This electronic agreement will serve to confirm the understanding with respect to the transaction processing services to be provided by NETbilling, Inc. (NBI) to company (Merchant).
I. DESCRIPTION OF INTENDED SERVICES
Merchant has been granted authorization to use a certain "Merchant Account," pursuant to a Bank Card Member Agreement or similar agreement with a merchant bank (a "Bank"), and has been granted permission from such Bank to accept payment from one or more of the following payment types, including, but not limited to, Visa, MasterCard, American Express, Discover Card, JCB, Diners Club Carte Blanche (each, a "Credit Card"), and/or ACH. Merchant desires to participate in the On-line Real-time Payment Authorization Service Program (the "Program") offered by NETbilling, Inc. ("NBI"). The rights and duties of Merchant relate solely to one or more of the Credit Card systems named above and with respect to which Merchant has a Merchant Account during the term of this Agreement.
Upon execution of this Agreement and thereafter during the term, Merchant agrees to advise NBI in a timely manner of each Credit Card type that Merchant has authority to accept under any agreement with a Bank. Merchant and NBI mutually agree to the following terms and conditions:
II. RIGHTS AND OBLIGATIONS OF MERCHANT
A. Merchant will use the NBI Payment Gateway, whether on the Internet via a join screen for use by Purchasers (as defined below) or using NBI's manual data entry screen within the administration area of the Program, to process certain transactions (as determined by Merchant in its sole discretion) entered into by users attempting to purchase Merchant's products and services ("Purchasers").
B. Merchant agrees that it will not perform or fail to perform any act which would violate state or federal law, including, but not limited to, the Federal Equal Credit Opportunity Act, implementation of Regulation B, the Federal Fair Credit Reporting Act, and the Federal Truth-In-Lending Act. Merchant explicitly recognizes that the Federal Truth-In-Lending Act and its implementing Regulation Z require, and Merchant agrees to provide to NBI, a brief description of the goods or services purchased with a Credit Card, together with other required disclosures. Merchant further agrees to indemnify, defend, protect and hold harmless NBI from and against any and all claims, actions, suits, losses, damages and liabilities and costs (including attorneys fees), relating to or resulting from any violation of, or failure to timely and fully comply with, or claim or charge that there has been a violation of or failure to timely or fully comply with, any federal or state law, rule or regulation arising out of any acts or omissions of Merchant. Merchant further agrees to abide by any state and federal regulations regarding U.S. Code Section 2257 compliance, DCMA, COPA, content and product ownership, and holds NBI completely legally and financially harmless for any violations of such regulations by Merchant.
C. Merchant agrees that its On-Line Order Form shall comply with an appropriate format established by Merchant's Bank. It is understood, acknowledged and agreed that Merchant shall not process any transaction that is not in compliance with the terms of the Bank Card Member Agreement of the Bank for purposes of each Credit Card. Merchant further agrees to disclose any intentions of Purchaser rebilling and must state so on the signup page before NBI's secure join form as well in a terms and conditions agreement posted on Merchant's website and linked to from one or more areas before the Purchaser proceeds to NBI's actual secure join form. Merchant must provide customer service contact information which is easily accessible and which facilitates Purchaser's ability to contact Merchant or the entity handling service for the Merchant.
Merchant must state that these contact methods are for "customer service and cancellations" or other similar designation. These contact methods must be posted throughout several non-password protected areas of Merchant's website. It is also highly recommended that Merchant's company name (the name which will appear on the Purchaser's Credit Card statement) appears throughout the site to identify to Purchasers who is billing them.
D. Any advertising or other promotional material of Merchant shall not be in violation of the provisions of this Agreement. The NBI name style and any registered trademarks or trade names of NBI shall remain the property of NBI and shall not be used by Merchant except in compliance with this Agreement or independent written authorization from NBI and shall in any event not be used by Merchant except during the term of this Agreement and in accordance with this Agreement.
E. Merchant shall not discriminate against persons making purchases using a Credit Card, either with respect to the exchange of, return of, or adjustment on goods or services purchased unless Merchant conspicuously discloses its discriminatory refund policy at the time of sale in accordance with the Federal Truth-In- Lending Act and Regulation Z. If Merchant does not offer refunds or make such other restrictions, the words "no refund" or other appropriate terminology, shall be prominently and legibly written or typed on the order form used by Merchant with respect to performance of this Agreement and provided to Purchaser.
