TERMS OF SERVICE
Company is in the business of providing merchant service advice, liason services between our company and your internal team members(“Services”) to individuals and businesses (“Customers”). Company also provides limited engagements with banks and processors on behalf of the merchant. All Services that are provided to a client will be defined in a proposal and signed by both parties. Customers may engage Company for Services by contacting email@example.com
MLM Processing Products.
Account Information From Third Party Sites.
Through the Service, you may direct Company to retrieve certain information maintained online by third-party financial institutions or providers with which you have a customer relationship, maintain accounts or engage in financial transactions (“Account Information”). You agree to provide your username, password, PIN and other log-in information and credentials necessary to access your account with such institutions or providers (“Access Information”), and you hereby grant Company permission to use the Access Information and Account Information for the purposes contemplated by this Agreement.
By using the Service, you expressly authorize Company to access, store and use your Account Information maintained by identified third parties, on your behalf as your agent. You hereby authorize Company to store and use your Access Information to accomplish the foregoing and to configure the Service so that it is compatible with the third party sites for which you submit Account Information. This may include, without limitation, monitoring your usage (including the location of relevant clicks and links) of such third party sites (when accessed through the Service) solely to facilitate such compatibility and our contemplated access to your relevant Account Information in connection with the Service. For purposes of this Agreement, you grant Company a limited power of attorney, and appoint Company as your attorney-in-fact and agent, to access third party sites using Access Information, and to retrieve, store and use your Account Information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person solely in connection with Company’s provision of the Service.
YOU ACKNOWLEDGE AND AGREE THAT WHEN COMPANY ACCESSES AND RETRIEVES ACCOUNT INFORMATION FROM THIRD PARTY SITES, COMPANY IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. You acknowledge and agree that the foregoing does not imply sponsorship or endorsement by any third party services accessible through the Service. You represent and warrant that neither the foregoing (or anything else in this Agreement) nor your use of the Services will violate any agreement or terms to which you are subject, including without limitation, those with respect to any third party site or service.
Fees and Payment.
Team Members of Company
Team Members of Company are full time, dedicated staff members to Company. Each Team Member has entered in to an Agreement with Company that governs its contractual relationship with Company. That Team Member Agreement has been incorporated by reference in to this Agreement. Each Client Engagement will have a MLM Processing Team assigned to it that will perform all the Services described in the Engagement Letter.
The Company has fully trained and equipped these Team Members to perform all the services that are detailed in each client engagement. Customer covenants and agrees that (i) during Customer’s engagement with the Company, and (ii) for a period of two (2) years following termination, Customer shall not, without the prior written consent of the Company, directly or indirectly, whether for his/her own account or on behalf of any person, firm, corporation, partnership, association, or other entity or enterprise, solicit, recruit, hire, or cause to be hired any Team Member of the Company or any of its affiliates, or any person who was an employee of the Company during the twenty-four (24) months preceding the Customer’s date of termination of Services, or solicit or encourage any Team Member of the Company or any of its affiliates to leave the employment of the Company or any of such affiliates if applicable.
The Parties hereto acknowledge that the services to be rendered by Company under this Agreement and the rights and privileges granted to the Customer under the Agreement are of a special, unique, unusual, and extraordinary character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated by damages in any action at law, and the breach by the Customer of any of the provisions of this Agreement shall cause the Company irreparable injury and damage. The Independent Contractor expressly agrees that the Company shall be entitled to immediate injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Agreement by the Customer. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that the Company may have for damages or otherwise. The various rights and remedies of the Company under this Agreement or otherwise shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law.
In the event that Customer should violate this provision in any capacity, Company will be entitled to thirty percent (30%) of the Team Member’s annual salary from Customer. This liquidated damages covers the price to acquire, train, and develop the Team Member to perform the services that the Team Member was hired to perform and which Customer engaged Company to perform.
Customer may terminate this Agreement with Company at any time with thirty (30) days written notice of Customers intent to cancel. Company may terminate this Agreement at any time for any reasoning, with no notice to Customer. Upon termination or expiration of this Agreement, the following provisions shall survive: Reservation of Rights, Confidential and Proprietary Information, Disclaimer of Warranty, Limited Warranty, Limitation of Liabilities, Survival, and Miscellaneous Provisions.
