERCHANT may continue using the Payment Gateway Services if MERCHANT’s relationship with the PARTNER that offered MERCHANT the Payment Gateway Services expires or terminates, and such PARTNER was billing MERCHANT for certain Fees. If
MERCHANT elect to continue using the Payment Gateway Services, MERCHANT acknowledges and agrees that Payment Gateway may begin to bill MERCHANT for such Fees in the amounts that the PARTNER had been charging MERCHANT. Payment Gateway may thereafter amend the Fee schedule after providing MERCHANT with thirty (30) days notice in accordance with Section 15.3.
9.2 Other Fees and Charges
(a) MERCHANT shall incur a late fee in the amount set forth in the fee schedule if any amounts due to Payment Gateway under this Agreement are not paid on or before the tenth (10th) day following the date when due. In addition, MERCHANT shall be subject to a finance charge equal to one and one half percent (1.5%) per month, or the highest rate allowable by law, whichever is less, determined and compounded daily from the date due until the date on which it is paid. Payment of such late fee(s) and finance charge(s) will not excuse or cure any breach or default for late payment. Payment Gateway may accept any check or payment from MERCHANT without prejudice to its rights to recover the balance due or to pursue any other right or remedy. No endorsement or statement on any check or payment or any correspondence accompanying any check or payment or elsewhere may be construed as an accord or satisfaction.
(b) For any occurrence in which Payment Gateway is unable to collect fees on MERCHANT’s Account, for any reason, including but not limited to insufficient funds, closed account, or any other negative response, Payment Gateway may charge MERCHANT a Return Payment Fee in the amount of $25.00 USD, or such fee as is set forth in the fee schedule.
(c) If MERCHANT has not paid all amounts due and owing with two (2) days of their due date, Payment Gateway may, in its sole discretion, discontinue providing MERCHANT with Payment Gateway Services. If MERCHANT has still not paid all amounts due and owing after thirty (30) days following the date on which such payments were due, then Payment Gateway may immediately terminate this Agreement in its sole discretion. Notwithstanding the foregoing, if MERCHANT subsequently pays in full all fees due and owing, including but not limited to late fees, finance charges and Return Payment Fees, and if Payment Gateway has not already terminated this Agreement, then Payment Gateway may elect to reactivate the Payment Gateway Services and charge MERCHANT a Service Reactivation Fee as set forth in the fee schedule.
(d) MERCHANT agrees to pay all costs and expenses of whatever nature, including attorneys' fees, incurred by or on behalf of Payment Gateway in connection with the collection of any unpaid charges and fees.
10. TERMINATION:
10.1 Termination by Payment Gateway
(a) Payment Gateway may terminate this Agreement and/or terminate MERCHANT’s use of the Payment Gateway Services immediately, or at any time, without advance notice, with or without cause, for any reason, including without limitation in the event MERCHANT breaches or defaults on any obligation set forth in this Agreement, or if Payment Gateway determines, in its sole discretion, that MERCHANT’s business practices are detrimental to Payment Gateway’s business objectives. In such event, Payment Gateway shall provide MERCHANT with a written or electronic notice of termination.
10.2. Termination by MERCHANT
(a) MERCHANT may terminate this Agreement with or without cause, and for any reason, by providing Payment Gateway with (30) days written notice of MERCHANT’s intent to terminate this Agreement.
(b) In the event MERCHANT is billed by a PARTNER in furtherance of Section 8.2 of this Agreement, MERCHANT hereby authorizes PARTNER to terminate this Agreement on MERCHANT’s behalf.
10.3 Termination by PARTNER or Third-Party Service Provider
(a) In the event MERCHANT is billed by an PARTNER according to Section 8.2, and if Payment Gateway receives notice from such PARTNER that it has terminated or suspended its relationship with MERCHANT, Payment Gateway may suspend and/or terminate MERCHANT’s right to use Payment Gateway Services and/or terminate this Agreement without notice or liability.
