ECHECK.NET® SERVICE AGREEMENT
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| Welcome to Authorize.Net and the eCheck.Net Service
Agreement. In order to obtain or continue using the eCheck.Net Service,
you must agree to and accept the terms and conditions of this Agreement.
The Agreement sets out the terms and conditions under which you may
utilize the eCheck.Net Services. Please read this Agreement
carefully.
By clicking on the "I AGREE" button, or by
acknowledging your acceptance of the Agreement terms and conditions by any
other method allowed by Authorize.Net, or by using the eCheck.Net
Services, Merchant acknowledges and agrees that it has reviewed and
understands the Agreement and agrees to be legally bound by all its terms
and conditions. If Merchant does not agree or is not willing to be bound
by the terms and conditions of this Agreement, please do not click on the
"I AGREE" button, do not acknowledge Your acceptance of the Agreement
terms and conditions by any other method and do not seek to obtain or
continue using the eCheck.Net Service.
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| 1. |
Definitions. |
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1.1 |
"Acceptable Use Guidelines" see
<http://www.authorize.net/company/use.php>. |
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1.2 |
"Agreement" means the eCheck.Net Service
Application, the eCheck.Net Service Agreement, Fee Schedule, exhibits
attached hereto, and all incorporated policies and procedures.
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1.3 |
"Application" or "eCheck.Net Application" means the
online Merchant service application. |
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1.4 |
"ACH" means the Automated Clearing House financial
network for processing electronic funds transfers.
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1.5 |
"Bank" means a participating originating depository
financial institution that processes and submits eCheck.Net
Transactions to the ACH and the Federal Reserve System.
Participating Banks are listed in Exhibit A, which may be modified
from time to time. |
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1.6 |
"Bank Terms" means the specific additional terms
and conditions required by a participating Bank processing
Merchant's eCheck.Net Transactions which are attached as
Exhibit A. |
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1.7 |
"Chargeback" means an ACH reversal initiated by a
Purchaser's financial institution for reasons such as
cancellation of order, non-receipt of goods or services purchased, or
fraud. |
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1.8 |
"Credit Card Association" - for the purposes of
this Agreement means Visa U.S.A., Inc., Visa International, Inc.,
MasterCard International, Inc., and any other credit or debit card issuing
company. |
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1.9 |
"eCheck.Net Service" means Authorize.Net's branded,
proprietary electronic check processing service, as further
described by this Agreement and the Operating Procedures and
User Guide, which is incorporated herein by reference and which may be
updated from time to time. The eCheck.Net Service is independent of and
contingent upon Merchant enrolling in an Authorize.Net payment gateway
account. |
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1.10 |
"eCheck.Net Transaction" means any electronic check
charge or refund or batch settlement completed or submitted
by Merchant to Authorize.Net using the eCheck.Net Service.
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1.11 |
"Fee Schedule" indicates the list of fees and
charges to be paid by Merchant to Authorize.Net. The Fee Schedule is
located in the Merchant Interface. |
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1.12 |
"Merchant" means the person or business entity,
including its parents, agents and employees, that has a contractual
relationship with Authorize.Net and sells goods or services to another
party. |
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1.13 |
"Merchant Interface" means the user interface
available to Merchants at <http://secure.authorize.net/>.
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1.14 |
"Merchant Service Provider" means any third party
through whom Authorize.Net may provide the eCheck.Net Service to Merchant,
including but not limited to, a reseller, independent service
organization, application service provider, merchant aggregator, and
acquiring bank. |
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1.15 |
"Operating Procedures" means the methods, processes
and procedures that govern eCheck.Net Transactions
(including Chargebacks). A current version of the Operating Procedures is
contained in the Operating Procedures and User Guide. |
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1.16 |
"Operating Procedures and User Guide" means the
document containing the Operating Procedures and which is available at
<http://www.authorize.net/files/echecknetuserguide.pdf>, or such
other location specified by Authorize.Net.
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1.17 |
"Privacy Policy" see
<www.authorize.net/company/privacy.php>. |
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1.18 |
"Purchaser" means a person or entity that submits a
form of payment to Merchant for the purchase of goods or
services from Merchant. |
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1.19 |
"Reserve Account" means the money held as
collateral by Authorize.Net as security against amounts
owed by Merchant to Authorize.Net as further described in Section 5.4.
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| 2. |
Merchant's Capacity and Related Matters. By
submitting an eCheck.Net Application, Merchant represents
and warrants that (a) Merchant (or the person executing
this Agreement on behalf of Merchant) is 18 years of age or older,
(b) all information Merchant has provided to Authorize.Net is true
and correct in all respects, and (c) Merchant will update
Authorize.Net by calling Customer Support at 1-877-447-3938
with any changes to information Merchant has previously supplied. Merchant
hereby authorizes Authorize.Net to investigate and confirm
the information submitted by Merchant herein. For this
purpose, Authorize.Net may utilize credit bureau /
reporting agencies and / or its own agents. Upon Merchant's
request, Authorize.Net will provide Merchant with a copy of the results of
such investigation. Authorize.Net reserves its right to
refuse to provide Merchant with the eCheck.Net Service, with
or without notice, for any or no reason, including, without limitation, if
Merchant has supplied any information which is misleading,
untrue, inaccurate or incomplete. Merchant expressly acknowledges and
agrees that Authorize.Net may share information about it and its account
with Merchant Service Providers. |
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| 3. |
Undertakings of Authorize.Net. |
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3.1 |
Grant of Rights. Authorize.Net hereby grants
Merchant a non-exclusive and non-transferable right, during
the effective term of this Agreement, to use the eCheck.Net
Service subject to the restrictions herein and any other restrictions
communicated by Authorize.Net to Merchant. Merchant is provided
no other right to use the eCheck.Net Service except as is
expressly provided by this Agreement. Without limiting the
generality of the foregoing, Merchant will not directly or
indirectly access or use the eCheck.Net Service in violation of or
contrary to the Operating Procedures and User Guide or the
terms of this Agreement. |
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3.2 |
eCheck.Net Service -- ACH Charge Requests and
Funding. Subject to any and all applicable laws and
regulations and applicable Bank Terms, Authorize.Net shall provide
the eCheck.Net Service to Merchant in all material respects in
accordance with the terms of this Agreement and all
generally applicable guidelines or procedures, including,
but not limited to, the Operating Procedures. Upon Authorize.Net's
receipt of a request from Merchant to process an eCheck.Net
Transaction to charge a Purchaser's account, Authorize.Net
will fund Merchant's virtual ACH processing account with Authorize.Net
for the amount of the ACH charge request. Subject to the terms
of this Agreement (including, but not limited to, the
chargeback rights described in Section 5.3), Authorize.Net shall
remit payment for the eCheck.Net Transaction to Merchant's depository
account in accordance with the Operating Procedures and User
Guide. |
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3.3 |
Relationship to Bank. Merchant acknowledges and
agrees that Authorize.Net acts as Merchant's processor and
prepares and submits eCheck.Net Transactions to a Bank
selected by Authorize.Net on behalf of Merchant in accordance with
Merchant's payment instructions. Authorize.Net is only a
processor and not a bank or financial institution.
Authorize.Net shall be considered Merchant's agent with full power and
authority to act on behalf of Merchant solely to process
and submit eCheck.Net Transactions to Bank(s) in accordance
with the terms and during the Term of this Agreement.
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3.4 |
Customer Service. If Merchant is current in payment
of all fees owing to Authorize.Net and is otherwise not in
default under this Agreement, Authorize.Net shall provide customer
service to Merchant, as set forth in the "Support Services" section
of the Authorize.Net website at <www.authorize.net>.
