White Label Template for Partner/Merchant Terms
PAYMENT GATEWAY MERCHANT SERVICE AGREEMENT
[Insert Partner entity name] (“Payment Gateway”) offers merchants various products and services relating to payment processing directly through Payment Gateway and through Third Party Service Providers (defined below).
In order for you, the person or entity identified on the applicable merchant application (“Merchant”, “You” or “Your”) , to use the payment processing services, payment gateway services and other products and services, as such descriptions may be changed from time to time by Payment Gateway (“Payment Gateway Services”), you must agree to and accept the terms and conditions of this agreement (“Agreement”).
Please read this Agreement carefully. You understand that by using any of the Payment Gateway Services, by clicking on the “I AGREE TO ALL TERMS ABOVE” button (or similar button captioned with acceptance language) and/or signing this Agreement, you represent and warrant that you (i) have the authority to bind your company to the terms of this Agreement; (ii) have reviewed and understand the Agreement, and (iii) agree, on behalf of your company, to be legally bound by all terms and conditions of the Agreement (including the terms and conditions stated on web pages incorporated by reference in this Agreement).
If you do not agree or are not willing to be bound by the terms and conditions of this Agreement, do not click on the “I AGREE TO ALL TERMS ABOVE” or similarly captioned button and do not use any of the Payment Gateway Services.
NOW THEREFORE, the parties agree as follows:
1. DEFINITIONS:
“Account” means an account portal established for You by Payment Gateway, and accessed by You (or by Payment Gateway on Your behalf) through an API or integration or online portal to utilize the Payment Gateway Services.
“Acquiring Bank” means the financial institution supplying You with the ability to accept credit and debit cards for payments. The financial institution will charge You fees for providing these services.
“ACH” means Automated Clearing House, which is an electronic network that allows the exchange and settlement of electronic payments between financial institutions.
“Card Association” means any network or association associated with processing Payment Cards of a specific brand, including but not limited to American Express Company, Discover Financial Services, JCB Co., Ltd., Mastercard Incorporated, Visa Inc., the National Automated Clearing House Association (NACHA), or any debit network, and each of their subsidiaries and successors.
“Confidential Information” means any information, data, trade secrets, know-how, provided or disclosed directly, or indirectly, in writing or orally, either designated as proprietary and/or confidential or that, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential, products, product plans, services, services documentation (in whatever form or media provided) customers, customer lists, user data, revenue, markets, software developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration, marketing, marketing materials, financial or other business information, or the financial terms of this Agreement. Data, as defined in this Agreement, are deemed Confidential Information.
“Data” has the meaning set forth in Section 5 (DATA SECURITY, COLLECTION, TRANSFER AND RETENTION; CREDENTIALS).
“Effective Date” means the earlier of the date You use the Payment Gateway Services or acknowledge Your acceptance of the Agreement by any method, including without limitation execution of Your merchant application that incorporates the Agreement by reference.
“Extension(s)” means additional services offered to you within the Payment Gateway Services platform now or in the future.
“Extensions Reseller” means any Third Party Service Provider that adds to, enhances or modifies existing hardware or software, adding value to the Payment Gateway Services.
“Fee Schedule” means a list of fees and charges that is provided to you by Payment Gateway.
“Payment Cards” means Visa, Mastercard, Discover, Amex, and any other Card Association debit or credit card that You and Payment Gateway mutually agree to participate in.
“PCI DSS” means Payment Card Industry Data Security Standard.
“Privacy Policy” means the then current Payment Gateway’s Privacy Policy either available at its website or otherwise provided, which may be modified by Payment Gateway in its sole discretion.
“Return Payment Fee” is a fee charged to You by Payment Gateway on each occurrence when Payment Gateway is unable to collect fees on Your Account for any reason, including but not limited to insufficient funds, closed account, or any other negative response.
“Rules” means the rules, requirements, policies, procedures, and standards issued by the Card Associations or other industry bodies such as the PCI Security Standards Council LLC, including without limitation the Payment Card Industry Data Security Standard (PCI DSS) and the PCI Software Security Framework, or any successor or replacement framework or standard implemented by the PCI Security Standards Council, as each may be amended from time to time by the Card Associations or other applicable authorities.
“Third Party Service Provider” means a third party entity that maintains aspects of the Payment Gateway Services or provides certain bank and/or merchant payment services including but not limited to billing, reporting, customer service, authorization, and settlement services.
“Trademark(s)” means all common law or registered trademarks, service marks, trade names and trade dress rights 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 Your Account including but not limited to sale, void, refund, credit, offline force, capture, authorization, validate, update or settlement regardless of whether approved or declined.
2. TERM
The term of the Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated pursuant to Section 10 (TERMINATION) (“Term”).
3. LEGAL
By accepting the terms and conditions of this Agreement, You represent and warrant that (i) all information You have provided and will provide to Payment Gateway is true and correct in all respects, and (ii) You will promptly update Payment Gateway in writing with any changes to information You have previously supplied. Payment Gateway reserves its right to refuse to provide You with any Payment Gateway Service and terminate this Agreement, with or without notice, if Payment Gateway reasonably believes, in its sole discretion, that You have supplied any information which is misleading, untrue, inaccurate, fraudulent, or incomplete.
4. USE OF PAYMENT GATEWAY SERVICES
4.1 Payment Gateway Services Grant
(a) You are granted a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to use the Payment Gateway Services during the Term so long as You are in compliance with (i) this Agreement, including being current in paying all applicable fees as referenced in Section 8 (PAYMENT TERMS) and Section 9 (FEES), and (ii) the current policies, procedures, guidelines and restrictions contained in this Agreement and policies, procedures, guidelines and restrictions communicated to You by Payment Gateway, all of which may be amended by Payment Gateway from time to time. Payment Gateway shall, directly or through its Third Party Service Providers, provide the Payment Gateway Services to You in accordance with this Agreement and the rights granted to You under this Agreement are for the purposes contained in this Agreement and for no other purpose.
