This agreement, ("Agreement") that you are entering into with Persolvent and Persolvent's designated third-party service providers ("Service Providers"), is a legal document that details your rights and obligations. By visiting this website you agree to be bound by the terms and conditions of this Agreement. If you do not agree, please do not use or access this website. The website and related services are offered to you conditioned upon your acceptance without modification of these Terms of Service. From time to time, it may be necessary for us to update or revise certain provisions of the Terms of this Agreement. By using this Web Site or accepting the Agreement, you agree that we may change the terms of this Agreement in our sole discretion without specific notice to you. If you do not agree to the changes proposed by us, or to any terms in this Agreement, your only remedy is to cancel your use of the services offered under this Agreement. This Agreement may be enforced by Persolvent or by the Service Provider(s). Persolvent and the Service Provider(s) are collectively referred to in this Agreement as "we", "us" or "our". In this Agreement, “user(s)”, "you" or "your" means any person or entity using the Service.
1. Description of Service
We operate this website and associated web pages, which, for purposes of the Terms of this Agreement, will be referred to as the "Web Site(s)". We offer you access to the Web Sites, which provides you access to a collection of resources, including, but not limited to, allow authorized users to process credit/debit card payments on behalf of their clients (the "Service"). We offer you access to the Web Site in exchange for your payment of fees, as applicable, and your agreement to accept and comply with the terms, conditions, policies and notices stated here and as may be modified by us from time-to-time in our sole discretion without notice to you. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Service shall be subject to this Agreement. We do not have control of or liability for the products or services that are paid for with our Service and do not guarantee that a particular user or client will complete a transaction. Completion of your client’s payment transaction is contingent upon the authorization of payment by the credit/debit card company or financial institution/bank. In the event the payment is not processed or authorized by the card company or financial institution, Persolvent is in no way liable for the delivery of funds related to the payment attempt. The Service may be accessed via the Internet. It is your responsibility to meet these requirements. Use of the Service by the Internet (i) requires access to the Internet, (ii) requires appropriate Internet browser software, (ii) and may require other associated hardware and/or software. We recommend that you use a web browser that supports SSL (Secure Sockets Layer) 128-bit encryption.Your browser should be Microsoft Internet Explorer 8.0 or above, or Mozilla Firefox 3.0 or above.
2. General Use of the Web Site
You agree that you will not use the Web Site or the Service in whole or in part, for any purpose that is unlawful or prohibited by this Agreement. You agree that you will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other Web site, transfer, or sell any information, software, lists of users, databases or other lists, products or services provided through or obtained from the Web Site. This includes, among other activities, that you agree not to engage in the practices of screen scraping, database scraping, or any other activity with the purpose of obtaining lists of users, clients or other information. You agree that you will not use the Service in any manner that could damage, disable, overburden, or impair the Web Site or interfere with any other party's use of the Web Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Web Site. Except with our written permission, you agree that you will not access or attempt to access password protected, secure or non-public areas of the Web Site. Unauthorized individuals attempting to access prohibited areas of the Web Site may be subject to prosecution. In connection with the Service, you may not use the Service in a manner that the participating credit/debit card companies or participating financial institution/bank reasonably believe to be an abuse of the credit/debit card system, violates the credit card association rules, or violates the applicable rules governing the participating financial institution.
