PayFabric & PayLink Subscription Agreement
Nodus Terms and Conditions
Last Updated: May 31, 2015
Nodus Technologies, Inc. (“Nodus”) offers electronic payment, e-commerce, electronic bill presentment, and business process automation software for small to enterprise companies, as well as other services, as set forth herein and at http://www.nodus.com/, as such descriptions may be changed by Nodus from time to time (collectively the “Nodus Services”). For you and/or your company or other legal entity (“Customer”), to obtain the Nodus Services, you must first agree to and accept the terms and conditions of this agreement (this “Agreement”). Please read this Agreement carefully because it will apply to your access to and use of the Nodus Services, and constitute a legally binding agreement between you and Nodus.
By using or accessing the Nodus Services through any means permissible including, without limitation via a computer or a mobile application, Customer acknowledges and agrees that: (i) it has reviewed and understands this Agreement; (ii) it agrees to be legally bound by the terms and conditions of this Agreement; and (iii) its use of the Nodus Services and any related products or services will be governed by this Agreement.
Customer may not access the Nodus Services if Customer is a direct competitor, except with Nodus’s prior written consent. In addition, Customer may not access the Nodus Services for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
In consideration of the mutual obligations specified in this Agreement, and any compensation paid to Nodus for its software and the Nodus Services, you and Nodus agree as follows:
Words and phrases with initial letters capitalized and not otherwise defined herein shall have the meaning set forth in Section 13.
1. Services. Commencing on the Effective Date and continuing throughout the term, Nodus agrees to make available to Customer: (a) the Nodus Services at the rates communicated by Nodus to Customer and in all material respects in accordance with the terms and conditions of this Agreement and any other agreements that specifically incorporate this Agreement and (b) provide Nodus’s standard support for the Nodus Services.
2. Customer’s Responsibilities.
2.1 User ID and Password. Customer must select a User ID and password to enable Customer to access Customer’s account and use the Nodus Services. Customer shall restrict access to such User ID, password, and account to Customer’s employees and agents as may be reasonably necessary consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement regarding such use and access. Customer is solely responsible for maintaining adequate security and control of any and all User IDs and passwords. Nodus shall be entitled to rely on information it receives from Customer and may assume that all such information was transmitted by or on behalf of Customer. Customer shall comply with all Nodus recommendations and notices regarding the security of Customer’s User ID, password and account and shall notify Nodus of any unauthorized access to or use of the Nodus Services.
2.2 Relationship to Third Party Service Providers. Customer may have enrolled in the Nodus Services via Nodus Merchant Service or a merchant service provider, value added reseller or other independent software vendor (each a, “Third Party Service Provider.” In addition to any other agreement Customer may have with the Third Party Service Provider, the terms and conditions of this Agreement govern Customer’s use and Nodus’s provision of the Nodus Services. Customer expressly acknowledges and agrees that Nodus may share information about Customer and Customer’s account with any Third Party Service Provider.
2.3 Compliance. In connection with the exercise of Customer’s rights and obligations under this Agreement (including, without limitation, any related to individual privacy), Customer will comply, at Customer’s own expense, with all Documentation, laws, policies, guidelines, regulations, ordinances, rules (including, without limitation, the Card Network Rules) applicable to Customer, this Agreement, the Transactions and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof. Nodus reserves the right to amend, modify or change the Documentation at any time. Customer shall not use the Nodus Services in any manner, or in furtherance of any activity that may cause Nodus to be subject to investigation, prosecution, or legal action.
2.4 Usage Restrictions. Customer will not (a) make any Nodus Service available to, or use any Nodus Service for the benefit of, any third party; (b) sell, resell, license, sublicense, distribute, rent or lease any Nodus Service, or include any Nodus Service in a service bureau or outsourcing offering; (c) use a Nodus Service to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of any Nodus Service or third-party data contained therein, (e) attempt to gain unauthorized access to any Nodus Service or its related systems or networks, (g) copy a Nodus Service or any part, feature, function or user interface thereof, (h) frame or mirror any part of any Nodus Service, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation or (i) access any Nodus Service in order to build a competitive product or service.
2.5 Additional Solutions and Services. In the event that Customer enrolls in and/or utilizes any of Nodus’s Additional Services, Customer hereby acknowledges and agrees to the terms and conditions contained in Appendix A, Additional Services Terms and Conditions and any other terms and conditions associated with such services as may be provided by Nodus to Customer from time to time, e.g., end user license agreements.
2.6 Third Party Products and Services. The Nodus Services may contain features designed to interoperate with third party products and services. To use such features, Customer may be required to obtain access to third party products from their providers, and may be required to grant Nodus access to Customer data and/or account(s) associated with the third party product or service.
(a) Customer’s use of third party products and services shall be governed by and subject to separate third party product, service, software, and/or license agreements. If the provider of a third party product or service ceases to make the third party product or service available for interoperation with the corresponding Nodus Service features on reasonable terms, Nodus may cease providing those Nodus Service features without entitling Customer to any refund, credit, or other compensation. Nodus will not be a party to such third party agreements and does not warrant or guarantee any third party product or service.
