Execution and Interpretation
By using or accessing the Transaction Services or by your performance You acknowledge and agree that:
- You have reviewed and understands the Agreement;
- You agree to be legally bound by the terms and conditions of the Agreement; and
- Your use of the Transaction Services and any related products or services will be governed by this Agreement.
It is a condition of use of the services software and platform of Transact 365 that you agree to and abide by all the terms of this Agreement. If You do not agree to or are not willing to be bound by the terms and conditions of this Agreement then permission to use the services software or platform provided by Transact 365 is expressly withheld.
By accepting the terms and conditions of this Agreement, You represent and warrant that:
- the person executing this Agreement on behalf of You is 18 years of age or older,
- all information You have provided to Transact 365 is true and correct in all respects, and
- You will update Transact 365 by email with any changes to information You have previously supplied.
You further represents and warrants that You have the legal authority to accept the terms and conditions of this Agreement and that such acceptance will be binding on You. Transact 365 reserves its right, at its sole discretion, to refuse to provide You with any Transact 365 Service.
Words and phrases with initial letters capitalized and not otherwise defined herein shall have the meaning set forth below:
“Abandoned Account” means any inactive account through which no Transactions have been processed for a minimum of six (6) months AND for which all contact information (address, phone numbers, fax numbers, email address) and billing information (bank account number and/or card number) is no longer valid.
“Account” means a top-level gateway identifier that is issued by Transact 365 to You to enable Your use of Transaction Services hereunder. For each business unit within Your organization that requires invoices to be sent to an address different than the primary Account a new Account is required.
“Additional Service(s)” Any other service or product that may be offered by Transact 365 in the future.
“Affiliates” means any entity that controls is controlled by or is under common control with a party including its parents and subsidiaries.
“API” means application programming interface.
“Batch(es)” means any batch settlement submitted to a Processor by Transact 365 consisting of any card authorization credit ticket only decline transaction or other related transaction.
”Confidential Information” shall mean any data or information oral or written treated as confidential that relates to either party’s (or if either party is bound to protect the confidentiality of any third party’s information, such third party’s) past present or future research development or business activities including any unannounced products and services any information relating to services developments Services Documentation (in whatever form or media provided) inventions processes plans financial information End-User data revenue transaction volume forecasts projections and the financial terms of this Agreement. Notwithstanding the foregoing Confidential Information shall not be deemed to include information if: (i) it was already known to the receiving party prior to the Effective Date of this Agreement as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.”
“Domain(s)” means any website or sites operated by or for Transact 365, including without limitation the URL www.Transact 365.com.
“Effective Date” means the earlier of the date You acknowledges and agrees to the Agreement terms and conditions by (a) clicking the “I AGREE” button associated with the Agreement; (b) acknowledging Your acceptance of the Agreement by any other method allowed by Transact 365 including without limitation execution of a Merchant Service Provider application that incorporates the Agreement by reference; or (c) by using the Transaction Services.
“End User”, “End” shall mean any person that purchases any of Your goods or services whose information You will submit to Transact 365 during the course of Your use of the Transaction Services.
“Fee Schedule” means a list of fees and charges to be paid by You to Transact 365. The Fee Schedule is located in the Merchant Interface.
“Intellectual Property” shall mean all (i) copyrights (including without limitation the right to reproduce and or distribute copies of or display and perform the copyrighted work and to prepare derivative works) copyright registrations and applications trademark rights (including without limitation, registrations and applications) patent rights trade names and trade secrets and moral rights and author’s rights privacy rights publicity rights goodwill and other proprietary rights and all renewals and extensions thereof regardless of whether any of such rights arise under the laws of country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea or design concept technique invention discovery enhancement or improvement regardless of patentability but including patents and patent applications trade secrets and know-how; and (iii) all derivatives of any of the foregoing.
“Merchant Interface” means the user interface available to Merchants at the URL provided by Transact 365.
“Merchant Service Provider” for purposes of this Agreement a Merchant Service Provider shall mean any third party through whom Transact 365 may offer the Transaction Services to You including but not limited to a reseller Independent Sales Organization (“ISO”), application service provider merchant aggregator, acquiring bank and financing agency.