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| 4. |
Undertakings of Bank. ACH Services. Bank provides
ACH services to Merchant, which will consist of sending
and/or receiving ACH transactions based on information and instructions
provided to Bank by Authorize.Net. Bank will charge and/or
refund transactions to an account designated by
Authorize.Net and held in the name of Authorize.Net (the
"Account"). All bank statements, notices and other communications
in respect of the Account or the transactions hereunder shall be directed
by Bank to Authorize.Net. |
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| 5. |
Undertakings of Merchant. |
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5.1 |
ID and Password. In connection with the rights
described in Section 3.1, Authorize.Net will issue to
Merchant or permit Merchant to continue using the ID and
password given to Merchant by Authorize.Net or a Merchant Service
Provider, to enable Merchant and/or Merchant's employees and agents
to access and use the eCheck.Net Service. Merchant will
restrict access to such ID, password, and account to
Merchant's 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. Merchant is solely responsible for maintaining adequate
security and control of any and all IDs, passwords, or any other
codes that are issued to Merchant by Authorize.Net or a
Merchant Service Provider for purposes of giving Merchant
access to the eCheck.Net Service. Merchant is responsible for the
results of using the eCheck.Net Service and related ACH services
and for the accuracy and adequacy of the data Merchant
provides to Bank via Authorize.Net. Authorize.Net shall be
entitled to rely on information it receives from Merchant and may assume
that all such information was transmitted by or on behalf of
Merchant. |
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5.2 |
Risk Management. Merchant is solely responsible for
all acts and omissions of its officers, directors,
partners, employees, agents, representatives, contractors,
and third party service providers (such as third party payroll
administrators), including persons granted signature
authority on Customer's accounts and personnel who are permitted
to initiate and/or give Authorize.Net instructions in respect of
Customer's entries (collectively, "Merchant Personnel").
Authorize.Net is entitled, without further inquiry or
investigation, to assume that the actions of Merchant Personnel are
appropriate and authorized by Merchant. This authorization
will remain in effect unless Authorize.Net receives written
notice to the contrary from Merchant and has a reasonable opportunity to
react thereto (including, but not limited to, providing any
required notice to Bank). |
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5.3 |
Purchaser Reversals; Chargebacks.
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5.3.1 |
Chargeback Rights; Erroneous Entries. Merchant hereby
authorizes Authorize.Net to either initiate transaction
entries to Merchant's depository account number or to charge
Merchant's credit card, both of which are listed in
Merchant's eCheck.Net Application (and as those numbers may be changed,
any new account numbers provided to Authorize.Net) without
additional authorization or consent for any balance due
Authorize.Net, including amounts due associated with Chargeback(s). In
the event that Authorize.Net is unable to collect monies
owed from Merchant by these methods, Merchant authorizes
Authorize.Net to instruct the Merchant's bank to return any monies
originally transferred by Authorize.Net to Merchant, until
the balance of Merchant's ACH account with Authorize.Net is
brought current with a zero balance. If Authorize.Net reasonably
believes that a Chargeback or refund is likely with respect to any
eCheck.Net Transaction submitted by Merchant to
Authorize.Net, Authorize.Net may withhold from payments otherwise
due to Merchant under this Agreement until such time that: (a)
Authorize.Net is charged back by Purchaser's bank, in which
case Authorize.Net shall retain the funds; (b) the period of
time under applicable law or regulation by which the Purchaser may dispute
the ACH charge and the Purchaser's bank may exercise its
chargeback rights has expired (generally 60 days from the
date the financial institution first made available to the Purchaser its
bank statement with the applicable charge transaction listed
on it); and/or (c) Authorize.Net determines that a
Chargeback on the ACH charge requested by Merchant will not occur.
Merchant further grants Authorize.Net permission to
initiate adjustment entries to Merchant's checking account
or to charge Merchant's credit card in the event of erroneous transactions
being posted to said account. |
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5.3.2 |
Expenses. Merchant agrees to pay all costs and expenses of
whatever nature, including attorneys' fees and other legal
expenses, incurred by or on behalf of Authorize.Net in connection
with the collection of all eCheck.Net ACH processing account deficit
balances unpaid by Merchant. |
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5.4 |
Reserve Account. |
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5.4.1 |
Creation Right. Merchant hereby grants Authorize.Net the right
to retain as collateral money payable to Merchant in a
Reserve Account to ensure Authorize.Net's recovery of any
liabilities owed it or reasonably anticipated to be owed it by
Merchant pursuant to this Agreement. The Reserve Account may be
established, with or without prior notice to Merchant, at
any time prior to, at, or after termination of this
Agreement whenever Authorize.Net, in its sole discretion, believes
recovery of such liabilities may be in jeopardy. Once
established, Authorize.Net shall promptly send Merchant
notice of the amount held in the Reserve Account. |
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5.4.2 |
Security Interest; Collection. Merchant hereby grants to
Authorize.Net a possessory security interest in any money
held as a Reserve Account established under this Agreement.
Merchant agrees that Authorize.Net may enforce its security
interest in the Reserve Account by deducting, without prior notice or
demand, amounts owed to Authorize.Net under this Agreement.
In addition to assessing Merchant an over limit fee for
exceeding the approved monthly processing limit, Merchant further agrees
that Authorize.Net may enforce its security interest in the
Reserve Account to collect the over limit fee.
Authorize.Net's right to sums owed it by Merchant pursuant to this
Agreement shall in no way be limited by the balance or existence of
the Reserve Account. Any deducted amounts from the Reserve
Account will be replaced by equal amounts either from
amounts derived from eCheck.Net Transactions or by direct payment by
Merchant upon demand by Authorize.Net. Authorize.Net's
rights with respect to the Reserve Account, including its
security interest therein, shall survive the termination of this
Agreement. The Reserve Account may be held by
Authorize.Net for up to six (6) months after the later of
the last transaction, Chargeback or other liability pursuant to this
Agreement and applicable law. Authorize.Net may charge
Merchant a monthly fee for maintenance of said Reserve
Account, if established. |
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5.5 |
Compliance with Laws, Operating Procedures, and
Authorize.Net Guidelines.
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5.5.1 |
Compliance. In connection with the exercise of Merchant's
rights and obligations under this Agreement (including,
without limitation, any related to individual privacy), Merchant warrants
that it will comply, at Merchant's own expense, with all
applicable laws, regulations, rules, ordinances and orders
of governmental and governing authorities having jurisdiction, including,
but not limited to, the Gramm Leach Bliley Act, the
Operating Procedures and User Guide, Electronic Fund Transfer Act, Federal
Reserve Regulation E, the Fair Credit Reporting Act, all
rules and operating guidelines of the National Automated Clearing House
Association ("NACHA") and similar state laws and
regulations, to the extent the same may be applicable to
the ACH transactions processed hereunder. Merchant shall comply with
sanctions enforced by the U.S. Department of Treasury,
Office of Foreign Assets Control (OFAC), including trade
embargoes, anti-money laundering, and terrorism controls. Information
regarding such sanctions may be found at
<http://www.treas.gov/ofac> or the OFAC Compliance
Hotline at (800) 540-OFAC. |
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5.5.2 |
Bona Fide Transactions. Merchant agrees that all eCheck.Net
Transactions that Authorize.Net requests Bank to originate
are the result of bona fide business transactions between Merchant and
its customers and no such entries are, directly or indirectly,
for the benefit of any third party whether in a service
bureau or other context. Merchant will be considered the Originator of
eCheck.Net Transactions submitted by Authorize.Net on behalf
of Merchant. |
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5.5.3 |
Other Compliance. Merchant is prohibited from using the
eCheck.Net Service in any manner or in furtherance of any
activity that constitutes a violation of any law or regulation or that may
reasonably be expected to subject Authorize.Net or its
suppliers or vendors to investigation, prosecution or legal
action. |
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5.5.4 |
Authorize.Net Policies. Merchant shall comply with all then
current policies, procedures, and guidelines of
Authorize.Net governing the eCheck.Net Service, including, but not limited
to, the Operating Procedures and User Guide and the
Authorize.Net Acceptable Use Guidelines. Authorize.Net
reserves the right to amend, modify or change such policies, procedures,
and guidelines at any time and without notice. |
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5.5.5 |
Bank Terms. Merchant agrees to and shall comply with all then
current Bank Terms. |
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5.5.6 |
Error Resolution. Merchant further agrees to receive, resolve
and respond to Customer alleged errors at its expense under
this Agreement and all applicable laws, regulations and the Rules.
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5.6 |
Record Retention; Inspection Rights. Merchant shall
preserve all records pertaining to an ACH transaction as
may be required by law and in no event less than two (2) years from the
date thereof. Merchant shall permit Authorize.Net to examine,
verify and copy such records at any reasonable time upon
Authorize.Net's request. Merchant shall provide Authorize.Net with a
copy of any requested ACH authorization or other transaction
memorandum no later than twenty-four (24) hours from date of
Authorize.Net's request. Merchant also agrees to execute, file and
record any statements, notices and certificates as Authorize.Net
may reasonably request to preserve and protect its
interest. |
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5.7 |
Additional Financial Documents. Authorize.Net
reserves the right to require additional financial
documents (e.g. personal and business tax returns and financial
statements) from Merchant if Merchant's eCheck.Net
transaction processing exceeds its normal processing volume,
as determined by Authorize.Net in its sole discretion. |
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| 6. |
Data Collection, Privacy and Security.