(b) If Customer enables the transfer of information from a third party product or service through the Nodus Service, Customer hereby grants Nodus permission to access Customer data as required for the interoperation of that third party product or service with the Nodus Service. Nodus is not responsible for any disclosure, modification or deletion of Customer data in connection with the interoperation of third party products or services with the Nodus Service.
3. Data Collection, Privacy and Security.
(a) Customer is solely responsible for the security of data residing on servers owned or operated by Customer, or a third party designated by Customer (e.g., a Web hosting company, processor or other service provider). Customer shall comply with all applicable laws, policies and regulations governing the security, privacy, collection, retention and use by Customer of End User data, including, without limitation, financial information, card account numbers, and all other personally identifiable End User information. Customer agrees to provide notice to End Users on Customer’s website that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement.
(b) Customer will comply with all then-current legal obligations and security measures, as applicable, including, without limitation, those issued by Card 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). Customer acknowledges that Customer is responsible for the security of End User cardholder data while in Customer’s possession. Customer represents and warrants that Customer has taken such precautions as are necessary to ensure that Customer’s server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Customer’s system is breached and an unauthorized third party has access to or has accessed End User data or Transaction data, Customer shall notify Nodus promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future.
(c) Customer agrees that Customer will comply with all Nodus security protocols and security advisories in effect during the term of this Agreement. Customer is solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by Nodus associated with Customer’s account and verifying that all corresponding funds are accurately processed. Customer acknowledges that Nodus shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Customer’s account, End User or Transaction data. Nodus’s liability for improperly processed or unauthorized Transactions solely attributable to the negligence of Nodus is limited pursuant to Section 10.
(b) Nodus, its affiliates (if any), partners (e.g., Microsoft, Intuit, PayPal) and suppliers and/or their agents/contractors may transfer data amongst themselves as necessary for the purpose of the provision and management of the Nodus Services. Nodus may further transfer data: (i) to third parties assisting Nodus in evaluating Customer’s eligibility for, provision of, administration and management of the Nodus Services; (ii) with non-affiliated entities that assist Nodus in providing products and services that Customer has requested; (iii) with companies that provide support services to Nodus or with which Nodus has agreements to provide marketing services on its behalf; or (iv) as otherwise permitted by law. While Nodus uses commercially reasonable efforts to safeguard data, Nodus does not warrant or covenant that End User data and Transaction data will be transported without unauthorized interception or modification or that data will not be accessed or compromised by unauthorized third parties.
(c) With respect to the Nodus Services, at all times while this Agreement is in effect, Nodus will maintain compliance with the Payment Card Industry Data Security Standard (PCI DSS). Nodus acknowledges that Nodus is responsible for the security of End User cardholder data while in Nodus’s possession.
3.3 Data Retention. Customer is solely responsible for compiling and retaining permanent records of all Transactions and End User data for Customer’s reference. Except as otherwise provided herein, at no time shall Nodus 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 Nodus.
4. Fees; Taxes
4.1 Nodus Service Fees. Customer shall pay to Nodus the set-up, monthly, and usage fees set forth in Appendix B, which is hereby incorporated into the terms of this Agreement by reference. Notwithstanding anything to the contrary and if agreed by the parties, a third party (e.g., Third Party Service Provider) may charge, bill, and collect such fees from Customer, in the amounts stated in and in accordance with the terms and conditions of this Agreement between Customer and such third party. If Customer’s relationship with a third party expires or terminates and such third party was billing Customer for certain fees, Customer agrees to pay Nodus for any further use of the Nodus Services effective immediately upon any such expiration or termination in accordance with the terms herein.
4.2 Account Fees
(a) Late Payment Fee. If Customer does not pay any amounts owed on or before the fifteenth (15th) day of the month, Customer will be subject to a late payment fee, in the amount set forth in the Order Form. If Customer has not paid all amounts due before the last day of the month in which they were due, Customer’s ability to use the Nodus Services shall automatically be suspended at the end of the month.
(b) Abandoned Account Fee. If Customer’s account becomes an Abandoned Account with a balance due to Customer, Customer shall be assessed a monthly Abandoned Account Fee in the amount set forth in the Order Form. In addition, all costs incurred by Nodus in managing Customer’s Abandoned Account, including, without limitation, costs associated with attempting to locate Customer to deliver Customer’s account balance or incurred with respect to escheating Customer’s funds to the appropriate governmental agency will be deducted from Customer’s account, as applicable.
4.3 Taxes. The fees described above are exclusive of all taxes. Customer agrees to pay all applicable taxes other than tax assessed on Nodus’s income. Customer agrees that the payment of fees to Nodus shall be made without deduction or withholding for any taxes. If Customer is required to withhold any taxes, the amount paid by Customer to Nodus shall be increased to the extent necessary to yield to Nodus (after withholding of such taxes) a net amount equal to the amount Nodus would have received had no such withholding been made. Customer bears the ultimate responsibility for the proper payment of taxes applicable to Customer’s sale of its products or services.
