STANDARD TERMS AND CONDITIONS between "Payment Online Credit Card Processing" and "Customer",
the parties described in the accompanying signed and executed Agreement,
and any Exhibit(s) or Amendment(s) (collectively, the "Agreement")
attached hereto, and is made effective as dated (the "Effective
Customer desires to obtain and Payment Online Credit Card Processing is willing to supply certain Internet based commercial services for Internet Web presence, merchant account services, online bill payer, direct bill pay to individuals, accept credit card payments online, electronic commerce, and/or payment processing services.
The following definitions shall apply to this Agreement.
A. "Payment Online Credit Card Processing" is an electronic commerce services company that provides the "Services" outlined in the attached Agreement and described in more detail below.
B. "Bank" or "Acquiring Bank", shall mean one or more of Payment Online Credit Card Processing's merchant account providers or merchant services banks, or other financial institutions that has the authority of one or more Credit Card Associations that has agreed to evaluate and provide merchant accounts and payment authorization services to Customer (as agreed upon in a separate Customer Account Agreement).
"Customer Account Agreement" shall mean an existing and current
agreement between Customer and Bank. The Customer Account Agreement,
also sometimes referred to as Customer Agreement, is not part of
D. "Customer" is a client of Payment Online Credit Card Processing and has entered into Agreement with Payment Online Credit Card Processing and is a party to this Agreement and has in existence one or more separate Customer Account Agreement/s with an Acquiring Bank.
E. "Billing Month" shall mean each billing cycle, consisting of approximately 30 days and ending on the last Friday of each month, used by Payment Online Credit Card Processing to bill its Customers for Services.
F. "Intellectual Property". All patent rights, intangible legal rights of design, idea, concept, technique, invention, or discovery regardless of patentability, trade names, mask-work rights, trade secrets, moral rights, author's rights, privacy rights, publicity rights, algorithms, copyrights (including, but without limitation, the right to reproduce and/or distribute copies of, display and perform the copyrighted work to prepare derivative work), copyright applications and registrations, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether such rights arise from the laws of the United States or any other state, country, or jurisdiction.
G. In addition to the terms defined in this Agreement, the following terms will have the meanings set forth below:
The words "Payment Online Credit Card Processing", "we", "our", and "as" mean Payment Online Credit Card Processing and the words "you" and "your" mean the Customer and its employees and Agents, if any.
2. THE PARTIES' RESPONSIBILITIES
A. Payment Online Credit Card Processing shall provide, and Customer shall use, the Services of Payment Online Credit Card Processing in this Agreement for the agreed upon fees. All fees shall be payable by Customer directly to Payment Online Credit Card Processing. The Setup Fee shall be payable at the time of execution of this Agreement. These fees are in addition to any Customer Account Discount Fees or other charges applied under a separate agreement between Customer and the bank or merchant account provider. The Customer's business checking account will be debited for the Monthly Fee for the Billing Month in the beginning of each month as per agreement using automatic withdrawal as signed and executed by an "Authorization Agreement for Automatic Withdrawal of Payments", which shall be provide to Customer upon signing of this Agreement. Should the Monthly Fee funds not be available, merchant will be notified by electronic mail transmission and shall be delinquent if not paid within five (5) days thereof. A LATE FEE will be charged on accounts that are more than thirty (30) days delinquent. This LATE FEE shall accrue interest at the rate of 1.5% per month (18% per annum). The Late fee is in addition to the Monthly Fee described in this Agreement.
Customer agrees that it will not perform or fail to perform any
act which would violate State or Federal law, where applicable,
including but not limited to, the Federal Equal Credit Opportunity
Act, implementation of Regulation B, the Federal Fair Credit Reporting
Act, the Federal Truth-In-Lending Act, Customer explicitly recognizes
that the Federal Truth-In-Lending Act and its implementing Regulation
Z require, and Customer agrees to provide a brief description of
the goods or services purchased with a Credit Card, together with
other disclosures. Customer further agrees to defend, save and hold
harmless Payment Online Credit Card Processing and indemnify Payment Online Credit Card Processing for any Damages
and all claims, actions, suits, losses and liabilities and costs
including attorneys fees, relating to or resulting from any violation
of, or failure to comply properly with, or claim or charge that
there has been a violation of or failure to properly comply with
Federal or State laws, rules or regulations arising out of any acts
or omissions of Customer.
