THE ORDER FORM(S) OF BUILD YOUR FIRM, INC. ("PROVIDER") AND THESE SERVICE TERMS AND CONDITIONS (COLLECTIVELY, THIS "AGREEMENT") SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER IDENTIFIED IN THE ORDER FORM ("CUSTOMER") AND PROVIDER CONCERNING CUSTOMER'S ACCESS TO AND USE OF PROVIDER'S APPLICATIONS, WEBSITES, CONTENT, PRODUCTS, HOSTING, AND SERVICES, INCLUDING "PROFESSIONAL" AND "PLATINUM" DESIGNATED SERVICES AND THE BIZPAYO SERVICES (AS SET FORTH IN CUSTOMER'S ORDER FORM AND AS FURTHER DESCRIBED IN THIS AGREEMENT, THE "SERVICES").
Access to and use of the Services constitutes agreement to be bound by this Agreement, which establishes a contractual relationship between Customer and Provider. If Customer does not agree to this Agreement, Customer may not access or use the Services. This Agreement expressly supersedes prior agreements or arrangements between Customer and Provider.
Supplemental terms may apply to certain Services, such as policies for a particular service, and such supplemental terms will be disclosed to Customer in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, this Agreement for the purposes of the applicable Service(s). Supplemental terms shall prevail over this Agreement in the event of a conflict with respect to the applicable Service(s).
"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Hosted Services.
"Action" has the meaning set forth in Section 13.1.
"Agreement" has the meaning set forth in the preamble.
"Authorized User" means each of the individuals authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement.
"Availability Requirement" has the meaning set forth in Section 5.1.
"Available" has the meaning set forth in Section 5.1.
"Backup Policy" has the meaning set forth in Section 6.
"Bank" means that certain bank specified in the Merchant Application.
"BizPayO Services" means Transaction processing services provided by Provider and its designated third parties.
"Confidential Information" has the meaning set forth in Section 10.1.
"Customer" has the meaning set forth in the preamble.
"Customer Data" means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services and includes Payment Data.
"Customer Failure" has the meaning set forth in Section 4.2.
"Customer Indemnitee" has the meaning set forth in Section 13.1.
"Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
"Disclosing Party" has the meaning set forth in Section 10.1.
"Documentation" means any manuals, instructions or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
"Effective Date" has the meaning set forth in Section 11.1.
"Exceptions" has the meaning set forth in Section 5.1.
"Fees" has the meaning set forth in Section 8.1.
"Force Majeure Event" has the meaning set forth in Section 15.1.
"Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.
"Hosted Services" has the meaning set forth in Section 2.2.
"Indemnitee" has the meaning set forth in Section 13.3.
"Indemnitor" has the meaning set forth in Section 13.3.
"Initial Term" has the meaning set forth in Section 11.1.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Merchant Application" means either an online or paper based application and agreement entered into among Bank, Processor and Customer.
"Order Form" means the order form or forms from Provider (submitted in written form or online) and the Customer account registration form evidencing the order or orders for the Services, including the initial order and any subsequent order, specifying, among other things, the Initial Term, the specific Services ordered, the Fees, and such other charges and terms as agreed between the parties.
"Payment Data" means Customers' clients' names, mailing and shipping addresses, email addresses, phone number, credit card, debit card, ACH information, e-check information, dollar amount of transactions, types of transactions, descriptions of transactions and any information related to a Transaction for the purpose of providing Customer with the BizPayO Services.
"Permitted Use" means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer's business operations.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
"Personal Information" means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located.
"Privacy and Security Policy" has the meaning set forth in Section 7.1.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. "Processing" and "Processed" have correlative meanings.
"Processor" means an electronic payment processor that accepts Transactions from Provider and processes Transactions for Customer.
"Processors and Gateways" means any third party whom Provider may refer for the processing and settlement of Transactions.
"Prohibited Data" has the meaning set forth in Section 7.3
"Provider" has the meaning set forth in the preamble.
"Provider Disabling Device" means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Provider or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
"Provider Indemnitee" has the meaning set forth in Section 13.2.
"Provider Materials" means the Service Software, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
"Provider Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.
"Provider Systems" means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
"Receiving Party" has the meaning set forth in Section 10.1.
"Reimbursable Expenses" has the meaning set forth in Section 8.3.
"Renewal Term" has the meaning set forth in Section 11.2.
"Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, and directors. Provider's Representatives also includes Provider's consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.
"Resultant Data" means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
"Scheduled Downtime" has the meaning set forth in Section 5.3.
"Service Credit" has the meaning set forth in Section 5.2.
"Service Level Failure" has the meaning set forth in Section 5.1.
"Service Period" has the meaning set forth in Section 5.1.
"Service Software" means the Provider software application or applications and any third-party or other software, including, without limitation, the Website (excluding Customer Data), and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.
"Services" has the meaning set forth in the preamble.
"Specifications" means the specifications for the Services set forth (a) in the Documentation, and (b) as may be provided in Customer's Order Form.
"Subcontractor" has the meaning set forth in Section 2.6.
"Support Schedule" has the meaning set forth in Section 5.4.
"Support Services" has the meaning set forth in Section 5.4.
"Term" has the meaning set forth in Section 11.2.
"Territory" means the worldwide.
"Third Party Materials" means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.
"Transaction" means any credit or debit card authorization, ACH authorization, e-check authorization, credit, ticket only, batch settlement, decline transaction or other related transaction, completed or submitted under Customer's account to Provider.
"Website" means the website designed, developed, hosted and maintained by Provider for use by Customer, pursuant to the Specifications, using Customer Data, Provider Materials, and Third Party Materials.
2.1 Services. The specific Services available to Customer are as stated in Customer's Order Form. Customer shall not have access to or use of any Services not specifically stated in Customer's Order Form. If Customer has elected "BizPayO Services" as part of the Services, Section 17 below shall also govern such BizPayO Services.
2.2 Access and Use of the Services. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, during the Term, Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Services in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users ("Hosted Services") in substantial conformity with the Specifications 24 hours per day, seven days per week every day of the year, except for:
(a) Scheduled Downtime in accordance with Section 5.3;
(b) Service downtime or degradation due to a Force Majeure Event;
(c) any other circumstances beyond Provider's reasonable control, including Customer's or any Authorized User's use of Third Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; and
(d) any suspension or termination of Customer's or any Authorized Users' access to or use of the Hosted Services as permitted by this Agreement.
2.3 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; (ii) location(s) where any of the Services are performed; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Support Services and Service maintenance, upgrades, corrections and repairs; and
(b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.
Notwithstanding anything to the contrary in this Agreement, all Services, including all Processing of Customer Data by or on behalf of Provider shall be provided solely from within, and on computers, systems, networks and other infrastructure located in, the United States.
2.4 Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party's primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. The parties' initial service managers are set forth in Customer's Order Form. Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party's service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
2.5 Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider's services to its customers, (ii) the competitive strength of or market for Provider's services or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in accordance with Provider's then-current change procedures. No requested changes will be effective unless and until memorialized in a written change order signed by both parties.
2.6 Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").
2.7 Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer's, any Authorized User's or any other Person's access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.7 does not limit any of Provider's other rights or remedies, whether at law, in equity or under this Agreement.
3. Authorization and Customer Restrictions.
3.1 Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Provider hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Services and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications, and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and other than as may be expressly set forth in Section 16.8, non-transferable.
3.2 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with Provider and the respective rights holders in the Third Party Materials.
3.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Services or Provider Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider's provision of services to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Specifications, Documentation, EULA, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;
(h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer), or that violates any applicable Law;
(i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Provider's detriment or commercial disadvantage; or
(j) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1.
4. Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer's premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement. Without limiting the generality of the foregoing, Customer must immediately provide Provider with all information necessary to provide the Services, including, but not limited to completing the Provider Website questionnaire, providing any Customer Data, including without limitation, specific graphics, artwork, text, materials, photography and/or biographical profiles within ten (10) days of the Effective Date.
4.2 Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure").
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
4.4 Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Provider or any Subcontractor and involved in any respect with the Services or the performance of this Agreement. In the event of a violation of this Section 4.4, Provider will be entitled to liquidated damages equal to the compensation paid by Provider to the applicable employee or contractor during the prior twelve (12) months.
5. Service Levels and Credits.
5.1 Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Hosted Services Available at least ninety-nine and one half percent (99.5%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a "Service Period"), excluding unavailability as a result of any of the Exceptions described below in this Section 5.1 (the "Availability Requirement"). "Service Level Failure" means a material failure of the Hosted Services to meet the Availability Requirement. "Available" means the Hosted Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are "Exceptions" to the Availability Requirement, and neither the Hosted Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Hosted Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User; (b) Customer Failure; (c) Customer’s or its Authorized User's Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension or termination of the Services pursuant to Section 2.7.
5.2 Service Level Failures and Remedies. In the event of a Service Level Failure, Provider shall issue a credit to Customer in the amount of ten percent (10%) of the monthly Fees for the Hosted Services due for the Service Period the Service Level Failure occurred (each a "Service Credit"), subject to the following:
(a) Provider has no obligation to issue any Service Credit unless (i) Customer reports the Service Failure to Provider immediately on becoming aware of it; and (ii) requests such Service Credit in writing within three (3) days of the Service Level Failure; and
(b) in no event will a Service Level Credit for any Service Period exceed fifty percent (50%) of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.
Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred. This Section 5.2 sets forth Provider's sole obligation and liability and Customer's sole remedy for any Service Level Failure.
5.3 Scheduled Downtime. Provider will use commercially reasonable efforts to; (a) schedule downtime for routine maintenance of the Hosted Services between the hours of 12:00 a.m. and 5:00 a.m., Eastern Time; and (b) give Customer at least twenty (24) hours prior notice of all scheduled outages of the Hosted Services ("Scheduled Downtime").
5.4 Service Support. The Services include Provider’s standard customer support services ("Support Services") available by phone and email during normal business hours, general 9 a.m. to 5 p.m. Monday through Friday, and otherwise in accordance with the Provider service support schedule then in effect (the "Support Schedule"). Provider may amend the Support Services and Support Schedule from time to time in its sole discretion.
6. Data Backup. The Provider Systems are programmed to perform routine data backups as set out in Provider's backup policy in effect from time to time (the "Backup Policy"). Provider will deliver to Customer its then most current back-ups of Customer Data as and when set forth in the Backup Policy. In the event of any loss, destruction, damage or corruption of Customer Data caused by the Provider Systems or Services, Provider will, as its sole obligation and liability and as Customer's sole remedy, use commercially reasonable efforts to restore the Customer Data from Provider's then most current backup of such Customer Data in accordance with the then current Backup Policy.
7.1 Provider Systems and Security Obligations. Provider will employ security measures in accordance with Provider's data privacy and security policy as amended from time to time, as available on Provider's website at https://www.buildyourfirm.com or a successor website address ("Privacy and Security Policy").
7.2 Data Breach Procedures. Provider maintains a data breach plan in accordance with the criteria set forth in Provider's Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a "Data Breach" (as defined in such plan).
7.3 Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing Protected Health Information, as defined in 45 Code of Federal Regulations Section 160.103 ("Prohibited Data"). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Provider Systems or any Provider Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
7.4 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
7.5 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.
8. Fees; Payment Terms.
8.1 Fees. Customer shall pay Provider the fees set forth in Customer's Order Form ("Fees") in accordance with this Section 8.
8.2 Fee Increases. Provider may increase Fees for any Renewal Term by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of that Renewal Term, and Customer's Order Form will be deemed amended accordingly.
8.3 Reimbursable Expenses. Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services ("Reimbursable Expenses").
8.4 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
8.5 Payment. Customer shall pay all Fees and Reimbursable Expenses on or prior to the due date set forth in Customer's Order Form, or if not stated within thirty (30) days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by credit card or ACH transaction. Customer shall make payments to the address or account specified in Customer's Order Form or such other address or account as Provider may specify in writing from time to time.
8.6 Late Payment. If Customer fails to make any payment when due, in addition to all other remedies that may be available:
(a) Provider may charge a fee of $20.00 in the event a Customer debit results in a return for insufficient funds, closed bank account, or any other error or condition;
(b) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and
(c) if such failure continues for thirty (30) days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
8.7 No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than Service Credits issued pursuant to Section 5.2 or any deduction or withholding of tax as may be required by applicable Law).
8.8 BizPayo Service Payments. If Customer is not a platinum level website Service subscriber of the Provider, Customer agrees and consents to allow Provider to automatically charge a monthly fee of $19.99 (or such other fee that is applicable) directly as an ACH from the bank details provided as part of Customer’s BizPayo account registration.
9. Intellectual Property Rights.
9.1 Services and Provider Materials. All right, title and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Provider Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3 All other rights in and to the Services and Provider Materials (including Third-Party Materials) are expressly reserved by Provider and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
9.2 Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.3.
9.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Provider, its Subcontractors and the Provider Personnel as are necessary or useful to perform the Services; and (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
10.1 Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 10.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential". Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the financial terms (but not the existence) of this Agreement are the Confidential Information of Provider.
10.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
10.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 10.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 10.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 10.
10.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party's outside legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
11. Term and Termination.
11.1 Initial Term. The initial term of this Agreement commences as of the date set forth in Customer's Order Form or the date of the Customer account registration (the "Effective Date") and, unless terminated earlier pursuant any of this Agreement's express provisions, will continue in effect until one (1) month from such date (the "Initial Term").
11.2 Renewal. This Agreement will automatically renew for additional successive one (1) month terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least five (5) days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").
11.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Provider may terminate this Agreement, effective on written notice to Customer, if Customer breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions), Section 10 (Confidentiality); and
(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
11.4 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Provider shall immediately cease all use of any Customer Data or Customer's Confidential Information and (i) return to Customer, or at Customer's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer's Confidential Information; and (ii) permanently erase all Customer Data and Customer's Confidential Information from all systems Provider directly or indirectly controls, provided that, for clarity, Provider's obligations under this Section 11.4(b) do not apply to any Resultant Data;
(c) Customer shall immediately cease all use of any Services or Provider Materials and (i) return to Provider, or at Provider's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Provider's Confidential Information; and (ii) permanently erase all Provider Materials and Provider's Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Provider in a signed written instrument that it has complied with the requirements of this Section 11.4(c);
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information; and (ii) Provider may retain Customer Data, in the case of each of subclause (i), and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Provider may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 11.4(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
(e) Provider may disable all Customer and Authorized User access to the Hosted Services and Provider Materials;
(f) if Customer terminates this Agreement pursuant to Section 11.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Provider will: (i) refund to Customer Fees paid in advance for Services that Provider has not performed as of the effective date of termination; and (ii) pay to Customer any unpaid Service Credits to which Customer is entitled;
(g) if Provider terminates this Agreement pursuant to Section 11.3(a) or Section 11.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Provider's invoice therefor; and
(h) if Customer requests in writing at least fifteen (15) days after the effective date of expiration or termination, subject to Section 11.4(d), Provider shall, within thirty (30) days following such expiration or termination, deliver to Customer the then most recent version of Customer Data maintained by Provider, provided that Customer has at that time paid all Fees and Reimbursable Expenses then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for Provider's services in transferring such Customer Data.
11.5 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 10, Section 11.4, this Section 11.5, Section 12, Section 13, Section 14 and Section 16.
