The Authorize.Net Payment Gateway Merchant Services Agreement (the "Agreement") is a legally binding contract between you and/or your company ("Customer") and Authorize.Net LLC ("Authorize.Net"). The Agreement sets out the terms and conditions under which Customer may utilize the Transaction Services. Customer should read this Agreement carefully.
By clicking on the "I AGREE" button or a similar affirmation, or by acknowledging acceptance of the Agreement by any other method allowed by Authorize.Net, or by using or accessing the Transaction 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 the Agreement; (ii) it agrees to be legally bound by the terms and conditions of the Agreement; and (iii) its use of the Transaction Services and any related products or services will be governed by this Agreement. If Customer does not agree or is not willing to be bound by the terms and conditions of this Agreement, Customer should not click on the "I AGREE" button and should not seek to obtain or use the Transaction Services.
- Customer's Capacity and Related Matters.
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 18 years of age or older, (b) all information Customer has provided to Authorize.Net is true and correct in all respects, and (c) Customer will update Authorize.Net by email with any changes to information Customer has previously supplied. Customer further represents and warrants that Customer has the legal authority to accept the terms and conditions of this Agreement and that such acceptance will be binding on Customer. Authorize.Net reserves its right, in its sole discretion, to refuse to provide Customer with any Authorize.Net Service. Words and phrases with initial letters capitalized and not otherwise defined herein shall have the meaning set forth in Section 15.
- Authorize.Net Undertakings.
2.1 Transaction Services.
Authorize.Net shall provide to Customer the Transaction Services at the rates set forth in the Fee Schedule and in accordance with the terms and conditions of this Agreement.
2.2 Customer Service.
During the term of this Agreement, if Customer is current in payment of all fees owing to Authorize.Net and is otherwise not in default under this Agreement, Authorize.Net shall provide customer service to Customer, as set forth in the Contact Us section of the Authorize.Net website at the URL <http://www.authorize.net/support>.
- Customer's Undertakings.
3.1 ID and Password.
Customer must select an ID and password to enable Customer to access Customer's payment gateway account and use the Transaction Services. Customer will restrict access to such 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 IDs, passwords, or any other codes for purposes of giving Customer access to the Transaction Services. Authorize.Net 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 Authorize.Net recommendations and notices regarding the security of Customer's ID, password and payment gateway account(s).
3.2 Relationship to Merchant Service Providers.
Customer may have enrolled in the Transaction Services via a Merchant Service Provider. In addition to any other agreement Customer may have with the Merchant Service Provider, the terms and conditions of this Agreement govern Customer's use and Authorize.Net's provision of the Transaction Services. Customer expressly acknowledges and agrees that Authorize.Net may share information about Customer and Customer's account with its Merchant Service Providers.
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 laws, policies, guidelines, regulations, ordinances, rules applicable to Customer, this Agreement, End User data or the Transactions and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof, including, without limitation, the Payment Network Rules, the Federal Trade Commission and Services Documentation. Authorize.Net reserves the right to amend, modify or change the Services Documentation at any time. Customer shall not use the Transaction Services in any manner, or in furtherance of any activity that may cause Authorize.Net to be subject to investigation, prosecution, or legal action.
3.4 Additional Solutions and Services.
In the event that Customer enrolls in and/or utilizes any of Authorize.Net's Additional Services, Customer hereby acknowledges and agrees to the terms and conditions contained in Appendix B, Additional Services Terms and Conditions.
3.5 Third Party Products and Services.
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. Authorize.Net will not be a party to such third party agreements and does not warrant or guarantee any third party product or service.
- 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 Payment 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 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 Authorize.Net 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 Authorize.Net 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 Authorize.Net associated with Customer's account and verifying that all corresponding funds are accurately processed. Customer acknowledges that Authorize.Net 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. Authorize.Net's liability for improperly processed or unauthorized Transactions solely attributable to the negligence of Authorize.Net is limited pursuant to Section 12.
b. With respect to the Transaction Services, at all times while this Agreement is in effect, Authorize.Net will maintain compliance with the Payment Card Industry Data Security Standard (PCI DSS). Authorize.Net acknowledges that Authorize.Net is responsible for the security of End User cardholder data while in Authorize.Net's possession.
