Terms of Service

These Terms of Service ("Terms of Service") govern the services performed by AcceptOn Inc., a Delaware corporation ("AcceptOn") with respect to all the products and services it provides to its customers (each a "Customer").

Service

AcceptOn provides a collection of tools, products and services for accepting and utilizing online payments and payments data (collectively the "Service" or "Services"). AcceptOn agrees to provide the Service under the terms and conditions set forth hereunder in these Terms of Service. If you do not agree to the terms and conditions set forth in these Terms of Service then please do not use the Service.

Confidential Information

"Confidential Information" as used in these Terms of Service shall mean all information disclosed by one party to the other that is (i) generally accepted in the trade or industry as confidential (including AcceptOn's application program, concepts, ideas, trade secrets, inventions, know-how, pricing information and algorithms, research, development, business plans etc), or (ii) not otherwise generally known in the trade or industry. Subject to the provisions set forth herein, AcceptOn agrees to hold Customer's Confidential Information in strict confidence and not to disclose such Confidential Information to any third party that does not have an agreement in place with AcceptOn, in which agreement contains no less protective provisions of the Confidential Information than those contained in these Terms of Service, unless an exception is agreed to through prior written consent with Customer. Customer acknowledges and agrees that AcceptOn may provide Customer's Confidential Information to third parties in certain limited circumstances to carry out tasks on AcceptOn's behalf (e.g., billing or data storage), so long as there are restrictions in such agreements no less protective of the Confidential Information than those contained in these Terms of Service.

Subject to the provisions set forth above, Customer also grants to AcceptOn the right to modify, reproduce, distribute, display and perform, and otherwise use Customer's Confidential Information that is gathered and in an aggregated or anonymized form for any purpose, provided that the information is not personally identifiable or cannot be reasonably identifiable with Customer.

Intellectual Property

Customer shall own all right, title and interest to Customer's Confidential Information. Customer grants AcceptOn a nonexclusive, royalty-free, fully-paid, transferable, worldwide license to (i) use Customer's Confidential Information in order to perform AcceptOn's obligations hereunder, and (ii) use, reproduce, publicly perform, distribute and display Customer trademarks and logos on AcceptOn's website, advertising, and marketing materials in order to identify Customer as a customer. Customer further agrees to add the following disclosure (or a substantially similar disclosure) to Client's privacy policy: "Please note that we may utilize the services of AcceptOn including, without limitation, for purposes of collecting payments and payments related data in connection with our products and services. AcceptOn may develop proprietary software and other works of authorship including, without limitation, any technology, inventions, discoveries, works of authorship or other creations used in the accepting payments or the gathering of customer data by AcceptOn (including, without limitation, aggregating customer data across multiple Clients), the Service and the API (collectively known as "AcceptOn IP") with or without the use of Customer Confidential Information. AcceptOn shall own all right, title, and interest to AcceptOn IP.

AcceptOn hereby grants Customer a limited, revocable, non-exclusive, non-sublicensable license to use the AcceptOn Service solely as necessary to use the AcceptOn Service on the terms and conditions described herein. Customer will not, nor will Customer allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the AcceptOn IP; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the AcceptOn IP; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the AcceptOn IP; (iv) remove any proprietary notices or labels on the AcceptOn IP; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the AcceptOn Service. Customer will use the Service (and any materials resulting therefrom) solely for its own internal use, and will not make the Service available for timesharing, application service provider or service bureau use. Customer shall not be entitled to use any AcceptOn IP to compete (that is, provide services similar to the services provided hereunder to third parties for a fee) with AcceptOn. This license will terminate (i) immediately if Customer fails to comply with these Terms of Service, or (ii) upon 48 hours written notice by AcceptOn for any reason or for no reason at all.

AcceptOn (including its parents, subsidiaries and affiliates) may retain and use, and Customer assigns to AcceptOn all right, title and interest in and to, all feedback, reports, designs, inventions, specifications and other materials developed in connection with these Terms of Service regarding performance or improvement of the AcceptOn Service. All such feedback and other materials shall be deemed to be AcceptOn's Confidential Information. In addition, Customer grants to AcceptOn the right to modify, reproduce, distribute, display and perform, make, have made and otherwise use and exploit all Customer data gathered from Customer and analysis thereof, in aggregated, unidentified form only (i.e. not linked to a specific Customer product or service) as it deems appropriate, including, without limitation, aggregating such data across Customers in order to improve the Service. As between Customer and AcceptOn, any such aggregated data shall be owned by AcceptOn and considered to be AcceptOn's "Confidential Information".

