PayCash Merchant Terms & Conditions
PAYCASH ELECTRONIC MERCHANT AGREEMENT
BY CHECKING THE "AGREE TO TERMS" BOX ON THE ELECTRONIC REGISTRATION FORM. MERCHANT AGREES TO ALL TERMS AND CONDITIONS CONTAINED HEREIN.
THIS AGREEMENT is entered into by Cyphermint, Inc. ("CI") with principal offices located at 241 Boston Post Road, West, Marlborough, MA 01752 and company accepting terms by checking "Agree To Terms" on the electronic registration form ("MERCHANT").
WHEREAS: CI is engaged in providing an Internet Electronic Payment System, the Cyphermint PayCash System™, related to the payment of e-commerce transactions to merchants, and
WHEREAS: MERCHANT desires to honor at its business Internet location(s) valid Cyphermint PayCash payments presented in connection with the sale of goods, products and/or services to customers.
NOW THEREFORE, in consideration of the representations, covenants and promises made herein, the parties agree as follows:
1. Operation of the Cyphermint PayCash System™
CI agrees to enroll MERCHANT in the Cyphermint PayCash System™ and to enable its customers to pay for the purchase of goods, products and/or services over the Internet. MERCHANT agrees to abide by all of the rules and requirements of the Cyphermint PayCash System™ in accepting payments from customers. CI will provide MERCHANT with such rules and requirements, as in effect from time to time.
2. Payment of fees
As consideration for services to be provided by CI, the Merchant shall pay CI various fees in the manner and pursuant to the Schedule of Charges set forth herein.
MERCHANT by signing this Agreement, authorizes CI to debit the MERCHANT Account periodically for all fees, charges and payments due CI from the MERCHANT under this Agreement. CI will reconcile all payments due the MERCHANT less any applicable fees on a monthly basis. The MERCHANT'S monthly cycle will be determined by their sign-up day of the month. The fees for such service will be as follows:
Merchant shall pay CI a transaction fee of 2% of the amount of Merchant Products purchased. The transaction fee shall be taken at the time Cyphermint makes payment to Merchant. Payment shall be made via Cyphermint business check or ACH transfer.
3. Compliance with laws, etc; MERCHANT's obligations with respect to customers
MERCHANT represents and agrees that it shall fully comply with all federal, state and local laws, rules and regulations, as amended from time to time and shall fully cooperate with CI in furnishing any information that is required to disclose under such laws, rules and regulations. MERCHANT represents and warrants that it shall perform all services and deliver all goods and products to its customers in accordance with its agreements with them and that the specifications, quality, condition and other attributes of all such services, goods and products shall conform to its representations and warranties to its customers in its advertisements, literature, oral communications and agreements. MERCHANT agrees to be solely responsible and liable for any breach of its agreements, representations and warranties to its customers and shall promptly and diligently resolve any dispute or claim brought against it by a customer or a customer's representative. MERCHANT agrees that CI shall not be liable under any circumstances for a breach of MERCHANT's agreements, representations or warranties to its customers. In the event that CI is named in any claim, action or lawsuit involving a breach of MERCHANT's obligations to a customer, MERCHANT shall use its best efforts to have CI removed as a party from any such proceedings and shall keep CI fully and promptly informed as to all aspects of such proceedings that may affect it. If CI determines for any reason that MERCHANT is not properly protecting its interests in any such proceedings, it may retain its own legal counsel after written notice to MERCHANT, and MERCHANT shall be responsible for the payment of, and promptly pay on demand, all of CI's attorney's fees and other expenses incurred in connection therewith. The parties acknowledge and agree that CI is providing only an Internet payment processing service and has no other business affiliation with MERCHANT or any interest in its business or activities.
MERCHANT acknowledges that CI has entered into agreements with its users related to the operation of the CI Software, CI's privacy policy (Privacy Policy), and CI's terms and conditions (Terms & Conditions). The Privacy Policy and Terms & Conditions are material terms to this Agreement and incorporated into this Agreement by reference. MERCHANT shall abide by these policies and take no actions which will result in a breach of these policies by CI or its users. CI reserves the right to change, modify, add and/or remove any portion of Privacy Policy and Terms & Conditions at any time, which shall be incorporated into this Agreement when made in writing and posted on the CI website. If this Agreement as so amended is unacceptable to MERCHANT, MERCHANT may terminate this Agreement by providing 30 days prior written notice to CI. MERCHANT may gather personally identifiable information of its customers, provided that it receives such information directly from its customers, that it informs its customers it is gathering this information, and that it notifies its customers of MERCHANT'S privacy policy.
4. Limitation of liability; indemnification
MERCHANT shall indemnify, defend, and hold harmless CI from all claims, liabilities, loss and damages, including reasonable attorney's fees and costs, which, whether direct or indirect, arising out of any breach by MERCHANT of the terms of this Agreement, the MERCHANT'S business relationship of any customer using the services of CI, or arising from any act, omission or failure or for the breach of any representation and warranty by MERCHANT pursuant to the terms of this Agreement.