Use of the Service is granted to legally authorized designees, at least 18 years old and a resident of the United States or Canada ("Authorized Users"). You must give us requested information that is current, true, accurate and complete. You are not permitted to use this Service on behalf of another party or use an unauthorized name. You also agree not to impersonate any person or entity, misrepresent any affiliation with another person, entity or association, use false headers or otherwise conceal your identity from us for any purpose. We will treat with care the information you entrust to us in accordance our Privacy Statement. If we find or determine that any of the information you provide is outdated, false, inaccurate, incomplete, or violates any other applicable privacy or confidentiality laws, agreements, or notices, we may terminate your use of the Service immediately and for all future use. This action on our part does not limit other remedies at law or in equity we may pursue to recover costs, losses, or other expenses we incur as a result of the information or lack of information you provide. We shall not be responsible or liable for payments made in incorrect amounts because of errors made by the user. If you use the Service, you are responsible for maintaining the confidentiality of your personal information and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You should notify Persolvent immediately if you believe there has been unauthorized use of your account or password or any other breach of security in connection with the Service. We will not be liable for any actions or transfers by any other individual that uses your user name and/or password or identity withor without your consent or knowledge. Upon providing us with your information, you are authorizing us, directly or through third parties, to make any inquiries we consider necessary to confirm your information. This may include ordering a credit report and performing other forms of credit checks including verification against third party databases. We reserve the right to impose daily volume or dollar amount sending limits from time to time. Senders may not exceed this limit in any given 24 hour period. By using this Service, you agree to allow Persolvent and/or our Service Providers to store certain data in relation to card transactions, including but not limited to client names, accounts, payment amounts, etc.
Payments will be processed promptly and submitted to the merchant account holder in a reasonable fashion, as outlined in the merchant agreement. We make no representations or warranties regarding the amount of time needed to complete processing, such as delays in the banking system or the U.S. mail service; any duration listed on the website are for example purposes only. We reserve the right to hold funds beyond the normal periods for transactions that appear suspicious or fraudulent. This may include non- suspicious or non-fraudulent transactions within the same batch. Further detail is provided in the merchant agreement, and this Agreement is not intended to encompass or include the entire merchant agreement. The applicable sections in this agreement are intended to be consistent with the merchant agreement.
5. Credit and Debit Card Transactions
The following terms apply to the extent you use the Service to process payments by credit/debit card. Your use of the Service to process payments by credit card or debit card are subject to and in accordance with the agreements with corresponding credit card or debit card company(s), in addition to the terms of this Agreement.
At our sole discretion, we reserve the right to restrict payment requests for any one of the following reasons (i) Unauthorized or unusual use of your designate bank account; (ii) Transfer or receipt of fraudulent or suspected fraudulent funds; (iii) Detection of excessive returns, disputes, reversals, or "kiting" type attempts; (iv) Failure to cooperate in an investigation, disputes, or provide additional requested information when requested; (v) Any noncompliance with the terms and conditions of this Agreement; (vi) Failure to confirm ny personal or bank account information previously provided by you associated with the use of our Service; or (vii) Insufficient funds, returns, or reversals of any kind related to your bank account. We will use reasonable efforts to research and resolve such matters as specified above to reach a conclusion as quickly as reasonably possible for all parties involved. In the event there is a dispute covering a specific transaction, we may restrict the electronic funds related to that particular transaction. We may also restrict all transactions for a designated period of time or as necessary in our sole discretion to protect ourselves against the risk of returns or reversals
7. Fees and Charges
All fees and charges for use of this Web site are outlined in your merchant processing agreement or gateway processing agreement.
8. Third Party Content
The Web Site may contain content and information from third party providers and/or links to their Web sites (“third party”, "Third Party Content", or “content”). Such content is not under the control of Service Provider or Persolvent and we are not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. We are providing such Third Party Content to you only as a convenience, and the inclusion of such content does not imply endorsement by Service Provider or Persolvent of such content or the affiliate. You may be subject to additional and/or different terms, conditions, and privacy policies when you use third party services, content, software, or sites. We reserve the right to remove content that, in our judgment, does not meet our standards, however we are not responsible for any failure or delay in removing such material. We are not and will not be responsible for (i) the terms and conditions of any transaction between you and any third party, (ii) any insufficiency of or problems with any such third party's background, insurance, credit or licensing, or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that you have a dispute with any such third party, you release Persolvent, Service Provider and their respective affiliates, suppliers, agents and employees from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
9. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: NO PARTY TO THIS AGREEMENT SHALL BE LIABLE TO ANY OTHER PARTY TOTHISAGREEMENT OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL PERSOLVENT’S AND SERVICE PROVIDER'S TOTAL LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY YOU UNDER THIS AGREEMENT TO A MAXIMUM OF ONE HUNDRED DOLLARS ($100.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE. THE SERVICE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. Persolvent AND SERVICE PROVIDER DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO INDEPENDENT CONTRACTOR AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Persolvent AND SERVICE PROVIDER OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PERSOLVENT'S AND SERVICE PROVIDER'S OBLIGATIONS.