(b) In the event Payment Gateway is notified by a Third Party Service Provider, court of competent jurisdiction, governmental body or authority, Acquiring Bank or the Card Association that MERCHANT are no longer entitled to receive payment data for any reason whatsoever, Payment Gateway may suspend and/or terminate the Payment Gateway Services and/or this Agreement without notice or liability.
10.3 Effect of Termination and Survival
All rights and interests under this Agreement shall be extinguished upon termination of this Agreement, which shall be given no further force or effect except that: i) all accrued payment obligations shall survive such expiration or termination; and (ii) the rights and obligations of the parties under Sections 6, 10, 12, 13, 14 and 15 shall also survive termination.
11. REPRESENTATIONS AND WARRANTIES:
11.1 Mutual Representations and Warranties
Each party represents and warrants to the other that (i) the party's obligations under this Agreement do not violate any law or breach any other agreement to which either party to this Agreement is bound; (ii) the undersigned has all necessary rights, powers and abilities to execute this Agreement and to perform its obligations therein; and (iii) neither party requires any further or third party authorization or approval in order to fully perform its obligations under this Agreement.
11.2 MERCHANT’s Representations and Warranties
(a) MERCHANT represents and warrants that MERCHANT is engaged in a lawful business that includes the sale of products and/or services, and is duly licensed to conduct such business under the laws of all jurisdictions in which MERCHANT does business. MERCHANT further represents and warrants that all statements made by MERCHANT in this Agreement, and/or in any other, related document executed by MERCHANT or on MERCHANT’s behalf, are true, accurate and complete in all material respects. MERCHANT hereby authorizes Payment Gateway to investigate and confirm the information submitted by MERCHANT herein. For this purpose, Payment Gateway may utilize credit bureaus and/or reporting agencies, and/or Payment Gateway’s own agents.
(b) MERCHANT will comply with all applicable laws, regulations, rules, ordinances and orders. MERCHANT shall further comply with, without limitation, the Payment Card Industry Data Security Standard (PCI DSS), the Gramm-Leach-Bliley Act, and such regulations as may apply or be
promulgated from time to time by the National Automated Clearing House Association (NACHA), and/or any other regulatory body or agency of competent jurisdiction.
(c) MERCHANT shall abide with all material terms of the then current policies, procedures, and guidelines of Payment Gateway governing the Payment Gateway Services.
11.3 Payment Gateway’s Representations and Warranties
(a) Payment Gateway represents and warrants that the Payment Gateway Services provided to MERCHANT will substantially conform to the specifications set forth in the Fee schedule provided to MERCHANT when creating MERCHANT’S account.
(b) MERCHANT acknowledges that Payment Gateway Services are designed for use with certain third party programs, including, without limitation, certain internet browser software programs. MERCHANT will look solely to the developers and manufacturers of such programs with respect to any warranty, maintenance or support regarding the same. Payment Gateway makes no warranty, express or implied, as to any such third-party software.
(c) MERCHANT may not rely on any representation or warranty pertaining to Payment Gateway Services made by any third party in contravention of this Agreement, including the representations or warranties of any Third-Party Service Provider or PARTNER. In the event of a breach of the foregoing warranty, Payment Gateway shall use commercially reasonable efforts to repair or replace the Payment Gateway Services, at its option. MERCHANT acknowledges that Payment Gateway neither warrants nor guarantees that such efforts will be successful. If Payment Gateway’s efforts are unsuccessful, MERCHANT may terminate this Agreement in accordance with Section 10.2. THE FOREGOING SHALL CONSTITUTE MERCHANT’s SOLE REMEDY, AND PAYMENT GATEWAY’s SOLE LIABILITY, FOR INTERRUPTIONS, OUTAGES OR OTHER DELAYS IN PAYMENT GATEWAY’S SERVICES AND/OR VALUE-ADDED SERVICES, WHICH VALUE ADDED SERVICES ARE DESCRIBED AND DISCUSSED IN EXHIBIT “C” HERETO. Payment Gateway neither warrants nor guarantees the services of any third party, including without limitation Third Party Service Providers, PARTNERs, VARS or the Card Association.
