IPM’s Terms and Guidelines for Online Use
The following describes the terms and policies under which International Payment Methods (IPM) offers you access to our online services.
1. Acknowledgement and Acceptance of IPM’s Guidelines for Online Use
International Payment Methods also referred to as IPM (the “Company”), maintains this website (the “Site”) as a service to its customers. By using the Site or any current or future service(s) provided to you by the Company (collectively the “Services”) in accordance with an applicable Agreement (“Agreement(s)”), you are agreeing to comply with and be bound by the terms and conditions of these Acceptable Use Guidelines and any operating rules, regulations, policies, and procedures that may be modified from time-to-time on the Site (collectively, the "Terms"). The Terms govern your access to and use of the Site, the Services and any information, products, software, and/or features made available to you. If you are using the Site or Services on behalf of your employer, you represent that you are authorized to accept these Terms on your employer's behalf. In the case of any violation of the Terms, Company reserves the right to seek all remedies available by contract, law and in equity for such violations. The Terms apply to all visits to the Site and use of the Services, both now and in the future. Any violation of these terms may result in the suspension or termination of your account, the services or such other action permitted in accordance with the applicable Company service agreement.
2. Lawful Use
You agree that You will not at any time conduct Your business in any manner that directly or indirectly offers, sells, leases, licenses or displays, delivers, advertises, recommends, or promotes any product(s), service(s), data, information, image(s), text and/or any content which:
1. is unlawful or violates any applicable local, state, federal, national or international law, statute, ordinance, or regulation including, without limitation, Credit Card Association rules, consumer protection law, Internet tobacco sales, firearm sales, unfair competition, antidiscrimination or false advertising;
2. is associated with any form of adult, sexually oriented, or obscene materials or services, including without limitation, any material clearly designed to sexually arouse the viewer/reader (e.g., books, text, photos, videos, X-rated movies, pornographic materials, etc.), any materials which require individuals to be eighteen (18) or older to view or purchase those materials, escort services, and adult websites;
3. infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party, including, but not limited to, the unauthorized copying and posting of trademarks, pictures, logos, software, articles, musical works, downloads and videos;
4. is threatening, abusive, harassing, defamatory, obscene, libelous, slanderous, deceptive, fraudulent, invasive of another's privacy, tortuous, or otherwise violate Company’s rules or policies;
5. victimizes harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
6. impersonates any person or entity;
7. contains harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept or expropriate the Services or any system, program, data or personal information or limit the functioning of any software, hardware, or equipment or to damage or obtain unauthorized access to any data or other information of any third party;
8. violates any U.S. export or import laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Commerce;
9. offers or disseminates fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, pyramid schemes) or engage in any unfair deceptive act or practice;
10. is associated with any form of unlicensed lottery type services;
11. is associated with illegal telecommunications or cable television equipment and descramblers;
12. is associated with stored value cards or pre-paid debit cards not associated with a single vendor;
13. Illegal multi-level marketing and pyramid selling services, matrix programs;
14. is associated with drugs and drug paraphernalia or
15. is associated with the sale of (a) any controlled drug that requires a prescription from a licensed practitioner unless you are authorized by the National Association of Boards of Pharmacy to offer such products as a Verified Internet Pharmacy Practice Site and only if such a prescription has been issued by the practitioner after a bona fide examination of the patient; or (b) any over-the-counter drug, unless the sale of such product, without a prescription, has been approved by the Food & Drug Administration; or (c) nonprescription drugs that make false or misleading treatment claims or treatment claims that require FDA approval; or (d) any drug or controlled substance that the Company believes to be or may become harmful, unlawful, or prohibited. Company requires sellers of prescription drugs to abide by all laws applicable to both the buyer and seller and we may require you to provide evidence of compliance with these requirements. In addition, due to the complexities of current laws regulating the importation of controlled drugs into the United States, you may not use the Services to sell prescription drugs that are imported into the United States from an international location. The foregoing list is a non-exhaustive list of prohibited goods and services.