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6.1 |
Merchant Obligations.
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6.1.1 |
Merchant is solely responsible for the security of data
residing on the server of Merchant, or a third party
designated by Merchant (e.g., a Web hosting company,
processor, or other service provider), including checking account numbers.
Merchant shall comply with all applicable laws and
regulations governing the collection, retention and use by Merchant
of all data associated with eCheck.Net Transactions. Merchant
agrees to provide notice to consumers on Merchant's Internet
website transaction page(s) disclosing how and why personal
information is collected and used. Merchant is solely responsible for
obtaining and maintaining any and all necessary rights,
power and authority to provide data associated with eCheck.Net
Transactions to Authorize.Net. |
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6.1.2 |
Merchant agrees that, except as may be reasonably
necessary in the ordinary course of business to carry out the activities
to be performed by it hereunder or required by law, Merchant will not
disclose any consumer or customer information to any third party.
Merchant shall use proper controls for and limit access to, and render
unreadable prior to discarding, all customer records. |
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6.1.3 |
Merchant agrees to comply with all Authorize.Net
security protocols and security advisories in effect during the term of
this Agreement. Merchant is solely responsible for verifying the accuracy
and completeness of all transactions submitted and processed by
Authorize.Net associated with its account and for verifying that all
corresponding funds are accurately processed. Merchant acknowledges that
Authorize.Net shall not be liable for any improperly processed or
unauthorized eCheck.Net Transactions or illegal or fraudulent access to
its account or data. Authorize.Net's liability for improperly processed or
unauthorized Transactions solely attributable to the negligence of
Authorize.Net is limited pursuant to Section 14. |
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6.1.4 |
Merchant will comply with all then-current legal
obligations and guidelines, including, without limitation, those issued by
Credit Card Associations and the Federal Trade Commission, associated with
the collection, security, dissemination and destruction of data on its
website, and expressly including the Payment Card Industry (PCI) Data
Security Standard, Visa Cardholder Information Security Program (CISP) and
the MasterCard Site Data Protection Program (SDP). Merchant warrants that
it has taken such precautions as are necessary to ensure that its server
and electronic systems are secure from breach or intrusion by unauthorized
third parties. In the event that Merchant's system is breached and an
unauthorized third party has access to or has accessed Data or Transaction
data, Merchant shall notify Authorize.Net promptly of such breach and
shall take such precautions as may be necessary to prevent such breaches
from occurring in the future. |
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6.2 |
Authorize.Net Obligations.
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6.2.1 |
Authorize.Net agrees to collect, retain and disclose
information and data collected from Merchant and Merchant's customers
(including data associated with eCheck.Net Transactions) in accordance
with Authorize.Net's Privacy Policy. Consistent with the privacy policy,
Authorize.Net agrees to use commercially reasonable security measures for
the transport of eCheck.Net Transaction data using the Internet.
Notwithstanding the foregoing, Authorize.Net does not, and cannot, warrant
that all eCheck.Net Transaction data will be transported without
unauthorized interception or modification. Merchant understands that
Authorize.Net will collect and hold personal or non-public information
about Merchant and its customers, including, but not limited to: Merchant
name, address, telephone number, email address, social security number
and/or tax identification number, (and if a sole proprietorship or
partnership, date of birth, salary, job title and credit history) for the
purpose of considering eligibility for the eCheck.Net Service as well as
its customers' names, mailing and shipping addresses, email addresses,
phone numbers, dollar amounts of purchases, types of purchases and
descriptions of purchases for the purpose of providing Merchant with the
Authorize.Net Services ("Data"). Merchant also understands and agrees that
Authorize.Net may obtain various consumer reports regarding Merchant from
third parties, run a credit check, report unpaid collection issues to
credit bureaus, and/or obtain other personal or credit information about
Merchant. |
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6.2.2 |
Merchant further understands and agrees that Authorize.Net,
its subsidiaries, Merchant Service Providers, partners, suppliers and/or
their agents/contractors may transfer Data amongst themselves as necessary
for the purpose of the provision and management of the Authorize.Net
Services, and that Authorize.Net may further transfer Data: (i) to third
parties assisting Authorize.Net in evaluating Merchants' eligibility for,
provision of, administration and management of the Authorize.Net Services,
as well as under circumstances described in Authorize.Net's Privacy
Policy, as may be modified from time to time; (ii) with non-affiliated
entities that assist Authorize.Net in providing financial products and
services that Merchant has requested; (iii) with companies that provide
support services to Authorize.Net or with which Authorize.Net has
agreements to provide marketing services on its behalf; or (iv) as
otherwise permitted by law. While Authorize.Net uses commercially
reasonable efforts to safeguard Data and Transaction data transmitted
while using the Authorize.Net Service, Authorize.Net does not warrant that
Data and Transaction data will be transported without unauthorized
interception or modification or that Data or Transaction data will not be
accessed or compromised by unauthorized third parties. |
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| 7. |
Fees. Merchant shall pay Authorize.Net the service
fees set forth in the Fee Schedule located in the Merchant Interface,
which is incorporated herein by reference. Authorize.Net reserves the
right to impose additional fees upon Merchant if its ACH
transaction processing in connection with the eCheck.Net Service: (a)
exceeds Merchant's Account Restrictions, such as normal ACH
processing volume and/or per-transaction parameters, as
determined by Authorize.Net; or (b) for any other substantial increase in
risk assumed by Authorize.Net. Such additional and/or
increases in fees may be established at any time, upon
written notice to Merchant and will become effective retroactive to the
date Merchant's use of the eCheck.Net Service falls under
one of the above categories. Further, Authorize.Net reserves the right
to change any eCheck.Net Fee upon at least thirty (30) days
notice. Merchant shall not be required to pay any fees to
Bank for the eCheck.Net Service. |
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| 8. |
Payment Terms. |
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8.1 |
Billing Terms. Merchant shall remit any and all
amounts which are payable to Authorize.Net under this
Agreement on a daily basis, except for the eCheck.Net Minimum Monthly Fee.
The eCheck.Net Minimum Monthly Fee is due and payable on a
monthly basis. The first such monthly payment will be due
on the first day of the month immediately following the Effective Date,
and all subsequent monthly payments shall be due on the
first day of the month thereafter. Merchant hereby authorizes
Authorize.Net to initiate transaction entries to Merchant's
depositories account or, if Authorize.Net is unable to
collect owing amounts from Merchant's depositories account, to charge
Merchant's credit card for any and all amounts owing to
Authorize.Net under this Agreement. The authorizations provided
here and in sections 3.2 and 5.3.1 to initiate transactions to
Merchant's depositories account are to remain in full force
and effect until Authorize.Net has received written notification from
Merchant of its request for termination in such time as to
afford Authorize.Net and Merchant's depository institution
a commercially reasonable opportunity to acknowledge and respond to the
request. If Merchant's depositories account number or
credit card number changes, Merchant shall promptly provide Authorize.Net
with written notice of the change and the new number(s).
If Merchant fails to provide Authorize.Net with accurate
current depositories account or credit card numbers, Authorize.Net may
suspend the eCheck.Net Service for Merchant until such
information is provided to Authorize.Net. Merchant acknowledges that any
change in account information may not be effective until
the billing month following the second month in which
Authorize.Net receives such notice. Any amounts due to Authorize.Net
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. Authorize.Net may
accept any check or payment from Merchant 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. Merchant agrees
to pay all costs and expenses of whatever nature, including attorneys'
fees, incurred by or on behalf of Authorize.Net in
connection with the collection of any unpaid charges and fees.