C. Customer agrees that its Web pages facilitating the ordering of goods or services by Purchaser(s) shall comply with an appropriate format established by Bank. It is understood, acknowledged and agreed that Customer shall not process any transaction through Payment Online' Payment Transaction Processing services that is not in compliance with the terms of the Agreement between Customer and Bank.
D. Any advertising or other promotional material of Customer shall not be in violation of the provisions of this Agreement. The Payment Online name style and any registered trademarks or trade names of Payment Online Credit Card Processing shall remain the property of Payment Online Credit Card Processing and shall not be used by Customer except in compliance with this Agreement or independent written authorization from Payment Online Credit Card Processing Chief Executive Officer and shall in any event not be used by Customer except during the term of this Agreement and in accordance with this Agreement.
E. Except as expressly set forth in this Agreement, neither party will acquire any ownership interest in the other party's Intellectual Property Rights. All Intellectual Property Rights not specifically granted in this Agreement are reserved by the parties. Customer agrees that all Intellectual Property Rights created by Payment Online in connection with this Agreement, any modifications made by Payment Online Credit Card Processing, and all the documentation therefore and all renewals and extensions thereof, shall be entirely Payment Online Credit Card Processing's property, free of any claims whatsoever by Customer. Payment Online Credit Card Processing shall have the sole and exclusive right to register such Intellectual Property Rights.
F. Customer agrees that any Confidential Information received from Payment Online Credit Card Processing, shall not be used except as necessary to perform the obligations required under this Agreement, and shall be disclosed only to those of its employees as are necessary for the purposes hereunder, and shall not be disclosed to third parties without the written consent of the disclosing party during the term of this Agreement and four (4) years thereafter, and shall be kept in safe care as it would keep its own similar confidential information. After four (4) years the Confidential Information of Customer will be destroyed, unless the Customer requests otherwise or government laws and regulations prohibit such action. Confidential Information includes Any data or information, oral or written, treated as confidential that relates to either Party's (or, if either Party is bound to protect the confidentiality of any third party's information, such third party's) past, present, or future research, development, or business activities, including any unannounced products, solutions and services, any information relating services, developments, inventions, processes, plans, financial information, forecasts, and projections and the financial terms of this Agreement. Notwithstanding the forgoing, Confidential Information shall not apply to information if it was already known to the receiving party prior to the date of this Agreement as established by documentary evidence or it has been rightfully received by the receiving party from a third party and without any obligation of confidentiality of such third party to the owner of the Confidential Information or it is in or has entered into the public domain through no breach of this Agreement or other wrongful act of the receiving Party or it has been previously been approved for release by written authorization of the Party that is the owner of the Confidential Information, or it is required to be disclosed subject to an order from a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information has been given reasonable notice of such an order and the opportunity to contest it.
G. Customer shall not discriminate against persons making purchases using a Credit Card, either with respect to the exchange of, return of, or adjustment on goods or services purchased unless Customer conspicuously discloses its discriminatory refunds policy at the time of sale in accordance with the Federal Truth-In- Lending Act and Regulation Z. If Customer does not offer refunds or make such other restrictions, the words "no refund", or other appropriate terminology, shall be prominently and legibly displayed on the Customer's Web order page used by Purchaser.
Payment Online Credit Card Processing owns and operates an Internet Web Server on the World
Wide Web (the "Web") and provides Web hosting services to Customer.
B. Payment Online Credit Card Processing provides and maintains a network of dedicated server computers, routers, hubs, switches, or other equipment and Software (collectively, the "Network"), which is integrated with the Internet through an Internet Data Center. The Network sends and receives data and information in relationship to the Web. Customer acknowledges and agrees that neither Payment Online Credit Card Processing nor Payment Online's third party provider of Internet services can guarantee the uninterrupted provision of said service. Payment Online Credit Card Processing reserves the right to select any third party provider of Internet services, bandwidth provider, connectivity company, or any other organization, completely at its discretion and without any further notice to Customer.