(b) Your use of the Payment Gateway Services shall be restricted to You. You shall not submit Data to Payment Gateway or otherwise process orders on behalf of any other entity or individual not permitted under this Agreement. Any attempt by You to use the Payment Gateway Services on behalf of another entity or individual in breach of this Agreement may result in Your obligation to pay to Payment Gateway additional fees and charges and/or Payment Gateway may revoke Your right to access or use the Payment Gateway Services and terminate this Agreement.
(c) In addition to Your compliance with this Agreement, You will comply, at Your own expense, with all Rules, applicable laws, regulations, rules, ordinances and orders of governmental authorities. You may not request, introduce, or process Transactions using the Payment Gateway Services on behalf of any other person or entity, and shall not use the Payment Gateway Services in any other prohibited manner, including those set forth in Appendix B and set forth in the Rules or in furtherance of any activity that may cause Payment Gateway to be subject to investigation, prosecution, or legal action.
(d) If you have elected to receive any Extensions in connection with the Payment Gateway Services, then, in addition to the other terms of this Agreement, the terms and conditions set forth in Appendix A will govern Your access to and use of the Extensions, which terms and conditions are incorporated by reference in to this Agreement, as may be amended or updated from time to time. Payment Gateway must approve of Your enrollment in any Extensions. The Extensions may be provided by Payment Gateway or a Third Party Service Provider as indicated upon Your enrollment. Your election to receive certain Extensions may require You to enter into a direct agreement with the respective Third Party Service Provider. If the pricing of any Extensions is not set forth on the Fee Schedule, such Extensions may be subject to separate pricing schedules which will be provided to You in connection with Your registration for such Extension.
4.2 Data License Grant
(a) You grant Payment Gateway a royalty-free, non-exclusive license (with right to sublicense) to use Data, materials, and other intellectual property as necessary or useful for Payment Gateway to provide the Payment Gateway Services to You and to otherwise perform Payment Gateway’s obligations under this Agreement. Payment Gateway may collect and hold Data from and about You and Your customers for the purpose of providing the Payment Gateway Services or to consider Your eligibility for the Payment Gateway Services as part of Your merchant application process. You understand and agree that such Data may be shared with and used by certain third parties (including without limitation Third Party Service Providers, government agencies, or courts). Additionally, you understand that such Data may be shared with Payment Gateway by such certain third parties and You authorize Payment Gateway to receive Your or Your customer’s Data from such third parties.
4.3 Support of Payment Gateway Services
(a) Regardless of whether the Payment Gateway Services or any Extensions are provided by Payment Gateway directly or through a Third Party Service Provider or Extensions Reseller, You and Payment Gateway agree that Payment Gateway (and not the Third Party Service Provider or Extensions Reseller) will provide first line support to You and Your customers on issues relating to Your and Your customers’ use of the Payment Gateway Services. You acknowledge and agree that You will look to Payment Gateway for all support, including for any Payment Gateway Services provided by a Third Party Service Provider, Extensions Reseller, or any additional supplier, agent, vendor, contractor or third party providing any part of the Payment Gateway Services.
5. DATA SECURITY, COLLECTION, TRANSFER AND RETENTION; CREDENTIALS
5.1 Use and Sharing of Your Data
(a) Payment Gateway will collect, retain, use and share information and Data (defined below) collected from You and Your customers, and Payment Gateway will share such information and Data with its Third Party Service Providers, in accordance with Payment Gateway’s then current Privacy Policies. You consent, to the collection, use, processing and transfer of Data, and the sharing of Data with Third Party Service Providers and other third party vendors, agents, and suppliers, as described in this Section 5 (DATA SECURITY, COLLECTION, TRANSFER AND RETENTION; CREDENTIALS) and pursuant to Payment Gateway’s Privacy Policy. You agree to monitor Payment Gateway’s Privacy Policy periodically to review any possible amendments. By using the Payment Gateway Services after modifications to Payment Gateway’s Privacy Policy, You have agreed to such amendments.
(b) Payment Gateway may collect, use, share, and hold personal or non-public information about You and Your customers, including but not limited to: Your name, address, telephone number, email address, social security number and/or tax identification number and payment data, Transaction data, including account numbers and purchase history as well as Your customers’ names, mailing & shipping addresses, email addresses, phone number, types of purchases and descriptions of purchases, and various Transaction data related to Your customers (“Data”) for the purpose of considering eligibility for the Payment Gateway Services and for the purpose of providing You and Your customers with the Payment Gateway Services. Payment Gateway shall have the right to (i) use the Data as necessary to perform the Payment Gateway Services (including distributing the Data to its Third Party Service Providers and other third parties, as requested by You and as necessary to perform the Payment Gateway Service); (ii) maintain the Data as long as necessary or as required by law and used internally for record keeping, internal reporting, and support purposes; (iii) compile and disclose Data in the aggregate where the Data is not identifiable, including without limitation, calculating merchant averages by region or industry; and (iv) provide the Data as required by Rules, law or court order, or to defend Payment Gateway’s rights in a legal dispute. Payment Gateway, its subsidiaries, Third Party Service Providers, suppliers and/or their agents and/or contractors may have access to, use, and transfer such Data among themselves as necessary for the purpose of the provision and management of the Payment Gateway Services. Payment Gateway may further transfer Data (a) with non-affiliated entities that assist Payment Gateway in providing products and services that You have requested; (b) with companies that provide support services to Payment Gateway; (c) with companies that provide marketing services on behalf of Payment Gateway; or (d) as otherwise provided by law.