4.3 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 Authorize.Net 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 Authorize.Net.
- Fees; Taxes.
5.1 Authorize.Net Service Fees.
Customer shall pay to Authorize.Net the fees set forth in the Fee Schedule located in the Merchant Interface, which is hereby incorporated into the terms of this Agreement by reference. Notwithstanding anything to the contrary and if agreed upon by the parties, a Merchant 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 the agreement between Customer and such Merchant Service Provider. If Customer's relationship with a Merchant Service Provider expires or terminates and such Merchant Service Provider was billing Customer for certain fees, Customer agrees to pay Authorize.Net for any further use of the Transaction Services effective immediately upon any such expiration or termination in accordance with the terms herein.
5.2 Account Fees.
5.2.1 Late Payment Fee. If Customer does not pay owing amounts 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 Fee Schedule. 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 Transaction Services shall automatically be suspended at the end of the month.
5.2.2 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 Fee Schedule. In addition, all costs incurred by Authorize.Net in managing Customer's Abandoned Account, including 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.
The fees described above are exclusive of all taxes. Customer agrees to pay all applicable taxes other than tax assessed on Authorize.Net's income. Customer agrees that the payment of fees to Authorize.Net shall be made without deduction or withholding for any taxes. If Customer is required to withhold any taxes, the amount paid by Customer to Authorize.Net shall be increased to the extent necessary to yield to Authorize.Net (after withholding of such taxes) a net amount equal to the amount Authorize.Net 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.
5.4 Opening/Closing Accounts.
Should a Customer fail to pay fees due under an Authorize.Net account ("Original Account") and subsequently opens another Authorize.Net account ("Subsequent Account") Authorize.Net reserves the right to bill the Subsequent Account for amounts due under the Original Account whether or not the Original Account was closed.
- Billing and Payment Terms.
6.1 Authorize.Net Bills Customer.
6.1.1 Billing Terms.
Billing shall begin on the Effective Date. Authorize.Net service fees are due and payable to Authorize.Net 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 Authorize.Net to initiate transaction entries to Customer's depository account(s) provided in its Customer application for all amounts due to Authorize.Net by Customer under this Agreement. This authority is to remain in full force and effect until Authorize.Net has received written notification from Customer of its request for termination in such time as to afford Authorize.Net 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.
b. Customers without U.S. Bank Accounts. Customer hereby authorizes Authorize.Net to charge Customer's credit card provided in its Customer application for all amounts due to Authorize.Net by Customer under this Agreement. This authority is to remain in full force and effect until Authorize.Net has received written notification from Customer of its request for termination in such time as to afford Authorize.Net 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 Payment Network Rules and/or any other regulatory body or agency having jurisdiction over the subject matter hereof.
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 Authorize.Net 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.
6.2 Merchant Service Provider Bills Customer.
Notwithstanding Section 6.1, if Customer is to be billed by a Merchant Service Provider for some or all of the fees associated with Transaction Services, Customer shall pay the Merchant Service Provider in accordance with the terms mutually agreed upon between Customer and such Merchant Service Provider.
This Agreement shall commence on the Effective Date and remain in full force and effect until terminated pursuant to Section 8.
- Termination and Suspension.
8.1 Termination by Customer.
Customer may terminate this Agreement, at any time and for any reason, with or without cause, upon written notice to Authorize.Net. In the event Customer is billed by a Merchant Service Provider in accordance with Section 6.2, Customer hereby authorizes the Merchant Service Provider to terminate this Agreement on Customer's behalf.
8.2 Termination by Authorize.Net.
Authorize.Net may terminate this Agreement and/or Customer's access to the Transaction Services, at any time and for any reason, with or without cause, upon thirty (30) days' written notice.