12. CONFIDENTIALITY AND NONDISCLOSURE:
12.1 Use of Confidential Information
Each party that receives information (the “Receiving Party”) from the other party (the “Disclosing Party”) agrees to use its commercially reasonable, best efforts to protect all non-public information and know-how of the Disclosing Party that is either designated as proprietary and/or confidential or that, by the nature of the circumstances surrounding disclosure, reasonably ought to be treated as proprietary and/or confidential (“Confidential Information”). Each party shall take precautions as to the Confidential Information of the other at least as great as those taken to protect its own, similar information. Each party agrees that the terms and conditions of this Agreement will be Confidential Information, however, either party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business.
12.2 Exclusions
The foregoing restrictions will not apply to any information that: (a) the Receiving Party can document it had in its possession prior to disclosure by the Disclosing Party; (b) was in or entered the public domain through no fault of the Receiving Party; (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; (d) is required to be disclosed by applicable laws or regulations, but in such event, only to the extent required to be disclosed, and in which case the Disclosing Party shall notify the other of its intention or obligation to make such disclosures in prior to doing so; or (e) is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party. Upon request of the other party, or in any event upon any termination or expiration of the Term, each party shall return to the other all materials, in any medium, whether physical or electronic, that contain, embody, reflect or reference part or all of the Confidential Information of the other party. Each party acknowledges that its breach of this provision would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, thus for which the other party shall be entitled to seek injunctive relief to enforce the provisions of this Section 12.
13. LIMITATION OF LIABILITY:
13.1 Payment Gateway Disclaimers
(a) GATEWAY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY OR LOSS, HOWEVER OCCURRING, INCLUDING NEGLIGENCE, WHICH ARISES FROM OR WHICH IS RELATED TO ANY UNAUTHORIZED ACCESS TO MERCHANT’S FACILITIES OR TO MERCHANT’S DATA OR PROGRAMS DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS OR DEVICES USED BY ANY THIRD PARTY, OR DUE TO OTHER CAUSES BEYOND PAYMENT GATEWAY'S REASONABLE CONTROL.
(b) PAYMENT GATEWAY EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS, HOWEVER OCCURRING, INCLUDING NEGLIGENCE, ARISING FROM OR RELATED TO: (I) MERCHANT’S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE MERCHANT’S ACCOUNT(S); (II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH MERCHANT’S ACCOUNT(S); (III) DISRUPTION OF PAYMENT GATEWAY’S SERVICES, SYSTEMS, SERVER OR WEB SITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, SYBIL ATTACKS, WORMS, TIME BOMBS, OR ANY OTHER MALWARE, SPYWARE OR OTHER TECHNOLOGY; (IV) ACTIONS OR OMISSIONS BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, A THIRD PARTY SERVICE PROVIDER, PARTNER, OR AQUIRING BANK; OR (V) ANY UNAUTHORIZED ACCESS TO DATA OR CUSTOMER DATA, INCLUDING BUT NOT LIMITED TO CREDIT CARD NUMBERS, PERSONALLY IDENTIFIABLE INFORMATION, TRANSACTION DATA OR OTHER PERSONAL INFORMATION BELONGING TO PAYMENT GATEWAY, MERCHANT OR ANY THIRD PARTY.
(c) PAYMENT GATEWAY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY OR LOSS PERTAINING TO THE LEGITIMACY OF ORDERS FORWARDED FROM MERCHANT, AND FOR ANY AND ALL CLAIMS OF LOSS AND/OR FRAUD INCURRED THROUGH ASSUMPTIONS OR CONCLUSIONS DRAWN FROM THE DATA PROVIDED TO MERCHANT THROUGH ANY OF PAYMENT GATEWAY’S SERVICES, FROM ANY SYSTEM OR PROGRAM ASSOCIATED THEREWITH, OR AS THE RESULT OF LIMITATIONS IN THE FUNCTIONING OF ANY PAYMENT GATEWAY SERVICES OR SOFTWARE, HARDWARE,
OR ASSOCIATED EQUIPMENT, WHETHER OWNED BY PAYMENT GATEWAY OR OFFERED THROUGH A THIRD PARTY SERVICE PROVIDER OR OTHER ENTITY.
