PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY
- Services. PaidYET agrees to perform transaction processing services for Merchant, including, but not limited to the acceptance and authorization of transactions forwarded from Merchant in a timely manner, the subsequent transmission of transactions to the processing network and the detailed reporting of those transactions via Merchant’s web based Merchant Menu (“Services”).
- Grant of Rights. PaidYET hereby grants Merchant a limited, non-exclusive, non-transferable right to the Services, solely for Merchant’s own business purposes.
- Merchant’s Use of Services. Merchant may not process orders on behalf of any other entity or individual and that the use of the Services is provided for a single Merchant account. Any attempt to use the Services for more than one Merchant account without PaidYET’s prior written consent may result in additional Fees (defined below) and/or termination of this Agreement. Merchant is responsible for all activity occurring under Merchant’s account and shall abide by all laws and regulations in connection with Merchant’s use of the Services, including those related to data privacy and the transmission of technical or personal data. Merchant shall: (a) notify PaidYET immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (b) report to PaidYET immediately and use reasonable efforts to stop immediately, any copying or distribution of information related to the Services that is known or suspected by Merchant; (c) not license, grant, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way; (d) copy any ideas, features, functions or graphics of the Services; (e) not reverse engineer, modify or make derivative works based upon the Services; or (f) not impersonate another PaidYET user or provide false information to gain access to or use the Services.
- Third Party Obligations. Merchant is responsible for the security of data residing on servers owned or operated by Merchant, or a third party designated by Merchant (e.g., a web hosting company, processor, or other service provider), including credit card numbers. Merchant shall provide notice to its customers on Merchant’s website that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement. Nothing in this Agreement shall prevent or restrict Merchant from using any information collected or received independent of Merchant’s performance under this Agreement.
- Fees. Merchant shall pay the fees for the Services indicated on the attached Schedule A, Fees, to be billed directly by PaidYET or by its registered resellers to the Merchant (“Fees”). Merchant will be considered in default when Fees have not been paid for 30 days and Merchant will be subject to an interest charge of 1.5% per month on the outstanding balance and PaidYET may suspend its Services and/or terminate this Agreement. If the relationship with the Merchant Service Provider that sold you the Services expires or terminates and such Merchant Service Provider billed Merchant directly for the Fees, then Merchant may continue using the Services. If Merchant elects to continue using the Services, Merchant acknowledges and agrees that PaidYET shall bill Merchant for such Fees in the amounts that the Merchant Service Provider had been charging Merchant and pursuant to the terms and conditions of this Agreement.
- Payment. Merchant will remit all amounts due under this Agreement on a monthly basis, and such payments shall be due on the first day of the month immediately following the date of this Agreement. Merchant authorizes PaidYET to charge Merchant’s credit card on file, or initiate transaction entries to Merchant’s bank account via ACH, for any and all amounts owing to PaidYET under this Agreement. Merchant agrees to pay all costs and expenses of whatever nature, including attorneys’ fees and other legal expenses, incurred by or on behalf of PaidYET in connection with the collection of all unpaid Fees.
- Indemnification. Merchant will indemnify, protect, defend and hold PaidYET and its affiliates, subsidiaries, officers, agents, employees, harmless from and against any and all claims, losses, demands, actions, expenses, damages, liability, causes of action, including without limitation, attorneys’ fees, other costs of defense and collection fees, which are incurred directly or indirectly from: (a) a breach of this Agreement or any warranty or representation made to PaidYET by Merchant; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Merchant or any of Merchant employees or agents; or (c) a violation of any law, rule or regulation by Merchant.
- Limitation of Liability. PaidYET shall in no event be liable to Merchant or its customers for any indirect, special or consequential damages or lost profits arising out of or related to this Agreement, the performance or breach thereof, or the accuracy or correctness of the Data (defined below) being passed to and from Merchant, even if PaidYET and/or Merchant has been advised of the possibility. PaidYET shall not be responsible or liable for unauthorized access to Merchant’s facilities, Data or programs due to accident, illegal or fraudulent means or devices. In no event shall PaidYET’s liability to Merchant exceed the total amount Merchant paid to PaidYET during the prior six (6) month period. Merchant agrees that any cause of action arising out of or relating to this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
- Representations and Warranties. Merchant represents and warrants to PaidYET all of the following:
- All representations and statements made by Merchant in this Agreement are true, accurate and complete in all material respects. Merchant hereby authorizes PaidYET to investigate and confirm the information. PaidYET may utilize credit bureau, reporting agencies, and/or its own agents and upon written request will provide Merchant with a copy of the results of such investigation.
- Merchant is engaged in the lawful business shown which includes the sale of merchandise and/or services, and Merchant is duly licensed to conduct such business under the laws of the state, county and city in which Merchant is located.
- Merchant agrees that the Services shall only be utilized for lawful purposes. Any transaction or transmission, which violates any Federal, state, or local laws, is expressly prohibited.
- Ownership. PaidYET shall retain full ownership of all data submitted by Merchant through the PaidYET Point Of Sale System (Point Of Sale refers to the electronic systems through which a Merchant may pass payment and other information to PaidYET) including, but not limited to name, mailing & shipping address, account information, card verification value, email address, phone number, dollar amount of purchase, type of purchase and description of purchase.
- Disclaimer of Warranties.. PAIDYET MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. PAIDYET DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET MERCHANT’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) THE SERVICES OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES ARE PROVIDED TO MERCHANT STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PAIDYET.
- Data Retention. Merchant is responsible for compiling and retaining permanent records of all transactions and other Data. Upon the termination of this Agreement, PaidYET shall have no obligation to store, retain, report or otherwise provide any copies of or access to any records of transactions or other Data collected or processed by PaidYET.
- Term and Termination. Merchant may terminate Services upon 30 days written notice. Merchant shall be liable for all Fees incurred until the Services are no longer performed on Merchant’s behalf. PaidYET reserves the right to cancel the Services at any time for any reason.
- General. This Agreement may be amended by PaidYET at any time upon written or electronic notice to Merchant of not less than ten (10) days prior to the effective date of such amendment, except for Schedule A, Fees which may be amended upon thirty (30) days’ prior written notice. This Agreement shall be governed by California law without regard to principles of conflicts of law, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, California. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Merchant and PaidYET. The failure of PaidYET to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. PaidYET will not be liable for performance of Services where such failure or delay is its performance arises out of causes beyond its control and without PaidYET’s fault or negligence. This Agreement, together with the attached Schedules, comprises the entire agreement between Merchant and PaidYET and supersedes all prior discussions or agreements, whether written or oral, between the parties regarding the subject matter contained in this Agreement.