12. Representations and Warranties.
12.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
12.2 Additional Provider Representations, Warranties and Covenants. Provider represents, warrants and covenants to Customer that Provider will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
12.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
12.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1, SECTION 12.2 AND SECTION 12.3, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
13.1 Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer and Customer's officers, directors, employees, agents, permitted successors and permitted assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an "Action") by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such Losses arise from any allegation in such Action that Customer's or an Authorized User's use of the Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
(a) access to or use of the Services or Provider Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in writing by Provider;
(b) modification of the Services or Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider's written approval in accordance with Provider's written specification;
(c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Provider; or
(d) act, omission or other matter described in Section 13.2(a), Section 13.2(b), Section 13.2(c) or Section 13.2(d), whether or not the same results in any Action against or Losses by any Provider Indemnitee.
13.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a "Provider Indemnitee") from and against any and all Losses incurred by such Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or relate to any:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
(c) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
13.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 13.1 or Section 13.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this Section 13 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
13.4 Mitigation. If any of the Services or Provider Materials are, or in Provider's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof, provided that, subject to Customer's compliance with its post-termination obligations set forth in Section 11.4, Customer will be entitled to a refund equal to the pro rata amount of any pre-paid Fees for such Services or Provider Materials.
THIS SECTION 13 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
14. Limitations of Liability.
14.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 5.2, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT SUCH GAVE RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
15. Force Majeure.
15.1 No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
15.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
16.1 Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
16.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Provider may, without Customer's consent, include Customer's name and/or other indicia in its lists of Provider's current or former customers of Provider in promotional and marketing materials.
16.4 Notices. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as set forth in Customer's Order Form (or to such other address or such other person that such party may designate from time to time in accordance with this Section 16.4). Notices sent in accordance with this Section 16.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
16.5 Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
16.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
16.7 Entire Agreement. This Agreement, together with Customer's Order Form and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
16.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider's prior written consent, which consent Provider shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Provider's prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 16.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
16.9 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
16.10 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16.11 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16.12 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Connecticut without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Connecticut. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Connecticut in each case located in the City of New Haven, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
16.13 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
16.14 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 10 or, in the case of Customer, Section 3.3, or Section 4.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
16.15 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
17. BizPayO Services.
17.1 Online Transactions; Payment of Bills. Customer's clients shall be able to pay their bills and charges online. The Processors and Gateways manage and operate the online bill payment feature, including the processing of credit card, debit card, ACH and e-check bank account withdrawals and merchant funding.
17.2 Relationship to Referred Processors and Gateways. Provider may provide Customer an account through Processors and Gateways that allow for acceptance of credit card, debit card, ACH and e-check bank account withdrawals, and the communication between the BizPayO Services and Customer's Processor. Provider is not responsible for any actions or negligence on behalf of the Processors and Gateways and/or related parties. In addition to Customer's Merchant Application, this Agreement governs Customer's use and Provider's provision of the BizPayO Services. Customer expressly acknowledges and agrees that Provider may share information about Customer and its account, including Payment Data, with Processors and Gateways. Customer shall be billed by Processors and Gateways and Customer shall pay Processors and Gateways in accordance with the terms mutually agreed upon between Customer and such Processors and Gateways.
17.3 Limitations. Customer's use of the BizPayO Services shall be restricted to a single entity and Customer shall not submit Transactions or Payment Data to Provider or otherwise process payments on behalf of any other entity or individual. Any attempt by Customer to use the BizPayO Services for more than one entity or on behalf of another entity or individual shall result in an obligation to pay to Provider additional fees and charges and/or Provider's revocation of Customer's right to use the BizPayO Services.
17.4 Customer Obligations. Customer is solely responsible for the security of Payment Data or other information residing on servers owned or operated by Customer, or a third party designated by Customer (e.g., a Web hosting company, Processors and Gateways, or other service provider). Customer shall comply with Payment Card Industry Data Security Standards and all applicable laws and regulations governing the security, collection, retention and use by Customer of Payment Data, including, without limitation, financial information, and all other personally identifiable customer information. Customer agrees to provide notice to its clients on Customer's Web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement.
17.5. Provider Obligations. Provider may collect, and retain information and Payment Data collected from Customer (including information and Payment Data associated with the BizPayO Services) in accordance with Provider's Privacy and Security Policy. Customer hereby consents, as a condition of its enrollment in and use of the BizPayO Services, to the collection, use, processing and transfer of Personal Information as described in this Section 17.5 and Provider's Privacy and Security Policy. Customer is solely responsible for compiling and retaining permanent records of all Transactions and Payment Data for its reference. Except as otherwise provided herein, at no time shall Provider have an obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or Payment Data collected or processed by Provider. Customer understands that Provider may collect and hold personal or non-public information about Customer and its clients. Customer further understands and agrees that Provider, its subsidiaries, suppliers and/or their agents/contractors may transfer Payment Data among themselves as necessary for the purpose of the provision and management of the BizPayO Services, and that Provider may further transfer Payment Data to third parties assisting Provider in evaluating Customer's eligibility for, provision of, administration and management of the BizPayO Services, as card card-body alert-secondary as under circumstances described in Provider's Privacy and Security Policy.
17.6 Payment Data Security. Customer agrees that, except as may be reasonably necessary in the ordinary course of business to carry out the activities to be performed by Customer hereunder or required by law, Customer will not disclose any consumer or client information to any third party. While Provider uses commercially reasonable efforts to safeguard Payment Data and Transaction data transmitted while using the BizPayO Services, Provider does not warrant that Payment Data and Transaction data will be transported without unauthorized interception or modification or that Payment Data or Transaction data will not be accessed or compromised by unauthorized third parties. Customer agrees that it will comply with all Provider security policies in effect. Customer is solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed and associated with Customer's account and verifying that all corresponding funds are accurately processed. Customer acknowledges that Provider shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Customer's account, Payment Data or Transaction data. Provider’s liability for improperly processed or unauthorized Transactions solely attributable to the negligence of Provider is limited pursuant to the terms of this Agreement. Customer warrants that it has taken such precautions as are necessary to ensure that its server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Customer's system is breached and an unauthorized third party has access to or has accessed Customer's systems, Customer shall notify Provider promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future.
17.7 Termination or Suspension of Customer by a Provider Referred Processor or Gateway.
If Provider receives notice from any Processor or Gateway that it has terminated or suspended its relationship with Customer, Provider may suspend or terminate Customer's right to access and use the BizPayO Services without notice and without liability. In addition, Provider may suspend or terminate the BizPayO Services without notice and without liability upon receipt of notice from Processor or Bank that Customer is no longer entitled to send an authorization message, settlement message, or other message or Payment Data related to a Transaction to Processor.
17.8 Third Party Programs. Customer acknowledges that the BizPayO Services are designed for use with certain third-party programs, including, without limitation, certain internet browsers and software programs developed and owned by third parties. Customer will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Provider makes no warranty, express or implied, with regard to any such third-party software.
17.9 DISCLAIMER. CUSTOMER EXPRESSLY AGREES THAT PROVIDER SHALL NOT BE LIABLE FOR ANY LOSS (HOWEVER ARISING, INCLUDING NEGLIGENCE), ARISING FROM OR RELATED TO: (I) CUSTOMER'S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE ITS MERCHANT ACCOUNT; (II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH CUSTOMER'S PAYMENT PORTAL ACCOUNT; (III) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, PROCESSORS AND GATEWAYS, PROCESSOR OR BANK; OR (IV) UNAUTHORIZED ACCESS TO (A) PAYMENT DATA, CUSTOMER DATA, TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO PROVIDER, CUSTOMER OR ANY THIRD PARTY AND (B) THE BIZPAYO SERVICES, OR ANY SYSTEM OR PROGRAM ASSOCIATED THEREWITH; OR (V) THE LIMITATION OF THE FUNCTIONING OF ANY SOFTWARE, HARDWARE, EQUIPMENT OR SERVICE.