III. TRANSACTION PROCEDURES
A. If a Purchaser's Credit Card transaction is approved by Bank or Bank's agent, an order confirmation shall be sent by NBI to Merchant which will include all details of the sale transaction except the Purchaser's Credit Card number and expiration date. Concurrently, NBI will send a receipt via email to the Purchaser on Merchant's behalf and in Merchant's name which will contain the Purchaser's Credit Card number and expiration date, subject to federal and state laws and regulations. Merchant will receive from NBI in a password protected secure directory, daily transaction reports, including Credit Card numbers and expiration dates. These reports may be reviewed and downloaded by Merchant. This will provide to Merchant a daily settlement statement regarding all transactions for the applicable day so that funds can be transferred by Bank or Bank's agent to Merchant's designated account within the time period provided for in Merchant's Bank Card Member Agreement with Bank.
B. Merchant can enter transactions received by mail, by telephone, by fax, or in person from a Purchaser using the manual data entry screen provided by NBI. The transaction fee is the same for manual transactions.
IV. PROVIDED SERVICES
A. NBI shall provide, and Merchant shall use, the software of NBI described in this Agreement and any revisions to that software during the term of this Agreement at no additional expense to Merchant other than the Setup/Sign-up Fee, the Transaction Fees, and the monthly gateway payable by Merchant to NBI. Fees are predetermined and established by NBI and Merchant at time of execution of this agreement and are selected in online signup form. These fees are in addition to any Bank Discount Fee or other charges and shall be payable by Merchant directly to NBI. The Sign-up/Setup Fee shall be payable at the time of execution of this Agreement and the Monthly fees shall be payable not to exceed five (5) days from receipt by Merchant from NBI of written invoice by on-line transmission and shall be delinquent if not paid in full within five (5) days thereof and subject to a "late fee" imposed by NBI. Processing invoices are sent to merchant via email and/or posted in the administration area. Merchant is responsible to make sure he/she has received processing invoices from NBI no later than the 10th of each month and contact NBI if no invoice has been received or displayed. A late fee of 5% of the past due amount per month shall be applied on all payments required hereunder that are not received by NBI within 15 days of the date such payment becomes due. Repeated delinquent payments may result in NBI requiring a reserve payment to NBI in an amount to be stated at NBI's discretion.
B. The liability of NBI to Merchant with respect to any transaction shall be limited to the obligation of NBI upon written notice from the Merchant or the Purchaser to reprocess the transaction. NBI shall in no event be liable for incidental or consequential damages whatsoever.
C. NBI may, in its sole discretion, charge Merchant for expenses, including, but not limited to, reasonable attorneys' fees and charges for the time of NBI's employees, incurred by NBI in the review of records, retrieval of documents or other information, attendance at deposition, arbitration, or any administrative or court proceeding (pursuant to subpoena or otherwise) in connection with any transaction or group of transactions covered by the terms of this Agreement.
V. REFUND POLICY
A. NBI's setup expenditures include, but are not limited to, purchase of merchant ID codes and technical work incurred. It is therefore our policy that once merchant setup is complete on NBI's transaction server, no refunds shall be honored if applicable.
VI. FURTHER PROVISIONS
A. Merchant shall not sell, purchase, provide or exchange Purchaser information in any form obtained by Merchant as a result of a transaction covered by the terms of this Agreement except in compliance with federal and state laws or regulations. All information concerning any Purchaser so obtained shall be maintained by Merchant in a reasonably secured manner with limited access to selected personnel having an actual need to know such information, until discarding and, if destroyed, such information must be destroyed in a manner that will render the data unreadable.
B. Merchant represents, warrants and covenants that: (i) Merchant has the full power and authority to enter into and fully perform this Agreement and perform the acts required of it hereunder; (ii) Merchant has not entered into any other agreement, nor has done or will do any act or thing which in any way conflicts with or interferes with the full and complete performance of Merchant's obligations to NBI; (iii) Merchant's advertising and other promotional materials do not now, and will not, infringe or misappropriate any copyright, patent, trademark, trade secret, contract right or other third-party proprietary right or other rights of any third party or entity; and (iv) Merchant will comply with all applicable federal, state, and local laws and regulations in the performance of its obligations under this Agreement. (v) Merchant shall not at any time during the term of this Agreement, nor for a period of six (6) months thereafter, enter into any agreement with any vendor of NBI, nor otherwise circumvent NBI in any manner without the express written consent of NBI in each instance. In order to implement and enforce this provision, Merchant agrees that in the event Merchant is considering entering into any agreement with any other processing company at any time during the term of this Agreement or for a period thereafter, Merchant shall first provide the name of such company to NBI and NBI shall inform Merchant whether such company is already a vendor of NBI. In the event that NBI informs Merchant that any such company is a vendor of NBI, then Merchant shall be prohibited from entering into any agreement with such company until at least six (6) months after the termination of this Agreement.