The foregoing list is a non-exhaustive list of prohibited goods and services.
3. Internet Abuse
You are prohibited from engaging in any form of Internet abuse, including but not limited to: (a) distributing, publishing, or sending any kind of unsolicited or unwelcome email to any number of network users (commonly referred to as “junk mail” or "spam"), including, without limitation, mass promotions, unauthorized or unsolicited commercial advertising, and informational announcements, anywhere on the Internet; (b) posting a single article or substantially similar articles to an excessive number of newsgroups or mailing lists; (c) repeated or deliberate posting of articles that are off-topic according to the charter of the newsgroup or mail list where such articles are posted; (d) posting commercial advertising in a conference or newsgroup, unless it is specifically permitted to be posted within that group; or (e) violating the CAN-SPAM Act.
4. Enforcement
Company reserves the right and has absolute discretion to enforce the Terms. Company may, in its sole discretion, immediately terminate or suspend: (i) the Services; (ii) a Service Agreement; and/or (iii) access to this Site, if it determines that your services, offerings or activities violate the Terms. Without limitation, Company also reserves the right to report any activity (including the disclosure of appropriate data or merchant information) that it suspects may violate any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Company also may cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct. If you want to report any violations of these guidelines, please contact contact@IPMpay.com.
5. Modifications to the Site
Company reserves the right to amend the Terms and modify or discontinue all or part of the Site, temporarily or permanently, with or without notice, and is not obligated to support or update the Site. The amended Terms shall automatically become effective immediately after they are initially posted on this Site. Your continued use of the Site after the posting of the amended Terms on the Site constitutes your affirmative: (a) acknowledgement of the Terms and its modifications; and (b) agreement to abide and be bound by the Terms, as amended. Should you object to any modifications of the Terms, your only recourse is to immediately: (a) terminate use of the Site and/or Services; and (b) notify Company of termination.
6. Links to Third Party Sites are not Endorsements
The Site contains links to third-party web sites. The linked sites are not under the control of Company, and Company is not responsible for the contents or policies of any linked site. Company provides these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Company. Links to merchants or advertisers are owned and operated by independent retailers or service providers, and therefore, Company cannot ensure that you will be satisfied with their products, services or practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.
7. Intellectual Property Rights
The Site is proprietary to Company. All the text, images, marks, logos and other content of the Site (“Site Content”) is proprietary to Company or to third parties from whom Company has obtained permission. Company authorizes you to view, download, and print the Site Content provided that: (i) you may only do so for your own personal and non-commercial use; (ii) you may not copy, publish or redistribute any Site Content; (iii) you may not modify Site Content; (iv) you may not remove any copyright, trademark, or other proprietary notices that have been placed in the Site Content by Company. Except as expressly permitted above, reproduction or redistribution of the Site Content, or any portion of the Site Content, is strictly prohibited without the prior written permission of Company. To request permission you may contact Company at contact@IPMpay.com. You represent and warrant that your use of Site Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties.
8. Warranty
The site and services are provided on an “as is,” “as available” basis. Neither Company, nor its partners, and acquirers, represent or warrant that the site or services will be available, accessible, uninterrupted, timely, secure, accurate, complete, entirely error-free or virus free nor does Company make any warranty as to the results that may be obtained from the use of the site or services or as to the accuracy or reliability of any content or any information or products obtained through the site or that defects in the services will be corrected. You expressly acknowledge that this site and the services are computer network-based services, which may be subject to outages, interruptions, attacks by third parties and delay occurrences. In such an event and subject to the terms hereof, Company 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 site and the services to perform their intended functions in a reasonable manner. You acknowledge that Company does not warrant that such efforts will be successful. If Company's efforts are not successful, you may terminate the applicable service agreement and cease using the site. The foregoing shall constitute your sole remedy, and Company's sole liability, in the event of interruption, outage or other delay occurrences in the Company services. You waive and covenant not to assert any claims or allegations of any nature arising from or relating to your use of the site or services, including, without limitation, all claims and allegations relating to the alleged infringement of proprietary rights, the alleged inaccuracy of content, or allegations that Company has or should indemnify, defend, or hold you harmless from any claim or allegation arising from your use, republication or other exploitation of the site or services. You use the site at your own risk and neither Company nor the parties who provide information and materials for publication within the site will be liable for any damages arising from your use of this site. You understand and agree that any material or data downloaded or otherwise obtained through the use of the site or the services is done at your own discretion and risk and that user will be solely responsible for any damage to its computer system, loss of service or loss of data that results from the download or use of such material or data.
