ChargeNET, Inc. Service and Software
License Agreement
Welcome to ChargeNET, Inc. (ChargeNET) In order for you, on behalf of your
company, to obtain or continue using the transaction processing services as
described at http://www.chargenet.com, as such descriptions may be changed by
ChargeNET, Inc. from time to time (the "ChargeNET Services"),
you must agree to and accept the terms and conditions of this agreement (the
"Agreement"). This Agreement sets out the terms and conditions
under which you may utilize the ChargeNET Services. Please read this Agreement
carefully. It is important that you understand that upon your acceptance of
this Agreement, by continuing to use any of the ChargeNET Services and/or by
clicking on the "I ACCEPT" button at the end of this Agreement, it
becomes a legally binding contract.
By continuing to use any of the ChargeNET Services and/or by clicking on the
"I ACCEPT" button you represent that you have reviewed and understand
the Agreement and agree to be legally bound by all its terms and conditions
(including the terms and conditions stated on web pages incorporated by
reference herein). If you do not agree or are not willing to be bound by the
terms and conditions of this Agreement, please do not click on the "I
ACCEPT" button and do not seek to obtain or continue using the ChargeNET
Services.
NOW THEREFORE, you, on behalf of your company, (“You”) agree as follows:
1.
Your Capacity and Related Matters. By accepting the terms and conditions of this
Agreement, You represent and warrant that You are 18 years of age or older,
that all information You have provided to ChargeNET is true and correct in all
respects, and that You will update ChargeNET by e-mail with any changes to
information You have previously supplied. You further represent and
warrant that You have the legal authority to accept
the terms and conditions of this Agreement on behalf of your company and that
such acceptance will be binding on You and your company. ChargeNET
reserves its right to refuse to provide You with any
ChargeNET Services, with or without notice, if You have supplied any
information which is misleading, untrue, inaccurate or incomplete.
2.
Term. The term of this Agreement (the “Term”)
shall commence on the “Effective Date” and, unless earlier terminated in
accordance with this Agreement, continue thereafter unless and until either
party provides the other party with at least thirty (30) days written notice of
its intent to terminate this Agreement. The date this Agreement is
accepted by You by clicking the “I ACCEPT” button
below is referred to as the “Effective Date”.
3.
Undertakings of ChargeNET.
3.1 ChargeNET
Services. ChargeNET.
shall provide to You, a software system that is
designed to enhance the capabilities of the Authorize.Net and or Plug N Pay Payment Gateway
System. You understand and agree that
Authorize.Net and or Plug N Pay assumes no liability for the successful
operations of ChargeNET and ChargeNET assumes no liability for the successful
operations of Authorize.Net or Plug N Pay.
You must maintain an active Authorize.Net or Plug N Pay account, in good standing, in order to
utilize the services of the ChargeNET system.
3.2 Other Services. ChargeNET shall
provide the ChargeNET Services to You in all material
respects in accordance with the applicable documentation made available to You
by ChargeNET, and the terms and conditions of this Agreement and consistent
with all applicable laws and regulations.
3.3 Data Security. ChargeNET has
implemented and will maintain security measures that provide commercially
acceptable security for the transport of “Transaction” data using the
Internet. ChargeNET does not warrant that “Transaction” data will be
transported without interception or modification. For purposes of this
Agreement, “Transaction” means any credit card authorization, credit,
ticket only, batch settlement, or decline transaction completed or submitted by
You to ChargeNET.
4.
Undertakings of You.
4.1 ID and Password. In connection
with Your rights described in Section 6.1, ChargeNET
will issue to You, or permit You to continue using the ID and password given to
You by ChargeNET or a "Merchant Service Provider", to enable You
and/or Your employees and agents to access Your gateway account and use the
ChargeNET Services. For purposes of this Agreement, a "Merchant Service
Provider" shall mean any third party through whom ChargeNET may
provide the ChargeNET Services and Software to You, including but not limited
to a reseller, ISO, application service provider, merchant aggregator,
acquiring bank or financing agency. You will restrict access to such ID,
password, and account to Your employees and agents as may be reasonably
necessary consistent with the purposes of this Agreement and will ensure that
each such employee and agent accessing and using the account is aware of and
otherwise complies with all applicable provisions of this Agreement regarding
such use and access. You are solely responsible for maintaining adequate
security and control of any and all IDs, passwords, or any other codes that are
issued to You by ChargeNET or a Merchant Service
Provider for purposes of giving You access to the ChargeNET Services. ChargeNET
shall be entitled to rely on information it receives from You
and may assume that all such information was transmitted by or on behalf of
You.
4.2 Data Security. You are solely
responsible for the security of data residing on the server of You, or a third
party designated by You (e.g., a web hosting company, processor, or other
service provider), including credit card numbers.