4.4 Opening/Closing Accounts. Should a Customer fail to pay fees due under any account with Nodus (“Original Account”) and subsequently opens another account with Nodus (“Subsequent Account”) Nodus reserves the right to bill the Subsequent Account for amounts due under the Original Account whether or not the Original Account was closed.
5. Billing and Payment Terms.
5.1 Billing Terms. Billing shall begin on the Effective Date. Nodus service fees are due and payable to Nodus 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 U.S. Dollars.
(a) Customers with U.S. Bank Accounts. Customer hereby authorizes Nodus to initiate transaction entries to Customer’s depository account(s) provided in its Customer application for all amounts due to Nodus by Customer under this Agreement. This authority is to remain in full force and effect until Nodus has received written notification from Customer of its request for termination in such time as to afford Nodus a commercially reasonable opportunity to acknowledge and respond to the request. If Customer’s depository account(s) number and/or federal income tax ID number changes, Merchant shall promptly update its account information in the Merchant Interface. Entries initiated to or from Customer’s depository account will be in accordance with the rules of the National Automated Clearing House Association (NACHA) and/or any other regulatory body or agency having jurisdiction over the subject matter hereof.
Customers without U.S. Bank Accounts. Customer hereby authorizes Nodus to charge Customer’s credit card provided in its Customer application for all amounts due to Nodus by Customer under this Agreement. This authority is to remain in full force and effect until Nodus has received written notification from Customer of its request for termination in such time as to afford Nodus a commercially reasonable opportunity to acknowledge and respond to the request. If Customer’s credit card number and/or federal income tax ID number changes, Customer shall promptly update its account information in the Merchant Interface. Charges or credits to Customer’s credit card account will be in accordance with Card Association Rules and/or any other regulatory body or agency having jurisdiction over the subject matter hereof.
5.2 Disputes. The parties shall promptly investigate any disputed fees under this Agreement. A dispute will not relieve Customer of its payment obligations herein. If an event of dispute is resolved in Customer’s favor Nodus will credit back to Customer any applicable overpayments made by Customer. 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.
5.3 Third Party Service Provider Bills Customer. Notwithstanding Section 5.1, if Customer is to be billed by a Third Party Service Provider for some or all of the fees associated with Nodus Services, Customer shall pay the Third Party Service Provider in accordance with the terms mutually agreed upon between Customer and such Third Party Service Provider.
6. Term, Termination and Suspension.
6.1 Term. This Agreement shall commence on the Effective Date and remain in full force and effect until the second anniversary of the Effective Date unless earlier terminated pursuant to this Section 6 or unless the order form specifies a longer term (the “Initial Term”). Upon expiration of the Initial Term, Customer’s subscription to the Services will automatically renew for successive 12 calendar month periods (each a “Renewal Term”), unless sooner terminated in accordance with this Section 6. The Initial Term and each Renewal Term are individually referred to in these Terms as the “Subscription Term.” Nodus will notify Customer at least 30 days prior to the renewal deadline for any Subscription Term, notice may be in the form of an invoice.
6.2 Termination by Nodus. Nodus may terminate this Agreement and/or Customer’s access to the Nodus Services, at any time and for any reason, with or without cause, upon thirty (30) days’ written notice to Customer.
6.3 Termination or Suspension of Customer by a Third Party. If Nodus is to be paid for Customer’s access to and use of the Nodus Services by a third party, and if Nodus receives notice from such third party that it has terminated or suspended its relationship with Customer, Nodus may suspend and/or terminate Customer’s right to access and use the Nodus Services and/or this Agreement without notice and without liability. In addition, Nodus may suspend and/or terminate the Nodus Services and/or this Agreement without notice and without liability upon receipt of notice from Customer’s processor or acquiring bank that Customer is no longer entitled to send an authorization message, settlement message, or other message or payment data related to a card transaction to Customer’s processor.
6.4 Insolvency. A party may terminate this Agreement immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.5 Threats. In the event that Nodus reasonably believes that Customer is in violation of its obligations hereunder, including, without limitation, selling products or services that violate law or regulation, or that Customer’s conduct poses a threat to Nodus’s systems, equipment, processes, or intellectual property (the “Threat”) Nodus may immediately suspend Customer’s Account(s). In any event, Nodus may terminate this Agreement if the Threat remains uncured more than thirty (30) calendar days after Customer is notified of the Threat.
6.6 Effect of Termination. Upon termination of this 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, including without limitation any unpaid fees pursuant to Appendix B; and (b) the rights and obligations of the parties under Sections 5, 6.66, 7.1, 7.4, 7.7, 8, 10, 11, 12 and 13 shall survive such termination.