8.1 Disclaimer
This site is provided by Company on an “As is” basis. Except as expressly set forth in this section 8, Company specifically disclaims all representations, warranties, and conditions of any kind whether express or implied as to the operation of the site, the information, content, materials or products, included on this site. To the full extent permissible by applicable law, 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 site or services, or other services or goods provided through this site. For the avoidance of doubt, you agree that Company does not represent or warrant that the services or site will be available, accessible, uninterrupted, timely, secure, accurate, complete, or entirely error-free. The Company will not be liable for any damages of any kind arising from the use of this site, including but not limited to direct, indirect, incidental, special, punitive and consequential damages.
9. Limitation Of Liability
The Company expressly disclaims any liability or loss arising from or related to the site or the services (however arising, including negligence), including without limitation, liability or loss associated with unauthorized access to any server, merchant interfaces, websites, facilities, or your data or your customer data (including credit card numbers and other personally identifiable information) due to accident, illegal or fraudulent means, including hacking, or devices used by any third party, or other causes beyond the Company’s reasonable control. You expressly agree that Company shall not be liable for any loss arising from infiltration of the services, the Company’s system or website by means of software viruses, trojan horses, worms, time bombs, or any other software programs, or technology designed or intended to disrupt, damage, intercept or expropriate the Company’s services or any system, program, data or personal information or limit the functioning of the site, services or any software, hardware, or equipment or to damage or obtain unauthorized access to any data or any information of any third party.
9.1 Exclusion
As a condition of use of the site and services, you agree that neither Company, nor any officer, affiliate, director, shareholder, agent, contractor or employee of Company will be liable to you or any third party for any direct, indirect, incidental, special, punitive, or consequential loss of profits, loss of earnings, loss of business opportunities, damages, expenses, or costs resulting directly or indirectly from, or otherwise arising in connection with the site, services or service agreements, however arising, including without limitation, the inability to use the services or for cost of procurement of substitute goods and services or resulting from any products, services provided or obtained or transactions entered into through the site or resulting from unauthorized access to, deletion or alteration of your transmissions or data or failure of the site to store your transmissions or data, including but not limited to, damages for loss of profits, use, data or other intangible property, even if Company has been advised of the possibility of such damages. the limitations set forth in this section apply to the acts, omissions, negligence, and gross negligence of Company and its affiliates, parents, subsidiaries, contractors, subcontractors, officers, directors, shareholders, managers, employees, and agents, which, but for this provision, would give rise to a course of action in contract, or any other legal doctrine.
9.2 Limitation
Except as otherwise limited, our liability and the liability of our partners, acquirers, subsidiaries, officers, directors, employees and agents to you or any third parties in any circumstances shall be limited to the lesser of (a) the amount you pay us in the 30 days prior to the action giving rise to liability or (b) $100.
10. Indemnification
You agree to indemnify, defend and hold harmless Company, its partners, acquirers, subsidiaries, affiliates, directors, officers, shareholders, agents, contractors and employees, from any claim or demand, including reasonable attorneys' fees and court costs, made by any third party due to, arising from or out of: (a) your use of the Site and/or Services; (b) your breach or alleged breach of any representation, warranty or other obligation; (c) your violation or alleged violation of any federal, state, international or local law and any and all regulations, rules or ordinances; (d) the negligence or willful misconduct by you or your employees or agents; (e) any violation of the Terms or Privacy Policy; (f) your infringement of any intellectual property or other legal right of any person or entity; or (g) your advertising, marketing, promotion, sale, or distribution of any products or services. In the event you cause fines and/or penalties to be charged to Company by the Credit Card Associations, partner or any other entity, you agree to reimburse Company immediately for said fines and/or penalties.