BUILD YOUR FIRM
Last Modified: August 15, 2017
Build Your Firm, Inc. ("Company" or "We") respects your privacy and is committed to protecting it through our compliance with this policy. WE WILL NOT, UNDER ANY CIRCUMSTANCES, SELL, RENT, LEASE, SHARE OR GIVE YOUR PERSONAL INFORMATION TO ANY THIRD PARTY FOR PURPOSES OF SPAMMING YOU, OR FOR ANY OTHER THIRD-PARTY ADVERTISING, MARKETING OR PROMOTION. Capitalized terms not otherwise defined in this policy have the meaning assigned to them in the Service Terms and Conditions.
This policy describes the types of information we may collect from you or that you may provide when you visit and use the Services and our practices for collecting, using, maintaining, protecting, and disclosing that information.
This policy applies to information we collect:
Through your use of the Services.
In email, text, and other electronic messages between you and the Services.
It does not apply to information collected by:
Us offline or through any other means, including on any other website operated by Company or any third party; or
Any third party, including through any application or content that may link to or be accessible from or on the Services
Information We Collect About You and How We Collect It
We collect several types of information from and about users of our Services, including information:
by which you may be personally identified, such as name, postal address, e-mail address, telephone number, and any other identifier by which you may be contacted online or offline ("personal information");
that is about you but individually does not identify you; and/or
about your internet connection, the equipment you use to access our Services and usage details.
We collect this information:
Directly from you when you provide it to us.
Automatically as you navigate through the site. Information collected automatically may include usage details, IP addresses, and information collected through cookies, web beacons, and other tracking technologies.
From third parties, for example, our business partners.
Information You Provide to Us. The information we collect on or through our Services may include:
Information that you provide by filling in forms on our Services. This includes information provided at the time of ordering our Services. We may also ask you for information when you report a problem with our Services.
Records and copies of your correspondence (including email addresses), if you contact us.
Your responses to surveys that we might ask you to complete for research purposes.
Details of transactions you carry out through our Services and of the fulfillment of your orders, such as monthly subscription fees. You may be required to provide financial information before placing an order through our Services.
You also may provide information to be published or displayed (hereinafter, "posted") on the Website (referred to in the Service Terms and Conditions generally as Customer Data but more specifically referred to herein as "User Contributions"). Your User Contributions are posted on and transmitted to others at your own risk. Although we limit access to certain pages, please be aware that no security measures are perfect or impenetrable. Additionally, we cannot control the actions of visitors to the Website with whom you may choose to share your User Contributions. Therefore, we cannot and do not guarantee that your User Contributions will not be viewed by unauthorized persons.
Information We Collect Through Automatic Data Collection Technologies. As you navigate through and interact with our Services, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions, and patterns, including:
Details of your visits to our Services, including traffic data, location data, logs, and other communication data and the resources that you access and use on the Services.
Information about your computer and internet connection, including your IP address, operating system, and browser type.
We also may use these technologies to collect information about your online activities over time and across third-party websites or other online services (behavioral tracking). Contract us for information on how you can opt out of behavioral tracking on the Services and how we respond to web browser signals and other mechanisms that enable consumers to exercise choice about behavioral tracking.
The information we collect automatically is statistical data and does not include personal information, but we may maintain it or associate it with personal information we collect in other ways or receive from third parties. It helps us to improve our Services and to deliver a better and more personalized service, including by enabling us to:
Estimate our audience size and usage patterns.
Store information about your preferences, allowing us to customize our Services according to your individual interests.
Speed up your searches.
Recognize you when you return to our Services.
The technologies we use for this automatic data collection may include:
Flash Cookies. Certain features of our Services may use local stored objects (or Flash cookies) to collect and store information about your preferences and navigation to, from, and on our Services. Flash cookies are not managed by the same browser settings as are used for browser cookies.
Web Beacons. Pages of our the Services and our e-mails may contain small electronic files known as web beacons (also referred to as clear gifs, pixel tags, and single-pixel gifs) that permit the Company, for example, to count users who have visited those pages or opened an email and for other related website statistics (for example, recording the popularity of certain website content and verifying system and server integrity).
We do not collect personal information automatically, but we may tie this information to personal information about you that we collect from other sources or you provide to us.
How We Use Your Information
We use information that we collect about you or that you provide to us, including any personal information:
To present our Services and its contents to you.
To provide you with information, products, or services that you request from us.
To fulfill any other purpose for which you provide it.
To provide you with notices about your subscription, including expiration and renewal notices.
To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection.
To notify you about changes to our Services or any products or services we offer or provide though it.
To allow you to participate in interactive features on our Services.
In any other way we may describe when you provide the information.
For any other purpose with your consent.
We may also use your information to contact you about our own and third-parties' goods and services that may be of interest to you. If you do not want us to use your information in this way, you can opt-out of future communications by unsubscribing as provided in the communication or, if no method for unsubscribing is provided, by sending us an email stating your request to unsubscribe to [email protected]
Disclosure of Your Information
We may disclose aggregated information about our users, and information that does not identify any individual, without restriction.
To our subsidiaries and affiliates.
To contractors, service providers, and other third parties we use to support our business and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them.
To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of the Company's assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which personal information held by the Company about our Service users is among the assets transferred.
To fulfill the purpose for which you provide it. For example, if you give us an email address to use the "email a friend" feature of our Services, we will transmit the contents of that email and your email address to the recipients.
For any other purpose disclosed by us when you provide the information.
With your consent.
We may also disclose your personal information:
To comply with any court order, law, or legal process, including to respond to any government or regulatory request.
To enforce or apply our Service Terms and Conditions and other agreements, including for billing and collection purposes.
If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of the Company, our customers, or others. This includes exchanging information with other companies and organizations for the purposes of fraud protection and credit risk reduction.
Choices About How We Use and Disclose Your Information
We strive to provide you with choices regarding the personal information you provide to us. We have created mechanisms to provide you with the following control over your information:
Promotional Offers from the Company. If you do not wish to have your contact information used by the Company to promote our own or third parties' products or services, you can opt-out of future communications by unsubscribing as provided in the communication or, if no method for unsubscribing is provided, by sending us an email stating your request to unsubscribe to [email protected] If we have sent you a promotional email, you may send us a return email asking to be omitted from future email distributions.
Targeted Advertising. If you do not want us to use information that we collect or that you provide to us to deliver advertisements for our Services, you can opt-out by sending us an email stating your request to [email protected] For this opt-out to function, you must have your browser set to accept browser cookies.
We do not control third parties' collection or use of your information to serve interest-based advertising. However these third parties may provide you with ways to choose not to have your information collected or used in this way. You can opt out of receiving targeted ads from members of the Network Advertising Initiative ("NAI") on the NAI's website.
Your California Privacy Rights
California Civil Code Section § 1798.83 permits users of our Services that are California residents to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes. To make such a request, please send an email to [email protected] or write us at Build Your Firm, 7 Orchard Park Rd., Suite 3, Madison, CT 06443.
We have implemented measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, and disclosure. All information you provide to us is stored on our secure servers behind firewalls. Any payment transactions will be encrypted using SSL technology.
The safety and security of your information also depends on you. Where we have given you (or where you have chosen) a password for access to certain parts of our Services, you are responsible for keeping this password confidential. We ask you not to share your password with anyone. We urge you to be careful about giving out information in public areas of the Website. The information you share in public areas may be viewed by any user of the Services.
Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your personal information, we cannot guarantee the security of your personal information transmitted to our Services. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Services.
TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS ("AGREEMENT") SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE MERCHANT ("MERCHANT" "YOU" OR YOUR") AND ZIFT, LLC ("ZIFT" "US" OR "WE) CONCERNING MERCHANT'S ACCESS TO AND USE OF ZIFT'S payment processing services, WEBSITES, CONTENT, any software, programs, documentation, tools, hardware, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) ("SERVICES").