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8.2 |
Non-Sufficient Fund Fee, Late Payment Fee, and Service
Reactivation Fee. Merchant shall pay to Authorize.Net a
Non-Sufficient Fund Fee, in the amount set forth in the eCheck.Net
Fee Schedule, each time Authorize.Net attempts to charge
Merchant's depositories account for any amounts owing
under this Agreement and receives a non-sufficient fund message from
Merchant's bank. If Merchant does not pay owing amounts on
or before the first business day following the tenth (10th) day of the
month, Merchant will be subject to a Late Payment Fee, in
the amount set forth in the eCheck.Net Fee Schedule. In
the event Authorize.Net has suspended the eCheck.Net Service to Merchant
for failure to pay pursuant to Section 10.2, Authorize.Net
agrees to restore Merchant's access to the eCheck.Net Service if Merchant
subsequently pays in full all owing fees and charges,
including a Service Reactivation Fee in the amount set
forth in the eCheck.Net Fee Schedule. |
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8.3 |
Personal Guarantee. In consideration of
Authorize.Net's acceptance of the Merchant's eCheck.Net
Application and the terms of this Agreement, each Personal Guarantor
indicated on the Application (jointly and severally if more
than one) unconditionally guarantees the performance of all obligations of
Merchant to Authorize.Net under this Agreement and payment
of all sums due hereunder. In the event of default, each
Personal Guarantor hereby waives notice of default and agrees to indemnify
Authorize.Net for all funds due and owing from Merchant
arising out of or related to this Agreement, including, but not limited
to, attorney's fees and other legal expenses, and all costs
and expenses incurred by or on behalf of Authorize.Net in
connection with the enforcement of this Section 8.3. Further, each
Personal Guarantor: (a) waives any and all rights of
subrogation, reimbursement or indemnity derived from Merchant and all
other rights and defenses available to the Personal
Guarantor, including any surety ship laws, and further waives any and all
rights or defenses arising by reason of any modification or
amendment to the terms of the Agreement whatsoever
(including, without limitation, the renewal, extension, acceleration, or
other change in the time any payment or other performance
hereunder is due, and/or any change in any interest or discount rate or
fee hereunder); (b) confirms that he or she is a party to
this Agreement; and (c) unconditionally and specifically authorizes
Authorize.Net (or its authorized agent) to (i) charge any overdue
fees, costs, fines, penalties, expenses or obligations
under this Agreement and/or any contractual relationship with
Authorize.Net from any personal checking account or other
account owned or controlled by such Personal Guarantor (including credit
card accounts), and (ii) report any default hereof on the
Personal Guarantor's personal Credit Bureau Report. |
| |
| 9. |
Term. This Agreement shall commence on the date
Merchant executes this Agreement, whether in writing or via online
acceptance, (the "Effective Date") and remain in full
force and effect until terminated by either party pursuant to Section 10.
|
| |
| 10. |
Termination. |
|
10.1 |
Termination At Will. Either party may terminate
this Agreement at any time and for any reason by providing
thirty (30) days prior written notice to the other party. Merchant
acknowledges that Authorize.Net may immediately terminate
this Agreement: (i) if it has reasonable evidence of Merchant's fraudulent
or illegal use of the Services; (ii) as required by legal or regulatory
authority; (iii) as a result of Merchant's breach of any representations
or warranties contained herein; (iv) if, in its sole opinion, any
information contained in the Application is found or believed to be
inaccurate or false; (v) for violation of the Acceptable Use Guidelines;
or (vi) as a result of a Force Majeure Event. |
|
10.2 |
Termination for Cause; Suspension of Service. In
addition to any other termination rights granted by this
Agreement, either party may terminate this Agreement on ten (10) days
written notice for material breach by the other party of
its obligations hereunder unless such breach is cured within such ten (10)
day period. Authorize.Net may immediately terminate this
Agreement and/or suspend Merchant's ACH transaction processing
capability via the eCheck.Net Service, upon written notice, for (a)
excessive Chargebacks, (b) returned items in
Authorize.Net's sole discretion, or (c) failure of Merchant to pay all
owing amounts on or before the last business day of the
month in which such amounts were due. If Authorize.Net suspends the
eCheck.Net Service, Authorize.Net (i) shall have no
obligation to resume the service until the causes of such suspension are
remedied to Authorize.Net's satisfaction and (ii) reserves
the right to terminate this Agreement at any time. |
|
10.3 |
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 1, 5.4, 5.6, 8.3, 10.3, 11.1, and 12 through 15
shall survive such termination. Upon termination of the effective term of
this Agreement for any reason, Authorize.Net may withhold
payment to Merchant for such period of time necessary to establish a
Reserve Account to cover any potential Chargebacks, refunds
and/or uncollected discounts or fees. |
| |
| 11. |
Intellectual Property and Confidentiality.
|
|
11.1 |
Authorize.Net. The parties agree that Authorize.Net
owns and retains all right, title and interest in and to the Authorize.Net
Marks, Authorize.Net Services 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 Merchant or any other entity or person under this
Agreement. Merchant will not reverse engineer,
disassemble, decompile or otherwise attempt to discover the source code or
trade secrets for any of the Authorize.Net Services or
related technology. |
|
11.2 |
Authorize.Net Marks License. Subject to the terms
and conditions contained herein, Authorize.Net hereby grants to Merchant
the right to use, reproduce, publish, perform and display the
Authorize.Net Marks (as defined on Appendix A attached hereto): (a) on
Merchant's website in connection with offering payment
options to its 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 Authorize.Net Services. |
|
11.3 |
Merchant Marks License. Subject to the terms and
conditions contained herein, Merchant hereby grants to Authorize.Net and
its affiliates the right to use, reproduce, publish,
perform and display Merchant Marks (as defined on Appendix A attached
hereto): (a) in connection with the development, use, reproduction,
modification, adaptation, publication, display and
performance of the Authorize.Net Services offered and/or accessible
through the Merchant website; 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 Authorize.Net Services. |
|
11.4 |
Use of Trademarks. Each party shall strictly comply
with all standards with respect to the other party's
Trademarks contained herein or which may be furnished by such 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. |
|
11.5 |
Use the Appropriate ® or TM Symbol. Merchant must reproduce any
Authorize.Net Marks exactly as shown on Exhibit B, including the exact
reproduction of any proprietary markings or legends and including the
appropriate ® or TM symbol at the first
and most prominent reference, or as soon as practicable thereafter.
|
|
11.6 |
Provide Appropriate Trademark Attribution.
Merchant must include a statement of ownership when displaying or
reproducing any Authorize.Net Marks. The statement should read:
"AUTHORIZE.NET and the Authorize.Net logo [or any other applicable mark]
are trademarks or registered trademarks of CyberSource Corporation." If
it is not feasible to include the attribution statement, it is acceptable
to use a general-purpose attribution statement in a form such the
following: "All other trademarks are the property of their respective
owners." |
|
11.7 |
Trademarks and Domain Registration. Merchant shall
not use, register or attempt to register any: (a) Authorize.Net Marks; or
(b) trademarks or domain names that are confusingly similar to any of the
Authorize.Net Marks or the Domain. |
|
11.8 |
Trademark Restrictions. Merchant shall not (i) use
the Authorize.Net Marks except as expressly authorized in this Agreement;
(ii) take any actions inconsistent with Authorize.Net's ownership of the
Authorize.Net Marks and any associated registrations, or attack the
validity of the Authorize.Net Marks, its ownership thereof, or any of the
terms of this Agreement; (iii) use the Authorize.Net Marks in any manner
that would indicate it is using such Authorize.Net Marks other than as a
licensee of Authorize.Net; nor (iv) assist any third party to do any of
the same. |
|
11.9 |
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 11. |
|
11.10 |
Confidential Information. Merchant agrees to hold
all information communicated by Authorize.Net to it, whether written or
oral or in any media whatsoever (the "Confidential Information"), in
strict confidence, not to disclose, distribute or disseminate the
Confidential Information or information derived therefrom in any way to
any third party and not to use the Confidential Information for Merchant's
own benefit or the benefit of others, or for any purpose except in
connection with the purposes of this Agreement. Merchant agrees to use
its best efforts to protect all Confidential Information and in any event,
to take precautions at least as great as those taken to protect Merchant's
own information of a similar nature. Merchant agrees that this Agreement
is Confidential Information. Upon Authorize.Net's request, Merchant will
return all materials, in any medium, that contain, embody, reflect or
reference all or any part of any Confidential Information. Merchant
acknowledges that breach of this provision may result in irreparable harm
to Authorize.Net, for which money damages may be an insufficient remedy,
and therefore Authorize.Net will be entitled to seek injunctive relief to
enforce the provisions of this section. |
| |
| 12. |
Representations and Warranties. |
|
12.1 |
Mutual Warranties. Each party represents and
warrants to the other that (a) it has all necessary right,
power and ability to execute this Agreement and to perform its obligations
therein; (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, (d) the party's obligations
under this Agreement do not violate any law or breach any
other agreement to which such party is bound; and (e) it has all right,
title or interest, or valid license to use, its respective
Marks (as defined on Exhibit B), and that its grant of rights associated
therewith do not violate any intellectual property or
other proprietary rights of any third party. |
|
12.2 |
Authorize.Net Warranty |
|
|
12.2.1 |
During the effective term of this Agreement,
Authorize.Net represents and warrants that the eCheck.Net Services will
conform in all material respects to the Operating Procedures and User
Guide, as may be amended from time to time. The preceding warranties will
not apply if: (i) any eCheck.Net Services or products provided hereunder
are used in material variation with this Agreement or the applicable
documentation; (ii) any eCheck.Net Services or products have been modified
without the prior written consent of Authorize.Net; or (iii) a defect in
eCheck.Net Services or products has been caused by any of Merchant's
malfunctioning equipment or software. Merchant expressly acknowledges
that the eCheck.Net Services are computer network-based services, which
may be subject to outages, interruptions, attacks by third parties and
delay occurrences. |
|
|
12.2.2 |
In the event Merchant discovers that the eCheck.Net
Services are not in conformance with the representations and warranties
made in Section 12.2.1 and reports such non-conformity to Authorize.Net or
if the eCheck.Net Services are subject to outages, interruptions, attacks
by third parties and delay occurrences, Authorize.Net shall use
commercially reasonable efforts to remedy material interruptions and will
provide adjustments, repairs and replacements, within its capacity, that
are necessary to enable the eCheck.Net Services to perform their intended
functions in a reasonable manner. Merchant acknowledges that
Authorize.Net does not warrant that such efforts will be successful. If
Authorize.Net's efforts are not successful, you may terminate this
Agreement in accordance with Section 10.1. The foregoing shall constitute
Merchant's sole remedy, and Authorize.Net's sole liability, in the event
of interruption, outage or other delay occurrences in the eCheck.Net
Services. Authorize.Net does not warrant the services of any third party,
including, without limitation, the Merchant Service Provider, bank or any
third-party processor. |
|
|
12.2.3 |
DISCLAIMER. THE ECHECK.NET SERVICES ARE PROVIDED ON AN "AS IS",
"AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES.