11. Disclosure; Forward-Looking Statements
Certain statements that are not historical fact contained in the Site may be projection statements. Such statements include, without limitation, statements about future financial and operating performance of Company, as well as the Company’s plans, strategies, partnerships, products, service markets, growth prospects, successes, cost-effectiveness and security of new products or services, objectives, expectations, intentions or other statements that are not historical fact. Such statements are based on the then current beliefs and expectations of the management of the Company, and are subject to significant risks and uncertainty. Actual results may vary materially from those contained in projection statements based on a number of factors including, without limitation, (i) dependence on a limited number of clients, (ii) the Company’s revenue concentration in the wireless telecommunications business and the declining subscriber growth rate in that business, (iii) the adverse impact that the financial and operating difficulties of the Company’s clients may have on the Company’s future revenues, and financial and operating results, (iv) continuing rapid change in the telecommunications industry and other markets in which the Company does business that may affect both the Company and its clients, (v) potential state, federal, and international regulation of voice conferencing or other services and related compliance and operating costs, regulatory assessments, and potential suspensions of service pending compliance with such regulation, (vi) uncertainties associated with the Company’s ability to develop new products, services, and technologies, (vii) market acceptance of the Company’s new products, services, and technologies and continuing demand for the Company’s products, services, and technologies, (viii) the impact of competitive products, services, and pricing on both the Company and its clients, (ix) current and future economic conditions including, without limitation, decreases or delays in capital spending by carriers and in new subscriber growth, and global economic recession, (x) integration, employee retention, recognition of cost and other benefits and revenue compatibilities, and other risks associated with acquisitions, (xi) the Company’s ability to execute on its objectives, plans, or strategies including, without limitation, product or services development plans, the mobile business strategy and the plans to develop alliances and grow its client base, (xii) economic and political instability in the domestic and international markets including, without limitation, the impact of terrorist threats and hostilities and the declaration of war or similar actions, (xiii) uncertainties associated with the Company’s ability to expand into new markets including, without limitation, the mobile business market, (xiv) the impact of restructuring charges and other charges on the Company’s business and operations, (xv) the industry risks associated with Company’s business and operations including, without limitation, illegal or improper uses of Company’s marketed payment system, unauthorized intrusions or attacks on Company’s marketed payment system that may impair the operations of its payment system, changes or failures to comply with credit card association rules, governmental regulation and the application of existing laws to Company’s business and dependence on relationships with third party payment processors. The Company undertakes no obligation to update any projection statements. Nothing contained in this web site constitutes an offer to sell or solicitation of an offer to buy any of the Company's securities.
12. Access to Password Protected/Secure Areas
Access to and use of password protected and/or secure areas of the Site is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution.
13. Services offered by COMPANY on this Site
When you enroll to obtain a Service from IPM, you accept the specific terms and conditions applicable to that Service in accordance with the applicable Agreement. Except as provided in the Agreement, Company does not warrant that any service description or content contained in this Site is accurate, current, reliable, complete, or error-free.
13.1 Customer Acceptance Policy
Company is a marketer of an Application Service Provider, specializing in serving the needs of e-business. The Company markets a broad array of products and services, including systems integration, custom software integration application development; secure transaction processing, website compliance recommendations, and e-commerce solutions. The Company serves a wide range of business models and strives for high quality service to aid entrepreneurs realize their potential for operating a successful web-based business.
14. Termination & Effect
Company may terminate access to the Site and the Services, with or without cause, at any time, and effective immediately. Termination shall be accompanied by a written or electronic notice to you. Company shall not be liable to you or any third party for termination. Should you object to any provision of the Terms or any subsequent modifications thereto, your only recourse is immediately to: (a) terminate use of the Site and/or Services; and (b) notify Company of termination. Upon termination of access to the Site and/or Services, your right to use the Site and/or Services shall immediately cease.