C. Payment Online Credit Card Processing makes CGI processes available to Hosting Customers and has established a separate environment for those Customers utilizing Payment Online Credit Card Processing electronic commerce server(s). On the Payment Online Credit Card Processing electronic commerce server, Customer will not be allowed to load and/or run its own CGI scripts. All CGI's running on the Payment Online electronic commerce server(s) will be approved by Payment Online. Payment Online Credit Card Processing maintains the right to disable any CGI script and, if necessary, the Customer's Services without prior notice if Payment Online Credit Card Processing determines the script presents a security risk or a server upload. Any CGI scripts that are determined to be inherently malicious may result in termination of the Customer's Services and the pursuit of any and all legal remedies available to Payment Online Credit Card Processing.
D. Payment Online Credit Card Processing reserves the right to send Customer service e-mails notifying the Customer of operational or other changes that may affect or significantly change the current Services offered. Please note that Customer cannot opt out of such service e-mails because these service e-mails provide information critical for the operation of Customer's Services.
E. Payment Online Credit Card Processing also reserves the right to communicate with Customer regarding existing service offering, future service offering, promotions, modification of account services, amendments to terms and conditions and Payment Online Credit Card Processing web site tools and services, ("Service and Account Communication") in the form of e-mail, direct mail or telephone contact (the latter during normal business hours of 9:00 a.m. - 5:00 p.m. Pacific Time).
F. Payment Online Credit Card Processing is not responsible for the content of any Web page hosted by Payment Online Credit Card Processing. The opinions and views expressed in the Payment Online Credit Card Processing hosted Web pages do not necessarily reflect those of Payment Online Credit Card Processing and are not reviewed in any way before they appear on our server(s). As the author of Web pages hosted by Payment Online, Customer takes full responsibility for their contents. Customer agrees not to use the Web space to provide material that is grossly offensive to the Web community, including, but not limited to, blatant expressions of bigotry, racism, hatred, profanity or for promoting or providing instructional information about illegal activities or promoting physical harm or injury against any group or individual.
G. Payment Online Credit Card Processing Hosting shall be used for lawful purposes only. Transmission or solicitation of any material that violates United States State, Federal, or other laws that may apply is prohibited. Payment Online Credit Card Processing hosted pages cannot contain, or provide links to, materials that Payment Online Credit Card Processing, in its sole discretion, may consider illegal or offensive, including, but not limited to: (i) copyrighted material not belonging to Customer (such as music, images, software or video) unless Customer has the prior consent of the copyright owner; (ii) trademarked material not belonging to Customer (such as logos, slogans, trademarks, design marks or a combination thereof) without prior consent of the trademark owner; (iii) adult content (such as pornography, nudity, sex or any other material that would commonly be considered "indecent") (iv) mail or electronic mail fraud; (v) hate-group statements and propaganda; (vi) Ponzi or Pyramid schemes; (vii) online gambling; (viii) MP2 or MP3 files; (ix) obscene language; (x) any material that is obscene, threatening, harassing, libelous or in any way a violation of intellectual property laws.
H. Customer shall not use their Payment Online Credit Card Processing hosted Web pages to conduct any of the following activities: (i) Sell or promote the use of weapons; (ii) Send bulk (spam) e-mail from a Payment Online mail server, or sending such e-mail with a hosted Web site listed as the contact address; (iii) Send spam news postings; (iv) advertise or distribute product or services that may contribute to news or e-mail spamming; (v) disclose the trade secrets of any other entity or individual; (vi) use trademarks or patented materials without the prior consent of the patent owner; (vii) rent, sell or otherwise distribute Hosting to third parties; (viii) Conduct any other activities, that Payment Online Credit Card Processing determines, in its sole discretion, to be illegal or an unreasonable utilization on system resources.