8.3 Termination or Suspension of Customer by a Merchant Service Provider.
If Authorize.Net is to be paid for Customer's access to and use of the Transaction Services by a Merchant Service Provider, and if Authorize.Net receives notice from such Merchant Service Provider that it has terminated or suspended its relationship with Customer, Authorize.Net may suspend and/or terminate Customer's right to access and use the Transaction Services and/or this Agreement without notice and without liability. In addition, Authorize.Net may suspend and/or terminate the Transaction 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.
8.4 Threatening Condition.
In the event that Authorize.Net 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 Authorize.Net's systems, equipment, processes, or Intellectual Property (the "Threatening Condition"), Authorize.Net may immediately suspend Customer's Account(s). In any event, Authorize.Net may terminate this Agreement if the Threatening Condition remains uncured more than thirty (30) calendar days after Customer is notified of the Threatening Condition.
8.5 Effect of Termination.
Upon termination of the 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; and (b) the rights and obligations of the parties under Sections 9.1, 10, 11, 12, 13, 14 and 15 shall survive such termination.
- Intellectual Property
The parties agree that Authorize.Net owns and retains all right, title and interest in and to the Authorize.Net Trademarks, Transaction Services, copyrights and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated therewith. 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 Transaction Services or related technology.
9.2 API and Services Documentation License.
Subject to the terms of this Agreement, Authorize.Net hereby grants to Customer and Customer hereby accepts from Authorize.Net a personal, limited, non-exclusive, non-transferable license and right to the Authorize.Net API and accompanying Services Documentation for the following purposes:
i. install and use the Authorize.Net 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 Transaction Services for the purpose of selling products and services to End-Users;
ii. use the accompanying Services Documentation solely for the purpose of using the Authorize.Net APIs and Transaction Services; and,
iii. create a reasonable number of copies of the Authorize.Net API and Services Documentation, with all copyright notices intact, for archival purposes only.
9.3 Authorize.Net Trademarks License.
Subject to the terms and conditions contained herein, Authorize.Net hereby grants to Customer a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display the Authorize.Net Trademarks on Customer's website in connection with Customer's offering of payment options to End Users.
9.4 Customer's Marks License.
Subject to the terms and conditions contained herein, Customer hereby grants to Authorize.Net 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 Transaction Services.
9.5 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.
9.6 Use the Appropriate ® or Symbol. Customer must reproduce any Authorize.Net Trademarks exactly as shown in Appendix A, 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.
9.7 Trademarks and Domain Registration.
Except as otherwise provided herein, Customer shall not use, register or attempt to register any (a) Authorize.Net Trademarks or (b) marks or domain names that are confusingly similar to any of the Authorize.Net Trademarks or the Domain(s).
9.8 Trademark Restrictions.
Customer shall not (a) use the Authorize.Net Trademarks except as expressly authorized in this Agreement; (b) take any actions inconsistent with Authorize.Net's ownership of the Authorize.Net Trademarks and any associated registrations, or attack the validity of the Authorize.Net Trademarks, its ownership thereof, or any of the terms of this Agreement; (c) use the Authorize.Net Trademarks in any manner that would indicate Customer is using such Authorize.Net Trademarks other than as a licensee of Authorize.Net; nor (d) assist any third party do any of the same.
- Confidential Information.
10.1 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), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated 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
10.2 Except as otherwise provided in this Agreement, within thirty (30) calendar days of termination of this Agreement, the Receiving Party shall, destroy all materials that constitute Confidential Information and/or Intellectual Property 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. 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, Payment Network 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.
10.3 Notwithstanding any provision in this Agreement to the contrary, each party may disclose Confidential Information of the other party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction.
- Representations and Warranties; Disclaimers.
11.1 Mutual 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 therein; (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, (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; and (e) it has all right, title or interest, or valid license to use its respective Marks, and that its grant of rights associated therewith do not violate any intellectual property or other proprietary rights of any third party.