AUTHORIZE.NET DOES NOT REPRESENT OR WARRANT THAT THE ECHECK.NET SERVICES
WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE,
COMPLETE, OR ENTIRELY ERROR-FREE. MERCHANT MAY NOT RELY UPON ANY
REPRESENTATION OR WARRANTY REGARDING THE ECHECK.NET SERVICES BY ANY THIRD
PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING
REPRESENTATIONS OR WARRANTIES OF ANY MERCHANT SERVICE PROVIDER. EXCEPT AS
EXPRESSLY SET FORTH IN SECTION 12.2.1, AUTHORIZE.NET SPECIFICALLY
DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS
OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE
OF DEALING, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR
CONDITIONS OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE ECHECK.NET SERVICES, OR
OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. MERCHANT
UNDERSTANDS AND AGREES THAT AUTHORIZE.NET SHALL BEAR NO RISK WITH RESPECT
TO MERCHANT'S SALE OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION,
ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD OR CHARGEBACKS.
|
|
12.3 |
BANK. MERCHANT UNDERSTANDS AND AGREES THAT ALL
MERCHANT COMPLAINTS AND CLAIMS CONCERNING THE ECHECK.NET
SERVICES PROVIDED HEREUNDER ARE TO BE MADE SOLELY AND EXCLUSIVELY THROUGH
AUTHORIZE.NET, UNLESS SUCH COMPLAINT OR CLAIM IS DUE TO ACH
TRANSFERS THAT ARE IMPROPERLY SUBMITTED, DELAYED, OR OTHERWISE NOT
COMPLETED AS A RESULT OF ANY THIRD PARTY'S ACTS OR
OMMISIONS. |
|
12.4 |
Merchant. Merchant represents and warrants that:
|
|
|
12.4.1 |
At all times during the term of this Agreement, its use
of the eCheck.Net Services will conform to specifications set forth in the
Operating Procedures and User Guide and that all representations and
statements made by it in this Agreement, or in any other document relating
hereto by Merchant or on its behalf, are true, accurate and complete in
all material respects; |
|
|
12.4.2 |
Merchant is engaged in a lawful business that includes
the sale of products and/or services, and is duly licensed to conduct such
business under the laws of all jurisdictions in which Merchant conducts
business; |
|
|
12.4.3 |
Merchant will comply with all laws, policies,
guidelines, regulations, ordinances or rules applicable to Merchant, this
Agreement, its business or the eCheck.Net Transactions, including, without
limitation: (i) the Credit Card Association rules and regulations; (ii)
the Gramm Leach Bliley Act; (iii) the Payment Card Industry (PCI) Data
Security Standard, Visa Cardholder Information Security Program (CISP) and
the MasterCard Site Data Protection Program (SDP); and (iv) Merchant's
right to process ACH transaction has not been terminated by any financial
institution; and |
|
|
12.4.4 |
Merchant has not violated any of the NACHA rules and/or
regulations except as specifically disclosed in writing to Authorize.Net.
|
|
12.5 |
Third-Party Software. Merchant acknowledges that
the eCheck.Net Service is designed for use with certain
third-party software, including, but not limited to, certain Internet
browser software programs. Merchant will look solely to
the developers and manufacturers of such programs with regard to warranty,
maintenance or other support regarding the same.
Authorize.Net makes no warranty, express or implied, with regard to any
such third-party software. |
| |
| 13. |
Indemnification. |
|
13.1 |
Indemnification by Authorize.Net.
|
|
|
13.1.1 |
General. Authorize.Net shall defend, indemnify and hold
Merchant, Merchant's affiliates, and any of their officers,
directors, agents and employees harmless from and against any and all
third-party claims, actions, proceedings, and suits and all
related liabilities, damages, settlements, penalties, fines, costs or
expenses (including reasonable attorneys' fees and other
litigation expenses) incurred by Merchant, arising out of or relating
to: (a) any alleged breach by Authorize.Net of any
representation, warranty or obligation of Authorize.Net set forth
in Section 12; or (b) any alleged infringement of a U.S. patent or
copyright of any other entity or person by the eCheck.Net
Service. |
|
|
13.1.2 |
Limitation; Prevention of Infringement. Authorize.Net's
obligations in Section 13.1.1(b) do not apply if the
eCheck.Net Service or portions or components thereof (a) are modified by
persons or entities other than Authorize.Net if the alleged
infringement relates to such modification; (b) are combined with other
products, processes or materials not supplied or
recommended by Authorize.Net where the alleged infringement relates to
such combination, or (c) continue to be used after
Authorize.Net has made a non-infringing version available to Merchant
(collectively, "Merchant Faults"). If the
eCheck.Net Service or any component thereof becomes, or in Authorize.Net's
opinion is likely to become, the subject of a claim of
infringement, then Merchant shall permit Authorize.Net, at Authorize.Net's
sole option and expense, either to (i) procure for Merchant
the right to continue using the eCheck.Net Service as permitted in this
Agreement, or (ii) replace or modify the affected
eCheck.Net Service or infringing component so that it becomes
non-infringing. If, after using commercially reasonable
efforts, Authorize.Net is unable to cure the infringement, either party
may terminate this Agreement upon notice to the other, as
provided in Section 10.1. This Section 13.1 states the entire liability
of Authorize.Net to Merchant with respect to infringement
of any intellectual property rights by the eCheck.Net Service.