4.3 Transaction Monitoring. You are solely responsible for monitoring
the daily transaction activity on your ChargeNET account in order to correct
any improper, duplicate or fraudulent transactions. Incorrect transactions may be present for any
number of reasons that are beyond the scope of this agreement. You are solely responsible for the correction
of any improper transaction.
4.4 Compliance with Law. In
connection with the exercise of Your rights and obligations under this
Agreement (including, without limitation, any related to individual privacy),
You will comply, at Your own expense, with all applicable laws, regulations,
rules, ordinances and orders of governmental authorities having jurisdiction.
4.5 Use of the ChargeNET Services.
You shall not use the ChargeNET Services in any manner, or in furtherance of
any activity, which constitutes a violation of any law or regulation or which
may cause ChargeNET to be subject to investigation, prosecution, or legal
action.
4.6 Prohibited Activities. You
agree that You will not at any time conduct Your business in any manner that
directly or indirectly offers, sells, leases, licenses, displays, delivers,
advertises, recommends, or promotes any product(s), service(s), data,
information, image(s), text and/or other web site content, which is: (i) unlawful or violates any applicable local, state,
national or international law, ordinance or regulation having the force of law;
(ii) defamatory, libelous, slanderous, abusive, threatening or harassing
towards others; (iii) a sweepstakes, lottery, raffle, multi-level marketing
program, chain letter or pyramid scheme; (iv) an unfair, unlawful or deceptive
business practice; (v) racially or otherwise offensive, hateful, bigoted or
intolerant; (vi) in violation of any privacy or data protection law or right;
(vii) infringe or violate any patent, copyright, trademark, trade secret, right
of publicity or privacy or other proprietary right under the laws of any
jurisdiction; (viii) transmit or deliver in any material that contains viruses,
worms, Trojan horses, time bombs and any other harmful or damaging software or
other technology or the means for developing any of the above; (ix) advocate,
promote and/or provide assistance in carrying out violence or any other
unlawful activity against any persons or any governments, businesses or other
entities; (x) the subject of any government investigation or proceedings; (xi)
any form(s) of gambling; or (xii) not consistent with prevailing Internet
“Netiquette” standards, as determined by ChargeNET in its sole
discretion.
5.
Data. You hereby consent, as a condition of Your
enrollment in the ChargeNET Services, to the collection, use, processing and
transfer of personal data as described in this paragraph and ChargeNET's privacy policies, as they may be published on
the ChargeNET web site and changed from time to time by ChargeNET, for the
purposes described in this Agreement. You understand that ChargeNET will
collect and hold personal or non-public information about You, including but
not limited to Your name, address, telephone number, e-mail address, date of
birth, social security number and/or tax identification number, salary, job
title and credit history for the purpose of considering eligibility for the
ChargeNET Services ("Data"). You also understand and agree
that ChargeNET may obtain various consumer reports regarding You
from third parties, run a credit check or obtain other personal or credit
information about You. You further understand and agree that ChargeNET, its
suppliers and/or their agents/contractors may transfer Data among themselves as
necessary for the purpose of the provision and management of the ChargeNET
Services, and that ChargeNET may further transfer Data to third parties
assisting ChargeNET in evaluating Your eligibility for, provision of,
administration and management of the ChargeNET Services, as well as under
circumstances described in ChargeNET's privacy
policies, as they may be published on the ChargeNET web site and changed from
time to time by ChargeNET. In addition, You agree to
provide notice to consumers on Your Internet web site transaction page(s)
disclosing how and why personal information is collected and used and otherwise
comply with all state and federal data privacy laws.
6.
ChargeNET Services.
6.1 ChargeNET Grant. ChargeNET
hereby grants You a non-exclusive, royalty-free,
fully-paid up right, during the Term, to use the ChargeNET Services, subject to
the restrictions herein and any other restrictions communicated by ChargeNET to
You, only as necessary to perform hereunder and for no other purpose.
6.2 Limitations. Your use of the
ChargeNET Services shall be restricted to a single merchant acquiring bank
account and You shall not submit payment data to
ChargeNET or otherwise process orders on behalf of any other entity or
individual. Any attempt by You to use the
ChargeNET Services for more than one merchant acquiring bank account or on
behalf of another entity or individual may result in an obligation to pay to
ChargeNET additional fees and charges and/or ChargeNET’s
revocation of Your right to use the ChargeNET Services and termination of this Agreement.
7.
Software License.
7.1 ChargeNET Grant. ChargeNET
hereby grants to You a non-exclusive, royalty-free, fully-paid up license,
during the Term to use certain ChargeNET software related to ChargeNET’s provision of the ChargeNET Services (the “Software”),
subject to the restrictions herein and any other restrictions communicated by
ChargeNET to You, only as necessary to send payment data to ChargeNET and/or
receive authorizations of or other information regarding credit card transactions,
and for no other purpose.