11.2 Authorize.Net Warranty.
With respect to the Transaction Services, Authorize.Net represents and warrants that the Transaction Services provided to Customer hereunder will conform substantially to specifications set forth in the applicable Services Documentation, as may be amended from time to time at Authorize.Net's sole discretion. The preceding warranty will not apply if (a) any Transaction Services or products provided hereunder are used in material variation with this Agreement or Services Documentation; (b) any Transaction Services or products have been modified without the prior written consent of Authorize.Net; or (c) a defect in any Transaction Services or products has been caused by any of Customer's malfunctioning equipment or software. Customer expressly acknowledges that the Transaction Services are computer network-based services, which may be subject to outages, interruptions, attacks by third parties and delay occurrences.
In the event Customer discovers that any Transaction Services or products are not in conformance with the representations and warranties made in Section 11.2.1 and report such non-conformity to Authorize.Net or if the Transaction Services are subject to outages, interruptions, attacks by third parties and delay occurrences, Authorize.Net 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 Transaction Services to perform their intended functions in a reasonable manner. Customer acknowledges that Authorize.Net does not warrant that such efforts will be successful. If Authorize.Net's efforts are not successful, Customer may immediately terminate this Agreement. The foregoing shall constitute Customer's sole remedy, and Authorize.Net's sole liability, in the event of interruption, outage or other delay occurrences in the Transaction Services. Authorize.Net does not warrant the services of any third party, including without limitation, the Merchant Service Provider, bank or any third party processor.
THE TRANSACTION SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. AUTHORIZE.NET DOES NOT REPRESENT OR WARRANT THAT THE TRANSACTION 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 TRANSACTION SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR WARRANTIES OF ANY MERCHANT SERVICE PROVIDER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.2.1, AUTHORIZE.NET 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 TRANSACTION SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT AUTHORIZE.NET 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.
11.3 Customer's Warranties. 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; (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 Payment 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 Services Documentation.
11.4 Third Party Programs.
Customer acknowledges that the Transaction Services are designed for use with certain third party programs, 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. Authorize.Net does not warrant and shall not be responsible for services or software provided by unaffiliated third party vendors. Customer authorizes Authorize.Net to disclose to any third party vendor information concerning Customer to the extent required to deliver the requested service.
- LIMITATIONS OF LIABILITY AND DISCLAIMERS.
UNDER NO CIRCUMSTANCES (I) WILL AUTHORIZE.NET OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS (OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR VENDORS) 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, LOST 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 AUTHORIZE.NET'S TOTAL AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT EXCEED THE GREATER OF THE AGGREGATE COMPENSATION AUTHORIZE.NET RECEIVED FOR PROVIDING THE TRANSACTION 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.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, CUSTOMER EXPRESSLY AGREES THAT AUTHORIZE.NET 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 TRANSACTION SERVICES, SYSTEMS, SERVER OR WEBSITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (D) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A MERCHANT SERVICE PROVIDER, PAYMENT PROCESSOR OR BANK; OR (E) THE LIMITATION OF THE FUNCTIONING OF ANY TRANSACTION SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH.
12.3 THIRD PARTY PRODUCTS AND SERVICES.
AUTHORIZE.NET 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. AUTHORIZE.NET 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 AUTHORIZE.NET IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE.
13.1 Indemnification by Authorize.Net.
Authorize.Net 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 Transaction Services.
13.1.2 Limitation; Prevention of Infringement.
Authorize.Net's obligations in Section 13.1.1 do not apply if: (i) the Transaction Services have been modified by parties other than Authorize.Net; (ii) the Transaction 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 Authorize.Net where such upgrade or patch would have removed the infringing condition; (iv) Customer's use of the Transaction Services in a manner inconsistent with Services Documentation; or (v) Customer's use of the Transaction Services with software or hardware not authorized by Authorize.Net, where use with such other software or hardware gave rise to the infringement claim. If the Transaction Services or any component thereof becomes, or in Authorize.Net's opinion is likely to become, the subject of a claim of infringement, then Customer shall permit Authorize.Net, at Authorize.Net's sole option and expense, either to (i) procure for Customer the right to continue using the Transaction Services as permitted in this Agreement, or (ii) replace or modify the affected Transaction Services or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, Authorize.Net is unable to cure the infringement, either party may immediately terminate this Agreement. THIS SECTION 13.1.2 STATES THE ENTIRE LIABILITY OF AUTHORIZE.NET TO CUSTOMER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE TRANSACTION SERVICES.