15. Privacy Policy
Information collected by the Site will be treated in accordance with Company’s Privacy Policy located at www.IPMpay.com, which is incorporated herein by reference. The Company’s partner, as a leading provider of payment management services to a multitude of online businesses around the world, privacy and data protection are of the utmost importance to the Company, its associates and partners. The collection of information by the Company is for the purpose of application for a merchant account by you, the reader, to obtain an account with our marketed payment gateway and acquirers. This Privacy Statement for the Company ("Privacy Statement") entails the Company's policies with respect to the handling of personally identifiable information ("Information") submitted by the reader of this Privacy Policy ("You") or otherwise collected by the Company via the Company's website or in the course of providing services to Company's customers. The Company will use and disclose Information only in accordance with the terms of this Privacy Statement to its acquirers and partners.
16. Governing Law & Jurisdiction
The Site is accessible in the United States and other counties, and each of these places has laws that may differ from those of Nevada and from each other. As you and Company both benefit from establishing a predictable legal environment in which to publish, access and use the Site, in doing so, you and Company agree that all matters arising from or relating to the use and operation of this Site will be governed by the laws of the State of Nevada, without regard to its conflicts of laws principles. You agree that all claims it may have arising from or relating to the operation or use of this Site will be heard and resolved in the courts of Nevada. You consent to the personal jurisdiction of such courts over it, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any objections to proceeding in such courts.
17. Trademarks
International Payment Methods, IPM, the IPM logo, IPMpay.com are registered trademarks of the Company, and IPM’s marketed gateway to interned based transactions, automated recurring billing, advanced fraud detection, are trademarks of the Company’s partner. All other Company and product names referenced herein are the trademarks or registered trademarks of their respective holders. This list may be modified from time-to-time in the Company’s discretion. You shall not register or attempt to register any of the Company's marks or trademarks that would reasonably be deemed to be confusingly similar to any of the Company's marks or trademarks. You shall comply with all standards with respect to the Company's marks and all uses of the marks shall be consistent with Company standards.
All content included on the Company site, such as text, graphics, logos, button icons, images, audio clips and software, the compilation (e.g. the collection, arrangement and assembly) of all content on this site is the property of IPM or its content suppliers and protected by U.S. and international copyright laws. All software used on this site is the property of IPM or its software suppliers and protected by U.S. and international copyright laws. The content and software on this site may be used only with written permission. Any other use, including the reproduction, modification or creation of derivative works, distribution, transmission, republication, display or performance, of the content on this site is strictly prohibited.
17.1 Trademarks and Service Marks
Company trademarks may not be used in connection with any product or service that is not IPM's, in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits the Company. The Company marketed gateway is a service mark of IPM’s partner. All other trademarks are the property of their respective owners.
18. Force Majeure
Company shall not be liable for any losses arising out of the delay or interruption of its performance of obligations due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions by a third party, infiltration or disruption of the Services by a third party, or other catastrophes or occurrences that are beyond Company’s reasonable control.
19. General
In the event that any provision of the Terms as described here shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of the Terms. Company's failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. In the event of a conflict between the Acceptable Use Guidelines and the applicable Service Agreement, the latter shall govern.
IPM General Merchant Terms and Conditions
The terms below apply specifically to the use of the International Payment Methods’ (“IPM”) referred to here as “Company” marketed payment gateway (“Merchant Gateway Services”) and the use of the Company’s marketed Email Pay (“Email Pay”), supplied by its partner, by a business user (“MERCHANT”). These services are provided through Company’s marketing relationship with a partner and service provider. This additional Agreement does not in any way limit the User Agreement that the business user accepted with the Company's partner prior to becoming a client of Company. By using Company for commercial purposes, the business user agrees to the following General Merchant Terms and Conditions:
1. Rights and Obligations
1.1. Company through its payment method provider hereto referred to as “partner” shall make available to MERCHANT the service, which facilitates the real-time collection of payments to MERCHANT in conjunction with Company’ s partner’s electronic payment service. The transfer of the collected payments to the MERCHANT’s electronic money account with Company’s partner shall be affected immediately, after deduction of the fees due from the MERCHANT.