7. Intellectual Property.
7.1 Nodus. Nodus owns and retains all right, title and interest in and to the Nodus Trademarks, Nodus Services, copyrights and any related technology utilized under or in connection with this Agreement, including but not limited to all associated intellectual property rights. No title to or ownership of any of the foregoing is granted or otherwise transferred to Customer or any other entity or person under this Agreement. Customer will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the Nodus Services or related technology.
7.2 API, Integration Connector, and Documentation License. Subject to the terms of this Agreement, Nodus hereby grants to Customer and Customer hereby accepts from Nodus a personal, limited, non-exclusive, non-transferable license and right to the Nodus API, Integration Connector, and accompanying Documentation for the following purposes:
(a) Install Integration Connector and use the Nodus API on as many machines as reasonably necessary (which machines are and shall be maintained in facilities owned, occupied, or leased by Customer) to use the Nodus Services for its internal business purposes and in support of the sale of its products and services to End-Users;
(b) use the accompanying Documentation solely for the purpose of using the Nodus APIs and Nodus Services; and,
(c) create a reasonable number of copies of the Documentation, with all copyright notices intact, for archival purposes only.
7.3 Data License. Customer hereby grants Nodus a worldwide, limited- term license to use, transmit and display Customer Data as necessary for Nodus to provide the Nodus Services in accordance with this Agreement. Subject to the limited licenses granted herein, Nodus acquires no right, title or interest in Customer Data.
7.4 License by Customer to Use Feedback. Customer hereby grants to Nodus a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Nodus Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of the Nodus Services.
7.5 Federal Government End Use Provisions. Nodus provides the Nodus Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Nodus Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Nodus to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
7.6 Nodus Trademarks License. Subject to the terms and conditions contained herein, Nodus hereby grants to Customer a non-exclusive, term-limited, royalty-free, fully-paid up right to use, reproduce, publish, perform and display the Nodus Trademarks on Customer’s website in connection with Customer’s offering of payment options to End Users.
7.7 Customer’s Marks License. Subject to the terms and conditions contained herein, Customer hereby grants to Nodus a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display Customer’s Marks as necessary in connection with the performance of the Nodus Services.
7.8 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. All uses of the other party's Trademarks shall inure to the benefit of the party owning such Trademark. 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.
7.9 Use the Appropriate ® or ™ Symbol. Customer must reproduce any Nodus Trademarks exactly as shown at www.nodus.com, 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.
7.10 Trademarks and Domain Registration. Except as otherwise provided herein, Customer shall not use, register or attempt to register any (a) Nodus Trademarks or (b) marks or domain names that are confusingly similar to any of the Nodus Trademarks or the Domain(s).
7.11 Trademark Restrictions. Customer shall not (a) use the Nodus Trademarks except as expressly authorized in this Agreement; (b) take any actions inconsistent with Nodus’s ownership of the Nodus Trademarks and any associated registrations, or attack the validity of the Nodus Trademarks, its ownership thereof, or any of the terms of this Agreement; (c) use the Nodus Trademarks in any manner that would indicate Customer is using such Nodus Trademarks other than as a licensee of Nodus; nor (d) assist any third party do any of the same.
8. Confidential Information.
8.1 Obligations. 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 of like nature), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person other than in accordance with this Agreement; (iii) not to make any use whatsoever at any time of such Confidential Information except as necessary to exercise its rights or perform its obligations 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.
8.2 Return or Destruction of Confidential Information. Except as otherwise provided in this Agreement, within thirty (30) calendar days of termination of this Agreement, the Receiving Party shall, destroy or return (as the Disclosing Party elects) all materials that constitute Confidential Information 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 or returned. 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, card company 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 and uses such information solely for archival purposes.
8.3 Compelled Disclosure. A disclosure of any portion of Confidential Information, either (i) in response to a valid order by a court or other governmental body, or (ii) otherwise required by law, shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that if Company intends to disclose Confidential Information pursuant to this sentence, it shall provide prompt prior written notice thereof to the Disclosing Party to enable such party to seek a protective order or otherwise prevent such disclosure, and cooperate fully with the Disclosing Party in its efforts to seek a protective order or similar remedy, shall use reasonable efforts to resist disclosing the Confidential Information, seek to obtain a protective order or other confidential treatment for such Confidential Information if timely notice cannot be given, and as soon as reasonably possible, provide a letter to the Disclosing Party from its counsel confirming that the Confidential Information is in fact required to be disclosed.
9. Representations and Warranties; Disclaimers
9.1 Mutual Representations and 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 herein; (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 and (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.
9.2 Nodus Representations and Warranties.
(a) With respect to the Nodus Services, Nodus represents and warrants that the Nodus Services provided to Customer hereunder will conform substantially to specifications set forth in the applicable Documentation, as may be amended from time to time at Nodus’s sole discretion. The preceding warranty will not apply if (a) any Nodus Services or products provided hereunder are used in material variation with this Agreement or Documentation; (b) any Nodus Services or products have been modified in any way without the prior written consent of Nodus; or (c) a defect in any Nodus Services or products has been caused by any of Customer’s or a third party’s malfunctioning equipment or software. Customer expressly acknowledges that the Nodus Services are computer network-based services, which may be subject to outages, interruptions, attacks by third parties and delay occurrences.