13.2 Indemnification by Customer.
Customer shall defend, indemnify, and hold harmless Authorize.Net 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 Authorize.Net, 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 Authorize.Net; (d) payment card transactions submitted by Customer to Authorize.Net and rejected by Authorize.Net 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 Payment 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 Authorize.Net by the Payment Networks or any other entity, Customer agrees to immediately reimburse Authorize.Net for said fines or penalties.
13.3 Indemnification Procedure.
The obligations of each party ("Indemnitor") under this Section 13 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.
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 13.2 and 13.3 shall apply only to the extent permitted by such state law.
- General Provisions.
Except for any announcement intended solely for internal distribution or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of either party, all media releases, public announcements or public disclosures (including, but not limited to, promotional or marketing material) by either party or its employees or agents relating to this Agreement or its subject matter, or including the name, trade name, trademark, or symbol of the other party, are prohibited without the prior written consent of both parties. Notwithstanding the foregoing, either party shall be entitled to disclose the existence of the relationship formed hereunder between Authroize.Net and Customer without the prior written consent of the other party and Authorize.Net shall be entitled to include Customer's name and/or logo in customer lists within Authorize.Net corporate presentations without prior written consent.
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.
14.3 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 recognize that if Customer contracted for the Transaction Services with a Merchant Service Provider, such provider is an independent contractor and is not a joint venturer, partner, or agent of Authorize.Net.
All notices to Customer shall be given electronically, sent to the electronic mail address provided by or for Customer during registration for the Transaction Services and/or posted in the Announcement section of Customer's payment gateway account(s). Service termination notices to Authorize.Net shall be given electronically from within Customer's Authorize.Net Merchant Interface and sent to firstname.lastname@example.org. Customer must log into Customer's Merchant Interface at <https://secure.authorize.net/>, click on Contact Us, click on Customer Support Inquiry Form, type Customer's termination request, and click the Submit button. All other notices to Authorize.Net must be in writing and sent to Authorize.Net LLC, 808 East Utah Valley Drive, American Fork, Utah, 84003, Attention: General Counsel. 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.
14.5 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, Authorize.Net 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 Authorize.Net.
14.6 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.
14.7 Governing Law; Consent to Jurisdiction. This Agreement will be deemed entered into in State of California, USA and will be governed by and interpreted in accordance with the laws of the State of California, USA 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. The parties agree that any dispute arising under this Agreement will be resolved in the state or federal courts in San Mateo County, California, USA and the parties hereby expressly consent to jurisdiction therein.
14.8 Arbitration. Any dispute arising out of or relating to this Agreement, including the breach, termination or validity thereof, must be brought to, and shall be finally resolved by, arbitration in accordance with the International Institute for Conflict Prevention and Resolution ("CPR") Rules for Administered Arbitration of International Disputes by three arbitrators, of whom each party shall designate one, with the third arbitrator to be appointed by CPR. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof as set forth in Section 14.7. The seat of the arbitration shall be San Francisco, California. The language of the arbitration shall be English.
14.9 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.
14.10 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 Authorize.Net, including in the case of a merger.
14.11 Force Majeure. Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the 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 Transaction Services by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the Transaction 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.
14.12 Telephone Recording.
Customer acknowledges, agrees and consents to Authorize.Net monitoring and recording any customer service telephone conversations with Customer at any time, without additional further notice to the parties to such conversations.
14.13 Entire Agreement. This Agreement together with all of Authorize.Net'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 Authorize.Net and Customer of all risks (both known and unknown) associated with the Transaction Services.
The provisions of this Agreement relating to any fees or other amounts owed, payment of interest on unpaid fees, confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings and this paragraph shall survive termination or expiration of this Agreement.
14.15 Mobile Device Application.
If Customer chooses to download and use the Authorize.Net 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.