“OSBP” means Off Site Buy Page.
“Payment Networks” means Visa MasterCard American Express Discover Financial Services and any affiliates thereof or any other payment network applicable to this Agreement.
“Payment Network Rules” means the operating rules bylaws schedules supplements and addenda manuals instructions releases specifications and other requirements as may be amended from time to time, of any of the Payment Networks.
“Processor” means a card processor that accepts Transactions from Transact 365 and processes Transactions for You.
“Services Documentation” means collectively the operating instructions user manuals and help files in written or electronic form made available to You and that are intended for use in connection with the Transaction Services.
“Trademark(s)” means all common law or registered trademark service mark trade name and trade dress rights and similar or related rights arising under any of the laws whether now existing or hereafter adopted or acquired.
“Transaction(s)” means any card authorization, credit, ticket only, capture or settlement request, decline transaction, or other related transaction, completed or submitted under Your account to Transact 365.
“Transaction Services” means the Transact 365 payment management solutions provided to You under the Agreement.
Transact 365’s Undertakings
Transaction Services: Transact 365 shall provide to You the Transaction Services at the rates set forth in the Fee Schedule and in accordance with the terms and conditions of this Agreement.
Customer Service. During the term of this Agreement, if Youare current in payment of all fees owing to Transact 365 and are otherwise not in default under this Agreement, Transact 365 shall provide customer service to You, as set forth in the Contact section of the Transact 365 website at the URL www.Transact 365.com.
ID and Password: You must select an ID and password to enable You to access Your payment gateway account and use the Transaction Services. 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 for purposes of giving You access to the Transaction Services. Transact 365 shall be entitled to rely on information it receives from Your account and may assume that all such information was transmitted by or on behalf of You. You shall comply with all Transact 365 recommendations and notices regarding the security of Your ID, password and payment gateway account(s).
Relationship to Merchant Service Providers: You may have enrolled in the Transaction Services via a Merchant Service Provider. In addition to any other agreement You may have with the Merchant Service Provider, the terms and conditions of this Agreement govern Your use and Transact 365’s provision of the Transaction Services. You expressly acknowledge and agree that Transact 365 may share information about You and Your account with its Merchant Service Providers.
Compliance. 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 laws, policies, guidelines, regulations, ordinances, rules applicable to You, this Agreement, End User data or the Transactions and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof, including, without limitation, the Payment Network Rules, the Federal Trade Commission and Services Documentation. Transact 365 reserves the right to amend, modify or change the Services Documentation at any time. You shall not use the Transaction Services in any manner, or in furtherance of any activity that may cause Transact 365 to be subject to investigation, prosecution, or legal action.
Third Party Products and Services: Your use of third party products and services shall be governed by and subject to separate third party product, service, software, and/or license agreements. Transact 365 will not be a party to such third party agreements and does not warrant or guarantee any third party product or service.
Data Collection, Privacy and Security
You are solely responsible for the security of data residing on servers owned or operated by You, or a third party designated by You (e.g., a Web hosting company, processor or other service provider). You shall comply with all applicable laws, policies and regulations governing the security, privacy, collection, retention and use by You of End account data, including, without limitation, financial information, card account numbers, and all other personally identifiable End User information. You agree to provide notice to End Users on Your website that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement.
You will comply with all then-current legal obligations and security measures, as applicable, including without limitation those issued by Payment Networks and the Federal Trade Commission, associated with the collection, security, dissemination and destruction of End-User and Transaction data, and expressly including the Payment Card Industry Data Security Standard (PCI DSS). You acknowledge that You are responsible for the security of End User cardholder data while in Your possession. You warrant that You have taken such precautions as are necessary to ensure that Your server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Your system is breached and an unauthorized third party has access to or has accessed End-User data or Transaction data, You shall notify Transact 365 promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future.