(a) ChargeNET may, in its discretion, issue updates, corrections, and
new releases (each a “Change”) to the Software. ChargeNET is not
responsible for any damages suffered as a result of any such Change. If
ChargeNET chooses to issue a Change, the terms of this Agreement shall apply to
such Change and the same shall be treated as Software hereunder. Changes may
require that You agree to additional or revised terms
and conditions as a condition of continued use of the Software. Unless
otherwise agreed to by ChargeNET in writing, ChargeNET shall have no obligation
to provide Changes, maintenance, or support to You or
to any person to whom You provides access to the Software.
(b) If the Software or any component of the Software becomes, or in ChargeNET’s opinion is likely to become, the subject of a
claim of infringement of any third party right, then You shall permit
ChargeNET, at its option and expense, either: (i)
to procure for You the right to continue using the Software as permitted in
this Agreement, or (ii) to replace or modify the Software or the infringing
component of the Software so that it becomes non-infringing. If, after using
commercially reasonable efforts, ChargeNET is unable to cure the infringement,
either party may terminate this Agreement on written notice to the other party.
7.2 Limitations.
(a) You may not sub-license the Software or create derivative works from
the Software without the prior written consent of ChargeNET.
(b) Use, duplication or disclosure by or on behalf of U.S. Government
entities is subject to restrictions set forth in subparagraphs (a) through (d)
of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when
applicable, or in subparagraph (c)(1)(ii) of the
Rights in Technical Data and Computer Software clause at DFARS 252.227-7013,
and in similar clauses in the NASA AR Supplement. The contractor/manufacturer
is ChargeNET Corp., 2211 Sheridan Drive, Buffalo, New York 14223 USA.
(c) You may not setup, download or otherwise export or re-export the
Software or any of its components, data, code or technology except in full
compliance with all United States and other applicable laws and regulations. In
particular, but without limitation, none of the Software or it’s components,
data, code or technology may be downloaded or otherwise exported or
re-exported: (i) into (or to a national
resident of) Cuba, Iraq, Libya, Sudan, North Korea, Afganistan,
Iran, or Syria, or (ii) to anyone on the U.S. Treasury Department’s list of
Specially Designated nationals or the U.S. Commerce Department’s Table of Deny
Orders. By using the Software, You will be agreeing to the preceding terms and
representing and warranting that You are not located
in, under the control of, or a national or resident of any such country or on
any such list.
(d) If You acquire this Software License
through a financing arrangement under which ChargeNET or an authorized Merchant
Service Provider is to be paid by a third party financing agent (hereafter
referred to as a "Finance Contract"), Your rights to access the
Software may be limited by the terms of the Finance Contract. You agree to hold
ChargeNET harmless from any and all claims and/or damages that may arise from
the enforcement of any such Finance Contract.
8.
Customer Service. During the Term, if You are current in payment
of all fees owing to ChargeNET and are otherwise not in default under this
Agreement, ChargeNET shall provide customer service to You, as set forth in the
Support Services section of the ChargeNET web site at the URL http://www.ChargeNET.com
9.
Fees. You shall pay the fees set forth in the Fee Schedule set forth in your
general settings menu selection of the Merchant Control Panel (the "Fees"),
which is hereby incorporated into the terms of this Agreement by reference. If
the amount(s) of one or more of the Fees listed in the Fee Schedule is more
than zero, ChargeNET shall bill and collect such Fee(s) from You.
If the amount(s) of one or more Fees listed in the Fee Schedule is zero or
blank, ChargeNET shall not charge, bill, or collect from You
any such Fees. However, a Merchant Service Provider may charge, bill, and
collect such Fees from You, in the amounts stated in
and in accordance with the terms and conditions of the agreement between You
and such Merchant Service Provider. Notwithstanding the foregoing, if Your
relationship with a Merchant Service Provider that sold you the ChargeNET
Services expires or terminates, such Merchant Service Provider was billing You
for certain Fees, and You continue using the ChargeNET Services through a
direct relationship with ChargeNET, You acknowledge and agree that ChargeNET
may begin to bill You for such Fees in the amounts that the Merchant Service
Provider had been charging You and pursuant to the terms and conditions set
forth in Section 10.1 below. Use of the ChargeNET Services constitutes
acceptance of the Fee amounts specified in the Fee Schedule or otherwise stated
in or in accordance with the terms and conditions of the agreement between You and the applicable Merchant Service Provider.
10.
Payment Terms.
10.1 ChargeNET Bills You.
(a) Billing Terms. You will remit any and all amounts which are
payable to ChargeNET under this Agreement on a monthly basis, and the first
payment shall be due on the first month anniversary immediately following the
Effective Date. Unless otherwise specified herein, Fees and payments for
any subsequent time periods shall be due on each monthly anniversary date.