14.16 Affiliates. The rights, duties and/or obligations of Authorize.Net under this Agreement may be exercised and/or performed by Authorize.Net and/or any of Authorize.Net's Affiliates, 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 Authorize.Net or any of Authorize.Net's Affiliates, or any of their subcontractors and/or agents, shall be solely Authorize.Net's and not those of any of Authorize.Net's Affiliates, or any of their subcontractors and/or agents. Customer agrees to bring any claim and or action relating to the foregoing against Authorize.Net only and not against any of Authorize.Net's Affiliates, or any of their subcontractors and/or agents.
14.17 Government Entity Obligations. If Customer is a governmental or quasi-governmental entity, Customer agrees that it has informed Authorize.Net, and will inform Authorize.Net 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 Authorize.Net or its directors, officers, or employees because of the existence of a contract between Customer and Authorize.Net.
14.18 Export Control. Customer understands and acknowledges that Authorize.Net is 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 Authorize.Net to provide the Transaction 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 export or re-export any Authorize.Net Intellectual Property (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods including, without limitation, Iran, Cuba, Syria, Sudan, the Crimea Region of the Ukraine and North Korea; or (ii) to 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 AND 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 Authorize.Net to Customer to enable Customer's use of Transaction 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, Advanced Fraud Detection Suite, Automated Recurring Billing, Customer Information Manager, Sync for QuickBooks, Visa Checkout and/or any other service or product that may be offered by Authorize.Net 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 Authorize.Net consisting of any card authorization, credit, ticket only, decline transaction or other related transaction.
"Confidential Information" shall mean any data or information, oral or written, treated as confidential 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, Services 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 in or has entered the public domain 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."
"Domain(s)" means any website or sites operated by or for Authorize.Net, including without limitation the URL <http://www.authorize.net>.
"Effective Date" means the earlier of the date Customer acknowledges and agrees to the Agreement terms and conditions by (a) clicking the "I AGREE" button associated with the Agreement; (b) acknowledging Customer's acceptance of the Agreement by any other method allowed by Authorize.Net, including without limitation execution of a Merchant Service Provider application that incorporates the Agreement by reference; or (c) by using the Transaction Services.
"End User" shall mean any person that purchases any of Customer's goods or services, whose information Customer will submit to Authorize.Net during the course of Customer's use of the Transaction Services.
"Fee Schedule" means a list of fees and charges to be paid by Customer to Authorize.Net. The Fee Schedule is located in the Merchant Interface.
"Intellectual Property" shall mean all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author's rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.
"Merchant Interface" means the user interface available to Merchants at <https://secure.authorize.net>.
"Merchant Service Provider" for purposes of this Agreement, a Merchant Service Provider shall mean any third party through whom Authorize.Net may offer the Transaction Services to Customer, including but not limited to a reseller, Independent Sales Organization ("ISO"), application service provider, merchant aggregator, acquiring bank and financing agency.
"Payment Networks" means Visa, MasterCard, American Express, Discover Financial Services, and any affiliates thereof or any other payment network applicable to this Agreement.
"Payment Network Rules" means the operating rules, bylaws, schedules, supplements and addenda, manuals, instructions, releases, specifications and other requirements, as may be amended from time to time, of any of the Payment Networks.
"Processor"means a card processor that accepts Transactions from Authorize.Net and processes Transactions for Customer.
"Services Documentation" means collectively, the operating instructions, user manuals, and help files, in written or electronic form, made available to Customer and that are intended for use in connection with the Transaction Services.
"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 Authorize.Net.
"Transaction Services" means the Authorize.Net payment management solutions provided to Customer under the Agreement.
Appendix A - Trademarks
I. Authorize.Net Marks
For purposes of this Agreement, "Authorize.Net Trademarks" means those trademarks listed below and such other trademarks as Authorize.Net may from time to time notify Customer in writing to be "Authorize.Net Trademarks" within the meaning of this Agreement.
Authorize.Net Advanced Fraud Detection Suite
Authorize.Net Automated Recurring Billing
II. Customer's Marks
For purposes of this Agreement, "Customer's Marks" means Customer's customary name and logo, and such other trademarks as Customer may from time to time notify Authorize.Net in writing to be "Customer's Marks" within the meaning of this Agreement.