1.2. MERCHANT complies with Company’s fee schedule for using the Merchant Gateway Service and Email Pay as posted on the merchant service center website under www.ipmpay.com.
1.3. The service to be supplied by Company shall be integrated as described in Company’s partner’s “Gateway Manual” and other related manuals. MERCHANT will at Company’s discretion display an Company and or its partner’s logo on his website with the minimum requirement of but not limited to placing it visibly at first sight on the section of the website informing the customer about possible payment options.
1.4. MERCHANT grants Company’s partner the right to access his website through manual observation or automated “spidering” or other automated search techniques in order to confirm the accuracy of information. However, Company and its partner are under no obligation to monitor the accuracy of MERCHANT’s website.
1.5. Company’s partner reserves the right to hold funds beyond the normal distribution period for transactions that it reasonably deems suspicious in regards to money laundering, fraud and other criminal activities. Furthermore, Company through its partner reserves the right to lock and/or shut down MERCHANT’s accounts, if Company and or its partner has reason to believe that the MERCHANT is in any way involved in such activity. Should such funds be held or accounts be locked and/or shut down, Company and its partner will give top priority to resolving the matter as soon as possible.
2. Taxes
It is MERCHANT’s responsibility to determine what, if any, taxes apply to the payments he receives and collect, report and remit the correct tax to the appropriate tax authority. Company and its partner is not obligated to determine whether taxes apply, and is not responsible to collect, report, or remit any taxes arising from any transaction.
3. License
For the purposes of the present Agreement, the Parties grant each other a non-exclusive right - which shall be unlimited in terms of geography and content but limited to the duration of the present Agreement - to copy and distribute on each other's website either in digital or other computerized form the logo, the Company name and the trade name of the other Party including all other trade names belonging to the other Party and including all forms and adaptations approved by the other Party, irrespective of whether or not they are protected under Company or trademark law; this shall also include non-Internet advertising for such websites, e.g. in print media (e.g. newspaper advertisements), on the radio, on television, etc.
Notwithstanding the above, the other party's logo, Company name and trade name may only be used in connection with and for the purpose of this contract and such logo; Company name and trade name shall not be modified or amended in any way without the prior written consent of the other Party.
Except as expressly stated in this Agreement nothing in this Agreement shall grant or be deemed to grant any Party any right, title or interest in any logos, trademarks, trade names or other intellectual property rights owned by the other Party and except as expressly stated herein nothing in this Agreement shall entitle any Party to use the other Party’s logos or trademarks or any other intellectual property rights in any way whatsoever without the prior written consent of the other Party.
This license will end upon termination of this Agreement.
4. Representations, Warranties and Indemnification
4.1. MERCHANT warrants and represents that he owns and may license all rights required for performance of the present Agreement and that he may transfer such rights to Company and its partner in the extent required and for the use as set out herein without infringing any rights of third parties.
4.2. MERCHANT warrants and represents that the services and products that are made available to customers comply with applicable law in any jurisdiction in or to which MERCHANT is offering his services and that MERCHANT has all requisite licenses and permits to engage in the advertising and sale of the goods and services offered.
4.3. MERCHANT warrants and represents that he is not receiving funds in connection with any illegal, fraudulent, deceptive or manipulative act or practice and MERCHANT is not sending or receiving funds to or from an illegal or prohibited source or entity.
4.4. MERCHANT undertakes not to receive payments as consideration for the delivery of tobacco products, prescription and non prescription drugs, adult and hardcore content or services as well as illegal downloads or any other goods and services infringing intellectual property rights of a third party.
4.5. MERCHANT acknowledges and agrees that the Company’s marketed Gateway Service operates solely as a venue for receiving funds and that Company (i) in no way functions as a seller, buyer, dealer, middleman, retailer, auctioneer, supplier, distributor, manufacturer, broker, agent or merchant of any product or service being ordered, obtained or procured by any funds processed through the Service; and (ii) makes no representations or warranties and does not ensure the quality, safety, or legality of any product or service purchased or procured by any funds received through the Company’s partner Gateway Service.