13.2. Payment Gateway Limitation of Liability
(a) UNDER NO CIRCUMSTANCES WILL PAYMENT GATEWAY, OR ANY OF ITS PARENT’S OR RELATED PARTIES’ AFFILIATES OR VENDORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ASSIGNS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, HOWEVER OR WHENEVER ARISING, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT, INCLUDING NEGLIGENCE, CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) PAYMENT GATEWAY’S TOTAL LIABILITY TO MERCHANT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF PAYMENT GATEWAY’S PRODUCTS OR SERVICES, SHALL NOT EXCEED THE AGGREGATE COMPENSATION PAYMENT GATEWAY RECEIVED FOR PROVIDING PAYMENT GATEWAY SERVICES TO MERCHANT DURING THE THIRTY (30) DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $500.00 USD, WHICHEVER IS LESS.
13.3 Payment Gateway Services “As Is” Disclaimer
GATEWAY PROVIDER SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. GATEWAY PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE GATEWAY PROVIDER SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR FREE. MERCHANT MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE GATEWAY PROVIDER SERVICES MADE BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING, BUT NOT LIMITED TO REPRESENTATIONS BY THIRD PARTY SERVICE PROVIDERS OR PARTNERS, EXCEPT AS SET FORTH IN THE SERVICE LEVEL AGREEMENT CONTAINED IN APPENDIX B OF THIS AGREEMENT. MERCHANT UNDERSTANDS AND AGREES THAT GATEWAY PROVIDER SHALL BEAR NO RISK WHATSOEVER AS TO THE SALE OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD, ACH FRAUD, CHECK FRAUD OR CHARGEBACKS. GATEWAY PROVIDER SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE GATEWAY PROVIDER SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. MERCHANT UNDERSTANDS AND AGREES THAT PAYMENT GATEWAY SHALL BEAR NO RISK WITH RESPECT TO MERCHANT’S SALE OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD, ACH FRAUD, CHECK FRAUD OR CHARGEBACKS.
13.4 Disputes
The parties shall promptly investigate any disputes under this Agreement. If the disputed amount is less than five percent (5%) of the total fees invoiced by Payment Gateway for the relevant billing statement, the total amount invoiced shall be due and payable on or before the due date. If the disputed amount is greater than five percent (5%) of the total fees invoiced by Payment Gateway for the relevant billing statement, such amount may be withheld until the dispute is resolved. All disputes must be made in good faith, in writing, within thirty (30) days of the billing statement date. Fees billed shall be deemed accepted and non refundable in the absence of such dispute.
14. INDEMNIFICATION:
14.1 MERCHANT Indemnification
MERCHANT shall defend, indemnify, and hold Payment Gateway and its PARTNERs, Third Party Service Providers, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, harmless from and against any and all claims, actions, proceedings, and suits, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Payment Gateway, arising out of or relating to (a) any breach or alleged breach by MERCHANT of any representation, warranty, or obligation of MERCHANT set forth in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by MERCHANT or any of MERCHANT’s agents, employees or customers; (c) payment card transactions submitted to Payment Gateway by MERCHANT and rejected by Payment Gateway or an issuing bank; (d) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by MERCHANT to Payment Gateway; (f) claims by MERCHANT’s customers, including, without limitation, claims relating to the disclosure of consumer data; (f) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from any act or omission on the part of MERCHANT; (g) any violation of Payment Gateway’s then current policies or guidelines; or (h) any alleged or actual violation by MERCHANT of any applicable laws, regulations or rules of (i) the Credit Card Associations; (ii) the Gramm Leach Bliley Act; (iii) or any regulatory body or agency having jurisdiction over the subject matter hereof. In the event MERCHANT causes fines and/or penalties to be charged to Payment Gateway by the Credit Card Associations or any other entity, MERCHANT agrees to reimburse Payment Gateway immediately for said fines and penalties.