Appendix B - Additional Service(s) Terms and Conditions
In the event Customer enrolls in and/or utilizes any of Authorize.Net's Additional Service(s), the following terms will apply and form part of the Agreement:
- Expansion of Services.
The term "Transaction Services" shall include each of the Additional Services. All terms of the Agreement applicable to the Transaction Services shall be applicable to each Additional Service(s).
- 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 6 of this Agreement and in the amounts set forth in the Fee Schedule located in the Merchant Interface and/or in the Additional Service documentation page accessed during enrollment in the applicable Additional Service. The Additional Service Fee Schedules are incorporated hereby by reference. By clicking the "I ACCEPT" button next to an Additional Service Fee schedule, 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.
- Customer's Warranty.
In addition to the warranties set forth in the Agreement, Customer represents, warrants, and covenants to Authorize.Net 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 Services Documentation; and (c) will not be used for any purpose other than in connection with the Additional Service.
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 your 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 Authorize.Net 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) Authorize.Net shall not be liable under any theory of law, including negligence, for any loss associated with any of the foregoing.
IN ADDITION TO ANY LIMITATIONS OR DISCLAIMERS SET FORTH IN THE AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ADDITIONAL SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. AUTHORIZE.NET 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 MERCHANT SERVICE PROVIDER. AUTHORIZE.NET 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 THE AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT AUTHORIZE.NET 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.
- Risk, Security and Disclosure.
In addition to the data collection, privacy and security obligations set forth in the Agreement, Customer understands and agrees that the risk and security suggestions provided in the Services 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.
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).
Termination or expiration of the Agreement shall likewise terminate access to the Additional Services.
- Terms and Conditions Specific to Visa Checkout.
If Customer enrolls in and/or uses the Visa Checkout Services the following additional terms and conditions apply:
a. Visa Checkout Definitions
(i) "Branding Requirements" means the Visa Checkout Branding Requirements and brand guidelines as included in the Services Documentation.
(ii) "Customer Site" means any websites owned or operated by the Customer, or at the direction of the Customer or under license from the Customer, for which the Visa Checkout Services will be provided under this Agreement.
(iii) "Visa Checkout End User" means any subscriber, purchaser, or person or entity that uses the Visa Checkout Services to pay for, use, view, consume, or otherwise obtain Customer services.
(iv) "Visa Checkout End User Data" means information of a Visa Checkout End User (including, without limitation, full or partial card account numbers, email addresses, physical addresses or phone numbers), provided through the Visa Checkout Services to Customer pursuant to a Visa Checkout Transaction. Visa Checkout End User Data does not include data collected by Customer directly from a Visa Checkout End User and not through the Visa Checkout Services.
(v) "Visa Checkout Services" means the services provided under this Agreement as more fully described in the Visa Checkout Services Documentation.
(vi) "Visa Checkout Services Documentation" means, collectively, the operational, technical, integration documentation, user manuals, Brand Requirements, and help files, including but not limited to checkout implementation overviews, integration guidelines, and sandbox guidelines, in written or electronic form, and as modified from time to time, that are intended for use in connection with the Visa Checkout Services.
(vii) "Visa Checkout Transaction" means the purchase by an End User of a Merchant product or service via the Visa Checkout Services.
b. Visa Checkout License.
(i) License to Visa Checkout Trademarks. Subject to the terms and conditions of this Agreement and the Visa Checkout Services Documentation, Authorize.Net grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable, royalty-free, revocable, license to use, display, and reproduce the Visa Checkout Trademarks referred to in the Visa Checkout Services Documentation strictly for purposes of promoting the authority of Customer to provide Visa Checkout End Users with the ability to use the Visa Checkout Services to pay for Customer products or services.
(ii) License to Customer Trademarks. Subject to the terms and conditions of this Agreement, Customer grants to Authorize.Net and its Affiliates a limited, non-exclusive, non-sublicensable, non-transferable, royalty-free, revocable, worldwide license to use, display, store, modify (solely for purposes of customization) and reproduce the Customer trademarks strictly as necessary to provide the Visa Checkout Services and to identify Customer as a user of the Visa Checkout Services.