4.6. MERCHANT acknowledges that any dispute regarding any product or service purchased or procured by any funds requested or received through the Company’s marketed Gateway Service or any transaction involving the Company’s marketed Gateway Service is between the sender and receiver of the funds and/or the third party goods or service provider. All transactions connected with the products and services offered by the MERCHANT shall only be incumbent upon and shall only obligate the MERCHANT. Company shall not be a party in any such relation or dispute. This refers in particular to performance and to liability in respect of claims relating to the use of the products and services offered by the MERCHANT. If MERCHANT is promptly given notice of any claims and is given the opportunity to participate in any defense or other resolution of such claims, MERCHANT shall fully indemnify Company against all claims by third parties relating to the use of the products and services offered and shall reimburse Company in full the costs of any legal defense.
4.7. MERCHANT will cooperate with Company and its partner to investigate any suspected illegal, fraudulent or improper activity.
4.8. MERCHANT undertakes to clearly disclose the refund policies on his website and warrants that all information provided to Company and its partner about MERCHANT’s business, incorporation and place of business is truthful and up-to-date.
4.9. If the MERCHANT infringes one of the provisions of this Agreement, he will reimburse Company for all resultant damage and shall fully indemnify Company against the third-party claims in question and shall reimburse in full any legal defense costs that are incurred.
5. Limitation of liability
5.1. In any event, COMPANY will only be liable in the case of gross negligence and willful and malicious misconduct.
5.2. Company’s partner will use best efforts in order to collect MERCHANT’s funds properly. However, Company will not incur liability for non-performance because of the existence of any of the following occurrences:
a) MERCHANT’s hardware, software or internet provider's service is not functioning properly;
b) Company has reason to believe that the transfer is unauthorized or fraudulent;
c) The transfer received does not contain the correct information;
d) MERCHANT’s received transfers or receipt of funds is intercepted by legal process or other encumbrance restricting the transfer (e.g. security reasons);
e) Unforeseen circumstances prevent the execution of MERCHANT’s transfer despite any reasonable precautions taken by Company. Such circumstances may include, but are not limited to acts of God, power outages, fire, flood, theft, equipment breakdowns, hacking attacks, internal mechanical or systems failures as well as downtimes of the Company and its partner’s website.
5.3. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT or any products or services obtained with funds sent through the service whether such claims arise from contract, strict liability or otherwise (INCLUDING DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, PROVIDED THAT THIS SECTION DOES NOT LIMIT EITHER PARTY'S LIABILITY TO THE OTHER FOR (A) WILLFUL AND MALICIOUS MISCONDUCT; (B) DIRECT DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY; (C) BODILY INJURY OR DEATH CAUSED BY NEGLIGENCE.
5.4. Except for breaches of clause 4 (Representations, Warranties and Indemnification) the liability of each Party in contract, tort, negligence, pre-contract or other representations or otherwise arising out of, or in connection with this Agreement or the performance or observance of its obligations under this Agreement, and every applicable part of it shall be limited in aggregate to Euro 10,000.
6. Confidentiality
During the term of this Agreement and thereafter, each Party will use and reproduce the other Party’s Confidential Information only for purposes of this Agreement and only to the extent necessary for such purposes and will restrict disclosure of the other Party’s Confidential Information to its employees, consultants or independent contractors with a need to know and will not disclose the other Party’s Confidential Information to any third party without the prior written approval of the other Party. Notwithstanding the foregoing, it will not be a breach of this Agreement for either Party to disclose Confidential Information of the other Party if required to do so under law or in a judicial or other governmental investigation or proceeding. As used in this Agreement, the term “Confidential Information” refers to: (i) the terms and conditions of this Agreement; (ii) each Party’s trade secrets, business plans, strategies, methods and/or practices; and (iii) any other information relating to either Party or its business that is not generally known to the public, including but not limited to information about either Party’s personnel, products, customers, marketing strategies, services or future business plans. Notwithstanding the foregoing, Confidential Information specifically excludes (A) information that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of the other Party; (B) information that is known to either Party without restriction, prior to receipt from the other Party under this Agreement, from its own independent sources as evidenced by such Party’s written records, and which was not acquired, directly or indirectly, from the other Party; (C) information that either Party receives from any third party reasonably known by such receiving Party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; and (D) information independently developed by either Party’s employees or agents provided that either Party can show that those same employees or agents had no access to the Confidential Information received hereunder.