It is impermissible to use Payment Online Credit Card Processing Hosting servers for the
following purposes: (i) to act as proxies to access other servers
including, but not limited to: File Transfer Protocol (FTP) or Hypertext
Transfer Protocol (HTTP); (ii) to run any type of server or daemon
including, but not limited to, ICQ or FTP; (iii) to launch malicious
attacks on other Internet servers including, but not limited to,
denial of service attacks, mail bombs, hack attacks, spamming, port
scanning or port probing; (iv) to connect directly to external servers
using, for example, Internet Relay Chat (IRC), port scanning or
any other unauthorized connection; (v) to open sockets of any kind
including but not limited to, ICQ, IRC or FTP; (vi) to provide CGI
for any third party; (vii) to act as a file repository or to serve
files for other sites; or (viii) to conduct any other activity that
Payment Online Credit Card Processing determines, in its sole discretion, to be an improper
use of the Payment Online Credit Card Processing Hosting servers.
J. Payment Online Credit Card Processing reserves the right to terminate Customer's Hosting or remove any hosted page if it determines, in its sole judgment, is in violation of any provision of this Agreement.
K. WITH RESPECT TO THE HOSTING PROVIDED HEREUNDER, MERCHANT ACKNOWLDEGES THAT SUCH SERVICES ARE PROVIDED "AS IS" AND THAT Payment Online Credit Card Processing MAKES ABSOLUTELY NO WARRANTY OF ANY KIND, IMPLIED OR STATUATORY, FOR SECURE WEB HOSTING SERVICES INCLUDING WITHOUT LIMITATION PAYMENT ONLINE EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIESOF NON-INFRINGEMENT AND MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4. USE OF SOFTWARE
A. Payment Online Credit Card Processing owns all rights to certain Software that enable Customer to create an Internet storefront on the Web for the purposes of conducting electronic commerce or Internet presence. Customer shall not use Software in any manner to provide computer services to third parties, nor sublicense, transfer or distribute Software, or any portion thereof, to any third parties. Customer shall not reverse engineer, disassemble, de-compile, alter or modify Software in any way. Customer shall not add unauthorized programs, whether developed by Customer or others, to Software. Customer is using the Software shall mean the object code version of Payment Online Credit Card Processing's Software, CGI Scripts, HTML code, application programming interfaces (APIs), associated documentation and other client Software or code which Payment Online Credit Card Processing provides to the Customer, including updates, to enable the Customer to use Payment Online Credit Card Processing's Services. The Software is proprietary to Payment Online Credit Card Processing and is not licensed to the Customer under a separate license agreement.
5. TRANSACTION PROCESSING
A. Customer can enter Transactions received by mail, by telephone, by fax, or in person from Purchaser using the manual online data entry screen ("Virtual Terminal") provided by Payment Online Credit Card Processing.
B. If the Credit Card Transaction is approved by the Acquiring Bank or its agents, an on-screen notice of acceptance must be displayed.
C. Customer will have access to Transaction reports, including Credit Card numbers and expiration dates from Payment Online Credit Card Processing via a secure Web based interface. These reports may be reviewed by Customer and printed. This will provide to Customer daily a settlement statement regarding all transactions for each day so that funds can be transferred by the Acquiring Bank to Customer's checking account within the time period provided for in Customer Account Agreement between Customer and Acquiring Bank.
D. If the Customer's agreement with Bank so requires, Customer agrees to request authorization from its Bank's authorization center on certain specified Transactions and provide that information to Payment Online. Transactions where authorization may be required include, but are not limited to: (i) The Purchaser's signature is questionable; (ii) the transaction is of a type with a zero floor limit or where the total amount of the transaction (including any applicable taxes) exceeds the floor limit then applicable to the transaction; (iii) the account number is listed on the most current Warning Bulletin provided to the Customer by the Bank.
E. If the Purchaser's Credit Card is denied during manual processing by Customer, an on-screen notice of non-acceptance will be displayed and at that time Customer can re-enter another card or correct the name and/or address of the Cardholder. If the Purchaser's Credit Card is denied during automated real-time processing, Customer can re-process with modifications or corrections using the manual data entry screen. Each denial is documented on the daily transaction report obtainable from Payment Online Credit Card Processing.