You hereby authorize ChargeNET to either initiate transaction entries to Your
depositories account or to charge Your credit card, the numbers of which are to
be provided to ChargeNET by You (directly or through a Merchant Service
Provider) on or before the Effective Date, for any and all amounts owing to
ChargeNET under this Agreement. If your depositories account number or
credit card number changes, You shall promptly provide
ChargeNET with written notice of the change and the new number(s). If You fail to provide ChargeNET with accurate current
depositories account or credit card numbers, ChargeNET may discontinue its
performance of the ChargeNET Services for You until such information is
provided to ChargeNET. You acknowledge that any change in account
information may not be effective until the billing month following the second
month in which ChargeNET receives such notice.
(b) Non-Sufficient Fund Fee, Late Payment Fee, and Service Reactivation Fee.
You shall pay to ChargeNET a Non Sufficient Fund Fee, in the amount set forth
in the Fee Schedule below, each time ChargeNET attempts to debit Your depositories account for any amounts owing under this
Agreement and receives a non-sufficient fund message from Your bank. Any
amounts due to ChargeNET under this Agreement and not paid when due will be
subject to a finance charge equal to one and one-half percent (1.5%) or the
highest rate allowable by law, whichever is less, determined and compounded
daily from the date due until the date paid. Payment of such finance
charges will not excuse or cure any breach or default for late payment.
ChargeNET may accept any check or payment from You
without prejudice to its rights to recover the balance due or to pursue any
other right or remedy. No endorsement or statement on any check or
payment or any correspondence accompanying any check or payment or elsewhere
will be construed as an accord or satisfaction. If You
do not pay owing amounts on or before the first business day following the
tenth (10th) day of the month, You will be subject to a Late Payment
Fee, in the amount set forth in the Fee Schedule below. If You have not
paid all owing amounts on or before the last business day of the month in which
they were due, ChargeNET may, in its sole discretion, discontinue its
performance of the ChargeNET Services for You and/or immediately terminate this
Agreement. Unless ChargeNET has already terminated this Agreement, if You
subsequently pay in full all owing fees and charges, including a Service Reactivation
Fee in the amount set forth in the Fee Schedule below, ChargeNET agrees to
restore Your access to the ChargeNET Services upon ChargeNET’s
receipt of such payment. You agree to pay all costs and expenses of whatever
nature, including attorneys’ fees, incurred by or on behalf of ChargeNET in
connection with the collection of any unpaid charges and fees.
10.2 Merchant Service Provider Bills You.
If You are to be billed by a Merchant Service Provider
for some or all of the Fees, You shall pay the Merchant Service Provider in
accordance with the terms mutually agreed upon between You and such Merchant
Service Provider.
11.
Representations and Warranties.
11.1 ChargeNET.
(a) Warranty. ChargeNET represents and warrants that the ChargeNET
Services will conform in all material respects to the applicable documentation
made available to You by ChargeNET. ChargeNET
does not warrant that the ChargeNET Services or the Software will be
uninterrupted or error free. ChargeNET does not warrant that there will not be
duplicate transactions due to improper data entry or customers submitting
information more than once. You may not rely upon any representation or
warranty regarding the ChargeNET Services by any third party in contravention
of the foregoing statements, including representations or warranties of any
Merchant Service Provider.
(b) Remedy. Your sole remedy for ChargeNET’s
breach of the foregoing warranty shall be ChargeNET’s
commercially reasonable efforts to repair, or at its option replace, the
ChargeNET Services or Software. You acknowledge that ChargeNET does not
warrant that such efforts will be successful. If ChargeNET’s
efforts are not successful, You may terminate this
Agreement in accordance with Section 2.
(c) Disclaimer. ChargeNET disclaims all other warranties, express
or implied, written or oral, including but not limited to any warranties of
merchantability, fitness for a particular purpose or non-infringement or
implied warranties arising from course of performance or course of dealing with
respect to the ChargeNET Services and Software or any related technology or
other items furnished to You by ChargeNET pursuant to this Agreement.
11.2 You. You represent and warrant
to ChargeNET that:
(a) All representations and statements made by You in this Agreement, or
in any other document relating hereto by You or on Your behalf, are true,
accurate and complete in all material respects. You hereby authorize
ChargeNET to investigate and confirm the information submitted by You herein. For this purpose, ChargeNET may utilize credit
bureau / reporting agencies and / or its own agents. Upon Your request,
ChargeNET will provide You with a copy of the results of such investigation;
(b) You are engaged in a lawful business that includes the sale of
products and/or services, and are duly licensed to conduct such business under
the laws of all jurisdictions in which You conduct business; and
(c) You will not engage in any form of net abuse, including but not
limited to: (i) sending any kind of unsolicited
or unwelcome email to a substantial number of network users (SPAM mail),
anywhere on the Internet; (ii) posting a single article or substantially
similar articles to an excessive number of newsgroups or mailing lists; (iii)
repeated or deliberate posting of articles that are off-topic according to the
charter of the newsgroup or mail list where such articles are posted; and (iv)
posting commercial advertising in a conference or newsgroup, unless it is
specifically permitted to be posted within that group. You understand that
ChargeNET may investigate any reported occurrence of potential net abuse and
take appropriate action, which depending on the circumstances and severity of
any such occurrence may include: (i) issuing a
warning to You and taking necessary action to minimize any damage; (ii)
suspending Your ChargeNET account and right to access and use the ChargeNET
Services; and/or (iii) immediately terminating this Agreement.