10. Software Licenses
Persolvent provides you with a non-exclusive, non-transferable, limited license to use Persolvent's software, which you agree to use in accordance with this Agreement. You may not sub-license, or charge others to use or access our software without first obtaining written permission from Persolvent. All software is owned by Persolvent and/or its Service Providers and is protected to the maximum extent permitted by copyright laws and international treaty provisions. Any reproduction, modification or redistribution of the software is expressly prohibited, and may result in severe civil and criminal penalties. Persolvent's software, its structure, sequence, organization and source code are considered trade secrets of Persolvent and its Service Providers and are protected by trade secret laws. WITHOUT LIMITED THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPORDUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. YOU MAY NOT DECOMPILE OR DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER.
You agree to indemnify, defend, and hold harmless Service Provider, Persolvent, their respective employees, members, directors, managers, officers or agents from and against any loss, liability, damage, penalty or expense (including attorneys' fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by you or any employee, or agent of you to comply with the terms of this Agreement; (ii) any warranty or representation made by you being false or misleading; (iii) any representation or warranty made by you or any employee or agent of you to any third person other than as specifically authorized by this Agreement, (iv) negligence of you or your subcontractors, agents or employees, or (v) any alleged or actual violations by you or your subcontractors, employees or agents of any governmental laws, regulations or rules. You also agree to hold Persolvent harmless against any breach or negligence of Service Providers who may store, capture, or transmit sensitive card data.
12. Copyright and Trademark Notices
All materials on the Web Site (as well as the organization and layout of the Web Site) are owned and copyrighted or licensed by Persolvent, Service Provider, their affiliates or their suppliers, as applicable. All rights reserved. No reproduction, distribution, or transmission of the copyrighted Web Site materials is permitted without the written permission of Persolvent or Service Provider, as applicable. Any rights not expressly granted herein are reserved. Without Persolvent's or Service Provider's, as applicable, prior permission, you agree not to display or use in any manner, any of Persolvent's or Service Provider's trademarks, whether registered or unregistered.
13. Intellectual Property
"Intellectual Property" means all of the following owned by a party: (i) trademarks, service marks (registered nd unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, omputer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as "Intellectual Property Rights." Other than the express licenses granted by this Agreement, neither Service Provider nor Persolvent, as applicable, grant any right or license to you by implication, estoppel or otherwise to any Intellectual Property Rights of Service Provider or Persolvent, as applicable. Each party shall retain all ownership rights title, and interest in and to its own products and services and all Intellectual Property Rights therein, subject only to the rights and licenses specifically granted herein. Either Persolvent or Service Provider, as applicable, shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for any Intellectual Property Rights incorporated therein. You will cooperate with Service Provider or Persolvent, as applicable in pursuing such protection, including without limitation executing and delivering to Service Provider or Persolvent, as applicable, such instruments as may be required to register or perfect Service Provider's or Persolvent's, as applicable, interests in any Intellectual Property Rights and any assignments thereof. You shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from Service Provider or Persolvent, as applicable, in connection with this Agreement.
We reserve the right, from time to time, to modify, discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that neither Persolvent nor Service Provider shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
15. Termination and Cancellation
16. General Terms
The language used in this Agreement will be deemed to be the language chosen by us to express our mutual intent, and no rule of strict construction will be applied against us. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions. No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute consent to, waiver of, or excuse for any different or subsequent breach. You may not assign this Agreement without the written consent of both Persolvent and Service Provider. Persolvent and/or Service Provider may assign this Agreement in its sole discretion without the written consent of you. The section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement. This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota irrespective of its choice of law principles. The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in federal or state court in Minnesota. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party and each party hereby submits to the exclusive personal jurisdiction and venue of such courts. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party and each party hereby submits to the exclusive personal jurisdiction and venue of such courts. Should suit be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, including expert witness fees and fees on any appeal.