7. Term and Termination
The term of this Agreement shall commence on the date of signature (the “Effective Date”) and continue until terminated as provided below:
7.1. Either Party may terminate this Agreement with three weeks written notice for any or no reason at any time following the Effective Date.
7.2. Either Party may terminate this Agreement immediately:
a) If the other Party files a petition for bankruptcy, becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or a receiver is appointed for the other Party or its business, or the other Party goes into liquidation either voluntary (otherwise than for reconstruction or amalgamation) or compulsory;
b) Upon the occurrence of a material breach of this Agreement by the other Party if such breach is not cured within seven (7) days after written notice is received by the breaching Party identifying the matter constituting the material breach;
c) If the other Party violates or fails to comply with any applicable law or regulation.
8. Assignment
Neither Party may assign any of its rights under this Agreement to any third party without the prior written consent of the other party. Also, this Agreement is not intended to grant a right to a third party other than the contracting parties that would enable a third party to enforce a provision of this Agreement pursuant to the Contracts Act 1999 (Right of Third Parties).
9. Relationship of Parties
MERCHANT and Company are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture or agency relationship between them. Neither Party has authority to enter into agreements of any kind on behalf of the other.
10. Non-solicitation of employees
MERCHANT undertakes that he will not for the term of this Agreement and a period of six months thereafter on his own behalf or on behalf of any person, Associated Company directly or indirectly canvass solicit or endeavor to entice away from Company or an Associated Company any person who has at any time during the term of this Agreement been employed or engaged by Company or an Associated Company. For the purpose of this section, an ‘Associated Company’ means any entity that is controlled by, controls or is under common control with, directly or indirectly, the Company (‘control’ of any entity or party meaning ownership of a majority of the issued shares or voting power of an entity or party or the power to direct or cause the direction of the management and policies of an entity or party, whether through ownership of voting securities, by contract or otherwise).
11. Notices
All notice required to be given under this Agreement must be given in writing and delivered either in hand, by certified mail, email while in case of notifying Company only when receipt is confirmed by Company, return receipt requested, postage pre-paid or other recognized delivery service, or by facsimile.
12. Change of Control
If MERCHANT is a legal entity, MERCHANT is required to inform Company about a change in the ownership, whereas a change in the ownership shall be regarded as a change of the majority of the voting rights.
13. Choice of Law and Forum
This Agreement, its interpretation, performance or any breach thereof, will be construed in accordance with, governed by, and all questions with respect thereto will be determined by the laws of Nevada, in the United States. Nevada law shall be the applicable law of any jurisdiction to or in which MERCHANT is offering services in any way. Each Party hereby agrees that any action arising out of or related to this Agreement must be brought exclusively to the courts of Nevada.
14. Waiver
No Party shall be deemed to have waived any right under this Agreement by reason of or failure or delay in exercising such right.
15. Entire Agreement
Leaving unaffected the User Agreement the MERCHANT accepts or accepted when becoming a member of Company’s marketed payment system, this Agreement constitutes the entire understanding of the Parties hereto with respect to the transactions and matters contemplated hereby, supersedes all previous agreements between the Parties concerning the subject matter, and cannot be amended except by a writing signed by authorized representatives of both Parties. No Party hereto has relied on any statement, representation or promise of any other Party or with any other officer, agent, employee or attorney for the other Party in executing this Agreement except as expressly stated herein.