11.3 Mutual. Each party represents
and warrants to the other that (a) it has full power and legal right to
execute and deliver this Agreement and to perform its obligations under this
Agreement, (b) no authorization or approval from any third party is
required in connection with such party’s execution, delivery or performance of
this Agreement, (c) this Agreement constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, and
(d) it has all right, title or interest, or valid license to use, its
respective Marks (as defined on Exhibit A), and that its grant of rights
associated therewith do not violate any intellectual property or other
proprietary rights of any third party.
11.4 Third Party Programs. You
acknowledge that the ChargeNET Services are designed for use with certain
payment gateway systems, including, without limitation, certain Internet
browser software programs. You will look solely to the developers and
manufacturers of such programs with regard to warranty, maintenance or other
support regarding the same. ChargeNET makes no warranty, express or implied,
with regard to any such third party software.
12.
Indemnification.
12.1 Indemnification by ChargeNET.
ChargeNET shall defend, indemnify and hold You, Your affiliates, and any of
their officers, directors, agents and employees harmless from and against any
claim or suit brought against You, including any and all losses, damages,
costs, and expenses (including reasonable attorneys’ fees) arising from such
claim or suit: (a) alleging any breach by ChargeNET of any
representation, warranty or obligation of ChargeNET set forth in Section 11; or
(b) alleging that the ChargeNET Services or Software infringes a patent,
copyright, trademark or other intellectual property right of any other entity or
person (except as provided in Section 12.2(d) below).
12.2 Indemnification by You. You shall
defend, indemnify, and hold ChargeNET, their affiliates and/or subsidiaries,
and any of their officers, directors, agents and employees harmless from and
against any claim or suit brought against You, including any and all losses,
damages, costs, and expenses (including reasonable attorneys’ fees) arising
from such claim or suit: (a) alleging any breach by You of any
representation, warranty, or obligation of You set forth in this Agreement; (b)
alleging damage or loss caused by negligence, fraud, dishonesty or willful
behavior by You or any of Your employees or agents; (c) arising out of or
related to the reliability, accuracy, or legitimacy of payment data or purchase
orders submitted by You to ChargeNET; or (d) alleging that the Software
infringes a patent, copyright, trademark or other intellectual property right
resulting from Your unauthorized use or modification of the Software, provided,
however, that this indemnification obligation applies only to such a claim that
would have been avoided in the absence of such unauthorized use or
modification.
12.3 Indemnification Procedure. The
obligations of each party ("Indemnitor")
under this Section 12 to defend, indemnify and hold harmless the other
party ("Indemnitee") shall be
subject to the following: (a) Indemnitee shall
provide Indemnitor with prompt notice of the claim
giving rise to such obligation; provided, however, that any failure or delay in
giving such notice shall only relieve Indemnitor of
its obligations under this Section 12 to the extent it reasonably demonstrates
that its defense or settlement of the claim or suit was adversely affected
thereby; (b) Indemnitor shall have control of the
defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor
in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable
out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee may participate in the defense of any such claim
or suit at its own expense. Indemnitor shall
not, without the consent of the Indemnitee, enter
into any settlement that reasonably can be expected to require a material
affirmative obligation of, result in any ongoing material liability to or
materially prejudice Indemnitee in any way.
12.4 Prevention of Infringement. If
the ChargeNET Services, Software, or any component thereof becomes, or in ChargeNET’s opinion is likely to become, the subject of a
claim of infringement, then You shall permit ChargeNET, at its option and
expense, either to (i) procure for You the right to
continue using the ChargeNET Services and Software as permitted in this
Agreement, or (ii) replace or modify the affected ChargeNET Services, Software,
or infringing component so that it becomes non-infringing. If, after
using commercially reasonable efforts, ChargeNET is unable to sure the
infringement, either party may terminate this Agreement upon notice to the
other, as provided in Section 2.
12.5 Exceptions. If You are an agency or instrumentality of a state of the United States and are precluded by the law of Your state from
entering into indemnification obligations, then the obligations under Sections
12.2 and 12.3 shall apply only to the extent permitted by such state law.
13.
Limitations of Liability and Disclaimers.
13.1 Disclaimer. CHARGENET
EXPRESSLY DISCLAIMS ANY LIABILITY FOR UNAUTHORIZED ACCESS OF FACILITIES OR TO
YOUR DATA OR PROGRAMS DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS OR DEVICES
USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND CHARGENET'S REASONABLE CONTROL.