(c) In evaluating Your eligibility for, provision of, administration and management of the Payment Gateway Services, as well as under circumstances described in the Privacy Policy that may be changed from time to time, Payment Gateway may obtain various consumer reports regarding You or Beneficial Owners associated with You from third parties, run a credit check or obtain other personal or credit information about You or Your Beneficial Owners (defined below in this Section 5.1 (c)). Pursuant to such, Payment Gateway may, from time to time, obtain consumer-identifying and credit information (including credit reports) and other consumer reports from multiple consumer reporting agencies for any individual required by Payment Gateway or Beneficial Owner associated with You, for the purpose of verifying the identities of such individuals and evaluating the fraud and credit risk associated with You in connection with a business transaction. You expressly authorize Payment Gateway, prior to the creation of Your Account and from time to time thereafter, to investigate Your individual and business history and background, consumer-identifying and credit information (and that of any of Your and Your authorized representatives, directors, officers, partners, proprietors, owners, etc.), and to obtain credit or consumer reports or other background investigation reports on each of them that Payment Gateway consider necessary to review the acceptance of Your merchant application and continuation of the Payment Gateway Services. You also authorize any person or credit reporting agency that issues consumer reports to answer those credit inquiries and to furnish that information to Payment Gateway. You represent and warrant to Payment Gateway that You have obtained, and will provide to Payment Gateway upon request, written instructions and all authorizations, consents, and disclosures necessary from each such individual for Payment Gateway to obtain (and for a consumer reporting agency to provide) such information including consumer reports of such individual to Payment Gateway. You represent and warrant that You will ensure that such individual shall also authorize Payment Gateway’s sharing of information of such individual in connection with obtaining such consumer reports from the consumer reporting agencies and other third party providers who conduct background and identification screening. You agree to cooperate with and provide Payment Gateway with any information or documentation needed for Payment Gateway to obtain such information from consumer reporting agencies, and agrees that it will comply with all applicable requirements under all applicable state and federal laws and regulations. For purposes of this Agreement, “Beneficial Owner” means any person who either directly or indirectly owns or controls at least 25% or more of Your ownership interests as well a person who exercises substantial control over You. There must be at least one Beneficial Owner identified.
(d) While Payment Gateway uses commercially reasonable efforts to safeguard Data transmitted while using Payment Gateway Services, Payment Gateway does not warrant that Data will be transported without unauthorized interception or modification or that Data will not be accessed or compromised by any unauthorized third parties.
(e) With respect to the Payment Gateway Services, to the extent applicable to Payment Gateway, Payment Gateway will maintain compliance with the Payment Card Industry Data Security Standard (PCI DSS).
5.2 Your Duties
(a) You will comply at all times with the terms of this Agreement, all applicable Rules, and then-current legal obligations and security measures including without limitation those issued by the United States government, federal, state and municipal laws and ordinances, Card Association, the Federal Trade Commission, PCI DSS and any other governing body. You will comply with all Payment Gateway security protocols, notices and safeguards in effect during the term of this Agreement. Notwithstanding Payment Gateway’s assistance in understanding the Rules, You expressly acknowledge and agree that You are assuming the risk of compliance with all provisions of the Rules, regardless of whether You have possession of such Rules. You warrant that You have taken such precautions as are necessary to ensure that Your Data and Your customer’s Data is protected and that Your electronic systems are secure from breach, intrusion or compromise by any unauthorized third parties. In the event that Your system is breached and an unauthorized third party has access to or has accessed Data, You shall notify the designated parties as required under any applicable laws or industry guidelines and shall immediately notify Payment Gateway of such breach and take such prompt action and precautions as necessary to prevent any continuous or additional breach.
(b) You are solely responsible for the security of Data residing on servers owned or operated by You, or any third party designated by You (e.g., a web hosting company, processor, or other service provider), including Payment Card numbers and any other Data. You shall comply with all Card Association rules, applicable laws and regulations governing the collection, retention and use by You of Payment Card and other financial information, and You agree to provide notice to Your customers on Your web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement.
(c) You are solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by Payment Gateway associated with Your Account and verifying that all corresponding funds are accurately processed. If You use any application programming interfaces (APIs) provided in connection with the Payment Gateway Services, You are solely responsible for such use of the API, the security of Your credentials associated with the API, and the security of information and data submitted through the API. The fees associated with any and all Transactions and associated Data submitted to Payment Gateway are earned by Payment Gateway and shall not be reimbursed. Payment Gateway and its Third Party Service Providers will not be liable for any Transactions, including without limitation those that are unauthorized, improperly processed or approved, wrongfully declined, or otherwise, or for any access to any Transaction or Account data or Your or Your customers’ Data, including without limitation any unauthorized, illegal, or fraudulent access. 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 (LIMITATION OF LIABILITY).
(d) You will not use, disclose, sell or disseminate any card, cardholder, bank account, or ACH information obtained in connection with a Transaction except for purposes of completing or settlement of a Transaction and/or resolving chargebacks, retrievals or similar issues involving a Transaction unless required to do so by court order or governmental agency request, subpoena or order.
(e) You are solely responsible for compiling and retaining permanent records of all Data for Your reference. Except as otherwise provided in this Agreement, 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. Upon termination of this Agreement, Payment Gateway shall have no obligation to provide You with any Data. You shall use proper controls for and limit access to all Data. Prior to discard You shall render all Data unreadable and abide by any laws or regulations imposed on You for Data destruction and/or disposal.