|
|
13.2 |
Indemnification by Merchant. Merchant shall defend,
indemnify, and hold harmless Authorize.Net and its affiliates, parents,
and/or subsidiaries, and any of their officers, directors, agents and
employees, from and against any and all third-party claims, actions,
proceedings, and suits and all related liabilities, damages, settlements,
penalties, fines, costs or expenses (including reasonable attorneys' fees
and other litigation expenses) incurred by Authorize.Net, arising out of
or relating to: (a) any breach or alleged breach by Merchant of any
representation, warranty, or obligation set forth in this Agreement; (b)
any damage or loss caused by negligence, fraud, dishonesty or willful
misconduct by Merchant or any of its employees, agents or customers; (c)
the reliability, accuracy, or legitimacy of payment data or purchase
orders submitted by Merchant to Authorize.Net; (d) payment card
transactions submitted by Merchant to Authorize.Net and rejected by
Authorize.Net or an issuing bank; (e) any alleged infringement of a
patent, copyright, trademark or other intellectual property right
resulting from a Merchant Fault; (f) any alleged or actual violation of
any applicable laws, regulations or rules of (i) the Credit Card
Associations; (ii) the Gramm Leach Bliley Act; (iii) or any state or
federal regulatory body or agency having jurisdiction over the subject
matter hereof; (g) any violation of Authorize.Net's Acceptable Use
Guidelines or Privacy Policy, or (h) any alleged infringement of a patent,
copyright, trademark or other intellectual property right resulting from a
Merchant Fault. In the event Merchant causes fines and/or penalties to be
charged to Authorize.Net by the Credit Card Associations or any other
entity, Merchant agrees to immediately reimburse Authorize.Net for said
fines or penalties. |
|
13.3 |
Indemnification Procedure. The obligations of each
party ("Indemnitor") under this Section 13 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 Sections
13.1 and 13.2 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) herein, 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.
|
|
13.4 |
Exceptions. If Merchant is an agency or
instrumentality of a state of the United States and is precluded by
the law of Merchant's state from entering into indemnification
obligations, then the obligations under Sections 13.2 and
13.3 shall apply only to the extent permitted by such state law.
|
| |
| 14. |
LIMITATIONS OF LIABILITY AND DISCLAIMERS.
|
|
14.1 |
LIMITATIONS. UNDER NO CIRCUMSTANCES; (I) WILL
AUTHORIZE.NET OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS (OR ANY
OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR
ITS PARENTS, AFFILIATES OR VENDORS) BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (HOWEVER
ARISING), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST
PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO
BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY
THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING
NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) WILL AUTHORIZE.NET'S
TOTAL LIABILITY TO MERCHANT, WHETHER ARISING IN TORT (INCLUDING
NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO
ANY AUTHORIZE.NET PRODUCTS OR SERVICES, EXCEED THE AGGREGATE COMPENSATION
AUTHORIZE.NET RECEIVED FOR PROVIDING THE ECHECK.NET SERVICES TO MERCHANT
DURING THE THIRTY DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR
$1,000, WHICHEVER IS LESS. |
|
14.2 |
DISCLAIMER. EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, MERCHANT EXPRESSLY AGREES THAT AUTHORIZE.NET SHALL NOT BE
LIABLE FOR ANY LOSS (HOWEVER ARISING, INCLUDING NEGLIGENCE), ARISING FROM
OR RELATED TO: (I) MERCHANTS FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR
SECURE ITS MERCHANT ACCOUNT; (II) FRAUDULENT TRANSACTIONS PROCESSED
THROUGH ITS PAYMENT GATEWAY ACCOUNT; (III) DISRUPTION OF AUTHORIZE.NET
SERVICES, SYSTEMS, SERVER OR WEBSITE BY ANY MEANS, INCLUDING, WITHOUT
LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME
BOMBS, OR ANY OTHER TECHNOLOGY; (IV) ACTIONS OR INACTIONS BY ANY THIRD
PARTY, INCLUDING, WITHOUT LIMITATION, A MERCHANT SERVICE PROVIDER, PAYMENT
PROCESSOR OR BANK; OR (V) UNAUTHORIZED ACCESS TO (A) DATA, CUSTOMER DATA
(INCLUDING CREDIT CARD NUMBERS AND OTHER PERSONALLY IDENTIFIABLE
INFORMATION), TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO
AUTHORIZE.NET, MERCHANT OR ANY THIRD PARTY AND/OR (B) THE ECHECK.NET
SERVICES, OR ANY SYSTEM OR PROGRAM ASSOCIATED THEREWITH; OR (VI) THE
LIMITATION OF THE FUNCTIONING OF ANY SOFTWARE, HARDWARE, EQUIPMENT OR
SERVICE. |
|
14.3 |
THIRD-PARTY SERVICES. AUTHORIZE.NET EXPRESSLY
DISCLAIMS ANY LIABILITY FOR ANY AND ALL CLAIMS OF LOSS AND/OR FRAUD
INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY
THIRD-PARTY PRODUCT OR SERVICE, REGARDLESS OF WHETHER OR NOT AUTHORIZE.NET
IS A RESELLER OF SUCH PRODUCT OR SERVICE. |
| |
| 15. |
General Provisions. |
|
15.1 |
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). |
|
15.2 |
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. |
|
15.3 |
Relationship of the Parties. The parties are
independent contractors and nothing in this Agreement shall
make them joint venturers, partners, employees, agents or other
representatives of the other party. Neither party shall
make any representation that suggests otherwise. |
|
15.4 |
Notices. All notices to Merchant shall be given
electronically, sent to the electronic mail address provided by or for
Merchant during registration for the eCheck.Net Service and/or posted in
the Announcement section of Merchant's gateway account, or in writing sent
to the address or fax number provided by or for Merchant during
registration for the eCheck.Net Service. All notices to Authorize.Net
shall be in writing and sent to Authorize.Net LLC, 808 East Utah Valley
Drive, American Fork, Utah, 84003, Attention: Legal Department. To
cancel the eCheck.Net Service, Merchant must either contact its Merchant
Service Provider or send an email to risk@cybersource.com with all
information necessary to facilitate cancellation of its account,
including, without limitation, name, account number, and phone number.
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.
|
|
15.5 |
Amendment; Modifications. No amendment,
modification, or change to any provision of this Agreement,
nor consent to any departure by either party therefrom, will in any event
be effective unless the same will be in writing and signed
by the other party, and then such consent will be effective only in the
specific instance and for the specific purpose for which
given. Sales representatives or Merchant Service Providers
of Authorize.Net are not permitted to make any representation or warranty
not contained herein and cannot waive, alter, or amend the
printed terms and conditions hereof. Notwithstanding the foregoing,
Authorize.Net may amend this Agreement and any policy,
guideline or procedure governing eCheck.Net Transactions (including,
but not limited to, the Operating Procedures and User Guide) 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;
provided that the addition or change of service fees, will
become effective upon at least thirty (30) days' notice. If Merchant does
not agree to such amendments, Merchant's sole remedy is to
immediately terminate this Agreement upon written notice to
Authorize.Net. |
|
15.6 |
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.
|
|
15.7 |
Governing Law; Jurisdiction. This Agreement and
performance under it will be interpreted, construed and
enforced in all respects in accordance with the laws of the State of
California, without reference or giving effect to its
conflicts of law principles. Merchant hereby irrevocably consents to the
personal jurisdiction of and venue in the state and federal
courts located in Santa Clara, California, 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. No action,
regardless of form, arising out of or in conjunction with the subject
matter of this Agreement, except for claims involving intellectual
property, claims to recover outstanding amounts due Authorize.Net and
claims for indemnification, may be brought by either Party more than one
(1) year after the cause of action arose. |
|
15.8 |
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. |
|
15.9 |
Assignment. Merchant may not assign any of
Merchant's rights or delegate the performance of any of Merchant's
obligations under this Agreement without the prior written consent
of Authorize.Net. |
|
15.10 |
Force Majeure. Authorize.Net will not 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 or termination of financial or
ACH services to Authorize.Net by the Bank or any of Authorize.Net's
financial institutions, interruptions in
telecommunications, utility, Internet, or network provider services, or
other catastrophes or any other occurrences which are
beyond Authorize.Net's reasonable control (each a "Force Majeure
Event"). If a Force Majeure Event arises, Authorize.Net
will provide Merchant notice of any such delay or interruption as soon as
reasonably practicable and will use commercially reasonable
efforts to minimize any delays or interruptions resulting from the
Force Majeure Event. In no event will any failure to pay any
monetary sum then due under this Agreement be excused for
any Force Majeure Event. |
|
15.11 |
Telephone Recording. Merchant acknowledges, agrees
and consents on behalf of itself, and its Agents, that Authorize.Net may
monitor and record any customer service telephone conversations at any
time, without additional further notice to the parties of such
conversations. The decision to record any conversation shall be solely in
Authorize.Net's discretion, and Authorize.Net shall have no liability for
failing to do so. |
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15.12 |
Order of Precedence. The following order of
precedence shall apply to the interpretation and application of this
Agreement: (1) eCheck.Net Service Agreement, (2) Bank Terms, (3)
Operating Procedures and User Guide, and (4) other exhibits.
