Takepayment.com General Terms and Conditions and Disclaimer
THIS AGREEMENT BETWEEN Merchant Card Services. (hereinafter referred to as "MCS") and Account Holder (hereinafter referred to as "User")
WHEREAS MCS provides the service (the "Service") of introducing potential client to Service providers, bankcard processors, check processing companies, and other companie's services.
AND WHEREAS User desires to subscribe to the Service on the terms and conditions contained herein;
NOW THEREFORE in consideration of the mutual covenants and agreements contained in this Agreement and other good and valuable consideration, MCS and User agree as follows:
I. Key points:
I agree that I will cooperate with MCS in obtaining the services I have requested; I will provide additional documentation or information if I am asked to do so.
User UNDERSTANDS AND AGREES THAT USE OF ANY SERVICE, INCLUDING, BUT NOT LIMITED TO WEBLINK, GATEWAY, INTERNET, WEB, Merchant Services, Bankcard Processing, Debit/ ATM processing, CHECK PROCESSING, CHECK VERIFICATION, CHECK GUARANTEE, POINT OF SALE EQUIPMENT, SOFTWARE PROGRAMS, OR ANY ON-LINE SERVICE IS PROVIDED BY A THIRD PARTY, AND MERCHANT CARD SERVICES IS NOT RESPONSIBLE FOR SUCH SERVICES AND WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CONSEQUENCE OF ITS USE BY MERCHANT OR ANY OTHER PARTY. BY ACCEPTING OR USING SUCH SERVICES, MERCHANT IS EXPRESSLY AGREEING TO THIS CLAUSE.
- NO GUARANTEE, IMPLIED OR EXPRESSED, THAT MERCHANT WILL BE APPROVED FOR ANY SERVICE REQUESTED.
- User represents that they have requested services for business purposes and agree that under no circumstances shall this Agreement be construed as a consumer contract
The parties hereby agree that this Agreement is made in, governed by, and to be performed in the State of California, and consent to proper venue to be in the courts of San Diego County, and waive any objection to venue in any such Courts and waive any right to a trial by jury so that trial shall be by and only to the Court.
II. General points
1. The Service. MCS is acting ONLY as an introduction service to other products and services by third parties. MCS DOES NOT OFFER PRODUCTS OR SERVICES DIRECTLY, AND USER AGREES NOT TO HOLD MCS RESPONSIBLE OR LIABLE FOR ANY CONSEQUENCE OF USE OF SUCH SERVICES.
2. Advertisements. - intentially left blank.
3. Limitations. For Any Hosting Service, the Service is limited to the following:
- File Size. In the instance of the MCS FREE HOSTING PLANª, files larger than 256 kilobytes are not permitted on the MCS servers, with the exception of Computer Gateway Interface (CGI) scripts stored in USER's CGI Bin directory. Such CGI files may be up to 1 MB;
- CPU Resources. User acknowledges that the Service is provided on a shared server and agrees not to engage in any activity that could overwhelm the server with heavy CPU usage or that requires a disproportionate amount of the resources of the MCS server, including without limitation, use of highly active CGI scripts or chat scripts;
- File Types. In the instance of the MCS FREE HOSTING PLANª, User shall not host multi-media file types, including but not limited to MP3, Mpeg, AVI, Real Audio, Real Video, Quick Time, Windows Media and / or PDF files. User shall also not host executable binaries and / or compressed file types including but not limited to .EXE, .ZIP, .TAR, .RAR, .GZIP;
- User shall not include content, or internet links to content on the Site that contain, promote or involve any of the following:
i. any infringement of copyright, trademark, patent, trade secret or other intellectual property right;
ii. nudity or pornography;
iii. in the instance of the MCS FREE HOSTING PLANª, password restricted pages that are not available to the entire Internet community at large;
iv. content that exploits children under 18 years of age;
v. hate propaganda;
vi. racist, threatening, or otherwise abusive content;
vii. the promotion or incitement of, or instruction for, the commission of illegal activities;
viii. mail fraud, multi-level marketing (pyramid) schemes or any other fraudulent activities;
ix. content promoted through the sending of unsolicited e-mail (also known as spamming);
x. sending of unsolicited e-mail (spam) from the MCS server, or any other server that refers to content on the MCS server, or sending such e-mail with a MCS' hosted Web site listed as the contact address;
xi. warez, cracks, hacks, spam software & their associated utilities;
xii. in the instance of the MCS FREE HOSTING PLANª, mpeg layer two or three files (MP2 or MP3);
xiii. information or other material that contains a virus, corrupted data or any other harmful or damaging component;
xiv. in the instance of the MCS FREE HOSTING PLANª, storage of log files on non-html content;
xv. in the instance of the MCS FREE HOSTING PLANª, any use of space that does not allow, or interferes with, the display of advertising;
xvi. in the instance of the MCS FREE HOSTING PLANª, any binary files that are not linked to an html page on the Site;
xvii. in the instance of the MCS FREE HOSTING PLANª, any links from other providers' web pages to user's Site that do not first link to an html page on MCS.