You agree that You will comply with all Transact 365 security protocols and security advisories in effect during the term of this Agreement. You are solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by Transact 365 associated with Your account and verifying that all corresponding funds are accurately processed. You acknowledge that Transact 365 shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Your account End-User or Transaction data. Transact 365’s liability for improperly processed or unauthorized Transactions solely attributable to the negligence of Transact 365 is limited pursuant to Section 12.
With respect to the Transaction Services at all times while this Agreement is in effect, Transact 365 will maintain compliance with the Payment Card Industry Data Security Standard (PCI DSS). Transact 365 acknowledges that Transact 365 is responsible for the security of End User cardholder data while in Transact 365’s possession.
Data Retention: You are solely responsible for compiling and retaining permanent records of all Transactions and End-User data for Your reference. Except as otherwise provided herein, at no time shall Transact 365 have an obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or End-User data collected or processed by Transact 365.
Fees and Taxes
Transact 365 Service Fees: You shall pay to Transact 365 the fees set forth in the Fee Schedule located in the Merchant Interface or the Merchant Transaction Processing Agreement, which is hereby incorporated into the terms of this Agreement by reference. Notwithstanding anything to the contrary and if agreed upon by the parties 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. If Your relationship with a Merchant Service Provider expires or terminates and such Merchant Service Provider was billing You for certain fees You agrees to pay Transact 365 for any further use of the Transaction Services effective immediately upon any such expiration or termination in accordance with the terms herein.
Late Payment Fee: If You do not pay owing amounts on or before the fifteenth (15th) day of the month, you will be subject to a late payment fee in the amount set forth in the Fee Schedule. If You have not paid all amounts due before the last day of the month in which they were due Your access to the Transaction Services shall automatically be suspended at the end of the month.
Abandoned Account Fee: If Your account becomes an Abandoned Account with a balance due to You then You shall be assessed a monthly Abandoned Account Fee in the amount set forth in the Fee Schedule. In addition all costs incurred by Transact 365 in managing Your Abandoned Account including costs associated with attempting to locate You to deliver Your account balance or incurred with respect to payment of Your funds to You or to the appropriate governmental agency will be deducted from Your account, as applicable.
Taxes: The fees described above are exclusive of all taxes. You agree to pay all applicable taxes other than tax assessed on Transact 365’s income. You agree that the payment of fees to Transact 365 shall be made without deduction or withholding for any taxes. If You are required to withhold any taxes, the amount paid by You to Transact 365 shall be increased to the extent necessary to yield to Transact 365 (after withholding of such taxes) a net amount equal to the amount Transact 365 would have received had no such withholding been made. You bear the ultimate responsibility for the proper payment of taxes applicable to Your sale of its products or services.
Opening/Closing Accounts: Should You fail to pay fees due under an Transact 365 account (“Original Account”) and subsequently opens another Transact 365 account (“Subsequent Account”) Transact 365 reserves the right to bill the Subsequent Account for amounts due under the Original Account whether or not the Original Account was closed.
Billing, Payment Terms and Disputes
Billing Terms: Billing by Transact 365 shall begin on the Effective Date. Transact 365 service fees are due and payable to Transact 365 on a monthly basis and the first payment shall be due on the first day of the month immediately following the billing effective date. Unless otherwise specified herein, fees and payments for any subsequent time periods shall be due on the first day of the month. Payments will be made in euros.
You hereby authorizes Transact 365 to initiate transaction entries to Your depository account(s) provided in its Your application for all amounts due to Transact 365 by You under this Agreement or any other Transact 365 agreement. This authority is to remain in full force and effect until Transact 365 has received written notification from You of its request for termination in such time as to afford Transact 365 a commercially reasonable opportunity to acknowledge and respond to the request. If Your depository account(s) number and/or income tax ID number changes You shall promptly update its account information in the Your Interface. Entries initiated to or from Your depository account will be in accordance with the rules of any other regulatory body or agency having jurisdiction over the subject matter hereof.
The parties shall promptly investigate any disputed fees under this Agreement. A dispute will not relieve You of Your payment obligations herein. If an event of dispute is resolved in Your favour Transact 365 will credit back to You any applicable overpayments made by You. All disputes must be made in good faith and in writing within thirty (30) days of the billing statement date. Fees billed shall be deemed accepted where written objections are not lodged within such thirty (30) day period.