14.2 Payment Gateway Indemnification
(a) Payment Gateway shall defend, indemnify and hold MERCHANT and MERCHANT’s officers, directors, agents or employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by MERCHANT, arising out of or relating to any alleged infringement of a U.S. patent of any other entity or person by Payment Gateway.
(b) Payment Gateway’s obligations in Section 14.2(a) do not apply if Payment Gateway’s Services are, in whole or in part, (a) modified by persons or entities other than Payment Gateway, if the alleged infringement relates to such modification; (b) combined with other products, services, processes or materials not supplied or recommended by Payment Gateway, where the alleged infringement relates to such combination, or (c) used after Payment Gateway has made a non-infringing version available to MERCHANT (collectively, “MERCHANT Faults”). If Payment Gateway’s Services or any component thereof becomes, or in Payment Gateway’s opinion is likely to become, the subject of a claim of infringement, then MERCHANT shall allow Payment Gateway, at Payment Gateway’s sole option and expense, either to (i) procure for MERCHANT the right to continue using the Payment Gateway Services as provided for in this Agreement, or (ii) replace or modify the affected Payment
Gateway Services or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, Payment Gateway is unable to cure the infringement, either party may terminate this Agreement upon written notice to the other, as provided in Section 10. Notwithstanding the above, Payment Gateway’s total liability shall not exceed the amounts described in Section 13.2(b). THIS SECTION 14.2(b) PROVIDES THE ENTIRE LIABILITY OF PAYMENT GATEWAY TO MERCHANT WITH RESPECT TO ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY PAYMENT GATEWAY SERVICES.
14.3 Indemnification Process
The obligations of each party (“Indemnitor”) under this Section 14.3 to defend, indemnify and hold harmless the other party (“Indemnitee”) shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably could be expected to require a material affirmative obligation of liability, result in any ongoing material liability to or materially prejudice Indemnitee in any way.
14.4. Exceptions
If MERCHANT is an agency or instrumentality of any state within the United States, and is precluded by the law of that state from entering into indemnification obligations, then the obligations under this Section 14 shall apply only to the extent permitted by such state’s law.
15. GENERAL PROVISIONS:
15.1 Non-exclusivity
This Agreement shall not confer on either party any exclusive rights. Each party is free to contract with others, subject to the terms of this Agreement.
15.2 Relationship of the Parties
The parties to this Agreement are independent contractors and nothing in this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other party. Neither party shall make any representation otherwise.
15.3 Notices
All notices to MERCHANT shall be sent electronically to the email address posted in the MERCHANT’s Gateway Provider account. All notices to Gateway Provider shall be sent to contact@collectdesk.com with a written copy to Enovative Lab LLC, dba CollectDesk Legal Department, Attention: General Counsel 16192 Coastal Hwy, Lewes, DE 19958. Such written notice will be deemed given upon personal delivery, or three (3) days after the date of mailing if sent by certified or registered mail, or by a recognized private delivery service.
15.4 Non-solicitation
MERCHANT shall not directly or indirectly, whether for compensation or otherwise, engage in any business activity, whether as an employee, proprietor, officer, director, agent, trustee, MERCHANT or creditor lending money for the purpose of establishing or operating any such business, that (a) induces or attempts to induce, directly or indirectly, any third party to modify or terminate such party’s business association with Gateway Provider or (b) interferes with, disrupts or attempts to disrupt any business relationship, contractual or otherwise, between Gateway Provider and any third party, client, supplier, consultant, agent or employee of Gateway Provider. The parties hereto acknowledge that any breach of these non-solicitation provisions will cause immediate, irreparable and continuing harm to Gateway Provider for which there is no adequate remedy at law, and as such the parties acknowledge and agree that in the event of any breach or violation, or threatened breach or violation, of these non-solicitation provisions, Gateway Provider and/or its successors and/or assigns shall be entitled to temporary, preliminary and permanent injunctive relief, including restraints enjoining and restraining such breach or violation or threatened breach or violation, plus such other legal and equitable remedies as may be provided by law, without the necessity of posting any bond or other security, including damages, for the costs of suit or attorneys’ fees.