You are entering into this Agreement because you want to accept credit cards, debit cards, electronic bank drafts (ACH) and other forms of payment for the products and services you render. The companies, or "Networks" that facilitate these forms of payments, including but not limited to Visa, MasterCard, Discover, American Express, and the Federal Reserve System have operating rules by which all merchants who accept their forms of payment must abide.
1. Merchant Account
You appoint Zift to act as your attorney-in-fact (i) to establish and maintain bank accounts, credit card and debit card processing merchant accounts, and other necessary financial accounts on your behalf; and (ii) to receive payment directives from you and tender them to credit card processors and banks for processing. These financial accounts are maintained for the purpose of receiving and accepting payment proceeds as card card-body alert-secondary as adjustments, chargebacks and payment of fees, all on your behalf. This Power of Attorney is coupled with an interest and thus irrevocable. To be able to use the Services you must register with Zift. To register, you provide information, including email address and a self-selected password, in order to create an account ("Account"). You are responsible for maintaining the secrecy and security of your Account access credentials and for any use of or action taken under them.
The Networks require Zift to obtain additional information from Merchants, such as street address, telephone number, tax identification number (such as Social Security Number), date of birth, articles of incorporation, passports, driver's license, business license, etc. You authorize Zift, directly or through third parties, to make inquiries or verify that this information is accurate. You specifically authorize Zift to request a consumer report that contains your name and address.
You must provide accurate and complete information. If we cannot verify that this information is complete and accurate, we have the right to suspend the delivery of our Services, or close your Account.
Zift allows individuals, businesses, and non-profit organizations to register for Zift if they are located in one of the 50 United States or the District of Columbia. A Merchant must be either a United States citizen, a legal permanent resident of the United States, or a United States business or nonprofit organization having a physical presence in the United States and authorized to conduct business by the state in which it operates. A Merchant who opens an Account must be eighteen (18) years of age or older. An individual may open an Account for a business or nonprofit organization only if it is legitimate and he/she has the authority to enter into this Agreement on its behalf. Your acceptance of this Agreement constitutes acceptance by the business or nonprofit organization. Each Account must be linked to a verified U.S. bank account.
2. Limitations on Zift's Responsibility
Zift does not makes any representations or guarantees regarding the use of the Service. Use of our Service in no way represents any endorsement by Zift or any Networks of any user of the Service. Zift does not have control of, or liability for, goods or services that are paid for with the Service. Merchant acknowledges and agrees that receipt of Purchaser information through the Service does not indicate that the Purchaser's payment instrument has sufficient available funds, that a transaction will be authorized or processed, or that the transaction will not later result in a chargeback or reversal. Merchant also acknowledges that Zift does not own or control the any third party software providers ("Software Providers") or their respective APIs. In the event that a Software Provider ceases doing business or terminates this Agreement or in the event that the API ceases to function or function in accordance with a Merchant's expectations, such events could have a material adverse effect on the Merchant. As a Merchant, you represent and warrant that you have conducted your own investigation of your Software Provider and its API, are not relying on Zift in any way and have determined through your own independent investigation that your Software Provider and its API are the best solution for your needs.
3. Merchant Fees
Zift charges fees ("Fees") to Merchants using the Service. The Platform may also charge fees that are collected by Zift on the Platform's behalf. Depending on the nature of the relationship, fees may be withheld from payments deposited to the Merchant or may be debited against the Merchants as separate transactions. Zift also charges Merchants fees for exceptions processing, such as when a Merchant receives a chargeback. These fees are netted against other funds due to Merchant or debited from the Merchant's bank account. The Merchant agrees to pay Zift the fees that are posted from time to time by Zift or the Platform that provides the Zift Service (the "Fees"). In general, Fees posted by Zift and the Platform are cumulative; however, in case of inconsistency, the Fees posted by the Platform apply.
Subject to the terms of this Agreement, we and the Platform reserve the right to change our Fees. We will provide you thirty (30) days' advance notice of any such change in Fees charged by Zift. By continuing to use the Service, you consent to the change in Fees. To withdraw your consent, you must close your Account.
4. E-Sign Disclosure and Consent, Updated Contact Information
You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures ("Communications") that we provide in connection with your Account and your use of the Service. We will provide these Communications to you by emailing them to you at the primary email address listed in your Account registration, by emailing you a link or instructions how to access them on a website, or (if permitted by law) by posting them on the Website. Communications are considered received by you within 24 hours of the time they are emailed to you or posted to our Website. You agree that your electronic signature has the same effect as your manual, physical signature. Documents will be provided in PDF format. By giving your consent, you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. It is important for you to retain copies of Communications because they may not be accessible in your Account at a later date.
It is your responsibility to keep your primary email address up to date. You understand and agree that if Zift sends you an electronic Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, Zift will be deemed to have provided the Communication to you. Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add Zift to your email address book so that you will be able to receive the Communications we send to you. You can update your primary email address or street address at any time by logging into your Account. If your email address becomes invalid such that electronic Communications sent to you by Zift are returned, Zift may close your Account, and you will not be able to transact any activity using your Account until we receive a valid, functioning primary email address from you.
5. Prohibited Activities
By registering with Zift as a Merchant, you also confirm that you will not accept payments or use the Service in connection with the following activities, items or services restricted by the Networks:
" Adult content
" Alimony, child support, or other court-ordered payments
" Bail bonds
" Bankruptcy lawyers
" Buyers clubs, discount clubs or membership clubs
" Check cashing, or payment for a dishonored check or for an item deemed uncollectible by another merchant
" Computer repair or maintenance services
" Cruise lines
" Credit counseling or credit repair agencies
" Credit protection or identity theft protection services
" Counterfeit or possibly counterfeit goods
" Debt collection, consolidation, or reduction services
" Digital currency
" Direct marketing of subscription offers
" Distressed Property Sales and Marketing
" Door to door sales
" Drugs, alcohol, or drug paraphernalia, or items that may represent them
" Factoring, liquidators, bailiffs, bail bondsmen
" Financial services, such as cash advances, bill payment, loans, prepaid cards, wire transfers, or sales of money orders or foreign currency
" Gambling or betting, including lottery tickets, casino gaming chips, off-track betting, fantasy football, memberships on gambling-related internet sites and wagers at races
" Hate, violence, racial intolerance, or the financial exploitation of a crime
" Infomercial merchants
" Internet pharmacies or pharmacy referral sites
" Inbound or outbound telemarketing businesses including lead generation businesses
" Licensed or franchised goods or services, such as Apple products
" Medical equipment
" Multi-level marketing businesses, pyramid or Ponzi schemes
" Obscene or pornographic items
" Pharmaceuticals, including medical marijuana
" Prepaid phone cards or phone services
" Prostitution, escort services, massage parlors, and other potentially sexually related services
" Real estate or motor vehicle sales
" Rebate or upsell programs
" Scrip-dispensing terminal
" Timeshares, timeshare resales and related marketing
" Tobacco, cigarettes, or e-cigarettes
" Unlawful activities or items, or activities or items that encourage, promote, facilitate or instruct others regarding the same
" Violent acts towards self or others, or activities or items that encourage, promote, facilitate or instruct others regarding the same
" Weapons, including replicas and collectible items, or ammunition or other accessories
" Weight loss programs
If you fall within the following exclusions, you will not accept the American Express card:
" Equities (including stocks, bonds, or any other ownership position in a corporation)
" Goods or services to be delivered more than four (4) months in the future, with an intention of gaining return on investment
" Internet auctions
" Political parties
" Telecommunications (including wireless, cable, satellite, wireline, and ISP)
" Travel industry (including car rental, lodging, and other travel tour operators)
In addition, you may not use the Service for:
" Impersonating any person or entity or falsely claiming an affiliation with any person or entity;
" Collecting, or attempting to collect, personal information about users or third parties without their consent, or using such information except as necessary to use the Service;
" Sending unsolicited offers, advertisements, proposals, or junk mail or spam to others. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signature;
" Accepting payments for goods or services provided by someone other than you;
" Providing yourself or others with a cash advance from a credit card;
" Any illegal purpose, or violating any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation, and data collection and privacy;
" Defaming, harassing, abusing, threatening, or defrauding others;
" Posting, transmitting, or distributing content that is false, misleading, unlawful, obscene, indecent, lewd, pornographic, hateful, abusive, inflammatory, or that violates the rights of others (including rights of publicity or privacy);
" Damaging, disabling, overburdening, or impairing Zift, including without limitation, using the Service in an automated manner;
" Interfering with another user's enjoyment of the Service, by any means, including by uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code;
" Sending or receiving what Zift considers to be funds for something that may have resulted from fraud or other illegal behavior;
" Abusing the payment card system or violating the Operating Regulations, in the reasonable opinion of the Networks or Zift;
" Acting as a money services business or money transmitter;
" Transferring funds between bank accounts held in the same name;
" Creating an Account that is linked to another Account that has engaged in any of the foregoing activities. Zift may use evidence other than your Account information to determine whether you control an Account in someone else's name, including but not limited to Internet Protocol addresses, common business names, phone numbers, and mailing addresses.