Merchant Service Provider Bills Customer: Notwithstanding Sections 6.1 to 6.3 if You are to be billed by a Merchant Service Provider for some or all of the fees associated with Transaction Services You shall pay the Merchant Service Provider in accordance with the terms mutually agreed upon between You and such Merchant Service Provider.
This Agreement shall commence on the Effective Date and remain in full force and effect until terminated pursuant to Section 8.
Termination and Suspension
Termination by You: You may terminate this Agreement at any time and for any reason with or without cause upon written notice to Transact 365. In the event You are billed by a Merchant Service Provider in accordance with any subclause of Section 6,You hereby authorizes the Merchant Service Provider to terminate this Agreement on Your behalf.
Termination by Transact 365: Transact 365 may terminate this Agreement and/or Your access to the Transaction Services at any time and for any reason with or without cause upon fifteen (15) days’ written notice.
Termination or Suspension of You by a Merchant Service Provider: If Transact 365 is to be paid for Your access to and use of the Transaction Services by a Merchant Service Provider and if Transact 365 receives notice from such Merchant Service Provider that it has terminated or suspended its relationship with You then Transact 365 may suspend and/or terminate Your right to access and use the Transaction Services and/or this Agreement without notice and without liability. In addition, Transact 365 may suspend and/or terminate the Transaction 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 card transaction to Your Processor.
Unlawful Usage: In the event that Transact 365 reasonably believes that You are in violation of Your obligations hereunder including without limitation selling products or services that violate law or regulation or that Your conduct poses a threat to Transact 365’s systems equipment processes or Intellectual Property (the “Threatening Condition”) Transact 365 may immediately suspend Your Account(s). In any event Transact 365 may terminate this Agreement if the Threatening Condition remains uncured more than thirty (30) calendar days after You are notified of the Threatening Condition.
Effect of Termination: Upon termination of the Agreement for any reason, all rights and obligations of the parties under this Agreement shall be extinguished, except that (a) all payment obligations hereunder shall survive such termination; and (b) the rights and obligations of the parties under Sections 9, 10, 11, 12, 13, 14 and 15 shall survive such termination and shall continue indefinitely.
The parties agree that Transact 365 owns and retains all right title and interest in and to the Transact 365 Trademarks Transaction Services copyrights 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. You will not reverse engineer disassemble decompile or otherwise attempt to discover the source code or trade secrets for any of the Transaction Services or related technology.
API, OSBP and Related Documentation License: Subject to the terms of this Agreement Transact 365 hereby grants to You and You hereby accept from Transact 365 a personal limited non-exclusive non-transferable license and right to the Transact 365 API/OSBP and accompanying documentation for the following purposes:
- To install and use the Transact 365 API/OSBP on as many machines as reasonably necessary (which machines are and shall be maintained in facilities owned, occupied, or leased by You) to use the Transaction Services for the purpose of selling products and services to End-Users;
- To use the accompanying Services Documentation solely for the purpose of using the Transact 365 APIs and Transaction Services; and iii. create a reasonable number of copies of the Transact 365 API/OSBP and related documentation, with all copyright notices intact, for archival purposes only.
Transact 365 Trademarks License: Subject to the terms and conditions contained herein, Transact 365 hereby grants to You a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display the Transact 365 Trademarks on Your website in connection with Your offering of payment options to End Users.
Your Marks License: Subject to the terms and conditions contained herein You hereby grants to Transact 365 a non-exclusive royalty-free fully-paid up right to use reproduce publish perform and display Your Marks as necessary in connection with the performance of the Transaction Services.
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 the other party. 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.
Use the Appropriate ® or ™ Symbol: You must reproduce any Transact 365 Trademarks only exactly as provided by Transact 365, including the exact reproduction of any proprietary markings or legends and including the appropriate ® or ™ symbol at the first and most prominent reference, or as soon as practicable thereafter.