- Idem. User agrees that MCS is not responsible for content on pages hosted on member sites and acknowledges that MCS does not endorse or verify any such material;
- Idem. User agrees to assume full responsibility for all files associated with the Site and acknowledges that User may be held legally for the contents of the Site;
- Backup and Monitoring. User is solely responsible for creating backups of any files associated with the Site and for monitoring the Site;
- Notice to Officials. If MCS determines that law enforcement officials should be notified regarding potentially illegal content on the Site, User agrees that MCS may provide copies of User's web pages to the appropriate officials without notice to user. MCS will cooperate with all law enforcement efforts to locate persons who have posted content that is illegal or promotes illegal conduct;
- Policies and Guidelines. User agrees to abide by all policies or guidelines, together with any amendments thereto, set out, from time to time, by MCS anywhere on the site www.takepayment.com;
- Bandwidth. Bandwidth. USER agrees to be bound by the following restrictions pertaining to allowable bandwidth data transfer on a per-month basis;
a. In the instance of the MCS FREE HOSTING PLANª, 500 megabytes per month, with a maximum limit of 30 megabytes (MB) per day;
b. In the instance of the MCS Premium PLANª, 1 GB per month;
In the instance of the MCS FREE HOSTING PLANª where USER exceeds either the daily or monthly bandwidth limit, User must upgrade to Premium Plan and MCS will debit User's account or Bill User for premium plan. In the instance of MCS paid plans (i.e. MCS PREMIUM PLANª) where USER exceeds the bandwidth limit, the MCS accounting department will contact USER and offer USER the option to either upgrade USER's plan or reduce bandwidth usage. MCS will reasonably cooperate with USER in such instances. However, if USER refuses to either upgrade USER's plan or reduce bandwidth usage, MCS will have the right to deactivate USER's Web site with no compensation to USER.
- CGI Usage. In the instance of the MCS FREE HOSTING PLANª, custom CGI scripts are limited to a maximum of 500 executions per day. Where the CGI execution limit is exceeded, access to USER's CGI scripts will be disabled for a period of 24hrs. USER's CGI scripts will be enabled immediately if USER upgrades to one of the MCS premium services.
4. In the instance of MCS WEB MAILª, the following provisions apply:
- Responsibility of the User. User is solely responsible for the content of their e-mail messages. User is not permitted to transmit messages on the E-mail service that (a) infringe on any third party's intellectual property or proprietary rights, or rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation; (c) are defamatory, trade libelous, threatening, abusive, or obscene in the opinion of MCS; (d) contain viruses or other similar harmful or deleterious programming routines; (e) contain links to any sites that include any of that kind of content; or (f) refer to or contain any matter referred to in paragraph 3d of this Agreement.;
- Account Size. User's email box may store no more than 2 (five) MB of email. When User's account approaches the maximum email box size, MCS shall notify User by email that User's account is approaching full capacity. If User does not subsequently delete email box contents to reduce email box size, then any further emails sent to User which results in User's email box exceeding maximum capacity will be returned to sender without notice to User.