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15.13 |
Entire Agreement. This Agreement, including the
Exhibits and Operating Procedures and User Guide, 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. Merchant acknowledges that this Agreement
reflects an informed, voluntary allocation between Authorize.Net and
Merchant of all risks (both known and unknown) associated
with the eCheck.Net Service.
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EXHIBIT A
BANKS AND BANK TERMS
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| PARTICIPATING BANKS |
| 1. |
First National Bank of Omaha, One First
National Center, Omaha, Nebraska 68102-1596 Applicable Bank
Terms attached as Exhibit A-1
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EXHIBIT A-1
FIRST NATIONAL BANK OF OMAHA
BANK TERMS
ACH Terms
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eCheck.Net Transactions are completed via
automated clearinghouse (ACH) transactions processed by First National
Bank of Omaha (FNBO), subject to these ACH Terms. By
requesting any eCheck.Net Service, Merchant is agreeing to these
ACH Terms. These ACH Terms constitute a separate agreement between
Merchant and FNBO, may be relied upon and enforced by FNBO
and may not be modified, amended, waived or in any other way altered by
Authorize.Net. Authorize.Net is not FNBO's agent and has
no power or authority to act or make commitments on behalf of FNBO.
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| 1. |
Merchant's Authorize.Net Relationship.
Authorize.Net shall be considered Merchant's agent with full power and
authority to act on behalf of Merchant, until FNBO receives
written notice from Merchant to the contrary and has had a
reasonable opportunity to act thereon (any such notice should be sent
directly to the Vice President, Electronic Banking at
FNBO. FNBO will debit and/or credit ACH transactions to an
account designated by Authorize.Net (the "Account"). Among
other things, this means that FNBO will send the proceeds of Merchant's
eCheck.Net Transactions to the Account, not to Merchant.
Authorize.Net is then solely responsible for disbursing funds from the
Account to Merchant. The Account may or may not be held in
the name of Authorize.Net and may or may not contain proceeds from
eCheck.Net Transactions for other merchants. All bank statements,
notices and other communications in respect of the Account
or the transactions hereunder shall be directed by FNBO to Authorize.Net.
MERCHANT UNDERSTANDS AND AGREES THAT AUTHORIZE.NET HAS
FULL AND EXCLUSIVE POWER AND AUTHORITY TO PROVIDE FNBO WITH INSTRUCTIONS
PERTAINING TO THE ACCOUNT AND MERCHANT'S eCHECK.NET
TRANSACTIONS, INCLUDING, WITHOUT LIMITATION, THE AUTHORITY TO MAKE
TRANSFERS FROM THE ACCOUNT. FNBO HAS NO OBLIGATION OR
LIABILITY WHATSOEVER WITH RESPECT TO: (1) ACTS, ERRORS, OMISSIONS OR
DELAYS BY AUTHORIZE.NET; (2) REPRESENTATIONS OR WARRANTIES
MADE BY AUTHORIZE.NET; (3) LOSSES TO MERCHANT ARISING OUT OF
AUTHORIZE.NET'S INSOLVENCY; OR (4) MISAPPROPRIATION OF MERCHANT'S FUNDS
BY AUTHORIZE.NET. FNBO DOES NOT INTEND TO AND HAS NO
OBLIGATION TO MONITOR AUTHORIZE.NET'S TRANSACTIONS IN RESPECT OF
MERCHANT'S FUNDS.
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| 2. |
Merchant's Responsibility. Merchant is responsible
for: (i) the results of using eCheck.Net Transactions and
the corresponding ACH transactions; and (ii) for the accuracy and adequacy
of the data Merchant or Authorize.Net provides to FNBO.
FNBO is not responsible to third parties (such as, but not limited to,
Merchant's customers) for Merchant's use of eCheck.Net
Transactions and the corresponding ACH transactions. If a third party
claim is made against FNBO arising out of eCheck.Net
Transactions or the corresponding ACH transactions, Merchant's breach of
these ACH terms, or breach of any warranty under the Rules
(as referenced in Section 4), Merchant agrees to defend, indemnify and
hold FNBO harmless against such claim. The foregoing
obligation of Merchant shall be primary and independent of, and FNBO shall
have no obligation to assert or pursue, any indemnification
or other rights it may have pursuant to its agreement with
Authorize.Net.
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| 3. |
Compliance With Law. |
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(a) |
Regulation E: NACHA Rules. Merchant agrees to
comply with the Electronic Fund Transfer Act, Federal Reserve
Regulation E, the Fair Credit Reporting Act and similar state laws and
regulations, to the extent the same may be applicable to
the ACH transactions processed hereunder. eCheck.Net Transactions shall
be originated only as a result of bona fide business
transactions between Merchant and its customer and no such transactions
shall be initiated, directly or indirectly, for the benefit
of any third party whether in a service bureau or other context. Merchant
understands that it will be considered the Originator of
ACH transactions processed by FNBO, and Merchant agrees to
comply with all rules and operating guidelines of the National Automated
Clearing House Association (collectively, the "Rules")
applicable to Originators, as the same may be applicable to ACH
transactions processed hereunder. Merchant agrees to
Schedule 1, attached and incorporated hereto, entitled "Compliance Update
for ACH Originators" as such may be revised from time to
time (the "ACH Update"). Merchant understands that the ACH Update is not
a complete or exclusive summary of ACH rules. FNBO may
revise the ACH Updates from time to time in the future (which may be
posted at Authorize.Net's website. If Merchant continues
to request eCheck.Net Transactions after FNBO posts or otherwise provides
such an ACH Update, Merchant will be considered to have
agreed to the terms set forth in that ACH Update (except that if Merchant
ceases initiation of entries within 45 days after the date
of such an ACH Update, initiation of entries during that 45-day period
will not constitute Merchant's agreement). |
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(b) |
Other Compliance. Merchant is prohibited from using
eCheck.Net Transactions or eCheck.Net Services in any manner
or in furtherance of any activity that constitutes a violation of any law
or regulation or that may reasonably be expected to subject
FNBO or its vendors to investigation, prosecution or legal action.
Merchant further agrees: (1) to receive, resolve and
respond to consumer-alleged errors under applicable laws, regulations and
the Rules; and (2) Merchant is responsible for promptly
handling and, if necessary, responding to and resolving at its own expense
any Special Handling Claims (as defined in the ACH
Update).
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| 4. |
DISCLAIMER. MERCHANT UNDERSTANDS AND AGREES
THAT (i) FNBO'S SOLE LIABILITY SHALL BE AS SET FORTH HEREIN; AND
(ii) ALL MERCHANT COMPLAINTS AND CLAIMS ARE TO BE MADE SOLELY AND
EXCLUSIVELY AGAINST AUTHORIZE.NET. IN THE EVENT THAT FNBO
FAILS TO PERFORM SERVICES PROPERLY, FNBO'S SOLE AND EXCLUSIVE OBLIGATION
SHALL BE TO REPERFORM THE SERVICES AT ITS OWN EXPENSE, AT
AUTHORIZE.NET'S DIRECTION. FNBO DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS
OR IMPLIED, WRITTEN OR ORAL IN RESPECT OF THE SERVICES IT
PROVIDES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
SERVICES ARE NOT WARRANTED TO BE FREE FROM ERROR OR INTERRUPTION. EXCEPT
AS SET FORTH ABOVE, FNBO SHALL HAVE NO LIABILITY, WHETHER
ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY)
OR OTHERWISE, TO MERCHANT ARISING OUT OF OR RELATED TO THE
SERVICES PROVIDED BY FNBO. IN NO EVENT WILL FNBO BE LIABLE
TO MERCHANT FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY
DAMAGES, REGARDLESS OF WHETHER FNBO WAS INFORMED OF THEIR
POSSIBILITY AND REGARDLESS OF WHETHER ANY LIMITED REMEDY HEREIN FAILS OF
ITS ESSENTIAL PURPOSE. MERCHANT ACKNOWLEDGES AND AGREES
THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE REASONABLE GIVEN THE FACT
THAT NO COMPENSATION IS BEING PAID TO FNBO BY MERCHANT
HEREUNDER. MERCHANT'S REMEDIES HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL
OTHER REMEDIES IN LAW OR EQUITY. Failures or delays in
performance by FNBO will be excused if due to interruption of
communications or computer facilities, failure of
equipment, emergency conditions or other circumstances beyond FNBO's
control. FNBO reserves the right to reject any ACH
transfer directions submitted by Authorize.Net.