(b) In the event Customer discovers that any Nodus Services or products are not in conformance with the representations and warranties made in Section 9.2(a) and reports such non-conformity to Nodus, Nodus 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 Nodus Services to perform their intended functions in a reasonable manner. Customer acknowledges that Nodus does not warrant that such efforts will be successful. If Nodus's efforts are not successful, after thirty (30) days, Customer may immediately terminate this Agreement. The foregoing shall constitute Customer’s sole remedy, and Nodus's sole liability. Nodus does not warrant the services of any third party, including without limitation, a bank, services provider or any third party processor.
(c) DISCLAIMER. THE NODUS SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. NODUS DOES NOT REPRESENT OR WARRANT THAT THE NODUS SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. CUSTOMER MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE NODUS SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR WARRANTIES OF ANY THIRD PARTY SERVICE PROVIDER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.2(a), NODUS 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 NODUS SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT NODUS SHALL BEAR NO RISK WITH RESPECT TO CUSTOMER’S SALE OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CARD FRAUD OR CHARGEBACKS. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY
9.3 Customer Representations and Warranties.
(a) By accepting the terms and conditions of this Agreement, Customer represents and warrants that (a) the person executing this agreement on behalf of Customer is eighteen (18) years of age or older and (b) all information Customer has provided to Nodus is true and correct in all respects.
(b) Customer represents and warrants that at all times during the term of this Agreement and any renewal thereof: (i) all representations and statements made by Customer in this Agreement, or in any other document relating hereto by Customer or on Customer’s behalf, are true, accurate and complete in all material respects; (ii) it is engaged in a lawful business and has all necessary rights and authorizations to sell and distribute its products and/or services; and (iii) Customer will comply, at Customer’s own expense, with all laws, policies, guidelines, regulations, ordinances or rules applicable to Customer, this Agreement, End User data or the Transactions, including, without limitation: (a) the Card 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 Documentation.
9.4 Third Party Products and Services. Customer acknowledges that the Nodus Services are designed for use with certain third party programs and services, including, without limitation, certain Internet browser and software programs developed and owned by third parties. Customer will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Nodus does not warrant and shall not be responsible for products or services provided by third party vendors. Customer authorizes Nodus to disclose information concerning Customer to any third party vendor to the extent required to deliver the requested Nodus Services.
10. LIMITATIONS OF LIABILITY AND DISCLAIMERS.
10.1 LIMITATIONS. UNDER NO CIRCUMSTANCES (I) WILL NODUS OR ANY OF ITS AFFILIATES OR SUPPLIERS (OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF NODUS, ITS AFFILIATES OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGE OR LOSS SUFFERED OR INCURRED BY CUSTOMER, REGARDLESS OF THE FORM OF ACTION, OR ANY LOSS OF REVENUE, PROFITS OR BUSINESS, ANTICIPATED SAVINGS, LOSS OF GOODWILL OR REPUTATION, COSTS OF DELAY, LOSS 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 NODUS’S TOTAL AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT EXCEED THE GREATER OF THE AGGREGATE COMPENSATION NODUS RECEIVED FOR PROVIDING THE NODUS SERVICES TO CUSTOMER DURING THE SIX (6) 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.
10.2 DISCLAIMER. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, CUSTOMER EXPRESSLY AGREES THAT NODUS SHALL NOT BE LIABLE FOR ANY LOSS (HOWEVER OCCURRING, INCLUDING NEGLIGENCE), ARISING FROM OR RELATED TO: (A) CUSTOMER’S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE CUSTOMER’S MERCHANT ACCOUNT; (B) FRAUDULENT TRANSACTIONS PROCESSED THROUGH CUSTOMER’S PAYMENT GATEWAY ACCOUNT(S); (C) DISRUPTION OF NODUS SERVICES, SYSTEMS, SERVER OR WEBSITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, MALICIOUS CODE, OR ANY OTHER TECHNOLOGY; (D) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A THIRD PARTY SERVICE PROVIDER, PAYMENT PROCESSOR OR BANK; OR (E) THE LIMITATION OF THE FUNCTIONING OF ANY NODUS SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH.
10.3 THIRD PARTY PRODUCTS AND SERVICES. NODUS MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD PARTY PRODUCTS OR SERVICES. CUSTOMER’S USE OF THIRD PARTY PRODUCTS AND SERVICES IS AT CUSTOMER’S OWN RISK. NODUS 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 NODUS IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE.
11.1 Indemnification by Nodus.
(a) General. Nodus shall defend, indemnify and hold Customer and any of Customer’s officers, directors, agents and employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Customer, arising out of or relating to any alleged infringement of a U.S. patent or copyright of any other entity or person by the Nodus Services.