(f) You represent and warrant that You have provided notice to, and obtained consent from, Your customer whose Data You supply to Payment Gateway with regard to: (i) the purposes for which Your customer’s Data has been collected; (ii) the sharing and use of Your customer’s Data with Payment Gateway and its Third Party Service Providers and its and their agents, suppliers, and contractors; (iii) which parts of customer’s Data are obligatory and which parts, if any, are voluntary; and (iv) how Your customers can access and, if necessary, rectify the Data You hold about them. Neither Payment Gateway nor its Third Party Service Providers are responsible for any consequences resulting from Your failure to provide notice or obtain consent from such individuals nor for Your providing outdated, incomplete or inaccurate information.
5.3 Your User Name and Password Credentials
(a) In connection with Your rights described in Section 4.1 (Payment Gateway Services Grant), Payment Gateway will issue to You, or permit You to use a user name and password, to enable You and/or Your employees and agents to access Your Account and use the Payment Gateway Services. You will restrict access to such user name, password, and Account to Your employees and agents as may be reasonably necessary and consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the Account is aware of and otherwise complies with all applicable provisions of this Agreement and any recommendations and notices regarding such use and access.
(b) You are solely responsible for maintaining adequate security and control of any and all user names, passwords, or any other codes that are issued to You by Payment Gateway or selected by You, for purposes of giving You access to the Payment Gateway Services. Payment Gateway shall be entitled to rely on information it receives from You and may assume that all such information was transmitted by or on behalf of You.
5.4 Audits
Payment Gateway and its Third Party Service Providers, or their designees, may, during the term of this Agreement and for a period of 12 months thereafter, conduct an audit of Your books, records, and operations to verify the accuracy of fees, Your proper use of the Payment Gateway Services, and compliance with this Agreement and with applicable laws and Rules. The auditing party will use reasonable efforts to provide at least five business days’ advance notice of any such audit, and will use reasonable efforts to ensure that the audit does not unreasonably disrupt Your business. You will provide all reasonable cooperation with any such audit and will provide all requested information and records and reasonable access to Your premises, computer systems, databases, equipment, and personnel. Each party will bear its own costs in connection with any such audit, except that if an audit reveals a material breach of this Agreement by You, You will reimburse Payment Gateway or the Third Party Service Provider for its costs incurred in connection with such audit. If the audit identifies that You have underpaid any fees due under this Agreement, You will pay all such amounts within 15 days.
6. TRADEMARKS
6.1 Trademark Use
(a) Payment Gateway grants to You the right to use, reproduce, publish, perform and display the Payment Gateway Marks as follows: (i) on Your web site in connection with Your offering of Payment Gateway Services to Your customers; and (ii) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Payment Gateway Services.
(b) You grant to Payment Gateway and its Third Party Service Provider the right to use, reproduce, publish, perform and display Your Marks as follows: (i) in connection with the development, use, reproduction, modification, adaptation, publication, display and performance of the Payment Gateway Services offered and/or accessible through Your web site; and (ii) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Payment Gateway Services.
(c) For purposes of this Agreement, “Your Marks” means Your customary name and logo, and such other trademarks as You may provide to Payment Gateway and from time to time notify Payment Gateway to be “Your Marks” within the meaning of this Agreement. For purposes of this Agreement, “Payment Gateway Marks” means Payment Gateway customary name and logo, and such other trademarks as Payment Gateway may provide to You and from time to time notify You to be “Payment Gateway Marks” within the meaning of this Agreement. If such a license is granted by a Third Party Service Provider for You to be able to use or display such Third Party Service Provider’s trademarks, then Payment Gateway Marks may also include such Third Party Service Provider’s trademarks.
6.2 Trademark Restrictions
(a) Each party shall comply with all standards with respect to the other party’s Trademarks which may be furnished by such party from time to time and all uses of the other party’s Trademarks in proximity to the trade name, trademark, service name or service mark of any other person or entity shall be consistent with the standards furnished by the other party from time to time. Neither party shall create a combination mark consisting of one or more Trademarks of each party. All uses of the other party’s Trademarks shall inure to the benefit of the party owning such Trademark. Each party acknowledges and agrees that, as between the parties, the other party is the owner of the Trademarks identified as its Trademarks 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 at any time by written notice to the other party.
(b) Except as otherwise provided in this Agreement, You shall not use, register or attempt to register any Payment Gateway Trademarks or marks or domain names that are confusingly similar to any of the Payment Gateway Trademarks, marks or domain names. Except as authorized in this Agreement, You shall not take any actions inconsistent with Payment Gateway’s ownership of Payment Gateway’s Trademarks and any associated registrations or attack the validity of them. You shall not use Payment Gateway’s Trademarks in any manner that would indicate You are using such Payment Gateway Trademarks other than as a licensee nor assist any third party do any of the same.
7. INTELLECTUAL PROPERTY
As between Payment Gateway and You, Payment Gateway (or its Third Party Service Providers and Extensions Resellers, as applicable) owns and retains all right, title and interest in and to the Payment Gateway Services, Trademarks, copyrights, technology and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated pursuant to this Agreement. No title to or ownership of any of the foregoing is granted or otherwise transferred to You, Your customers, or any other entity or person under this Agreement. You shall not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of Payment Gateway Services or related technology. You agree to promptly report to Payment Gateway any unauthorized use or infringement of the Payment Gateway Services or any Payment Gateway’s intellectual property which comes to Your attention.
8. PAYMENT TERMS
8.1 Due Date and ACH Authorization
(a) Payment Gateway fees shall begin on the Effective Date and You will be billed on the first business day of each month following the Effective Date for any and all amounts owing under this Agreement. If fees accrue to more than $50.00 USD at any time in any given month, Payment Gateway will bill You the full amount due on a more frequent basis at Payment Gateway’s discretion.