Trademarks and Domain Registration: Except as otherwise provided herein You shall not use register or attempt to register any (a) Transact 365 Trademarks or (b) marks or domain names that are confusingly similar to any of the Transact 365 Trademarks or the Domain(s).
Trademark Restrictions: You shall not (a) use the Transact 365 Trademarks except as expressly authorized in this Agreement; (b) take any actions inconsistent with Transact 365’s ownership of the Transact 365 Trademarks and any associated registrations, or attack the validity of the Transact 365 Trademarks, its ownership thereof, or any of the terms of this Agreement; (c) use the Transact 365 Trademarks in any manner that would indicate You are using such Transact 365 Trademarks other than as a licensee of Transact 365; nor (d) assist any third party do any of the same.
Each Party (the “Receiving Party”) hereby agrees (i) to hold the other party’s (the “Disclosing Party”) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (iv) not to remove or export from the United States or re-export any such Confidential Information or any direct product thereof, except in compliance with, and with all licenses and approvals required under, applicable U.S. and foreign export laws and regulations, (v) not to copy or reverse engineer any such Confidential Information, and (vi) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate “need to know” and shall be bound in writing to comply with the Receiving Party’s confidentiality obligations, whether generally or specific to this Agreement.
Except as otherwise provided in this Agreement, within thirty (30) calendar days of termination of this Agreement, the Receiving Party shall, destroy all materials that constitute Confidential Information and/or Intellectual Property of the Disclosing Party and upon request provide to the Disclosing Party written certification signed by an authorized officer of the Receiving Party that all such information was so destroyed. Notwithstanding the foregoing, each party may retain Confidential Information that is (i) stored on archival or back-up files or (ii) required for compliance with applicable law, Payment Network Rules or its obligations pursuant to this Agreement, provided that such party continues to maintain confidentiality of such Confidential Information pursuant to the terms of this Agreement.
Notwithstanding any provision in this Agreement to the contrary, each party may disclose Confidential Information of the other party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction.
Representations and Warranties; Disclaimers
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 a 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, policy or regulation 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, and that its grant of rights associated therewith do not violate any intellectual property or other proprietary rights of any third party.
With respect to the Transaction Services Transact 365 represents and warrants that the Transaction Services provided to You hereunder will conform substantially to specifications set forth in the applicable Services Documentation as may be amended from time to time at Transact 365’s sole discretion. The preceding warranty will not apply if (a) any Transaction Services or products provided hereunder are used in material variation with this Agreement or Services Documentation; (b) any Transaction Services or products have been modified without the prior written consent of Transact 365; or (c) a defect in any Transaction Services or products has been caused by any of Your malfunctioning equipment or software. You expressly acknowledge that the Transaction Services are computer network-based services, which may be subject to outages, interruptions, attacks by third parties and delay occurrences.
In the event You discover that any Transaction Services or products are not in conformance with the representations and warranties made in Section 11.2 and report such non-conformity to Transact 365 or if the Transaction Services are subject to outages, interruptions, attacks by third parties and delay occurrences Transact 365 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 Transaction Services to perform their intended functions in a reasonable manner. You acknowledge that Transact 365 does not warrant that such efforts will be successful. If Transact 365’s efforts are not successful You may immediately terminate this Agreement. The foregoing shall constitute Your sole remedy and Transact 365’s sole liability in the event of interruption outage or other delay occurrences in the Transaction Services. Transact 365 does not warrant the services of any third party including without limitation the Merchant Service Provider bank or any third party processor.
Disclaimer: the Transaction Services are provided on an “as is,” “as available” basis without any representations or warranties. Transact 365 does not represent or warrant that the transaction services will be available accessible uninterrupted, timely secure accurate complete or entirely error-free. You may not rely upon any representation or warranty regarding the transaction 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 above Transact 365 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 merchantability fitness for a particular purpose non-infringement or title with respect to the transaction services or other services or goods provided under this agreement. You understand and agree that Transact 365 shall bear no risk with respect to Your sale of products or services including without limitation any risk associated with card fraud or chargebacks.