Reservation of Rights.
a. Company. Company expressly reserves all rights in the Service and all other materials provided by Company hereunder not specifically granted to Customer. It is acknowledged that all right, title and interest in the Service and all other materials provided by Company hereunder, any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Company (or third party suppliers, if applicable) and that the Service and all other materials provided by Company hereunder are licensed on a services subscription basis and not “sold” to Customer. Names, logos, and other materials displayed on the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of Company or other entities. Customer is not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with Company or those other entities. Any use of third party software provided in connection with the Services will be governed by such third parties’ licenses and not by this Agreement.
b. Customer. Customer expressly reserves all rights in any information, records, files or other data that Customer (or Customer Personnel) loads, enters into, or otherwise makes available to Company or the Service and all results from processing such data, including compilations, and derivative works thereof ( “Customer Data”), except that Customer grants Company a perpetual, non-exclusive, world-wide, royalty free, fully sublicenseable, fully paid-up license to use, reformat, modify, display, perform, reproduce, and create derivative works of the Customer Data: (i) in providing the Service to Customer or (ii) in connection with Company’s internal business purposes. Unless specifically agreed in writing, each Party’s rights under this clause (b) extend to any update, adaptation, translation, customization or derivative work of Customer Data, made under this Agreement.
Confidential and Proprietary Information.
To the extent Confidential Information is disclosed, the Company and Customer shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not disclose Confidential Information to anyone except as required by law. Upon termination of the Contract, each party shall return all confidential information to its rightful owner as promptly as possible. Company will remove all confidential, proprietary, and client files or information off its server thirty (30) days after a client ceases to be a client of firm.
This Agreement does not give Customer any rights in Company’s intellectual property or technology. Company and related trademarks and logos are the exclusive property of Company. Company and Customer agree that neither will, directly or indirectly, reverse engineer or decompile object code or execution code, nor otherwise seek to obtain source code or trade secrets of the other party. Notwithstanding the foregoing, nothing herein shall bar Company from using any knowledge, information or skills that are generally known or that can be learned or otherwise acquired in the normal course of business.
Disclaimer of Warranty
The Services provided under this Agreement are provided on an as is, as available basis. Company does not make any warranties that the Services will be successful or error free; nor do they make any warranties as to the results that may be obtained from the purchase of the Services as to accuracy, reliability or content of any information, services or merchandise contained in or provided through the services.
WE ARE NOT LIABLE AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY RELATED PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
Company represents and warrants to Customer that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Company generally to its other Customers for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions.
The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of Company’s reasonable control; (b) that resulted from any actions or inactions of Customer or any third parties; or (c) that resulted from Customer’s equipment or any third-party equipment not within the sole control Company. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY OFFER PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND WE HEREBY EXPRESSLY DISCLAIM THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY PRODUCT OR SERVICE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other Terms of Service theory (including strict liability), other than claims based on fraud or willful misconduct.
Notwithstanding anything to the contrary in this Agreement, Company maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the purchase of the offer which gave rise to such damages, losses and causes of actions.
This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
Any dispute or claim relating in any way to your use of Company website, or to any products or services sold or provided by Company will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.
Company will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Independent Contractor. Company and Customer are independent contractors and nothing contained in this Agreement places Company and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Ohio. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any suit, action or proceeding concerning this agreement must be brought in a state or federal court located in Summit County, Ohio. EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Headings. The headings herein are for convenience only and are not part of this Agreement.
Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective when posting to Company Web site or on any subsequent date as may be set forth in any required notice provided by us in connection therewith.
Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via electronic mail to the Customer’s electronic mail address as maintained in Company’s billing records.
Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
Assignment; Successors. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
Copyright Policy. We will terminate the privileges of any user who uses this Site to unlawfully transmit copyrighted material without a license, express consent, valid defense or fair use exemption to do so. In particular, users who submit Content to this Site, whether articles, images, stories, software or other copyrightable material must ensure that the Content they upload does not infringe the copyrights or other rights of third parties (such as privacy or publicity rights). After proper notification by the copyright holder or it agent to us, and confirmation through court order or admission by the user that they have used this Site as an instrument of unlawful infringement, we will terminate the infringing users’ rights to use and/or access to this Site. We may, also in our sole discretion, decide to terminate a user’s rights to use or access to the Site prior to that time if we believe that the alleged infringement has occurred.
Links. The Site may automatically produce search results that reference or link to third party sites throughout the global Internet. Company has no control over these sites or the content within them. Company cannot guarantee, represent or warrant that the content contained in the sites is accurate, legal and/or inoffensive. Company does not endorse the content of any third party site, nor do we warrant that they will not contain viruses or otherwise impact your computer. By using the Site to search for or link to another site, you agree and understand that you may not make any claim against Company for any damages or losses, whatsoever, resulting from your use of the Site to obtain search results or to link to another site. If you have a problem with a link from the Site, please notify us, and we will investigate your claim and take any actions we deem appropriate at our sole discretion.
INTERNET TECHNOLOGY AND THE APPLICABLE LAWS, RULES, AND REGULATIONS CHANGE FREQUENTLY. ACCORDINGLY, WE RESERVE THE RIGHT TO MAKE CHANGES TO THIS TOS AT ANY TIME. YOUR CONTINUED USE OF THE WEB SITE CONSTITUTES ASSENT TO ANY NEW OR MODIFIED PROVISION OF THIS TOS THAT MAY BE POSTED ON THE WEB SITE.