If Zift determines that you have received funds resulting from fraud or a prohibited activity, those funds may be frozen, returned to the Purchaser, or seized. If Zift suspects that your Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Account, your access to the Services, and any of your transactions with law enforcement.
6. Our Role and Your Responsibilities
Zift provides hosting and data processing for Merchants. Zift is not a bank, money transmitter, or Money Services Business ( "MSB"), and Zift does not offer banking or MSB services as defined by the United States Department of Treasury.
Zift collects, analyzes and relays information generated in connection with payments from Purchasers. You authorize Zift to provide this information to the acquiring bank ("Bank") in order for the Bank to facilitate payments from Purchasers through the Networks or the ACH system.
As between Zift and Merchant, all Purchaser, customer and user information, including but not limited to names, addresses, contact information, Account data, Cardholder Data, user history, payment history, and business and access information, received by Zift in performing the Services hereunder ("Merchant Data") shall be owned by Merchant. Merchant hereby grants Zift a non-exclusive, nontransferable limited license to use Merchant Data to perform the Services. Zift may not use any personally identifiable information included in such Merchant Data for any unlawful or improper purpose and shall indemnify and, subject to specific exculpatory provisions of this Agreement. Other than the license granted herein to carry out its obligations set forth in this Agreement, Zift shall have no right, title or interest in the Merchant Data.
Zift must enter into agreements with the Networks, processors, payment facilitators, and the Bank. You are not a third-party beneficiary of these agreements. Each of the Networks is a third-party beneficiary of this Agreement and has beneficiary rights, but not obligations, and may enforce this Agreement against you. Some of these third parties may require a direct agreement with you. If you are required to enter into such an agreement and decline to do so, we may suspend or terminate your Account.
You acknowledge that, if you reach certain American Express processing levels, you may be converted to a direct card acceptance relationship with American Express and, upon conversion, you will be bound by the then-current American Express Card acceptance agreement and American Express will set the discount and other fees payable by you for American Express Card acceptance.
You expressly acknowledge and agree that you are assuming the risk of compliance with all provisions of the Operating Regulations and ACH Rules, regardless of whether you have possession of those provisions. The Networks make excerpts of their respective Operating Regulations available on their websites (including usa.visa.com, www.mastercard.com, www.americanexpress.com and www.discover.com).
For example, where you accept payment cards on your website, you will display each card's logo with equal size and prominence, and you shall not display a preference for, or discriminate against, one card brand over another. If you are using the Zift recurring billing feature, you agree that it is your responsibility to comply with applicable laws, including the Electronic Funds Transfer Act (Regulation E), including by capturing your Purchaser's agreement to be billed on a recurring basis.
You agree to be bound by this Merchant Services Agreement as card card-body alert-secondary as the EON Terms of Service set forth at http://www.ziftpay.com/eon. By agreement to this Agreement (by "click through" signature, or otherwise), you also agree to the terms and conditions of the EON Terms of Service, which constitutes a legal binding contract between you, on the one hand, and EON and its designated Member Bank, on the other hand.
As a Merchant, you authorize the Bank to hold, receive, disburse and settle funds on your behalf. Your authorization permits the Bank to generate a paper draft or electronic funds transfer to process each payment transaction that you authorize. Subject to this Agreement, you also authorize the Bank to debit or credit any payment card or other payment method we accept. You authorize the Bank to initiate electronic ACH entries to each bank account that you set up on the Website and to initiate adjustments for any transactions credited or debited in error. Your authorization will remain in full force and effect until you notify us by contacting Customer Support in accordance with instructions on our Website or by closing your Account. You understand that Zift requires a reasonable time to act on your revocation.
8. Card Acceptance
Zift supports most domestic credit, debit, prepaid or gift cards with a Visa, MasterCard, American Express or Discover logo. In addition, Zift supports most international cards with these logos. We may add or remove support for certain payment cards at any time without prior notice. We may elect only to process cards that receive an authorization from the applicable issuer. As a Merchant, you agree to accept all of the cards issued by Networks that Zift supports in accordance with the terms of this Agreement. Zift also supports payments via ACH from U.S.-based Purchasers with a U.S. bank account. We may conduct verification checks on Purchasers to ensure account ownership and sufficient balance, and we may refuse to process payments from Purchasers at our discretion.
9. Underwriting and Sharing Information
We may share some or all of the information about you and your transactions with the Bank, our processor, the Networks, and our other partners (and their respective affiliates, agents, subcontractors, and employees), who may use this information to perform their obligations under their agreements with Zift, to operate and promote their respective networks, to perform analytics and create reports, to prevent fraud, and for any other lawful purpose. American Express and other Networks may use your name, address, and website address (URL) in any media from time to time. If Zift is directed by the Networks or the processors through which Zift provides the Services, Zift may suspend or terminate your use of the Services. You agree that Zift is permitted to contact and share information about you and your Account with banks and other financial institutions. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the Service, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct Zift's risk management process.
Zift reserves the right to limit or restrict transaction size or volume at any time. If you would like to increase your limits, please contact Customer Support. Upon receiving this request, Zift will conduct a review of your Account, and decide whether to lift or remove these limits. Zift will consider a variety of factors in making this decision and will make this determination at its sole discretion. Transactions may be disputed at any time up to 90 days from the date of the transaction, regardless of state, by the Purchaser. Disputes resolved in favor of the Purchaser may result in reversal of the disputed transaction.
11. Deposit of Funds
The Bank will transfer funds to the Merchant's Account according to the Merchants payout schedule (daily, weekly or monthly). Regardless of the payout schedule, the Bank will transfer funds to the Merchant's Account no more than thirty (30) days after the funds settle, subject to any "Reserve" imposed under Section 13 below. If the Bank cannot transfer the funds to the Merchant's Account (due to inaccurate or obsolete bank account information entered by the Merchant, or for any other reason), the Bank may refund the funds to the Purchaser or escheat them. Neither the Bank, Zift, nor the Purchaser will have any liability to Merchant for funds so refunded.
Settlements to a bank account may be limited or delayed based on your perceived risk and history with Zift. If you would like to request an increase to your settlement limit, please contact Customer Support at [email protected] Upon receiving this request, Zift will conduct a review of your account. Zift will consider a variety of factors in making this decision and will make this determination at its sole discretion.