Customer represents and warrants that it owns and has the right to provide to AcceptOn all Customer data for the purposes described herein and that the provision to AcceptOn of any personally identifiable information for any users of Customer does not violate any privacy rights of such user under any applicable law.

Conduct

You acknowledge that AcceptOn does not pre-screen any Content provided or made available by you or any third party in connection with the Services, but that AcceptOn and its designees shall have the right (but not the obligation) in their sole discretion to (i) monitor, alter, edit, or remove any of your Content, in whole or in part, and/or (ii) rescind and terminate your right to use the Services at any time (with or without notice) for any reason or no reason. You acknowledge and agree that AcceptOn may preserve your Content and may also disclose your Content for any reason, including without limitation if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this TOS; (c) respond to claims that any of your Content violates the rights of third parties; and/or (d) protect the rights, property, or personal safety of AcceptOn, its users and/or the public. You understand that the technical processing and transmission of the Services, including Your Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

Customer represents and warrants that Customer will use the Services only for lawful purposes and only in compliance with these Terms of Service and Privacy Policy as published at www.AcceptOn.com or otherwise furnished to Customer and all applicable laws (including, but not limited to, policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws).

Restricted Use

You are required to obey all laws, rules, and regulations applicable to your use of the Service (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination, or false advertising). In addition to any other requirements or restrictions set forth in this Agreement, you shall not knowingly enable or perform any of the following actions through the Service: (i) utilize the credit available on any Card to provide cash advances to cardholders, (ii) submit any card transaction for processing that does not arise from your sale of products or services to a buyer customer, or acceptance of a bona fide charitable donation, (iii) act as a payment intermediary or aggregator or otherwise resell our services on behalf of any third party, (iv) send what you believe to be potentially fraudulent authorizations or fraudulent card transaction, or (v) use AcceptOn in a manner that Visa, MasterCard, American Express, Discover, or any other Card Network or other payment network reasonably believes to be an abuse of such network or a violation of its applicable rules.

You further agree not to, nor to permit any third party to, do any of the following: (i) access or attempt to access AcceptOn systems, programs, or data that are not made available for public use; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way material from AcceptOn; (iii) permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau, or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service - or decompile, disassemble, or otherwise reverse engineer the Service - except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the normal operation of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Service except as expressly allowed under this section.

Suspicion of Unauthorized or Illegal Use

We reserve the right to not authorize or settle any transaction you submit which we believe is in violation of this Agreement, any other AcceptOn agreement, or exposes you, other AcceptOn users, our processors or AcceptOn to harm, including but not limited to fraud and other criminal acts. You are hereby granting us authorization to share information with law enforcement about you, your transactions, or your AcceptOn Account if we reasonably suspect that your use of AcceptOn has been for an unauthorized, illegal, or criminal purpose.

Processor and Card Network Rules

The Processors and Card Networks we work with have established guidelines, bylaws, rules, and regulations ("Network Rules"). You are required to comply with all applicable Network Rules that are applicable to merchants. You can review portions of the Network Rules at Visa and MasterCard. The Card Networks reserve the right to amend the Network Rules. AcceptOn reserves the right to amend the Agreement at any time with notice to you as necessary to comply with Network Rules or otherwise address changes in the Service.

Prohibited Businesses

There are certain categories of businesses and business practices for which the AcceptOn cannot be used ("Prohibited Businesses"). Most, although not all, of these Prohibited Business categories are imposed by Card Network rules or the requirements of our banking providers or processors. By registering for AcceptOn, you confirm that you will not use the Service to accept payments in connection with any of the Prohibited Businesses. If you are uncertain as to whether your business is a Prohibited Business, or have questions about how these requirements apply to you, please contact us.

Compensation

By signing up for AcceptOn, Customer agrees to allow AcceptOn to negotiate partnerships, rates, discounts, commissions and other payment opportunities on their behalf. In the event which Customer does not agree to such arrangements, AcceptOn reserves the right to immediately suspend Service without any liability whatsoever until agreement is made. In no event shall any fees be assessed to Customer in addition to the rates assessed by their existing processor relationships, as outlined in processor's fee schedules, and no fees shall be returned to Customers in the event of cancellation of the Service by Customer.