(iii) Use of Trademarks; Brands. Each party shall strictly comply with all Trademark standards and brand guidelines with respect to the use of the other party's Trademarks. 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. Each party further agrees to cooperate with each respective trademark owner in maintaining control of the nature and quality of the services rendered and the publicity materials put forward bearing the respective trademarks. The trademark owner will have the sole right to engage in legal proceedings of any kind involving their respective trademarks.
c. Visa Checkout Intellectual Property. Customer acknowledges and agrees that except for the rights and licenses expressly granted to Customer in this Agreement, as between Customer and Authorize.Net, Authorize.Net and its Affiliates shall retain all right, title and interest in and to the Visa Checkout Services, APIs, Visa Checkout Services Documentation, Visa Checkout Trademarks and any derivatives of the foregoing ("Visa Checkout IP"); and, nothing contained in this Addendum shall be construed as conferring upon Customer by implication, operation of law, estoppel, or otherwise, any other license or right. Customer SHALL NOT: (i) use, reproduce, distribute, or permit others to use, reproduce, or distribute any Visa Checkout IP for any purpose other than as specified in this Addendum; (ii) make Visa Checkout IP available to unauthorized third parties; (iii) rent, electronically distribute, timeshare, or market Visa Checkout IP by interactive cable, remote processing services, service bureau or otherwise; or, (iv) directly or indirectly modify, reverse engineer, decompile, disassemble, or derive source code from any Visa Checkout IP.
d. Customer Obligations. In addition to Customer's obligations set forth in this Agreement, Customer agrees to the following:
(ii) Customer agrees to take all reasonable precautions to prevent the unauthorized use, disclosure or transmission of Visa Checkout End User Data. In the event that Customer's system is breached and an unauthorized third party has access to, use of or transmitted Visa Checkout End User Data or any data related to the provision of the Visa Checkout Services or any Visa Checkout Transaction, or Customer has reason to believe that such breach has occurred, Customer shall immediately notify Authorize.Net of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future.
(iii) Except for the express obligations of Authorize.Net set forth in this Addendum, Customer is solely responsible for all activities required by or otherwise related to the development, production, delivery, and promotion of Customer's products and services and for all fees, costs, taxes or other expenses related to such activities, including the taking and fulfillment of orders for/from Visa Checkout End Users. Customer is solely responsible for all service issues relating to Customer's products and services, including pricing, order fulfillment, order cancellation, returns, refunds and adjustments, chargebacks, rebates, functionality and warranty, and technical and Visa Checkout End User consumer support. Customer acknowledges and agrees that it will not act as a payment intermediary, aggregator, or service bureau or otherwise resell the Visa Checkout Services to any third parties.
e. Visa Checkout General Terms
(i) Confidential Information. For the avoidance of doubt, Visa Checkout End User Data shall not constitute End-User data under the Agreement, and Visa Checkout End User Data shall not constitute Customer's Confidential Information. Authorize.Net shall be entitled to include Customer in customer lists without prior written consent, and either party shall be entitled to disclose the existence of the relationship formed hereunder between Authorize.Net and Customer without the prior written consent of the other party.
(ii) Marketing, Promotion and Education. Throughout the Term: (a) Customer will display the Visa Checkout marks in accordance with the Branding Requirements and with equal prominence to Trademarks of any other payment methods offered on a Customer Site and with equal treatment in terms of website flow, terms, conditions, restrictions or fees; (b) Customer will make available on each of its Customer Sites information pertaining to the Visa Checkout Services, including, registration guidelines and frequently asked questions, as may be provided from time to time; (c) as mutually agreed upon by the parties, Customer will participate in communications activities as appropriate, including joint press releases, press tours, media and industry analyst interviews, appearance in promotional videos, social media integrations, and panel discussions; and (d) Customer agrees that when an End User selects payment through the Visa Checkout Services, Customer shall not attempt to inhibit this decision, dissuade the End User from using the Visa Checkout Services, or encourage the End User to use an alternative digital wallet in lieu of the Visa Checkout Services.