Customer warrants that all Transactions tendered to Payment Online Credit Card Processing
will represent obligations of Cardholders to Customer for bonefide
Transactions in the amount set forth thereon for property sold and/or
services rendered only, and shall not involve any element of credit
for any other purpose and shall not involve Customer receiving or
accepting any payment from the Purchaser for any charge included
in a transaction resulting from the use of Credit Card. Customer
agrees not to make any cash advance or withdrawals to any Cardholder.
G. Customer will not require that information be provided for each transaction other than information provided for in Customer's Web based order page.
H. Customer shall not, without the Cardholder's written consent, sell, purchase, exchange, provide or otherwise disclose any Purchaser's Credit Card account information obtained by the Customer as a result of a Transaction covered by the terms of this Agreement to any third party other than Customer's agents and processing organizers, including the Acquiring Bank, for the purpose of assisting Customer in its business or as required by law. All information regarding the Purchaser so obtained shall be maintained in a reasonably secured manner with limited access to selected personnel until discarding and must be destroyed in a manner that will render the data unreadable.
I. Payment Online Credit Card Processing shall have the right to verify all transactions and to examine Customer's books, records and other papers relating to Transactions covered by the terms of this Agreement. For this purpose, Customer shall preserve all records pertaining to such Transactions for a period of at least one (1) year from the date thereof.
J. Customer agrees to indemnify Payment Online Credit Card Processing and hold Payment Online harmless from Damages and against any and all claims, demands, liability and causes of action by any person imposed by way of claim without commencement of litigation or arbitration, defense, setoff or counterclaim arising from a transaction covered by the terms of this Agreement.
K. All right, title and interest in and to any original works of authorship, inventories, discoveries, patents, ideas, concepts or any improvements relating to Payment Online Credit Card Processing's Services which are created by or conceived, first reduced to practice, made or developed by Payment Online Credit Card Processing prior to the Effective Date or in anticipation of, in the course of or as a result of design and development work pursuant to this Agreement, including without limitations any source code (collectively, the "Intellectual Property"), shall be solely owned by Payment Online Credit Card Processing. In any application in which Payment Online Credit Card Processing develops the programming, unless otherwise agreed in writing, Payment Online is the sole owner of the Source code. Neither party shall publish or use or change the other party's names, logos, trademarks or service marks (collectively, "Marks") in any manner inconsistent with the functional use of the Payment Online Credit Card Processing application without mutual prior written consent. Customer agrees to prominently display the Payment Online Credit Card Processing "ICON" for all materials provided while this Agreement is in effect or until notified by Payment Online Credit Card Processing it cease its display or use. All documentation regarding Intellectual Property, technical information, Software, confidential business information or other materials, in written or electronic form and clearly marked as "Proprietary" or "Confidential" ("Proprietary Information"), furnished by either party in connection with this Agreement and all copies of such Proprietary Information shall remain the property of the disclosing party and shall be held in confidence and safeguarded by the receiving party.
L. Customer agrees not to create a transaction that Customer knows or should have known to be fraudulent.
M. The access, merchandise or services described for sale by Customer must actually be delivered or performed immediately or in fully disclosed time frame otherwise specified to Purchaser.
N. Customer agrees not to engage in any Transactions involving cash advances or extensions of credit for any purpose, unless specifically authorized in writing by Payment Online Credit Card Processing to do so.
O. Customer agrees not to encourage a Transaction to replace uncollected funds from another payment method, such as to cover a returned check.
P. Customer agrees not to require personal information about the Purchaser, such as the home or work address, telephone or driver's license number or Social Security number, as a condition of sale.
Q. Customer agrees that Payment Online Credit Card Processing may contact or directly communicate with any Purchaser concerning any sale or transaction submitted to or through Payment Online Credit Card Processing, mainly for purposes of credit card fraud protection and security procedures, excluding any communications for the sole purpose of solicitation for Payment Online Credit Card Processing products and services.
Customer shall fully disclose the following in a clear and understandable
manner in the on-screen order acceptance Web page: (i) "Real-time
Payment Processing is powered by Payment Online Credit Card Processing", (with a hyperlink
to www.paymentonline.com); (ii) the charges for the Customer's product
and/or services sold with regards to that Transaction, (iii) expected
delivery lead time; (iv) that Customer is solely responsible for
the content of all messages, products or services delivered and
all representations on its Web site; (v) any other information required
by State or Federal law, Acquiring Bank, and/or Credit Card Association.