You represent and warrant that at all times during the term of this Agreement and any renewal thereof: (i) 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; (ii) You are engaged in a lawful business and have all necessary rights and authorizations to sell and distribute Your products and/or services; (iii) You will comply at Your own expense with all laws policies guidelines regulations ordinances or rules applicable to You under this Agreement End User data or the Transactions including without limitation: (a) the Payment Network Rules; (b) the Payment Card Industry Data Security Standard (PCI DSS); (c) any regulatory body or agency having jurisdiction over the subject matter hereof; and (d) the Services Documentation.
Third Party Programs: You acknowledge that the Transaction Services are designed for use with certain third party programs including without limitation certain Internet browser and software programs developed and owned by third parties. You will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Transact 365 does not warrant and shall not be responsible for services or software provided by unaffiliated third party vendors. You authorize Transact 365 to disclose to any third party vendor information concerning You to the extent required to deliver the requested service.
Limitations of Liability and Disclaimers
Limitations: under no circumstances (i) will transact 365 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 damage or loss suffered or incurred by You regardless of the form of action or any loss of revenue profits or business anticipated savings loss of goodwill or reputation costs of delay lost or damaged data or the incurring of liability for loss or damage of any nature whatsoever suffered by third parties all whether in contract strict liability or tort (including negligence) regardless of whether it has been advised of the possibility of such damages; or (ii) will transact 365’s total aggregate liability to You under this agreement exceed the greater of the aggregate compensation Transact 365 received for providing the transaction services to you during the three (3) months preceding the date on which the claim arose or $1,000. Nothing in this Agreement shall be deemed to exclude or limit liability that cannot be excluded or limited as a matter of law.
Disclaimer: Except as otherwise provided in this agreement You expressly agrees that Transact 365 shall not be liable for any loss (however occurring including negligence) arising from or related to: (a) Your failure to properly activate integrate or secure Your merchant account; (b) fraudulent transactions processed through Your payment gateway account(s); (c) disruption of transaction services, systems, server or website by any means including without limitation DDOS attacks software viruses trojan horses worms or any other disruptive technology; (d) actions or inactions by any third party, including without limitation a merchant service provider payment processor or bank; or (e) the limitation of the functioning of any transaction services or software hardware or equipment associated therewith.
Third Party Products and Services: Transact 365 makes no representation warranty or guarantee whatsoever in relation to third party products or services. Your use of third party products and services is at Your own risk. Transact 365 assumes no responsibility and expressly disclaims any liability for 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 Transact 365 is a reseller of or referral agent for such product or service.
You shall defend indemnify and hold harmless Transact 365 and its affiliates parents and/or subsidiaries and any of their officers directors agents and employees from and against any and all claims actions proceedings and suits and all related liabilities damages settlements penalties fines costs or expenses (including reasonable attorneys’ fees and other litigation expenses involved in defending or bringing any relevant action) incurred by Transact 365 arising out of or relating to:
- any breach or alleged breach by You of any representation warranty or obligation of You set forth in this Agreement;
- any damage or loss caused by negligence fraud dishonesty or wilful misconduct by You or any of Your employees, agents or customers;
- the reliability accuracy or legitimacy of payment data or purchase orders submitted by You to Transact 365;
- payment card transactions submitted by You to Transact 365 and rejected by Transact 365 or an issuing bank;
- any alleged infringement of a patent copyright trademark or other intellectual property right resulting from Your actions;
- claims by End Users, including, without limitation, claims relating to the disclosure of End User or consumer data; or
- any alleged or actual violation by You of any applicable laws, regulations, the Payment Network Rules or any regulatory body or agency having jurisdiction over the subject matter hereof. In the event You cause fines and/or penalties to be charged to Transact 365 by the Payment Networks or any other entity You agree to immediately reimburse Transact 365 for said fines or penalties.