- Spamming is Prohibited. MCS will determine in its sole discretion whether any of the messages sent by User are considered as being spam. Spamming generally includes sending any form of email that can be interpreted as junk email or bulk email that the recipient has not specifically requested from User. MCS reserves the right to take legal and technical remedies to prevent User from sending spam. If User is found to be sending spam, User's account may be terminated without notice;
- Privacy of User's Mailbox. MCS considers User's registration data and the content of all User's messages to be private. Messages that User sends will be received with User's name and Internet Protocol (IP) address contained within the header of the e-mail message. MCS will not intentionally monitor or disclose any of User's email messages or registration data unless MCS believes in good faith that MCS is required to do so (i) to enforce these Terms of Service, (ii) by law, (iii) to defend MCS in any action, or (iv) to protect MCS property. Additionally, User must agree to respect the privacy and confidentiality of others. Since privacy is, in part, a function of User's passwords, MCS encourages user to change passwords frequently and to not share them with anyone;
- Privacy of your Registration Data. User understands that the E-mail services are supported by advertising and MCS will disclose statistics about our aggregate registration information in connection with our marketing activities;
- Registration Data. User agrees to provide MCS with current, complete, and accurate registration information in the registration process and to maintain and update registration information as necessary to keep it current, complete and accurate;
- Personal Use. User agrees to be fully liable for the use of User's mailbox, including any unauthorized use of mailbox by a third party. User agrees to notify MCS immediately if User becomes aware of any unauthorized use of mailbox;
- E-mail Retention. User must remember to check their mailbox for messages frequently. All email that User receives in their mailbox that is not opened for more than 60 (sixty) days will be deleted and unrecoverable;
- Mailbox Activity. User must remember to login to the E-mail service frequently. If User has not logged in to their mailbox for a period of more than 60 (sixty) days60 (sixty) days, unless otherwise specified, MCS may classify User's mailbox as inactive. MCS may delete any existing mail, whether it is opened or not, in User's mailbox if mailbox is inactive. In addition, MCS may return incoming mail as "undeliverable" if User's mailbox is inactive. During any time period when User is subscribing to the MCS premium service offerings (MCS PLUS PLANª, MCS ADVANTAGE PLANª or MCS BUSINESS PLANª), MCS will not classify User's mailbox as inactive, and account will not be deleted;
- Cancellation of Mailbox. If User's mailbox is cancelled by User or by MCS, all email, including any attachments will automatically be deleted; and
- Proprietary Rights. User agrees and acknowledges that they may not upload, post, reproduce, or distribute any content on or through the E-mail service that is protected by copyright or other proprietary right of a third party, without obtaining the permission of the owner of such right. Any copyrighted or other proprietary content distributed with the consent of the owner must contain the appropriate copyright or other proprietary rights notice. The unauthorized submission or distribution of copyrighted or other proprietary content is illegal and could subject User to personal liability or criminal prosecution.
- Outgoing e-mail. In the instance of the MCS FREE HOSTING PLAN, USER may not use the email server. In the instance of the MCS PREMIUM PLAN, USER is restricted to e-mailing a maximum of 500 messages per day. Where USER exceeds their daily limit, outgoing USER e-mail will be suspended indefinitely, USER must upgrade to have outgoing e-mail reinstated.
5. Amendments. User agrees to be bound by any amendments to this Agreement that are set out, from time to time, by MCS anywhere on the site www.takepayment.com .
6. No Representations or Warranties. The Service is offered on an "as is" basis without any representations or warranties of any kind either expressed or implied. For greater certainty and without limitation to the generality of the foregoing:
- MCS makes no representations, warranties or guarantees of any kind whether written or verbal regarding the reliability of the Site provided or any other services offered; or approval of any service.
- MCS is not responsible for any deletion, alteration, or loss of data due to network or system outages, file corruption, accidental deletion, or any other reasons;
- MCS makes no representations, warranties or guarantees with regards to server reliability, speed or consistency;
- MCS makes no representations, warranties or guarantees as to the accurateness or correctness of any content on any of the Sites and is not responsible for any errors or omissions arising from the use of such information;
- MCS may link to or include on its Web resources, information provided by third party partners and providers. MCS does not guarantee or warrant the reliability of this information nor does MCS recommend any of these services;
- User expressly agrees that use of the E-mail service is at their sole risk. The E-mail services are provided on an "as is" and "as available" basis. MCS may change the features or functionality of the E-mail services at any time, in our sole discretion. MCS expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement;
- MCS makes no warranty the E-mail services will meet User's requirements, or that the E-mail services will be uninterrupted, timely, secure, or error free; nor does MCS make any warranty as to the results that may be obtained through the E-mail service or that defects in the software will be corrected;
- User understands and agrees any material and/or data downloaded or otherwise obtained through the use of the E-mail service is done at their own discretion and risk and User will be solely responsible for any damage to their computer systems or loss of data that results from the download of such material and/or data;
- MCS makes no warranty regarding any goods or services purchased or obtained through the E-mail service or any transactions entered into through the E-mail service; and
- No advice or information, whether oral or written, which User obtains from MCS or through the E-mail services shall create any warranty not expressly made herein.
7. Limitation of Liability. MCS is not responsible for any failures, delays, or interruptions in the delivery of any content or services or losses or damages arising from the use of services provided by MCS. For greater certainty and without limitation to the generality of the foregoing:
- MCS liability to User for actual damages for any cause whatsoever, regardless of the form of action will be limited to a maximum of the fees paid by User to MCS, if any, for the prior 12 months;
- in no event will MCS be liable to User for any indirect, incidental, or consequential damages arising out of the Service or in connection with the Site or any other services or products provided to User;
- MCS, its officers, directors, owners, agents and employees, shall in no way be liable to User or anyone else for any loss or injury resulting from use of the Service or the Site;
- in no event shall MCS be liable for any damages, whatsoever, as a result of the notifying of any official of potentially illegal content on the Site, providing copies of User's said Site to the appropriate officials or cooperating with law enforcement efforts to locate persons who have posted content that is illegal or promotes illegal conduct;
- In no event shall MCS be liable for any damages, whatsoever, as a result of the termination of this Agreement pursuant to Article 8.