6. RETURNS AND EXCHANGES
A. Customer agrees to establish and maintain a fair and uniform policy for the exchange and return of products or services sold. Customer also agrees to give only non-cash credit, upon caller request for return, and not to refund cash unless otherwise agreed to by the Acquiring Bank. All disputes involving the goods or services purchased via Payment Online Credit Card Processing processing network will be settled between the Customer, Bank, and the Purchaser. Customer agrees to indemnify and hold Payment Online Credit Card Processing harmless from any claim or liability relating to any such dispute. Customer agrees to provide Payment Online, upon demand, with any information, evidence, assignments or other assistance Payment Online Credit Card Processing may need to help resolve any customer billing disputes regarding the nature, quality or performance of the goods or services, or in connection with any return or rejections of such goods and services offered, or supplied by the Customer or on the Customer's Web site.
7. WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION
A. NO WARRANTY: Payment Online Credit Card Processing MAKES NO WARRANTY, EXPRESSED OR IMPLIED, WITH RESPECT TO ITS SERVICES OR TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR SUITABILITY OF SERVICES FOR MERCHANT'S APPLICATION, PRODUCTS OR SERVICES.
B. LIMITATION OF LIABILITY: Payment Online Credit Card Processing'S ENTIRE LIABILITY RESULTING FROM Payment Online Credit Card Processing'S FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT SHALL BE MERCHANT'S ACTUAL DIRECT DAMAGES, BUT NOT TO EXCEED THE AMOUNT PAID TO Payment Online Credit Card Processing BY MERCHANT FOR SERVICES PURSUANT TO THIS AGREEMENT. IN NO EVENT SHALL PAYMENT ONLINE BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL, EXEMPLLARY OR PUNITIVE DAMAGES OR FOR LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, WHETHER OR NOT Payment Online Credit Card Processing HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 SHALL APPLY (i) REGARDLESS OF THE FORM OF CLAIM OR ACTION, AND (ii) WHETHER OR NOT DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL Payment Online Credit Card Processing BE LIABLE FOR: (i) ANY BILLING, COLLECTION, TECHNICAL, OR OTHER MISTAKES, ERRORS, OR OMISSIONS; OR (ii) CLAIMS, DEMANDS OR ACTIONS AGAINST MERCHANT BY ANY OTHER PARTY.
C. The liability of Payment Online Credit Card Processing to Customer with respect to any transaction shall be limited to the obligation of Payment Online Credit Card Processing upon written notice from the Customer or the Purchaser to re-process the transaction at no additional expense. Payment Online Credit Card Processing shall in no event be liable for incidental or consequential damages whatsoever.
D. Indemnification/Hold Harmless: Customer shall indemnify and hold harmless Payment Online Credit Card Processing, its agents, employees, officers and directors from and against any and all fines, penalties, losses, damages, injuries, claims, (including attorney's fees) or other liabilities arising out of or in connection with or the performance of this Agreement and caused by the acts of omission, negligent or otherwise, of Customer or a subcontractor employee or an agent of Customer indicating but not limited to claims of third parties resulting from or in connection with the Customer's products, services, Web site, electronic messages, offers, agreements with Purchaser, contracts, promotions and advertising disseminated, broadcast, furnished or supplied by Customer or any employee or customer or any one of them or any claims for trademark or patent infringement or any claim for libel or slander or any failure of the Services to comply with applicable law.
E. Non-payment of remittance: Payment Online Credit Card Processing will not be liable for payment of any remittance or portion thereof which result from: (i) transactions that are ineligible, fraudulent or illegal, or that violate the rules of the Credit Card Associations or the Customer Account Agreement with the Bank, (ii) transactions the Purchaser claims to have been performed without their consent, (iii) transactions in which the Purchaser disputes any liability because the merchandise or services were not received or were returned, rejected, or defection, or because Customer failed to perform any obligation in connection which such merchandise or services.