5. Term; Termination
This Agreement shall become effective upon acceptance of terms and conditions by MERCHANT and by CI. This agreement shall continue to be in force and effect for a term of twelve (12) months. Thereafter, the Agreement will automatically renew for additional twelve (12) month periods, unless terminated by either party upon thirty (30) days written notice prior to the end of the term.
CI reserves the right to terminate this Agreement and block or eliminate access to its services, in whole or part, in its sole discretion, without notice and without limitation, at any time and for any reason, including but not limited to: the unauthorized use of CI Software, failure to use public key encryption, and/or breach of this Agreement. If CI elects to terminate its services to MERCHANT, it shall deduct all fees due to CI and return all remaining funds to MERCHANT. Except as provided herein, CI shall have no additional obligations to MERCHANT.
Either party may terminate this Agreement at anytime for the other party's failure to comply with any of the terms of this Agreement (including to pay for services when due); if the other party makes an assignment for the benefit of creditors, or a voluntary or involuntary petition is filed by or against the other party under any law having for its purpose the adjudication of the other party a bankrupt or financial reorganization; if the other party is insolvent or admits in writing its inability to meet its obligations as they mature; or if the other party takes any action to liquidate or dissolve or becomes subject to receivership or like.
Except for those obligations which are specified under the Agreement as being provided during its term, all other obligations of the parties shall survive the termination of this Agreement, including without limitation, obligations of confidentiality, proprietary rights, representations and warranties, indemnification and defense, limitations on liability, and applicable general provisions.
6. Notice
All written correspondence shall be by first class US mail and sent to the following address:
Cyphermint Inc.
241 Boston Post Road West
Marlborough, MA 01752
Attn: President/CEO
Phone: 508-481-6400
Fax: 508-481-1655
Email: jbarboza@cyphermint.com
MERCHANT
Contact shall be the contact and registration information provided by the MERCHANT at sign up.
7. Restrictions on use of software
MERCHANT may not: (i) permit others to use the CI payment software, except as expressly provide above for authorized network use; (ii) modify or translate the Software; (iii) reverse engineer, decompile, or disassemble the software, except to the extent this restriction is expressly prohibited by law; (iv) create derivative works based on the software; (v) copy the software; or (vi) remove or obscure any proprietary rights, notices or labels on the software.
This Agreement provides the MERCHANT only a limited license, and no ownership of any of the intellectual property.
The CI software, website, and all written materials are owned by CI and remain its exclusive property. CI shall retain all applicable rights in copyrights, trademarks and trade secrets as well as in the physical or electronic copies of all these materials. You shall not give, sell or otherwise provide those materials to any third parties without prior written approval.
8. Confidentiality
From time to time, MERCHANTS may have access to confidential information of CI, its users or other parties concerning business, plans, customers, technology, and products, and other information held in confidence ("Confidential Information"). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. MERCHANT will not use the Confidential Information in any way, except as expressly permitted, nor disclose to any third party (except as required by law or to your attorneys, accountants and other advisors as reasonably necessary). Information will not be deemed Confidential Information hereunder if, prior to receipt of the Confidential Information, MERCHANT knows the information from a source other than one having an obligation of confidentiality and informs CI immediately upon receipt, or the Confidential Information becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or is independently developed by the receiving party.
9. Additional limitations on liability
CI does not assume any liability that may arise out of the use of the CI software. MERCHANT specifically understands and agrees that CI makes no representations or warranties regarding its use, except as provided in this paragraph. By way of example, but not of limitation, CI makes NO REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT FOR A BREACH OF SECTION 8 ("CONFIDENTIAL INFORMATION") OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. DAMAGE AWARDS, IF ANY, SHALL BE LIMITED IN AMOUNT TO THE LESSER OF THE DIRECT, MEASURABLE COMPENSATORY DAMAGES OR THE AMOUNT ACTUALLY PAID FOR THE SERVICES HEREUNDER.
10. Governing law; jurisdiction and venue
Any action or proceeding of this Agreement shall be initiated and maintained under the jurisdiction of The Commonwealth of Massachusetts with venue in the courts of Middlesex County, and this Agreement shall be constructed and governed by the laws of the Commonwealth of Massachusetts without regard to legal principals pertaining to conflict of laws. MERCHANT hereby submits and consents to the jurisdiction of the courts of the Commonwealth of Massachusetts.
11. Miscellaneous
(a) Applicability of Section 365(c) of the Bankruptcy Code. The parties acknowledge and agree that this Agreement creates a contract for the extension of financial accommodations to MERCHANT within the meaning of Section 365(c) of the Bankruptcy Code.
(b) Non-Transferability. This agreement, the public key encryption information, software and all other services and property provided to MERCHANT are not transferable in whole or part without the express, written permission of CI.
If MERCHANT requires that this agreement be transferred pursuant to a fundamental change in its business, CI shall not unreasonably withhold such permission.