Marketing: Except for any announcement intended solely for internal distribution or any disclosure required by legal accounting or regulatory requirements beyond the reasonable control of either party all media releases public announcements or public disclosures (including but not limited to promotional or marketing material) by either party or its employees or agents relating to this Agreement or its subject matter or including the name trade name trademark or symbol of the other party are prohibited without the prior written consent of both parties. Notwithstanding the foregoing either party shall be entitled to disclose the existence of the relationship formed hereunder between Transact 365 and You without the prior written consent of the other party and Transact 365 shall be entitled to include Your name and/or logo in customer lists within Transact 365 corporate presentations without prior written consent.
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.
Relationship of the Parties: The parties are independent contractors and nothing in this Agreement shall make them joint venture partners nor partners in a partnership nor employees nor agents nor other representatives of the other party. Neither party shall make any representation that suggests otherwise. You further recognize that if You contracted for the Transaction Services with a Merchant Service Provider such provider is an independent contractor and is not a joint venture partner nor a partner in a partnership nor agent of Transact 365.
Notices: All notices to You shall be given electronically sent to the electronic mail address provided by or for You during registration for the Transaction Services and/or posted in the Announcement section of Your payment gateway account(s). Service termination notices to Transact 365 shall be given electronically from within Your Transact 365 Merchant Interface and sent to [email protected] or to such other address as shall be provided in writing from time to time. You must log into Your Merchant Interface at the url provided by Transact 365 and click on “Contact Us” then click on “You Support Inquiry Form” then type Your termination request and click the “Submit” button. All other notices to Transact 365 must be in writing and sent to Transact 365 at its registered address which is shown on its letterhead and on Companies House. Such written notice will be deemed given upon personal delivery or three (3) days after the date of mailing if sent by certified or registered mail postage prepaid. Electronic mail notices shall be deemed given the next business day following the date delivered. Service by fax is hereby expressly excluded.
Variation: 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. Notwithstanding the foregoing Transact 365 may amend this Agreement at any time upon written or electronic notice to You 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 You do not agree to such amendments Your sole remedy is to immediately terminate this Agreement upon written notice to Transact 365.
Severability and 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.
Governing Law: This Agreement is made under the Laws of England and subject to the exclusive jurisdiction thereof.
Arbitration: Any dispute arising out of or related to the Agreement whether contractual or tortious in nature will be subject in the first instance to good faith arbitration under CEDR rules. The seat of the arbitration shall be London. The language of the arbitration shall be English.
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.
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 Transact 365, including in the case of a merger.
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 labour disputes fires transportation contingencies interruptions in telecommunications utility Internet services or network provider services acts or omissions of a third party infiltration or disruption of the Transaction Services by a third party by any means including without limitation DDoS attacks software viruses Trojan horses worms time bombs or any other software program or technology designed to disrupt or delay the Transaction Services or other catastrophes or any other occurrences which are beyond such parties’ reasonable control (each “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.
Telephone Recording a : You acknowledge, agree and consents to Transact 365 monitoring and recording any service telephone conversations with You at any time without additional further notice to the parties to such conversations.
Entire Agreement: This Agreement together with all of Transact 365’s policies referenced herein 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 Transact 365 and You of all risks (both known and unknown) associated with the Transaction Services.
Survival: The provisions of this Agreement relating to any fees or other amounts owed payment of interest on unpaid fees confidentiality warranties limitation of liability indemnification governing law, severability headings and this paragraph shall survive termination or expiration of this Agreement.
Mobile Device Application: If You choose to download and use the Transact 365 mobile device application Your use of the application shall be subject to the additional usage terms governing such application located within the application service provider’s user interface.
Affiliates: The rights, duties and/or obligations of Transact 365 under this Agreement may be exercised and/or performed by Transact 365 and/or any of Transact 365’s Affiliates or any of their subcontractors and/or agents. All liabilities arising under or as a consequence of this Agreement whether arising from the acts or omissions of Transact 365 or any of Transact 365’s Affiliates or any of their subcontractors and/or agents shall be solely Transact 365’s and not those of any of Transact 365’s Affiliates or any of their subcontractors and/or agents. You agree to bring any claim and or action relating to the foregoing against Transact 365 only and not against any of Transact 365’s Affiliates or any of their subcontractors and/or agents.