(b) You authorize Payment Gateway and its Third Party Service Providers and agents to initiate transaction entries to Your depository account through ACH. This authority will remain in full force and effect until (i) Payment Gateway has received written notification from You of Your request for termination in such time as to afford Payment Gateway and Your depository institution a commercially reasonable opportunity to acknowledge and respond to the request or (ii) Payment Gateway has collected all fees due and owing under this Agreement. If Payment Gateway is unable to collect amounts owing from Your depository account, You authorize Payment Gateway to charge Your credit card for any and all amounts owing to Payment Gateway under this Agreement. Entries initiated to or from Your depository account will be in accordance with the NACHA Rules and/or any other applicable Rules, regulatory body or agency having jurisdiction over the subject matter.
(c) You must promptly update Your Account information with Payment Gateway with current and accurate information. If You fail to provide Payment Gateway with current and accurate depository account or credit card account information, Payment Gateway may immediately discontinue or suspend providing Payment Gateway Services to You, without liability of any kind, until such information is provided to Payment Gateway and/or terminate this Agreement without liability of any kind. You acknowledge that any change in You depository or credit card account information may not be effective until the month following the month in which Payment Gateway receives such notice. Termination of Your authorization shall result in termination of any and all Payment Gateway Services.
9. FEES
9.1 Payment Gateway Service Fees
You shall pay to Payment Gateway the fees as set forth in the Fee Schedule provided to You by Payment Gateway. The Fee Schedule is incorporated into the terms of this Agreement by reference. Payment may modify or update the Fee Schedule in its sole discretion with 30 days’ prior notice to You.
9.2 Other Fees and Charges
(a) You 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, You 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 paid. Payment of such late fees and finance charges will not excuse or cure any breach or default for late payment. Payment Gateway may accept any check or payment from You 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 will be construed as an accord or satisfaction.
(b) On each occurrence when Payment Gateway is unable to collect fees on Your Account for any reason, including but not limited to insufficient funds, closed depository account, or any other negative response, Payment Gateway may charge You a Return Payment Fee in the amount of $25.00 USD per occurrence, or as otherwise set forth in the Fee Schedule.
(c) If You have not paid all owing amounts after two (2) days past the due dates set forth in this Section 9 (FEES), Payment Gateway may, in its sole discretion, discontinue or suspend providing You with Payment Gateway Services. If You have still not paid all owing amounts after thirty (30) days following the date the payment was due, then Payment Gateway may, in its sole discretion and without liability of any kind, immediately terminate this Agreement. Notwithstanding, if You subsequently pay in full all owing fees, 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 You a Payment Gateway Service reactivation fee in the amount set forth in the Fee Schedule.
(d) You agree 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.
9.3 Taxes
All fees set forth in the applicable Fee Schedule are exclusive of taxes. You are solely responsible for, and will indemnify and hold Payment Gateway and its Third Party Service Providers harmless from, payment of all applicable taxes and duties (only excluding taxes levied on Payment Gateway based on its own net income).
10. TERMINATION
10.1 Termination by You
You may terminate this Agreement with or without cause, and for any reason, by providing Payment Gateway with at least thirty (30) days written notice of Your intent to terminate this Agreement.
10.2 Termination by Payment Gateway
(a) Payment Gateway may terminate this Agreement and/or terminate Your use of Payment Gateway Services immediately, or at any time, without advance notice and with or without cause, for any reason including without limitation to Your breach or default of any obligation set forth in this Agreement or if Payment Gateway determines, in its sole discretion, that Your business practices are detrimental to the achievement of Payment Gateway’s business objectives, or if a Payment Gateway’s relationship with its Third Party Service Provider terminates or the Third Party Service Provider otherwise ceases supplying Payment Gateway with services necessary for the delivery of the Payment Gateway Services.
10.3 Termination by Third Party
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 You are no longer entitled to receive the Payment Gateway Services for any reason whatsoever, Payment Gateway may suspend and/or terminate Payment Gateway Services and/or this Agreement without notice and without liability.
10.4 Effect of Termination and Survival
Upon termination of this Agreement for any reason whatsoever, all rights and interests under this Agreement shall be extinguished and shall be given no further force or effect except that (i) all accrued payment obligations under this Agreement shall survive such expiration or termination; and (ii) the rights and obligations of the parties under Section 15.11 (SURVIVAL) shall survive termination.
11. CONFIDENTIALITY AND NONDISCLOSURE
11.1 Use of Confidential Information
(a) Each party that receives Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) agrees to use reasonable best efforts to protect all Confidential Information provided by or disclosed by the Disclosing Party, and in any event, to take precautions at least as great as those taken to protect its own Confidential Information of a similar nature. The Receiving Party will only use the Confidential Information of the Disclosing Party to perform its obligations under this Agreement. Each party agrees that the terms and conditions of this Agreement will be Confidential Information, provided that each party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business.
(b) Each party agrees not to divulge any confidential information, trade secrets or know how or any information derived therefrom to any third person or entity and shall only disclose Confidential Information to employees, agents, contractors, or required third persons on a “need to know” basis who have executed a nondisclosure agreement with similar terms and obligations as restrictive as those set forth in this Agreement.
(c) The Receiving Party shall not make any use whatsoever at any time of the Disclosing Party’s Confidential Information except as permitted by, or in order to comply with its obligations under, this Agreement.
(d) The Receiving Party shall not copy or reverse engineer any portion of the Disclosing Party’s Confidential Information.
11.2 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), or (e) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.
11.3 Return of Confidential Information
Upon written request of the Disclosing Party and at Disclosing Party’s sole discretion, Receiving Party will destroy or return to Disclosing Party all materials, in any medium, that contain, embody, reflect or reference all or any part of any Confidential Information of the Disclosing Party. Such destruction will be certified in writing by Receiving Party.