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| 5. |
Risk Management. Merchant is solely responsible for
all acts and omissions of its officers, directors,
partners, employees, agents, representatives, contractors, and third party
service providers (including Authorize.Net) (collectively,
"Merchant Representatives"). FNBO is entitled, without further inquiry or
investigation, to assume that the actions of Merchant
Representatives are appropriate and authorized by Merchant. This
authorization will remain in effect unless FNBO receives
written notice to the contrary from Merchant and has a reasonable
opportunity to react thereto. Merchant is strongly advised
to establish and maintain policies and procedures and accounting and
auditing controls that will prevent (or at least allow the
early detection of) fraud or other unauthorized activity by Merchant
Representatives. As between Merchant and FNBO, Merchant agrees
to accept sole responsibility for losses attributable to
any and all acts and omissions of Merchant Representatives.
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| 6. |
Privacy. Provision of services hereunder may
require that FNBO receive certain information concerning Merchant's
consumers (e.g., their checking account numbers). FNBO agrees to
use reasonable efforts to maintain the confidentiality of
such information and agrees not to use or disclose the same except as
necessary in connection with the processing of ACH
transactions. Disclosures of the type described in 12 C.F.R. Sections
40.13, 40.14 and 40.15 shall not be deemed prohibited by the
foregoing. Merchant is solely responsible for obtaining and maintaining
any and all necessary rights, power and authority to provide
consumer information to FNBO and for providing applicable privacy
disclosures, if any, to its consumers.
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| 7. |
Modifications. In addition to its right to revise
ACH Terms in accordance with Section 3(a), FNBO may amend
these ACH Terms 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; provided that the addition or change of service fees,
will become effective upon at least thirty (30) days'
notice. If Merchant does not agree to such amendments, Merchant's sole
remedy is to immediately terminate its agreement with FNBO
upon written notice to FNBO.
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SCHEDULE 1
COMPLIANCE UPDATE FOR ACH ORIGINATORS
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| EFFECTIVE DATE:
_________________ |
In this Schedule "we" and "us" refer to
First National Bank of Omaha and "you" refers to the Merchant.
Compliance With the NACHA Rules and Law-By initiating
eCheck.Net Transactions and thereby causing Authorize.Net
to transmit information about ACH entries to us, you authorize us to
transmit, and to debit or credit the amount of, those
entries (referred to below as "your entries") to the Receiver's
account. You agree to be bound by the rules of the National Automated
Clearinghouse Association and other relevant clearinghouse
associations as in effect from time to time (the "Rules"). You will be
considered the Originator of your entries under the Rules.
You agree not to initiate entries that violate the laws of
the United States.*
*IMPORTANT:
These laws include, but are not limited to, sanctions enforced by the
Office of Foreign Assets Control (OFAC). It is your
responsibility to obtain information regarding OFAC enforced sanctions.
You may obtain further information from the OFAC Compliance
Hotline at (800) 540-OFAC.
Receiver
Authorization-By requesting (or causing Authorize.Net request) us to
initiate entries, you represent that: (1) The Receiver has
authorized you to initiate your entries to the Receiver's
account; (2) In the case of CBR, CCD and CTX entries, the Receiver has an
agreement with you to be bound by these rules as in effect
from time to time; (3) In the case of debit entries to Consumer
Accounts (including, but not limited to, TEL and WEB entries), you
have obtained the consumer's authorization in the form,
content and manner required by the Rules; (4) In the case of PPD accounts
receivable truncated check debit entries, you have given the
notice and verified that the requirements of NACHA OR 2.1.4
have been satisfied; (5) In the case of WEB entries, you have implemented
a commercially reasonable fraudulent transaction detection
system to screen entries, you have taken commercially
reasonable steps to verify the routing number, you establish secure
Internet sessions utilizing commercially reasonable
technology prior to consumer key entry of banking information, and
you have complied with the security audit requirements set forth in
the Rules (and you agree to provide us with copies of such
audit reports promptly after they are completed); and (6) In the case of
TEL entries, you have given the consumer the notices
required by the Rules and you have taken commercially
reasonable steps to verify the consumer's identity and routing number.
You agree to retain and provide copies or other evidence of
such authorizations as required by the Rules or otherwise requested by us.
Prenotifications-If you initiate
prenotifications, you agree to send them as required by the Rules.
If the RDFI indicates it cannot accept such entries, you agree not
to initiate the entries.
Credit Entries-In
the case of credit entries subject to UCC Article 4A (in general, this
means non-consumer credit entries), you are hereby notified
that: (1) these entries may be transmitted through the ACH;
(2) your rights and obligations concerning these entries shall be governed
by and construed in accordance with New York law (in all
matters between you and us, however, Nebraska law shall govern); (3)
credit given by RDFIs to Receivers is conditional until final
settlement or payment in accordance with UCC 4A; and (4) if
an RDFI does not receive such payment, the RDFI is entitled to a refund
from the Receiver and you will not be considered to have
paid the Receiver.
Rejection of Entries; ODFI
Exposure Limits-We may refuse to transmit entries that would violate
the general or special exposure limits that we have adopted.
We also reserve the right to refuse entries for other
reasons, including, but not limited to, insufficient funds in any relevant
account.
Your Entries-We make numerous
warranties and indemnities to third parties concerning your entries
and files, as specified in the Rules. You agree to reimburse us
for any payments we are required to make to these third
parties with respect to your entries or files. You also agree to comply
with all of your obligations in Article Three of the Rules
(Obligations of Originators). If we are fined due to your
Rules infractions, you are responsible for reimbursing us for the amount
of that fine. You agree not to reinitiate entries except
as permitted by the Rules. You agree that reversing entries and
reversing files must be transmitted on a timely basis as required by
the Rules.
Special Entries-Entries based on
Paper Items: If you initiate entries based on paper items
(for example, destroyed check, re-presented check, POP, or PPD accounts
receivable truncated check debit entries), you are
responsible for compliance with all requirements of the Rules that pertain
to those entries.
This responsibility includes, but is not limited to, responsibility for
requirements pertaining to initiation of entries (including
rules regarding eligibility of the underlying items) and requirements
regarding keeping or providing copies or originals of the
underlying items. You also have the responsibility
specified in the preceding paragraph with respect to any special
warranties or indemnities that we make under the Rules as
to these entries.
Notifications of
Change-You agree to promptly make changes requested in a Notification
of Change.
Returns, Adjustments, Etc.-All
credits given to you or Authorize.Net are provisional until we
receive final settlement. To the extent that any credits are revoked
or affected by any third party claim or demand or any other
process recognized by the Rules (such as, but not limited to, returns,
reversals, adjustments, reclamations, or claims based on breach
of any warranty made by Originators or ODFIs under the
Rules) or to the extent that we are required to indemnify any Receiver,
RDFI or other third party in respect of your entries
(collectively, "Special Handling Claims"), you agree to reimburse
us. Our right of reimbursement is absolute and unconditional, shall
survive any termination of our relationship with you, and
shall not, for any reason whatsoever, be subject to any reduction, setoff,
defense, counterclaim, deferment or right of recoupment.
You must reimburse us even if Authorize.Net was the cause
of the Special Handling Claim. If Special Handling Claims become
excessive (in our judgment) we may discontinue services or
take other actions that we deem appropriate.
Effective Date-This ACH Update is effective as of the date
first written above and supersedes and replaces any previous such update.
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EXHIBIT B
TRADEMARKS
Authorize.Net Marks
For
purposes of this Agreement, "Authorize.Net Marks" means those
trademarks listed below and such other trademarks as Authorize.Net may
from time to time notify Merchant in writing to be
"Authorize.Net Marks" within the meaning of this
Agreement.
Authorize.Net®
Authorize.Net
Advanced Fraud Detection Suite™
Authorize.Net Automated
Recurring Billing™
Authorize.Net Your Gateway to IP
Transactions™
CyberSource®
eCheck.Net®
Merchant Marks
For
purposes of this Agreement, "Merchant Marks" means Merchant's customary
name and logo, and such other trademarks as Merchant may from
time to time notify Authorize.Net in writing to be
"Merchant Marks" within the meaning of this Agreement.
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