CHARGENET ALSO EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE INDIVIDUAL MERIT AND
LEGITIMACY OF ORDERS FORWARDED FROM YOU AND FOR ANY AND ALL CLAIMS OF LOSS
AND/OR FRAUD INCURRED RESULTING FROM CONCLUSIONS DRAWN FROM THE DATA PROVIDED
BY ANY FRAUD PREVENTION SERVICE.
13.2 Exclusion. Except for any
claims arising from criminal or willful misconduct, in no event will either
party or any of their affiliates or vendors (and any officers, directors,
employees and agents of the parties, and their affiliates or vendors) be liable
to the other party for any indirect, consequential, special or exemplary
damages (whether arising in tort, contract or otherwise and notwithstanding any
fault, negligence (whether active, passive or imputed), product liability or
strict liability of either party) (including, without limitation, damages for
loss of revenue, anticipated profits, lost business or injury to business
reputation) even if such party has been advised of the possibility of such
damages, arising from or related to any provision of this Agreement.
13.3 Limitation. Except for
liability arising under Section 12 (Indemnification), the total liability of
ChargeNET to You (whether arising in tort, contract or otherwise) under this
Agreement or with regard to the ChargeNET Services, Software, or any other
items provided by ChargeNET under this Agreement, will in no event exceed the
aggregate compensation ChargeNET received for providing the ChargeNET Services
to You during the 12 months preceding the date on which the claim arose.
14.
Termination and Suspension.
14.1 Termination or Suspension of You by a
Merchant Service Provider. If ChargeNET is to be paid for Your access to
and use of the ChargeNET Services and/or Software by a Merchant Service
Provider or financing agent, and if ChargeNET receives notice from such
Merchant Service Provider or financing agent that it has terminated or
suspended its relationship with You, ChargeNET may suspend and/or terminate
Your right to access and use the ChargeNET Services and Software and/or this
Agreement without notice and without liability. In addition, ChargeNET may
suspend and/or terminate the ChargeNET Services and/or this Agreement without
notice and without liability upon receipt of notice from Your
"Processor" or acquiring bank that You are no longer entitled to send
an authorization message, settlement message, or other message or payment data
related to a credit card transaction to Your "Processor or gateway
provider". For purposes of this Agreement, a "Processor or gateway
provider" shall mean a credit card processor or gateway provider that
accepts Transactions from ChargeNET and processes Transactions for You.
14.2 Termination for Breach. In
addition to any other termination rights granted by this Agreement, either
party may terminate this Agreement on 10 days written notice for material
breach by the other party of its obligations hereunder unless such breach is
cured within such 10-day period.
14.3 Effect of Termination. Upon
termination of the Term for any reason, all rights and obligations of the
parties under this Agreement shall be extinguished, except that: (a) all
accrued payment obligations hereunder shall survive such termination; and (b)
the rights and obligations of the parties under Sections 11, 12, 13, 14, 15,
and 16 and any other provisions of this Agreement that should reasonably
survive termination shall survive such termination.
15.
Intellectual Property.
15.1 ChargeNET. As between the
parties, ChargeNET retains all right, title and interest in and to the ChargeNET
Services, Software, and any related technology utilized under or in connection
with this Agreement, including but not limited to all intellectual property
rights associated therewith. No title to or ownership of any of the
foregoing is granted or otherwise transferred to You
or any other entity or person under this Agreement. The Software is
subject to protection under the copyright, patent and trademark laws of the United States and other countries. You will not reverse engineer,
disassemble, decompile or otherwise attempt to discover the source code or
trade secrets for any of the ChargeNET Services, Software, or related
technology.
15.2 ChargeNET Marks License. Subject
to Section 15.4, ChargeNET hereby grants to You the right to use, reproduce,
publish, perform and display the ChargeNET Marks (as defined on Exhibit A
attached hereto): (a) on Your web site in connection with Your offering of
payment options to Your customers; and (b) in promotional and marketing
materials and electronic and printed advertising, publicity, press releases,
newsletters and mailings about or related to any of the ChargeNET Services.
15.3 Your Marks License. Subject to Section
15.4, You hereby grant to ChargeNET and its affiliates the right to use,
reproduce, publish, perform and display Your Marks (as defined on Exhibit A
attached hereto): (a) in connection with the development, use,
reproduction, modification, adaptation, publication, display and performance of
the ChargeNET Services and/or Software offered and/or accessible through the
Your web site; and (b) in promotional and marketing materials and electronic
and printed advertising, publicity, press releases, newsletters and mailings
about or related to any of the ChargeNET Services.