11.4 Injunctive Relief
Each party acknowledges that breach of this provision by it may result in irreparable harm to the other party, for which money damages could be an insufficient remedy, and therefore that the other party may be entitled to seek injunctive relief to enforce the provisions of this Section 11 (CONFIDENTIALITY AND NONDISCLOSURE).
12. REPRESENTATIONS AND WARRANTIES
12.1 Mutual Representations and Warranties
Each party represents and warrants to the other that (a) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; (b) the party’s obligations under this Agreement do not violate any law or breach any other agreement to which such party is bound; (c) it has all necessary right, power and ability to execute this Agreement and to perform its obligations under this Agreement; and (d) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement.
12.2 Your Representations and Warranties
(a) You represent and warrant that (i) You are engaged in a lawful business that includes the sale of products and/or services, and are duly licensed to conduct such business under the laws of all jurisdictions in which You conduct business; (ii) all statements made by You pursuant to this Agreement, or in any other document relating hereto by You or on Your behalf, are true, accurate and complete in all material respects; (iii) all Transactions submitted in connection with the Payment Gateway Services are for bona fide business operations compliant with applicable Rules, laws, and regulations; (iv) You are not engaged in any illegal or fraudulent business operation or any business operation prohibited by any applicable law, regulation, or Rule, or in any business identified on a prohibited activities list promulgated by any Third Party Service Provider or the Card Associations; and (v) You have all necessary right to any data or materials You use or provide to Payment Gateway in conjunction with the Payment Gateway Services, and no such data or materials infringe the intellectual property rights of any third party. You authorize Payment Gateway to investigate and confirm the information submitted by You. For this purpose, Payment Gateway may utilize credit bureau / reporting agencies and / or its own agents, as described in Section 5.1(b) (Use of Your Data).
(b) You represent and warrant that You will comply with all Rules, applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction. You will further comply with PCI DSS, the Gramm-Leach-Bliley Act, and any other regulatory body or agency having jurisdiction over the subject matter hereof.
(c) You will abide with all material terms of the then current policies, procedures, and guidelines of Payment Gateway governing the Payment Gateway Services.
12.3 Payment Gateway Representations and Warranties
(a) Payment Gateway Services are designed for use with certain third-party programs, including, without limitation, certain Internet browser software programs. You will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Payment Gateway makes no warranty, express or implied, with regard to any such third-party software. Payment Gateway does not warrant the services of any third party, including without limitation Third Party Service Providers, Extensions Resellers, if applicable, or the Card Association.
12.4 Warranty Disclaimer
PAYMENT GATEWAY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS OR WARRANTIES. PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT THE PAYMENT GATEWAY SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR FREE. YOU MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE PAYMENT GATEWAY SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING, BUT NOT LIMITED TO REPRESENTATIONS BY THIRD PARTY SERVICE PROVIDERS. PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS SPECIFICALLY DISCLAIM 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 PAYMENT GATEWAY SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS SHALL BEAR NO RISK WITH RESPECT TO YOUR SALE OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD, ACH FRAUD, CHECK FRAUD OR CHARGEBACKS.
12.5 Disputes of Fees
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 amount in dispute is greater than five percent (5%) of the total fees invoiced by Payment Gateway for the relevant billing statement, the disputed amount may be withheld until the dispute is resolved. All disputes must be made in good faith and in writing within thirty (30) days after the billing statement date. Fees billed shall be deemed accepted where written objections are not provided to Payment Gateway within thirty (30) days after the billing statement date.
13. LIMITATION OF LIABILITY
13.1 Payment Gateway Disclaimers
(a) PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, WHICH ARISES FROM OR RELATED TO ANY UNAUTHORIZED ACCESS TO YOUR ACCOUNT, FACILITIES, OR TO YOUR DATA OR PROGRAMS DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND PAYMENT GATEWAY’S REASONABLE CONTROL.
(b) PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, ARISING FROM OR RELATED TO: (I) YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE YOUR ACCOUNT(S); (II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH YOUR ACCOUNT(S); (III) DISRUPTION OF PAYMENT GATEWAY SERVICES, SYSTEMS, SERVER OR WEB SITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (IV) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A THIRD PARTY SERVICE PROVIDER, OR ACQUIRING BANK; (V) UNAUTHORIZED ACCESS TO YOUR DATA OR YOUR CUSTOMER’S DATA INCLUDING BUT NOT LIMITED TO, PAYMENT CARD NUMBERS, OTHER PERSONALLY IDENTIFIABLE INFORMATION, TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO PAYMENT GATEWAY, YOU, YOUR CUSTOMER, OR ANY THIRD PARTY; OR (VI) YOUR SALE OF PRODUCTS OR SERVICES (INCLUDING WITHOUT LIMITATION ANY RISK ASSOCIATED WITH PAYMENT CARD FRAUD, ACH FRAUD, CHECK FRAUD, CHARGEBACKS, TRANSACTION RATING, IMPROPERLY AUTHORIZED TRANSACTIONS, LEGITIMATE BUT UNAUTHORIZED TRANSACTIONS, DATA TRANSMISSION ERRORS, OR ANY ACTION OR OMISSION BY A THIRD PARTY).
(c) PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY LIABILITY OR LOSS FOR THE LEGITIMACY OF YOUR TRANSACTIONS, ORDERS FORWARDED FROM YOU AND FOR ANY AND ALL CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM CONCLUSIONS DRAWN FROM THE DATA PROVIDED BY ANY PAYMENT GATEWAY SERVICES PROVIDED BY PAYMENT GATEWAY, OR ANY ASSOCIATED SYSTEM OR PROGRAM OR THE LIMITATION OF THE FUNCTIONING OF ANY ASSOCIATED SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT, WHETHER IT IS 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 PARENTS, AFFILIATES OR THIRD PARTY PROVIDERS, OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR THIRD PARTY PROVIDER, 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, 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 IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY FINES, FEES, PENALTIES, ASSESSMENTS OR OTHER AMOUNTS IMPOSED BY THE CARD ASSOCIATIONS ARE DIRECT DAMAGES AND WILL NOT BE DEEMED TO BE SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES.