(b) Limitation; Prevention of Infringement. Nodus's obligations in Section 11.19.2(a) do not apply if: (i) the Nodus Services have been modified by parties other than Nodus; (ii) the Nodus Services are used in conjunction with data where use with such data gave rise to the infringement claim; (iii) Customer’s failure to install upgrades or patches provided by Nodus where such upgrade or patch would have removed the infringing condition; (iv) Customer’s use of the Nodus Services in a manner inconsistent with Documentation; or (v) Customer’s use of the Nodus Services with software or hardware not authorized by Nodus, where use with such other software or hardware gave rise to the infringement claim. If the Nodus Services or any component thereof becomes, or in Nodus's opinion is likely to become, the subject of a claim of infringement, then Customer shall permit Nodus, at Nodus's sole option and expense, either to (i) procure for Customer the right to continue using the Nodus Services as permitted in this Agreement, or (ii) replace or modify the affected Nodus Services or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, Nodus is unable to cure the infringement, either party may immediately terminate this Agreement. THIS SECTION 11.1 STATES THE ENTIRE LIABILITY OF NODUS TO CUSTOMER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE NODUS SERVICES.
11.2 Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Nodus 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) incurred by Nodus, arising out of or relating to (a) any breach or alleged breach by Customer of any representation, warranty, or obligation of Customer set forth in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Customer or any of Customer’s employees, agents or customers; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by Customer to Nodus; (d) payment card transactions submitted by Customer to Nodus and rejected by Nodus or an issuing bank; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from Customer’s actions; (f) claims by End Users, including, without limitation, claims relating to the disclosure of End User or consumer data; or (g) any alleged or actual violation by Customer of any applicable laws, regulations, the Card Network Rules or any regulatory body or agency having jurisdiction over the subject matter hereof. In the event Customer causes fines and/or penalties to be charged to Nodus by the Card Networks or any other entity, Customer agrees to immediately reimburse Nodus for said fines or penalties.
11.3 Indemnification Procedure. The obligations of each party (“Indemnitor”) under this Section 11 to defend, indemnify and hold harmless the other party (“Indemnitee”) shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice Indemnitee in any way.
11.4 Exceptions. If Customer is an agency or instrumentality of a state of the United States and are precluded by the law of Customer’s state from entering into indemnification obligations, then the obligations under Sections 11.2 and 11.3 shall apply only to the extent permitted by such state law.
12. General Provisions
12.1 Publicity. The parties may work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters, provided, however, that neither party will have any obligation to do so. In addition, neither party will issue such publicity and general marketing communications concerning this relationship or the Nodus Services without the prior written consent of the other party (not to be unreasonably withheld or delayed).
12.2 Non-exclusivity. Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein.
12.3 Relationship of the Parties. The parties are independent contractors and nothing in this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other party. Neither party shall make any representation that suggests otherwise. Customer further recognizes that if Customer contracted for the Nodus Services with a third party, such provider is an independent contractor and is not a joint venturer, partner, or agent of Nodus.
12.4 Notices. All notices to Customer shall be given electronically, sent to the electronic mail address provided by or for Customer during registration for the Nodus Services and/or posted www.payfabric.com/announcements.htm. Service termination notices to Nodus shall be given electronically to firstname.lastname@example.org. All other notices to Nodus must be in writing and sent to Nodus Technologies, Inc., 2099 S. State College Blvd. Suite 250, Anaheim, CA 92806, Attention: Legal. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid. Electronic mail notices shall be deemed given the next business day following the date delivered.
12.5 Amendment; Modifications. No amendment, modification, or change to any provision of this Agreement, nor consent to any departure by either party therefrom, will in any event be effective unless the same will be in writing and signed by the other party, and then such consent will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, Nodus may amend this Agreement at any time upon written or electronic notice to Customer 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 Customer does not agree to such amendments, Customer’s sole remedy is to immediately terminate this Agreement upon written notice to Nodus.
12.6 Severability; Headings. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.
12.7 Governing Law; Jurisdiction. This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, excluding (i) that body of law known as conflicts of law and (ii) the United Nations Convention on Contracts for the International Sale of Goods. Customer hereby irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in Orange County, California with respect to any action, claim or proceeding arising out of or related to this Agreement and agree not to commence or prosecute any such action, claim or proceeding other than in such courts. No action, regardless of form, arising out of or in conjunction with the subject matter of this Agreement, except for claims involving intellectual property, claims to recover outstanding amounts due Nodus and claims for indemnification, may be brought by either party more than one (1) year after the cause of action arose. NODUS AND CUSTOMER IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT.
12.8 Waiver. The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.
12.9 Assignment. Customer will not have the right or the power to assign any of Customer’s rights or delegate the performance of any of Customer’s obligations under this Agreement without the prior written consent of Nodus. Subject to the foregoing, this Agreement will be binding upon, enforceable by and inure to the benefit of the Parties and their respective successors and assigns.
12.10 Force Majeure. Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under this Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the Nodus Services by a third party by any means, including without limitation, DDoS attacks, Malicious Code or any other software program or technology designed to disrupt or delay the Nodus Services, or other catastrophes or any other occurrences which are beyond such parties' reasonable control (each a “Force Majeure Event”), provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.