15.4 Use of Trademarks. Each party
shall strictly comply with all standards with respect to the other party’s
Trademarks which may be furnished by such party from time to time, and all uses
of the other party’s Trademarks in proximity to the trade name, trademark,
service name or service mark of any other Person shall be consistent with the
standards furnished by the other party from time to time. Further, neither
party shall create a combination mark consisting of one or more Trademarks of
each party. All uses of the other party’s Trademarks shall inure to the
benefit of the party owning such Trademark. Each party hereby
acknowledges and agrees that, as between the parties, the other party is the
owner of the Trademarks identified as its Trademarks in any written notice provided
to the other party pursuant to this Agreement. Either party may update or
change the list of Trademarks usable by the other party hereunder at any time
by written notice to the other party.
15.5 Other Trademarks. ChargeNET
shall not register or attempt to register any of Your Marks or any Trademarks
that You reasonably deem to be confusingly similar to
any of You Marks. You shall not register or attempt to register any of the
ChargeNET Marks or any Trademarks that ChargeNET reasonably deems to be confusingly
similar to any of the ChargeNET Marks.
15.6 Further Assurances. Each party
shall take, at the other party’s expense, such action (including, without
limitation, execution of affidavits or other documents) as the other party may
reasonably request to effect, perfect or confirm such other party’s ownership
interests and other rights as set forth in this Section 15.
16.
General Provisions.
16.1 Publicity. The parties may
work together to issue publicity and general marketing communications
concerning their relationship and other mutually agreed-upon matters, provided,
however, that neither party will have any obligation to do so. In
addition, neither party will issue such publicity and general marketing
communications concerning this relationship without the prior written consent
of the other party (not to be unreasonably withheld or delayed).
16.2 Non-exclusivity. Each party
acknowledges and agrees that the rights granted to the other party in this
Agreement are non-exclusive, and that, without limiting the generality of the
foregoing, nothing in this Agreement shall be deemed or construed to prohibit
either party from participating in similar business arrangements as those
described herein.
16.3 Relationship of the Parties.
The parties are independent contractors and nothing in this Agreement shall
make them joint venturers, partners, employees,
agents or other representatives of the other party. Neither party shall
make any representation that suggests otherwise.
16.4 Notices. All notices to You shall be given electronically, sent to the electronic
mail address provided by or for You during registration for the ChargeNET
Services and/or posted in the Announcement section of your gateway
account. All notices to ChargeNET shall be given electronically to support@ChargeNET
with a written copy to ChargeNET, Inc. 2211 Sheridan Drive, Buffalo, NY
14223 (716) 874-5667, (716) 874-5677 (fax), Attention:
General Counsel. Such written notice will be deemed given upon personal
delivery, upon confirmation of receipt if sent by fax, or three (3) days after
the date of mailing if sent by certified or registered mail, postage prepaid.
16.5 Amendment. ChargeNET may amend
this Agreement at any time upon notice to You of not less than ten (10) days
prior to the effective date of such amendment, provided that any amendment for
any fee increase initiated by ChargeNET may become effective upon not less than
thirty (30) days notice. A Merchant Service Provider may be able to
increase certain Fee amounts upon less notice to You,
depending on the terms and conditions of Your agreement with such Merchant
Service Provider.
16.6 Severability; Headings. If any
provision of this Agreement is held to be invalid or unenforceable for any
reason, the remaining provisions will continue in full force without being
impaired or invalidated in any way. The parties agree to replace any
invalid provision with a valid provision, which most closely approximates the
intent and economic effect of the invalid provision. Headings are used for
convenience of reference only and in no way define, limit, construe or describe
the scope or extent of any section, or in any way affect this Agreement.
16.7 Governing Law; Limitation on Actions;
Jurisdiction. This Agreement and performance under it will be
interpreted, construed and enforced in all respects in accordance with the laws
of the State of New
York, without
reference or giving effect to its conflicts of law principles. You agree that
any cause or 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. You hereby irrevocably consent to the personal
jurisdiction of and venue in the state and federal courts located in Erie
County, New York with respect to any action, claim or proceeding arising out of
or related to this Agreement and agree not to commence or prosecute any such
action, claim or proceeding other than in such courts.
16.8 Waiver. The failure of any
party to insist on or enforce strict performance of any provision of this
Agreement or to exercise any right or remedy under this Agreement or applicable
law will not be construed as a waiver or relinquishment to any extent of the
right to assert or rely upon any such provision, right or remedy in that or any
other instance; rather, the same will be and remain in full force and
effect. Waiver by either party of a breach of any provision contained
herein must be in writing, and no such waiver will be construed as a waiver of
any other and/or succeeding breach of such provision or a waiver of the
provision itself.
16.9 Assignment. You will not
have the right or the power to assign any of Your
rights or delegate the performance of any of Your obligations under this
Agreement without the prior written consent of ChargeNET, including in the case
of a merger. ChargeNET will have the right, at its sole discretion, to
assign this Agreement to its subsidiaries, affiliates, designated assigns
and/or suppliers.