A. Term: This Agreement shall become effective when executed by Customer and accepted by Payment Online Credit Card Processing and shall remain in effect until terminated by written notice. The term of this Agreement shall be for a period of 12 months (hereinafter the "Primary Term") from the Effective Date shown on the Order Form. Following the completion of the Primary Term, this Agreement will be extended automatically indefinitely until written notice of termination is received by either party at least thirty (30) days in advance of the original date of termination. At any time ninety (90) days after the Effective Date, Payment Online Credit Card Processing reserves the right to increase or adjust the monthly fees and/or transaction fees set forth in this Agreement to the new Payment Online Credit Card Processing rates, subject to a thirty (30) days advance notice mailed to the Customer. Upon receipt of the thirty (30) days advance notice of rates increase, the Customer can continue the use of Payment Online Credit Card Processing's Services at the increased rates or terminate the Agreement without any penalties.
B. BY Customer: If Payment Online Credit Card Processing fails to perform or observe any material term or condition of this Agreement and such failure continues un-remedied for thirty (30) days after receipt of written notice, Customer may cancel this Customer Service Agreement without liability for cancellation or termination charges, and the Customer shall only be liable for any applicable charges prior to the date of termination.
C. By Payment Online Credit Card Processing: Payment Online Credit Card Processing may terminate this Agreement, seize any incoming funds and discontinue its Services to the Customer immediately if: (i) Customer fails to pay any charge within thirty (30) days of due date; (ii) Customer significantly changes the scope or focus of this Agreement without the prior written consent of Payment Online Credit Card Processing; (iii) breaches any part of this Agreement and such condition continues un-remedied for ten (10) days after receipt of written notice; (iv) Customer's insolvency, bankruptcy, receivership, or dissolution; (v) Customer's actual or attempted assignment of the Agreement or any of its duties under this Agreement to another party, except as specified in section 9(B) of this Agreement; (vi) Customer's making gross misrepresentations to actual or prospective Purchaser that have not been remedied within 30 days; (vii) Customer's death or incapacity if a natural person; (viii) if Payment Online Credit Card Processing receives continuous complaints regarding Customer's web site, contents, messages, representations, promotions, advertising, products or services or if claims are made arising from them; or (ix) in the event that Payment Online Credit Card Processing reasonably believes that the Customer's conduct (including without limitation intentionally transmitting inaccurate and/or incomplete data to Payment Online Credit Card Processing) or its products or services violate applicable law or pose a threat to Payment Online Credit Card Processing's systems, equipment, processes, or Intellectual Property (the "Threat"). Payment Online Credit Card Processing will provide the Customer with notice of the Threat, upon receipt of which Customer agrees to exercise best efforts to cure said Threat. If in the reasonable and good faith determination of Payment Online Credit Card Processing, Threat pose an imminent or actual threatening condition to Payment Online Credit Card Processing's systems, equipment, processes, or Intellectual Property, Customer agrees to suspend any and all activity on Customer's use of Payment Online Credit Card Processing Services until such Threat is cured. In any event, Payment Online Credit Card Processing may terminate this Agreement without further requirements of notice if the Threat remain uncured more than thirty (30) calendar days after Customer is notified of the Threat.
D. Effect of Termination: Upon termination by Payment Online Credit Card Processing, Customer shall be liable for any applicable charges. In addition, Payment Online may terminate this Agreement without cause with at least thirty (30) days prior written notice to Customer specifying the exact date and time of such termination.
E. After Termination: Upon termination or expiration of this Agreement, (i) each party shall immediately discontinue all representations or statements from which it might be inferred that any relationship exists between the two parties; (ii) each party agrees not to act in any way to damage the reputation of the other party or the other parties; (iii) Customer shall no longer submit transactions to Payment Online; (iv) Customer shall, within thirty (30) calendar days of a written request from Payment Online Credit Card Processing, return, at Customer's expense, any Confidential Information or Intellectual Property provided by Payment Online Credit Card Processing for purposes of this Agreement. Any Transactions in process at the time of termination are the responsibility of Customer, for both maintaining its records with respect to transactions and its processing through Acquiring Bank. Notwithstanding any other provision of this Agreement, Payment Online Credit Card Processing may amend this Agreement by providing not less than ten (10) days prior written notice of such amendment and its terms to Customer.