C. Merchant will indemnify, defend and hold harmless NBI, its parent, owners, subsidiaries and affiliates and their directors, officers, shareholders, employees and agents from and against any claims, suits, losses, liabilities, injuries or damages (including, without limitation, reasonable attorneys. fees and litigation expenses) arising out of or in connection with (i) any breach by Merchant of any of its representations, warranties or covenants made in this Agreement; or (ii) any transaction covered by the terms of this Agreement, except to the extent solely and directly caused by NBI.
D. Any notice required or permitted to be given by either party to this Agreement may be given in writing by depositing such notice in the U.S. mail, or with an overnight courier, postage prepaid, addressed to either at the principal business address of either available on the records of each at the time of preparation of such notice. Any notice required to be delivered hereunder shall be deemed delivered three (3) business days after deposit in the U.S. mail, and one (1) business day after deposit with a recognized overnight courier service.
E. This Agreement shall be binding upon the parties hereto and to their successors or assigns. Merchant may not assign this Agreement without NBI's prior written consent. Any attempt by Merchant to assign this Agreement without NBI's prior written consent shall be null and void.
F. Failure by NBI to enforce any of its rights under this Agreement shall not constitute a waiver of any right not enforced, nor of any of NBI's other rights under this Agreement.
G. This Agreement is entered into and shall be construed in accordance with the laws of the State of California.
H. This Agreement shall become effective when submitted online and shall remain in effect until terminated by either party upon written notice. Upon termination of this Agreement, Merchant shall no longer submit transactions to NBI nor use any of the materials issued or provided under this Agreement. At the request of NBI, Merchant shall return to NBI at Merchant's expense any software or other items provided by NBI for purposes of this Agreement. Upon termination or expiration of this Agreement for any reason, Merchant shall have the right, upon written notice to NBI, to receive any data collected by NBI hereunder via a one-time data dump in a format determined by NBI, provided Merchant's account has been terminated and there exists no past-due balance on such account as of such termination or expiration. No such data dumps will be provided to Merchant while Merchant is actively processing with the NBI Payment Gateway. Most data is viewable (with the exception of full credit card numbers) by Merchant at anytime within the NBI administration panel.
Remaining unpaid balances due to NBI by Merchant are subject to collections and arbitration efforts imposed by NBI. Any fees incurred for such efforts will be Merchant's responsibility, and any transactions processed during the time in which balances are due may, at NBI's sole discretion, be refunded and/or voided. Any transactions in process at the time of termination are Merchant's responsibility. Merchant shall maintain its records with respect to all transactions under this Agreement, which obligation shall survive any termination of this Agreement. Notwithstanding any other provision of this Agreement, NBI may amend this Agreement by providing not less than ten (10) days prior written notice of such amendment and its terms to Merchant.
I. Merchant grants to NBI full and exclusive right, without limitation, to transfer any or all Transaction Data, Merchant Information, and Confidential information as NBI may deem necessary from time to time in the process of conducting its Services to Merchant.
J. Neither party may issue any press release or make any public announcement(s) relating to this Agreement or the relationship established by this Agreement without the express prior written consent and final prior approval of any such release of the other party.
K. Each party's obligations under Section II(B) and this Section VI above shall survive any termination or expiration of this Agreement.
L. Any claim, controversy or other dispute (a "Dispute") arising under or with respect to this Agreement which the parties are unable to mutually resolve shall, upon the request of either party, be resolved by binding arbitration in Los Angeles, California, in accordance with the Rules for Commercial Arbitration of the American Arbitration Association (the "AAA"). The arbitration shall be conducted in accordance with the AAA's rules and procedures, except as expressly modified by this paragraph. The appointing agency shall be the AAA and the arbitrator shall apply California law to interpret this Agreement and to fashion an award.
NOTICE: YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INVOLVING THIS AGREEMENT DECIDED BY ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE WAIVING ANY RIGHT THAT YOU MAY POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. IN SO AGREEING, YOU ARE ALSO WAIVING YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. NEVERTHELESS YOUR AGREEMENT TO THIS ARBITRATION IS VOLUNTARY.
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