16.10 Force Majeure.
Neither party will be liable for any losses arising out of the delay or
interruption of its performance of obligations under the Agreement due to any
acts of God, acts of civil or military authorities, civil disturbances, wars,
strikes or other labor disputes, fires, transportation contingencies,
interruptions in telecommunications or Internet services or network provider
services or other catastrophes or any other occurrences which are beyond such
parties’ reasonable control (each a “Force Majeure
Event”), provided that the party delayed will provide the other party
notice of any such delay or interruption as soon as reasonably practicable,
will use commercially reasonable efforts to minimize any delays or
interruptions resulting from the Force Majeure Event
and in no event will any failure to pay any monetary sum due under this
Agreement be excused for any Force Majeure Event.
16.11 Entire Agreement. This
Agreement sets forth the entire understanding and agreement of the parties, and
supersedes any and all prior or contemporaneous oral or written agreements or
understandings between the parties, as to the subject matter of this
Agreement. You acknowledge that this Agreement reflects an informed,
voluntary allocation between ChargeNET and You of all
risks (both known and unknown) associated with the ChargeNET Services.
16.12 Dispute Resolution. Any dispute or
claim arising out of or relating to this Agreement, except claims involving
intellectual property and claims for indemnification, will be resolved by
binding arbitration. The arbitration of any dispute or claim shall be conducted
in accordance with the American Arbitration Association ("AAA")
rules, as modified by this Agreement, and will take place in Buffalo, NY,
unless the Parties mutually agree to hold the proceedings elsewhere. This
Agreement evidences a transaction in interstate commerce and this arbitration
provision will be interpreted and enforced in accordance with the Federal Arbitration
Act and federal arbitration law. An arbitrator may not award relief in excess
of or contrary to what this Agreement provides or order consolidation or
arbitration on a class wide or representative basis, except that the arbitrator
may award on an individual basis damages required by statute and may order
injunctive or declaratory relief pursuant to an applicable consumer protection
statute. Any arbitration shall be confidential, and neither Party may disclose
the existence, content or results of any arbitration, except as may be required
by law or for purposes of enforcement of the arbitration award. Judgment on any
arbitration award may be entered in any court having proper jurisdiction. All
administrative fees and expenses will be divided equally between the Parties,
but each Party will bear the expense of its own counsel, experts, witnesses and
preparation and presentation of evidence at the arbitration. IF FOR ANY REASON
THIS ARBITRATION CLAUSE IS DEEMED INAPPLICABLE OR INVALID, THE PARTIES WAIVE,
TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE ANY CLAIMS ON A CLASS
OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. No action, regardless of
form, arising out of or in conjunction with the subject matter of this
Agreement, except for claims involving intellectual property and claims for
indemnification, may be brought by either Party more than one (1) year after
the cause of action arose.
Exhibit A—Trademarks
ChargeNET Marks
For purposes of this Agreement, “ChargeNET
Marks” means those trademarks listed below and such other trademarks as
ChargeNET may from time to time notify You in writing
to be “ChargeNET Marks” within the meaning of this Agreement.
ChargeNET®
ChargeNET™
Authorize.Net Marks
For purposes of this Agreement, “Authorize.Net
Marks” means those trademarks listed below and such other trademarks as
ChargeNET may from time to time notify You in writing
to be “Authorize.Net Marks” within the meaning of this Agreement.
Airpay™
Authorize.Net®
Authorize.Net EMerchant
Development Center™
Authorize.Net® Where the World Transacts
eCheck.Net®
FraudScreen.Net®
Pocket Authorize.Net™
Your Marks
For purposes of this Agreement, “Your Marks”
means Your customary name and logo, and such other
trademarks as You may from time to time notify ChargeNET in writing to be “Your
Marks” within the meaning of this Agreement.
Fee Schedule (all dollar amounts in United
States Dollars)
All fees are determined by
the services that are selected within the Merchant Control Panel under the
“Settings” provision. Selection of
additional services shall result in additional fees
Free Trial
Period. A free trial period is
offered under this agreement and shall remain in effect for 30 days. Should you desire to continue the service
your account will be billed for the initial 30 days trial period. If the services are not desired, you must
remove the billing information in the “General Settings” of the Merchant
Control Panel prior to the expiration of the 30 day trial period. Absence of billing information shall cause
the system to automatically terminate the ChargeNet
account. Failure to terminate the trial
account shall result in an automatic billing.
There shall be no refund of any amounts charged to you for use of
services should you not properly terminate your account prior to the expiration
of the trial period. A second 30 trial
period is not offered and any attempt to secure a second 30 day free trial
period by deactivating a trial account and signing up for a new trial period
shall be construed as theft of services.
Appropriate monitoring systems are in place to monitor IP addresses and
Authorize.Net and Plug N Pay login Ids.