15.5 Severability, Headings
In the event any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.
15.6 Dispute Resolution
Any dispute or claim arising out of or relating to this Agreement, except claims involving intellectual property and claims for indemnification, will be resolved by binding arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) rules, as modified by this Agreement, which shall take place in Boston, Massachusetts, unless the Parties mutually agree otherwise. This Agreement evidences a transaction in interstate commerce and this arbitration provision shall be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. An arbitrator may not award relief in excess of or contrary to what this Agreement provides, or order consolidation or arbitration on a class wide or representative basis, except that the arbitrator may award damages required by statute on an individual basis and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration determination or award shall be confidential, and neither Party may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the same. Judgment on any arbitration award may be entered in any court having proper jurisdiction. All administrative fees and expenses will be divided equally between the Parties, though each Party will bear its own expense of counsel, experts, witnesses and preparation and presentation of evidence at the arbitration. IF FOR ANY REASON THIS ARBITRATION CLAUSE IS DEEMED INAPPLICABLE OR INVALID, THE PARTIES WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE ANY CLAIMS ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. No action, regardless of form, arising out of or in conjunction with the subject matter of this Agreement, except for claims involving intellectual property and claims for indemnification, may be brought by either Party more than one (1) year after the cause of action arose.
15.7 Amendment
Gateway Provider may modify any of the terms and conditions contained in this Agreement at any time in its sole discretion. MERCHANT acknowledges and agrees the transaction processing and gateway services industries evolve and change over time, and therefore agrees that Gateway Provider may so modify this Agreement, from time to time, to comply with any additional rules or policies that may be required under the laws of the United States or any other governing body, or to adjust to changing business circumstances. Gateway Provider will post the most current version of this Agreement, including any amendments or modifications thereto, via the Gateway Provider’s Website, which version shall automatically become effective on the date it is posted. MERCHANT's continued participation following a modification or amendment shall constitute MERCHANT's binding acceptance of the change. No provision of this Agreement shall be modified by MERCHANT except by means of a written document signed by Gateway Provider.
15.8 Electronic Signatures
Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when (1) a party’s electronic signature (which may be evidenced by MERCHANT clicking the “Submit,” “Accept,” “Create account,” or other equivalent indicator on the applicable website) is associated with this Agreement and related documents, (2) MERCHANT consents and intends to be bound by this Agreement and related documents, and/or (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). This Agreement and all related electronic documents shall be governed by the provisions of E-Sign. By pressing Submit, Accept, Create account or other equivalent indicator, such person or party agrees (i) that this Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, (iii) that said person or party has the ability to print or otherwise store the Agreement and related documents.
15.9 Governing Law, Jurisdiction, Conflicts of Law, Forum
This Agreement and performance thereof shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of Massachusetts. MERCHANT hereby irrevocably consents to the personal jurisdiction of and venue in the state and federal courts located in Suffolk County, Massachusetts with respect to any action, claim or proceeding arising out of or related to this Agreement and agrees not to commence or prosecute any such action, claim or proceeding other than in such courts. The parties hereto agree that Massachusetts law shall apply regardless of any choice or conflicts of law principles. The parties further agree that Suffolk County, Massachusetts is a convenient forum, and waives any objection to the same under forum non conveniens principles.
15.10 Waiver
The failure of any party to insist on or enforce strict performance of any provision of this Agreement, or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment of the right to assert or rely upon any such provision, right or remedy in that or any other instance. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver may be construed as a waiver of any other and/or succeeding breach of such or any other provision of this Agreement, or a waiver of the provision itself.
15.11 Assignment
MERCHANT may not assign this Agreement or any rights hereunder without the prior written consent of Gateway Provider, except that Gateway Provider’s prior written consent will not be required for an assignment as the result of any MERCHANT merger, consolidation, reorganization or similar transaction involving all or substantially all of the assets of MERCHANT. In any such event, the assignee must assume and agree in writing to perform all of the assigning party's executory obligations. The assigning party must further guarantee performance by the assignee throughout the Term of this Agreement. Subject to the foregoing, this Agreement shall be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns.