8. Indemnity. User agrees to indemnify and hold MCS harmless from and against, and to reimburse MCS with respect to, any and all losses, damages, liabilities, claims, judgments, settlements, fines, costs and expenses (including reasonable related expenses, legal fees and costs of investigation) or every nature whatsoever incurred by MCS by reason of or arising out of or in connection with (i) any breach of this Agreement by User; (ii) any infringement of any copyright, trade-mark, patent, trade secret or any other intellectual propriety right of any party by content on the Site; or (iv) illegal, libellous, or defamatory content on the Site.
- Either MCS or User may terminate this Agreement at any time upon providing five business days prior notice to the other party.
- MCS may terminate this Agreement, discontinue the Service and delete the Site at any time without notice to User in any of the following circumstances:
i. User violates any term of this Agreement, any municipal, provincial or federal laws or regulations, or any policy or guideline set out, from time to time, by MCS anywhere on the site www.takepayment.com;
ii. User engages in conduct or posts material on the Site that MCS in its sole discretion believes is harmful to other Users, the business of MCS or any third-party;
iii. in the instance of the MCS FREE HOSTING PLANª, there is no activity such as hits or edits on the Site for 60 days.
iv. in the instance of the MCS FREE HOSTING PLANª, User deletes, modifies or interferes with the display of advertisements by MCS on the Site;
v. User engages in any activity that could overwhelm the server with heavy CPU usage or that requires a disproportionate amount of the resources of the MCS server;
vi. User disputes the terms of this Agreement or any amendment set out, from time to time, by MCS anywhere on the site www.takepayment.com
vii. MCS receives any complaints regarding User or the Site from any other Users or third parties.
viii. In the instance of the MCS FREE HOSTING PLAN, MCS may terminate service at any time without prior notice.
- In the instance of MCS premium services, the following conditions apply where this Agreement is terminated by User:
i. No refunds will be made for any set up fees or pre-paid hosting service.
ii. Where User elects to receive software associated with any of the MCS premium services, said software must be returned to MCS unopened and in its entirety before any refund will be issued. If software has been opened or is otherwise incomplete, User will not receive any refund;
iii. Any outstanding balance by User must be paid in full.
iv. All requests for cancellation must be sent in writing by facsimile or post to the head office of MCS. Receipt of such request will be confirmed by MCS;
v. Cancellation requests made by telephone or e-mail will not be accepted by MCS; and
vi. Any account cancelled or deactivated for violation of any term of this Agreement is not eligible for refund as described in paragraph 9c.
- Following termination of this Agreement, for any reason, User agrees not to use the Service or the Site in any manner or for any reason.
10. Assignability. This Agreement is assignable to a third party by MCS, with notice to User. Such notice shall be made known on the Web site http://www.takepayment.com.
- Consent to Breach Not Waiver. No term or provision of this Agreement is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.
- Governing Law. This Agreement is governed by and construed in accordance with the applicable laws of the Province of Ontario and the federal laws of Canada and is treated in all respects as an Ontario contract.
- Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, all other provisions will nevertheless continue in full force and effect.
- Entire Agreement. This Agreement, together with all policies, guidelines and amendments set out, from time to time, by MCS anywhere on the site http://www.takepayment.com. , constitutes the entire agreement between the parties with respect to the subject matter of the Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever, whether oral or written.
- Survival. Any terms and conditions of this Agreement which by their nature extend beyond the term or expiry of this Agreement shall survive the termination or expiry of this Agreement. This includes, without limitation, Article 6 (No Representations or Warranties), Article 7 (Limitation of Liability), Article 8 (Indemnity), Article 10 (Assignability) and this Article 11 (General).
- Headings. The headings and captions used in this Agreement are inserted only as a matter of convenience and for reference and in no way are to be construed as defining, limiting, or describing the scope or intent of this Agreement.
- Remedies Cumulative. Unless otherwise set out in this Agreement the rights and remedies granted to each party under this Agreement are cumulative and are in addition to each party's rights provided by law or otherwise. Each party may exercise its rights concurrently or separately. The exercise of one remedy is not deemed an exclusive election of that remedy, nor does it preclude the exercise of any other remedy.
- Counterparts or Electronic Acceptance. This Agreement may be executed in counterparts, each of which is deemed to be an original and all of which together are deemed to be one and the same instrument, or may be executed by indicating assent through electronic means.
12. Right to Refuse Service. MCS reserves the right to refuse services to any User in the event that User does not abide by the provisions set out in this Agreement or for any reason or no reason. MCS may terminate service without prior notice.