Disclaimer; Liability

All work product and any services (including the products and services provided through the AcceptOn Service) provided to Customer are delivered "AS IS." ACCEPTON EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF QUALITY, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. AcceptOn DOES NOT WARRANT THAT THE SERVICES, THE ACCEPTON SERVICE OR ANY MATERIALS WILL MEET CUSTOMER'S NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE ACCEPTON SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THESE TERMS OF SERVICE AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES DESCRIBED HEREIN. ACCEPTON MAKES NO REPRESENTATIONS OR GUARANTEES THAT ANY SERVICES PROVIDED TO CUSTOMER WILL PROVIDE SPECIFIC RESULTS. IN NO EVENT SHALL ACCEPTON (INCLUDING ITS PARENT (IF ANY), SUBSIDIARIES, DIRECTORS, STOCKHOLDERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES) (THE "ACCEPTON PARTIES") LIABILITY UNDER THESE TERMS OF SERVICE EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY ACCEPTON FROM CUSTOMER. YOU SPECIFICALLY ACKNOWLEDGE THAT ACCEPTON CANNOT ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR IS AUTHORIZED TO DO SO. IN NO EVENT WILL THE ACCEPTON PARTIES BE RESPONSIBLE TO CUSTOMER OR ANY THIRD PARTY CLAIMING THROUGH CUSTOMER FOR INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER OR NOT CUSTOMER ADVISED ACCEPTON AS TO THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND ACCEPTON WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

The Service is controlled and operated from facilities in the United States. AcceptOn makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States, foreign and local laws and regulations, including but not limited to export and import regulations. YOU MAY NOT use the Service from a country embargoed by the United States, or if you are a person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States, or in jurisdictions generally recognized as compliant with the rules and regulations set in place to ensure compliant use of Services.

Indemnity

Each party agrees to defend, indemnify and hold the other party, and its affiliates, and each of its and their respective officers, directors, agents, co-branders, other partners, and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise), or investigation made by any third party (each a "Claim") due to or arising out of: your Content; your or any of your affiliates, or any of your or your affiliates officers, directors, agents or employees, use of, contribution to or connection with the Services or violation of any rights of another; your event(s); and/or either party's violation of this TOS. Notice shall be provided to the other party of any such Claim, provided that the failure or delay in providing such notice shall not limit your obligations hereunder. Each party reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this TOS, and in such case

Miscellaneous

AcceptOn and Customer both agree to comply with all federal and state laws and regulations. These Terms of Service shall be governed in all respects by the laws of the State of Delaware; as such laws are applied to agreements entered into and to be performed entirely with Delaware between Delaware residents. Any dispute between the parties arising out of these Terms of Service shall be submitted to final and binding arbitration in the County of New Castle County in the State of Delaware, under the Commercial Arbitration Rules of the American Arbitration Association then in effect. The laws of the State of Delaware are incorporated herein and shall be applicable to the arbitration. In making the award, the arbitrator shall award recovery of costs and expenses of the arbitration and reasonable attorney's fees to the prevailing party(ies). Any party shall have the right, prior to receiving an arbitration award, to obtain preliminary relief from a court of competent jurisdiction to; (i) avoid injury and prejudice to that party; (ii) protect the rights of any party; (iii) maintain the status quo, as it existed immediately prior to the dispute; or (iv) obtain possession or property in order to avoid a material risk of damage to or loss of that property.

Force Majeure

No party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this section will affect or excuse your liabilities and obligations as outlined herein, including without limitation for Reversals, Chargebacks, Claims, fines, fees, refunds or unfulfilled products and services.

Relationship

AcceptOn's relationship with Customer shall be that of an independent contractor. The parties hereby agree that these Terms of Service shall not create a partnership, joint venture, agency, employer/employee or similar relationship.

Survival

Should any provisions of these Terms of Service be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of these Terms of Service shall not be affected or impaired thereby.

Entire Agreement

These Terms of Service constitute the entire agreement between AcceptOn and Customer relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.

Right to Amend

From time to time, we may change these Terms of Service. If we change these Terms of Service, we will inform you by posting the revised Terms of Service on the AcceptOn website at http://AcceptOn.com/tos/. Those changes will go into effect on the revision date shown in the revised Terms of Service. Your continued use of the Service constitutes your consent to be bound by the revised Terms of Service.