(b) PAYMENT GATEWAY’S TOTAL LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY PAYMENT GATEWAY SERVICES OR PRODUCTS, SHALL NOT EXCEED THE AGGREGATE COMPENSATION PAYMENT GATEWAY RECEIVED FOR PROVIDING THE PAYMENT GATEWAY SERVICES TO YOU DURING THE THIRTY (30) DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,500.00 USD, WHICHEVER IS LESS.
(c) You will remain liable for any liabilities and losses and other amounts incurred by Payment Gateway arising under this Agreement that are attributable in whole or in part to: (i) intentional misrepresentation, fraud, willful or intentional acts or omissions or negligence by You or Your employees or agents, or the failure of any of such persons to comply with this Agreement, Rules, applicable laws, rules or regulations, (ii) Your breach of any provision of this Agreement or other applicable agreement associated with the Payment Gateway Services; (iii) any information, Data, or Transactions that You know or should have known contains inaccuracies or omissions; (iv) any security breach or unauthorized access to Data or Confidential Information caused by the actions of You or any of Your employees or agents; or (v) any assessments, fines, penalties or other amounts (however labeled) imposed by the Card Associations or any governmental or regulatory body or other third party as a result of any action or inaction by You or any of Your employees or agents. All such obligations and amounts imposed by third parties will be deemed direct, not indirect or consequential, damages, and will be collectible notwithstanding any provision in this Agreement to the contrary.
14. INDEMNIFICATION
You shall defend, indemnify, and hold harmless Payment Gateway and its Third Party Service Providers, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, 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 (i) any breach or alleged breach by You of any representation, warranty, or obligation of You set forth in this Agreement; (ii) Your violation or non-compliance with any Rules, applicable law, rule, regulation, order; (iii) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by You or any of Your employees, agents or customers; (iv) the reliability, accuracy, or legitimacy of Data or purchase orders submitted by You to Payment Gateway; (v) Transactions, including unauthorized or fraudulent Transactions, submitted using the Payment Gateway Services, including Transactions rejected by Payment Gateway or an issuing bank, and; (vi) ) any alleged infringement of a patent, copyright, trademark or other intellectual property right by You or arising from any data or other materials or technology supplied by You or from Your use of the Payment Gateway Services in unauthorized manner; (vii) any claims by Your customers, including, without limitation, claims relating to the disclosure of personal data or other consumer data, or claims relating to the goods or services sold by You; (viii) any alleged or actual violation or non-compliance by You of any Rules, applicable laws, regulations or rules of (a) the Card Associations, including non-compliance of PCI-DSS; (b) the Gramm Leach Bliley Act; (c) or any regulatory body or agency having jurisdiction over the subject matter hereof; (ix) any violation of Payment Gateway’s then current policies or guidelines; or (x) any data breach or any unauthorized access, use, or disclosure of Confidential Information, personal data, card information, or Your credentials from systems and networks controlled by You or Your service providers;. In the event You cause fines and/or penalties to be charged to Payment Gateway by the Card Associations or any other entity, You agree to immediately reimburse Payment Gateway for said fines and penalties.
15. GENERAL PROVISIONS
15.1 Non-exclusivity
Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described in this Agreement.
15.2 Notices
All notices to You shall be given electronically, sent to the electronic mail address provided by or for You during registration for the Payment Gateway Services and/or posted in the Merchant Control Panel of Your Account. All notices to Payment Gateway shall be given electronically by sending an email to Payment Gateway’s email address listed within the Merchant Control panel of Your Account or, if otherwise, to [insert email address and physical address if applicable], which written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid.
15.3 Relationship of the Parties
The parties 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 that suggests otherwise.
15.4 Assignment
You will not have the right or the power to assign any of Your rights or delegate the performance of any of Your obligations under this Agreement without the prior written consent of Payment Gateway, including in the case of a merger. Payment Gateway will have the right to assign this Agreement to its successors and/or assigns, subsidiaries, affiliates, and/or Third Party Service Providers.
15.5 Amendment
No amendment to any provision of this Agreement, nor consent to any departure by either party, will in any event be effective unless in writing and signed by the other party, and then such consent will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, Payment Gateway may amend this Agreement at any time upon written or electronic notice to You or post notice on its Web site not less than ten (10) days prior to the effective date of such amendment; provided that the addition or change of service fees, will become effective upon at least thirty (30) days’ notice. If You do not agree to such amendments, Your sole remedy is to immediately terminate this Agreement upon written notice to Payment Gateway.
15.6 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 to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained in this Agreement must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.
15.7 Severability; Headings
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which 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.
15.8 Force Majeure
Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services or other catastrophes or any other occurrences which are beyond such parties’ reasonable control (each a “Force Majeure Event”), provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.
15.9 Governing Law; Jurisdiction
This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware without reference or giving effect to its conflicts of law principles. You hereby irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in Delaware with respect to any action, claim or proceeding arising out of or related to this Agreement and agree not to commence or prosecute any such action, claim or proceeding other than in such courts. EACH PARTY EXPRESSLY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY DISPUTE UNDER THIS AGREEMENT.
15.10 Entire Agreement
This Agreement together with all of Payment Gateway’s policies referenced in this Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. You acknowledge that this Agreement reflects an informed, voluntary allocation between Payment Gateway and You of all risks (both known and unknown) associated with Payment Gateway Services.
15.11 Survival
The provisions of this Agreement relating to any fees or other amounts owed, payment of finance charge on unpaid fees, confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings, third party beneficiary, this section 15, and any other provisions that by their nature should survive termination shall survive termination or expiration of this Agreement.