If Zift needs to conduct an investigation or resolve any pending dispute related to your Account, the Bank and Zift may defer payout or restrict access to the disputed funds for the entire time it takes us to do so. The Bank and Zift may also defer payout or restrict access to the disputed funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity. Zift shall provide you with written notice of its receipt of any such legal process or request from law enforcement or governmental entities.
If Zift reasonably suspects future chargebacks or disputes as a result of transactions to your Account, Zift and the Bank may defer payout and/or restrict access to your funds subject to such chargeback or dispute until Zift reasonably believes, in its sole discretion, that the risk of receiving a chargeback or dispute has passed.
All settlements to Merchants are subject to review for risk and compliance purposes and can be delayed or postponed at the Banks or Zift's sole discretion.
The Bank may at any time temporarily suspend or delay payments to you and/or designate an amount of funds that the Bank must maintain in your Account ("Reserve") to secure the performance of your payment obligations under this Agreement. Following thirty (30) days advance written notice to you, the Bank may require a Reserve for any reason, including high chargeback risk or indications of performance problems related to your use of the Service.
The Reserve will be in an amount as reasonably determined by us to cover anticipated chargebacks, returns, unshipped merchandise and/or unfulfilled services or credit risk based on your processing history or such amount designated by our processor. The Reserve may be raised, reduced or removed at any time by Zift, in its reasonable discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in Zift's favor, or otherwise as Zift or its processor may determine or require. If you do not have sufficient funds in your Reserve, Zift may, following the provision of written notice to you, fund the Reserve from any funding source associated with your Account, or from any other Account under your control or any funding source associated with such other Account, including but not limited to any funds (a) credited to your Account, (b) due to you under this Agreement, or (c) available in your bank account, or other payment instrument registered with us.
You grant us a security interest in and lien on any and all funds held in any Reserve, and also authorize us to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your Account. You will execute any additional documentation required for us to perfect our security interest in any funds in the Reserve. This security interest survives for as long as there are funds in your Reserve; however, it does not apply to any funds for which the grant of a security interest would be prohibited by law. You irrevocably assign to us all rights and legal interests to any interest or other earnings that accrue or are attributable to your Reserve. These rights will survive the term of this agreement.
13. Payment Card Industry Data Security Standards ("PCI-DSS")
"Cardholder Data" is information associated with a payment card, such as an account number, expiration date, and CVV2. Zift is a validated PCI Level 1 Service Provider and so is qualified to handle Cardholder Data in connection with the Service. Zift will maintain applicable PCI DSS requirements to the extent Zift possesses or otherwise stores, processes, or transmits cardholder data on your behalf, or to the extent Zift could impact the security of your cardholder data environment.
If you handle, transmit, or store any Cardholder Data in connection with your use of the Service, you agree to comply at all times with PCI DSS. Further, you agree to certify such compliance and provide documentation in accordance with Operating Regulations, or when asked by Zift to do so. You also agree that you will use only PCI compliant service providers in connection with the storage, processing, or transmission of Cardholder Data. You will remove Cardholder Data from your systems, and any other place where you store it, as soon as practicable and in no event more than 24 hours after you receive an authorization decision.
You are fully responsible for the security of data (including but not limited to Cardholder Data) on your website or otherwise in your possession or control. You agree to comply with all applicable laws, Operating Regulations, and rules in connection with your collection, security and dissemination of any personal, financial, or transaction information.
Unless you receive the express consent of your customer, you may not retain, track, monitor, store, disclose or otherwise use Cardholder Data (e.g. to send any marketing or promotional materials to Purchaser) except for the transaction for which it was given and any post-transaction activities in connection with such immediate transaction (e.g. chargeback).
Zift, or the Bank may have tax reporting responsibilities in connection with the Service. For example, Zift or the Bank will report to the Internal Revenue Service ("IRS") on Form 1099-K as required by law, your name, address, Tax Identification Number (such as Employment Identification Number or Social Security Number), the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld, in connection with your use of the Service. You are solely responsible for collecting, withholding, reporting and remitting correct any taxes to the appropriate tax authority. Zift is not obligated to, and will not, determine whether taxes apply, or calculate, collect, report or remit any taxes to any tax authority arising from your use of the Service.
15. Customer Service Provided by Merchants and Software Providers
You are solely responsible for all customer service issues relating to your goods or services, including pricing, order fulfillment, order cancellation by you or the Purchaser, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from Zift. You will cooperate with Zift to ensure that Purchasers have access to clear customer service information, including an active customer service email address and telephone number.
16. Refunds and Returns
You agree to process returns of, and provide refunds and adjustments for goods or services through your Account in accordance with this Agreement and the Operating Regulations and ACH Rules. The Operating Regulations require that you will (a) maintain a fair return, cancellation or adjustment policy; (b) disclose your return or cancellation policy to Purchasers at the time of purchase, (c) not give cash refunds to a Purchaser in connection with a payment card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a payment card sale refund. Your refund policies must be the same for all payment methods. If your Purchaser is dissatisfied with your refund policy, the Purchaser may chargeback the payment.
16. Chargeback Handling
The amount of a payment may be charged back to you, as a Merchant, if (a) it is disputed by a Purchaser, (b) it is reversed for any reason, (c) it was not authorized or we have any reason to believe that the transaction was not authorized, or (d) it is unlawful, suspicious, or in violation of the terms of this Agreement. You are responsible for all chargebacks, whether or not the chargeback complies with the Operating Regulations.
If a chargeback occurs you owe us and will immediately pay us the amount of any chargeback and any associated Fees, fines, or penalties assessed by the Bank, our processor, the Networks or any other third party. If you do not have sufficient funds in your Account, we will have the right to set off against funds owed to you as described in this Agreement. If you have pending chargebacks, the Bank may delay payouts to you. Further, if we reasonably believe that a chargeback is likely with respect to any transaction, the Bank may withhold the amount of the potential chargeback from payments otherwise due to you under this Agreement until such time that: (a) a chargeback is assessed due to a Purchaser's complaint, in which case the Bank will retain and refund the funds; (b) the period of time under applicable law or regulation by which the Purchaser may dispute that the transaction has expired; or (c) we determine that a chargeback on the transaction will not occur.
If we determine that you are incurring an excessive amount of chargebacks, Zift or the Bank may establish controls or conditions governing your Account, including without limitation, by (a) assessing additional Fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated chargebacks and related fees, (c) delaying payouts, and (d) terminating or suspending the Service or closing your Account.
You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Service. To that end, you permit us to share information about a chargeback with the Purchaser, the Purchaser's financial institution, and your financial institution in order to investigate and/or mediate a chargeback. We will request necessary information from you to contest the chargeback. If the chargeback is contested successfully, we will release the reserved funds to you. If a chargeback dispute is not resolved in your favor by the Networks or issuing bank or you choose not to contest the chargeback, we may recover the chargeback amount and any associated fees as described in this Agreement. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within seven (7) days of our request, may result in an irreversible chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating chargeback disputes.
17. Our Set-off and Collection Rights
To the extent permitted by law, Zift may set off any obligation you owe us under this Agreement (including chargebacks) or any other agreement between you and Zift or any of its affiliates against any credit in your Account or against any other amounts due to you. All Fees are deducted first from the transferred or collected funds and thereafter from your Account. If you do not have sufficient funds, the Bank may collect from any funding source associated with your Account, or from any other account under your control, or from any other source of funds owed by Zift or its affiliates to you, including but not limited to any funds (a) deposited by you, (b) due to you under this Agreement or any other agreement between Zift or its affiliates and you, or (c) available in your bank account, or other payment instrument registered with the Bank. Your failure to pay in full amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys' fees and expenses, collection agency fees, and interest at the lesser of one-and-one-half percent (1-1/2%) per month or the highest rate permitted by law. In its discretion, Zift may make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. You hereby expressly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided by you to Zift. Such communication may be made by Zift or by anyone on its behalf, including but not limited to a third party collection agent.