12.11 Telephone Recording. Customer acknowledges, agrees and consents to Nodus monitoring and recording any customer service telephone conversations with Customer at any time.
12.12 Entire Agreement. This Agreement, including all Appendices, together with all of Nodus'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. Customer acknowledges that this Agreement reflects an informed, voluntary allocation between Nodus and Customer of all risks (both known and unknown) associated with the Nodus Services. The parties agree that any term or condition stated in a Customer purchase order or in any other of Customer’s order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
12.13 Mobile Device Application. In the event Nodus offers a mobile device application and Customer elects to download such mobile device application, Customer’s use of the application shall be subject to the additional usage terms governing such application located within the application service provider’s user interface.
12.14 Affiliates. The rights, duties and/or obligations of Nodus under this Agreement may be exercised and/or performed by Nodus and/or any of Nodus’s Affiliates (if any), 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 Nodus or any of Nodus’s Affiliates, or any of their subcontractors and/or agents, shall be solely Nodus’s and not those of any of Nodus’s Affiliates, or any of their subcontractors and/or agents. Customer agrees to bring any claim and or action relating to the foregoing against Nodus only and not against any of Nodus’s Affiliates, or any of their subcontractors and/or agents.
12.15 Government Entity Obligations. If Customer is a governmental or quasi-governmental entity, Customer agrees that it has informed Nodus, and will inform Nodus of any changes or updates, in writing, of any law, regulation, ordinance, policy, or ethical requirement that would restrict or require disclosure of any political contributions made by Nodus or its directors, officers, or employees because of the existence of a contract between Customer and Nodus.
12.16 Export Compliance. Customer understands and acknowledges that Nodus Services may be subject to regulation by agencies of the U.S. government which prohibits export or diversion of certain products and technology to certain countries, persons, or other entities. Any and all obligations of Nodus to provide the Nodus Services shall be subject to all applicable export laws and restrictions and regulations. Customer agrees to comply with all applicable export laws and restrictions and regulations and not to permit the access or use of any Nodus Services by (i) any user in any country to which the U.S. has embargoed goods including, without limitation, Iran, Cuba, Syria and North Korea; or (ii) any person on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Person’s List.
“Abandoned Account” means any inactive account through which no Transactions have been processed for a minimum of six (6) months or for which all contact information (address, phone numbers, fax numbers, email address) and billing information (ABA routing number and bank account number and/or card number) is no longer valid.
“Account” means a top-level gateway identifier that is issued by Nodus to Customer to enable Customer’s use of Nodus Services hereunder. For each business unit within Customer’s organization that requires invoices to be sent to an address different than the primary Account, a new Account is required.
“Additional Service(s)” means the following services, PayLink, Nodus Merchant Services, and/or any other service or product that may be offered by Nodus 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 Nodus consisting of any card authorization, credit, ticket only, decline transaction or other related transaction.
“Card Network(s)” for the purposes of this Agreement means Visa U.S.A., Inc., Visa International, Inc., MasterCard International, Inc., and any other credit or debit card issuing company.
“Card Network Rules” means the rules and regulations promulgated by any Card Network.
“Confidential Information” shall mean any data or information, oral or written, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure 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, 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 publicly available 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 as evidenced by written documentation.
“Customer’s Marks” means Customer’s customary name and logo, and such other trademarks as Customer may from time to time notify Nodus in writing to be “Customer’s Marks” within the meaning of this Agreement.
“Documentation” means collectively, the Nodus Services user guides, documentation and help materials, in written or electronic form, as updated from time to time, that are made available to Customer.
“Domain(s)” means any website or sites operated by or for Nodus, including without limitation the URL http://www.nodus.com/.
“Effective Date” means the earlier of the date Customer acknowledges and agrees to this Agreement terms and conditions by (a) clicking the “I AGREE” button associated with this Agreement; (b) acknowledging Customer’s acceptance of this Agreement by any other method allowed by Nodus, including without limitation execution of any application that incorporates this Agreement by reference; or (c) by using the Nodus Services.
“End User” shall mean any person that purchases any of Customer’s goods or services, whose information Customer submits to or through Nodus during the course of Customer’s use of the Nodus Services.
“Merchant Interface” means the customer portal where customer updates their personal, payment or any other related information.
“Nodus Trademarks” means those trademarks listed at www.nodus.com/legal/trademark.htm and such other trademarks as Nodus may from time to time notify Customer in writing to be “Nodus Trademarks” within the meaning of this Agreement.
“Order Form” means a list of fees and charges to be paid by Customer to Nodus. Please contact Nodus for the Order Form.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Processor” means a card processor that accepts Transactions from Nodus and processes Transactions for Customer.
“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 of the United States or any other country or jurisdiction, 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 Customer’s account to Nodus.
By executing this Agreement, Company acknowledges and agrees, on behalf of and for itself, that it has reviewed and understands the Agreement and agrees to be legally bound by all of its terms and conditions.