15.12 Force Majeure
Gateway Provider shall not be responsible for any failure to perform beyond its reasonable control, including, without limitation acts of God, acts or omissions of civil or military authority, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, or interruptions in telecommunications or internet services, third party vendors or network provider services.
15.13 Merger
This Agreement, constitutes the entire agreement between the parties and supersedes all prior memoranda or agreements relating thereto, whether oral or in writing.
Appendix A - Prohibited Activities
MERCHANT agrees that MERCHANT will not at any time conduct MERCHANT’s business in any manner that directly or indirectly offers, sells, leases, licenses or displays, delivers, markets, advertises, recommends, or promotes any product(s), service(s), data, information, image(s), text and/or any content which:
(1) is threatening, abusive, harassing, defamatory, obscene, libelous, slanderous, deceptive, fraudulent, invasive of another's privacy, tortuous, or otherwise violates Payment Gateway’s rules or policies;
(2) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any person or party, including, but not limited to, the unauthorized copying and posting of trademarks, pictures, logos, software, articles, musical works and videos;
(3) offers or disseminates fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, pyramid schemes) or engage in any unfair deceptive act or practice;
(4) violates any U.S. export or import laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Commerce;
(5) is associated with any form of illegal gambling or illegal lottery type services;
(6) is associated with the sale of (a) any controlled drug that requires a prescription from a licensed practitioner unless MERCHANT are authorized by the National Association of Boards of Pharmacy to offer such products as a Verified Internet Pharmacy Practice Site and only if such a prescription has been issued by the practitioner after a bona fide examination of the patient; or (b) any over-the-counter drug, unless the sale of such product, without a prescription, has been approved by the Food & Drug Administration; or (c) nonprescription drugs that make false or misleading treatment claims or treatment claims that require FDA approval; or (d) any drug or controlled substance that Payment Gateway believes to be or may become harmful, unlawful, or prohibited. Payment Gateway requires sellers of prescription drugs to abide by all laws applicable to both the buyer and seller and may require MERCHANT to provide evidence of compliance with these requirements. In addition, due to the complexities of current laws regulating the importation of controlled drugs into the United States, MERCHANT may not use the Services to sell prescription drugs that are imported into the United States from an international location. The foregoing list is a non-exhaustive list of prohibited goods and services;
(7) impersonates any person or entity;
(8) victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
(9) is associated with any illegal form of adult, sexually oriented, or obscene materials or services, including without limitation, any material associated with, linked to or containing images of children less than 18 years old and/or escort services;
(10) is associated with electronic wallets (i.e., “e-wallets”) or any similar payment type;
(11) violates any applicable local, state, federal, national or international law, statute, ordinance, or regulation including, without limitation, Credit Card Association rules, consumer protection laws, unfair competition, antidiscrimination or false advertising rules;
(12) is associated with illegal telecommunications or illegal cable television equipment or illegal satellite equipment; or
(13) contains harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, malware, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, intercept or expropriate the Services or any system, program, data or personal information, or limit the functioning of any software, hardware, or equipment, or to damage or obtain unauthorized access to any data or other information of any third party.
Appendix B - VALUE-ADDED SERVICES
In the event MERCHANT enrolls in, and Payment Gateway provides MERCHANT with, Value-Added Service(s), MERCHANT agrees as follows:
1. Expansion of Services
The terms “Services” and “Payment Gateway Services,” as each is defined in the Agreement, shall include the Value-Added Services. Each Value-Added Service is or will be described on the Payment Gateway Web site and/or in other Services Documentation provided to MERCHANT from time to time. All terms of the Agreement applicable to the Payment Gateway Services shall be applicable to each Value-Added Service.