18. Dormant Accounts
If there is no activity in your Account for the period of time set forth in the applicable unclaimed property laws, and you have a credit, we may notify you by sending an email to your registered email address. We may also notify you by U.S. mail. We will give you the option of keeping your Account open, withdrawing the funds, or requesting a check. If you do not respond to our notice within the time period specified in the notice, we may close your Account and escheat your funds in accordance with applicable law.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
If you discover a security-related issue, you agree to inform us of the issue immediately by contacting Customer Support at [email protected] Unless otherwise required by law, in which event you agree to notify Zift of such requirement, you also agree not to disclose the issue until Zift has addressed it.
If your Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Service and to remove all card logos from your website and wherever else they are displayed, (c) that the license provided under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your information, Merchant Data and Account data stored on our servers, and (e) that Zift shall not be liable to you or any third party for termination of access to the Service, deletion of your information, Merchant Data or Account data, or export of your information, Merchant Data or Account data.
22. Your Right to Terminate
You may terminate this Agreement by closing your Account at any time. When you close your Account, any pending transactions will be cancelled. Any funds held in custody for you at the time of closure, less any applicable Fees, will be paid out to you according to your payout schedule, assuming all payout-related authentication requirements have been fulfilled (for example, you may not close your Account as a means of evading your payout schedule). If an investigation is pending at the time you close your Account, the Bank may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds in dispute, the Bank will release those funds to you.
23. Our Right to Terminate
Upon our providing you with thirty (30) days advance written notice, we may terminate this Agreement and/or close your Account for any reason or no reason at any time. We may also suspend the Service and suspend access to your Account (including the funds in your Account) if you (a) have violated the terms of the Zift's policies or this Agreement, (b) pose an unacceptable credit or fraud risk to us, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct. Notwithstanding the foregoing, if directed by the Networks or the processors through which we provide the Service or if required by the Operating Regulations, we may terminate this Agreement and/or close a Merchant's Account immediately and without prior notice.
24. Effect of Termination
We will not be liable to you for compensation, reimbursement, or damages in connection with any termination or suspension of the Service. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement.
Upon termination, within ten (10) business days of Merchant's payment of all amounts owed to Zift hereunder, Zift shall, at no additional cost to Merchant, securely transmit any and all Merchant Data in its possession to Merchant, or Merchant's authorized designee, in a format reasonably agreeable to Zift and you. The parties agree that such transfer of the Merchant Data shall be made in compliance with PCI-DSS requirements, where applicable.
25. Your License
Zift grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Service solely to accept and receive payments and to manage the funds you so receive. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when Zift makes these updates available.
You may not, nor may you permit any third party to, do any of the following: (i) access or monitor any material or information on any Zift system using any manual process or robot, spider, scraper, or other automated means unless you have separately executed a written agreement with Zift referencing this section that expressly grants you an exception to this prohibition; (ii) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from Zift; (iii) permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) violate the restrictions in any robot exclusion headers on the Service, work around, bypass, or circumvent any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Service except as expressly allowed under this section. You may not use the Service on a mobile device that is "jail broken" or otherwise modified contrary to the manufacturer's software or hardware guidelines. Your use of the Service may be subject to the terms of your agreements with your mobile device manufacturer and your carrier.
26. Intellectual Property Rights
The Service is protected by copyright, trade secret and other intellectual property laws. Zift owns all right, title, and interest in the Service. This Agreement does not grant you any rights to Zift's trademarks or service marks, nor may you remove, obscure, or alter any of Zift's trademarks or service marks included in the Service.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or our products ("Feedback"). By submitting Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Zift under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Zift does not waive any rights to use similar or related ideas previously known to Zift, or developed by its employees, or obtained from sources other than you.
You will indemnify, defend and hold us and our processors and partners harmless (and our and their respective employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a third party person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies or the Operating Regulations; (b) your wrongful or improper use of the Service; (c) any transaction submitted by you through the Service (including without limitation the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you), except to the extent that any such damages result entirely from the acts or omissions of Zift; (d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (e) your violation of any law, rule or regulation of the United States or any other country; (f) any other party's access and/or use of the Service with your unique username, password or other appropriate security code.
28. Representations and Warranties
You represent and warrant to us that: (a) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (b) the name identified by you when you registered is your name or business name under which you sell goods and services; (c) any sales transaction submitted by you will represent a bona fide sale by you; (d) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser; (e) you will fulfill all of your obligations to each Purchaser for which you submit a transaction and will resolve any consumer dispute or complaint directly with the Purchaser; (f) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (g) except in the ordinary course of business, no transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (h) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service; (i) your use of the Service will be in compliance with this Agreement.
29. Warranty Disclaimer
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ZIFT OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, ZIFT, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS AND THE BANK (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ZIFT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND ZIFT WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
All third party hardware and other products included or sold with the Service are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer or distributor directly. ZIFT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
30. Limitation of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ZIFT, ITS PROCESSORS, SUPPLIERS, LICENSORS, NETWORKS, OR THE BANK (OR THEIR RESPECTIVE AFFILIATES) AGENTS, DIRECTORS AND EMPLOYEES) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL ZIFT BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. IN NO EVENT WILL ZIFT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZIFT, ITS PROCESSORS, THE NETWORKS, AND THE BANK (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, OR ANY DELAY IN PERFORMING OUR OBLIGATIONS UNDER THIS AGREEMENT, REGARDLESS OF WHETHER THE FAILURE OR DELAY IS CAUSED BY AN EVENT OR CONDITION BEYOND OUR CONTROL; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL ZIFT, ITS PROCESSORS, AGENTS, SUPPLIERS, LICENSORS, NETWORKS, OR THE BANK (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ZIFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Service is controlled and operated from facilities in the United States. Zift makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact Customer Support at [email protected] with any dispute. If we cannot resolve your concerns, we agree to an informal and inexpensive dispute resolution process requiring individual arbitration. Unless otherwise required by law, an action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
32. Binding Individual Arbitration
You and Zift agree to arbitrate all "Disputes," defined as any claim, controversy or dispute (whether involving contract, tort, equitable, statutory or any other legal theory) between you and Zift, including but not limited to any claims relating in any way to this Agreement (including its breach, termination and interpretation), any other aspect of our relationship, Zift advertising, and any use of Zift software or services. "Disputes" also include any claims that arose before this Agreement and that may arise after termination of this Agreement. Notwithstanding the foregoing, you or Zift may choose to pursue a claim in court and not by arbitration if you fail to timely pay amounts due. Zift may assign your account for collection, and the collection agency may pursue in any court of competent jurisdiction any claim that is strictly limited to the collection of past due amounts and any interest or cost of collection permitted by law or this Agreement.
Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST ZIFT. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) ("AAA") according to this provision and the applicable arbitration rules. A form for initiating arbitration proceedings is available on the AAA's website at www.adr.org.
33. Governing Law
This Agreement and any Dispute will be governed by Utah law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Utah, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction. You agree that any Dispute will be litigated or arbitrated, as applicable, in Utah County, Utah, and you consent to the jurisdiction of the courts sitting therein and agree that such a forum is not inconvenient to you.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Zift without restriction.
35. Amendment of Agreement and other Provisions
We have the right to amend this Agreement at any time and any use of our Service after our publication of any change shall be deemed your acceptance of such amendment. No modification or amendment to this Agreement shall be binding upon Zift unless in a written instrument signed by a duly authorized representative of Zift. Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and Zift. In the event of a conflict between this Agreement and any other Zift agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that Zift may have under trade secret, copyright, patent or other laws. Zift's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. All provisions that by their context are intended to survive the termination of this Agreement shall survive termination of this Agreement.