State or Province:_____________________________________________________________
By (Office) Signature:_________________________________________________________
Appendix A –Additional Service(s) Terms and Conditions
In the event Customer enrolls in and/or utilizes any of Nodus’s Additional Service(s), the following terms will apply and form part of this Agreement:
1. Expansion of Services. The terms “Nodus Services” and/or “Services,” as each is defined in this Agreement, shall include each of the Additional Services. All terms of this Agreement applicable to the Nodus Services shall be applicable to each Additional Service(s).
2. Payment Terms. If fees are applicable to the Additional Service(s), Customer agrees to pay the Additional Service fees in accordance with the billing and payment terms set forth in Section 5 of this Agreement and in the amounts set forth in the Order Form and/or in the Additional Service documentation page accessed during enrollment in the applicable Additional Service. The Additional Service Order Forms are incorporated hereby by reference. By clicking the “I ACCEPT” button next to an Additional Service Order Form, Customer acknowledges Customer’s acceptance of such fees, Customer’s obligation to pay the fees and the terms and conditions applicable to the Additional Service.
3. Customer’s Warranty. In addition to the warranties set forth in this Agreement, Customer represents, warrants, and covenants to Nodus that its use of the Additional Services and any information gathered by it in connection with use of an Additional Service: (a) will be fully compliant with all applicable local, state and federal laws, rules, and regulations; (b) will be in accordance with all applicable Documentation; and (c) will not be used for any purpose other than in connection with the Additional Service.
4. Acknowledgement. Customer understands, acknowledges, and agrees that (a) Customer will be solely responsible for all Transactions processed through its payment gateway account(s), regardless of whether such Transactions are monitored by or transmitted through an Additional Service; (b) Customer will be solely responsible for its use of the Additional Service including, without limitation (i) configuring, maintaining and updating, as Customer deems necessary, the applicable settings for its Additional Service account; and (ii) with respect to each Transaction processed via Customer’s payment gateway account(s), and regardless of any data, analysis, or information generated or not generated by the Additional Service, as applicable, determining the appropriate action for each such Transaction (i.e., approve, void, decline, reject); (c) under certain circumstances, it may be necessary for Nodus to adjust Customer’s Additional Service security settings, with or without notice to Customer, to guard against fraudulent activity and that such actions may inadvertently cause legitimate transactions to expire, be rejected or delayed; and (d) Nodus shall not be liable under any theory of law, including negligence, for any loss associated with any of the foregoing.
5. DISCLAIMER. IN ADDITION TO ANY LIMITATIONS OR DISCLAIMERS SET FORTH IN THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ADDITIONAL SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. NODUS DOES NOT REPRESENT OR WARRANT THAT THE ADDITIONAL SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. CUSTOMER MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE ADDITIONAL SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR WARRANTIES OF ANY THIRD PARTY SERVICE PROVIDER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.2(a), NODUS 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 ADDITIONAL SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT NODUS SHALL BEAR NO RISK WITH RESPECT TO CUSTOMER’S SALE OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CARD FRAUD OR CHARGEBACKS. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY.
6. Risk, Security and Disclosure. In addition to the data collection, privacy and security obligations set forth in this Agreement, Customer understands and agrees that the risk and security suggestions provided in the Documentation for any of the Additional Services are solely for illustrative purposes to show best industry practices. Customer is solely responsible for choosing the appropriate settings and parameters for its account.
7. Integration. If Customer elects to use any of the Additional Services subsequent to the Effective Date and is presented with updated Additional Service(s) Terms and Conditions, the latter version of the Terms and Conditions will apply to Customer’s use of the Additional Service(s).
8. Termination. Termination or expiration of this Agreement shall likewise terminate access to the Additional Services.
Appendix B – Pricing
| PAYFABRIC PRICING *Minimum 2 year(24 month) contract|
|TIER||TRANSACTION COUNT||STORAGE||MONTHLY FEE||TRANSACTION FEE|
|1||1,000||1,000||$ 59||$ 0.10/trx|
|2||3,000||3,000||$ 79||$ 0.10/trx|
|3||5,000||5,000||$ 99||$ 0.10/trx|
Customer can select different Tiers depending on their monthly transaction volume and the number of credit card/ACH account information they want to store. If the number of transactions or storage exceeds the selected Tier, each additional transaction and/or storage over the Tier selected will be charged at $0.10 per transaction or storage.
Customer may not reduce Customer’s commitment under the Service subscription plan specified in the Sales Order during the Service Subscription Term. Customer is not entitled to any refund of fees paid or relief from fees due if the volume of Services Customer actually uses is less than the volume Customer ordered, and Customer may not carry over any of the unused volume to Customer’s subsequent month or Customer’s next Subscription Term.
PayFabric with Nodus Merchant Services and Gateways
When customer elects to include Nodus Merchant Services and Gateway with PayFabric then the combined price will be equal _________________________ per transaction with ___________________ per month unless the order form specifies different pricing. 2 yr. Minimum Commitment Required.