2. MERCHANT’S Obligations
In addition to MERCHANT’s obligations set forth in this Agreement, MERCHANT hereby agrees to pay the Value-Added Service Fees, in accordance with this Agreement, in the amounts provided for in the Fee Schedule provided to MERCHANT by Payment Gateway and/or, if applicable, PARTNER at the time of enrolling in the Value-Added services. The Fee Schedule is hereby incorporated into the terms of this Agreement by reference and/or in the Value-Added Service documentation page accessed during enrollment in the applicable Value-Added Service. By checking the “Select” button next to a Value-Added Service Fee schedule, MERCHANT acknowledge MERCHANT acceptance of such fees, MERCHANT’s obligation to pay same and the terms and conditions applicable to the Value-Added Service.
3. MERCHANT’s Warranty
MERCHANT represents, warrants, and covenants to Payment Gateway that MERCHANT’s use of the Value-Added Services and any information gathered by MERCHANT in connection with use of a Value Added Service: (a) will be fully compliant with all applicable local, state and federal laws, rules, and regulations; (b) will be in accordance with all applicable Services Documentation; and (c) will not be used for any purpose other than in connection with the Value-Added Service.
4. Acknowledgement
MERCHANT understands, acknowledges, and agrees that (a) MERCHANT will be solely responsible for ALL transactions processed through MERCHANT’s Payment Gateway account(s), regardless of whether such transactions are monitored by a Value-Added Service; (b) MERCHANT will be solely responsible for MERCHANT’s use of the Value-Added Service including, without limitation (i) with respect to each Transaction processed via MERCHANT’s account(s)(regardless of any data, analysis, or information generated or not generated by the Value-Added Service, as applicable) determining the appropriate action for each such Transaction (i.e., approve, void, decline, reject); and (ii) configuring, maintaining and updating, as MERCHANT may deem necessary, the applicable settings for MERCHANT’s Value-Added Service account; and (c) under certain circumstances, it may be necessary for Payment Gateway to adjust MERCHANT’s Value-Added Service security settings, with or without notice to MERCHANT, to guard against fraudulent activity, and that such actions may inadvertently cause legitimate transactions to expire, be rejected or delayed; and (d) Payment Gateway shall not be liable under any theory of law, including negligence, for any loss associated with any of the foregoing.
5. LIMITATIONS AND DISCLAIMER
IN ADDITION TO ANY LIMITATIONS OR DISCLAIMERS SET FORTH IN THE AGREEMENT, MERCHANT UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE VALUE-ADDED SERVICES ARE PROVIDED TO MERCHANT BY PAYMENT GATEWAY “AS IS” AND THAT PAYMENT GATEWAY DOES NOT REPRESENT OR WARRANT THAT THE VALUE ADDED SERVICES OR ANY OTHER TECHNOLOGY, CONTENT, INTELLECTUAL PROPERTY, OR ANY OTHER INFORMATION, DATA, PRODUCTS, OR SERVICES, WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR FREE, AND THAT MERCHANT’S SOLE REMEDY FOR ANY ISSUE RELATED TO OR ARISING FROM THE VALUE ADDED SERVICES, AND PAYMENT GATEWAY'S SOLE LIABILITY FOR SAME, WILL BE TO TERMINATE THIS AGREEMENT AND DISCONTINUE MERCHANT’S USE OF THE VALUE-ADDED SERVICES.
6. Risk, Security and Disclosure
The risk and security suggestions provided to MERCHANT in the Services Documentation for any of the Value-Added Services are solely for illustrative purposes to show best industry practices. MERCHANT shall be solely responsible for choosing the appropriate settings and parameters for MERCHANT account.
7. Termination
If MERCHANT Agreement is terminated for any reason, Payment Gateway may in its sole discretion immediately cancel access to MERCHANT’s Value-Added Service account. It is MERCHANT’s responsibility to download all reports prior to the effective date of any such termination since such reports will not be available following the termination date.
8. Incorporation by Reference
The Value-Added Services Fee Schedules are incorporated herein by reference.
9. Third Party Applications
Payment Gateway makes no warranty, express or implied, with respect to any third-party services or software.
10. Definitions
All terms and conditions of the Agreement not specifically modified by this Appendix B shall remain unchanged and in full force and effect. Unless separately defined herein, capitalized words used in this Appendix as defined terms shall have the same meanings herein as in the Agreement.
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