15.12 Third Party Beneficiary
You acknowledge and agree that Network Merchants, LLC (“NMI”) as a Third Party Service Provider is an intended third party beneficiary of this Agreement, and NMI is entitled to enforce the terms of this Agreement against You with respect to the Payment Gateway Services as if it were an original party to this Agreement.
Appendix A – Extensions
In the event You enroll in, and Payment Gateway provides You with, Extension(s), You agree as follows and are subject to the applicable terms for Extensions that are presented during your enrollment.
1. Expansion of Services
The term “Payment Gateway Services,” as defined in the Agreement, shall include each of the Extensions. Each Extension is described on the Payment Gateway website and in other documentation provided to You from time to time. All terms of the Agreement applicable to the Payment Gateway Services shall be applicable to each Extension.
2. Your Obligations
In addition to Your obligations set forth in the Agreement, You agree to pay the Extension Fees, in accordance with Section 8 (PAYMENT TERMS) and Section 9 (FEES) of the Agreement, in the amounts provided in the Fee Schedule provided to You by Payment Gateway. The Fee Schedule is incorporated into the terms of this Agreement by reference and/or in the Extension documentation page accessed during enrollment in the applicable Extension. By checking the “I ACCEPT” button next to a Extension Fee schedule, You acknowledge Your acceptance of such fees, Your obligation to pay same and the terms and conditions applicable to the Extension.
3. Your Warranty
You represent, warrant, and covenant to Payment Gateway that Your use of the Extensions and any information submitted in connection with the Extensions: (a) will be fully compliant with all applicable local, state and federal laws, rules, and regulations, Card Association rules, NACHA rules; (b) will be in accordance with all applicable documentation; and (c) will not be used for any purpose other than in connection with the Extension.
4. Acknowledgement
You understand, acknowledge, and agree that (a) You will be solely responsible for ALL transactions processed through Your Account(s), regardless of whether such Transactions are monitored by an Extension; (b) You will be solely responsible for Your use of the Extensions including, without limitation (i) configuring, maintaining and updating, as You deem necessary, the applicable settings for Your Extension account; and (ii) with respect to each Transaction processed via Your Account(s), and regardless of any data, analysis, or information generated or not generated by the Extension, as applicable, determining the appropriate action for each such Transaction (i.e., approve, void, decline, reject); (c) under certain circumstances, it may be necessary for Payment Gateway to adjust Your Extension security settings, with or without notice to You, 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. Payment Gateway Warranty
IN ADDITION TO ANY LIMITATIONS OR DISCLAIMERS SET FORTH IN THE AGREEMENT, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THE EXTENSIONS ARE PROVIDED TO YOU BY PAYMENT GATEWAY “AS IS” AND THAT PAYMENT GATEWAY DOES NOT REPRESENT OR WARRANT THAT THE EXTENSIONS 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 YOUR SOLE REMEDY FOR ANY ISSUE RELATED TO OR ARISING FROM THE EXTENSIONS, AND PAYMENT GATEWAY’S SOLE LIABILITY FOR THE SAME, WILL BE TO TERMINATE THIS AGREEMENT AND DISCONTINUE YOUR USE OF THE EXTENSIONS.
6. Risk, Security and Disclosure
The risk and security suggestions provided to You in the documentation for any of the Extensions are solely for illustrative purposes to show best industry practices, and You shall be solely responsible for choosing the appropriate settings and parameters for Your Account.
7. Termination
If this Agreement is terminated for any reason, Payment Gateway shall immediately cancel access to Your Extension account. It is Your responsibility to download all reports prior to the effective date of any such termination as such reports will not be available following the termination date.
8. Incorporation by Reference
The Extensions Fee Schedules are incorporated into the Agreement by reference.
9. Third Party Programs
Payment Gateway makes no warranty, express or implied, with regard to any third party services or software.
10. Definitions
All terms and conditions of the Agreement not specifically modified in this Appendix A shall remain unchanged and in full force and effect. Unless separately defined in the Agreement, capitalized words used in this Appendix as defined terms shall have the same meanings as in the Agreement.
Appendix B – Prohibited Activities
You agree that You will not at any time conduct Your business in any manner that directly or indirectly offers, sells, leases, licenses or displays, delivers, advertises, recommends, or promotes any product(s), service(s), data, information, image(s), text and/or any content which:
(i) is unlawful or violates any applicable local, state, federal, national or international law, statute, ordinance, or regulation including, without limitation, Card Association rules, consumer protection laws, unfair competition, antidiscrimination or false advertising;
(ii) is associated with any illegal form of adult, sexually oriented, or obscene materials or services, including without limitation, any material clearly designed to sexually arouse the viewer/reader with images of children less than 18 years old and/or escort services;
(iii) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party, including, but not limited to, the unauthorized copying and posting of trademarks, pictures, logos, software, articles, musical works and videos;
(iv) is threatening, abusive, harassing, defamatory, obscene, libelous, slanderous, deceptive, fraudulent, invasive of another’s privacy, tortuous, or otherwise violate Payment Gateway’s rules or policies;
(v) victimizes harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
(vi) impersonates any person or entity;
(vii) contains harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept or expropriate the Payment Gateway 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;
(viii) 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;
(ix) 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;
(x) is associated with any form of illegal gambling or illegal lottery type services;
(xi) is associated with illegal telecommunications or illegal cable television equipment or illegal satellite equipment;
(xii) is associated with electronic wallets (i.e., “e-wallets”) or any similar payment type; or
(xiii) is associated with the sale of (a) any controlled drug that requires a prescription from a licensed practitioner unless You 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 You 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, You may not use the Payment Gateway 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.