A. Force Majeure: Neither party hereto nor their respective affiliates, subsidiaries, or subcontractors shall be responsible for nor have any liability for Damages or delays due to any failure to perform its obligation under this Agreement if such failure is caused by war, strikes or labor disputes, revolutions, lack or failure of transportation facilities, fire, explosion, lightning, pest damage, power surges or failures, water, acts of God, the elements, civil disturbances, acts of civil or military authorities or the public enemy, inability to obtain parts or supplies or network access, fuel or energy shortages, acts or omissions of any Internet bandwidth providers, local exchange companies, or other causes beyond a party's control whether or not similar to the foregoing. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cession of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than thirty (30) calendar days, the parties hereto shall consult with each other to determine whether this Agreement should be modified. The party facing an event of force majeure shall use reasonable commercial efforts to remedy that situation as well as to minimize its effects. A case of force majeure shall be notified to the other party within ten (10) days after its occurrence.
B. The Customer may not assign this Agreement without the prior written consent of Payment Online Credit Card Processing, which consent shall not be unreasonably withheld. Payment Online Credit Card Processing may assign this Agreement, without consent, to: (i) a subsidiary, affiliate, or parent company; (ii) any firm, corporation or entity which Payment Online Credit Card Processing controls, is controlled by, or under common control with; (iii) any partnership in which Payment Online Credit Card Processing has a majority interest; (iv) a distributor, reseller, or agents; or (v) to any entity which succeeds to part, or all or substantially all of Payment Online Credit Card Processing assets whether by merger, acquisition, sale or otherwise.C. Customer Investigations: Customer acknowledges and agrees that it is entering into this Agreement based upon its own independent decision and investigation.
D. Payment Online Credit Card Processing may, at its option, perform a credit check on all new or existing Customers.
E. Invalid or Non-enforceable Provisions: If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, the parties agree that the remaining provisions shall remain in effect, and in any such occasion this Agreement shall be construed in all respects as if such invalid or non-enforceable provision were omitted. The parties further agree that in the event such invalid or unenforceable portion is an essential part if this Agreement, they will immediately begin negotiations for a replacement.
F. Failure by Payment Online Credit Card Processing to enforce any of its rights under this Agreement shall not constitute a waiver of any right not enforced, nor of any of Payment Online Credit Card Processing's other rights under this Agreement.
G. Amendments and Modifications: Payment Online Credit Card Processing may make amendments or modifications, from time to time, to this Agreement. Whenever practical, Payment Online Credit Card Processing will give Customer advance notice of the changes to this Agreement. Should any amendment or modification be made that impacts in any way the nature, quality or availability of the services provided by Payment Online Credit Card Processing, Customer reserves the right to review any such amendments or modifications, and to advise Payment Online Credit Card Processing of any concerns of objections Customer may have regarding the amendments or modifications. In the event that such concerns or objections cannot be adequately resolved to the satisfaction of both parties, either party reserves the right to terminate this Agreement.
H. Notices: Any notice, approval, request, authorization, direction or other communication required by this Agreement will be effective and deemed delivered: (i) three (3) business days after posting with the United States Postal Service when mailed by certified mail, return receipt requested, properly addressed and with the correct postage, (ii) one (1) business day after pick-up by the courier service when sent by overnight courier, properly addressed and prepaid, (iii) one (1) business day after the date of the sender's electronic confirmation of electronic mail or receipt when sent by facsimile transmission. Notices will be sent to the address or FAX numbers set forth in this Agreement, unless either party notifies the other in writing of an address or FAX number change.
I. Limitation of Actions: Any legal action brought by Customer against Payment Online Credit Card Processing with respect to this Agreement must be within one year after the cause of action arises.
Choice of Law/Venue: This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New York and the venue for any action or litigation relative to this Agreement shall be litigated in the appropriate legal forum in the City of New York, in the state of New York.
Payment Online, L.L.C. 450 W 17th Street New York, NY 10011 U.S.A.