These Payment Processing Service Terms (these “Service Terms”) will govern your use of (i) the CenPOS websites (the “Sites”); (ii) any current or future service(s) provided by CenPOS (collectively, the “Services”); and (iii) any associated information, products, software, and/or features made available to you. By using any of the Sites or the Services, you are thereby representing your agreement to comply with and be bound by these Service Terms and any operating rules, regulations, policies, and procedures that may be modified from time-to-time on the Sites. If you are using the Sites or the Services on behalf of your employer, you represent that you are authorized to accept these Service Terms on your employer’s behalf. In the case of any violation of the Service Terms, CenPOS reserves the right to seek all remedies available by contract, law and in equity for such violations. The Service Terms apply to all visits to the Sites and use of the Services, both now and in the future. ANY VIOLATION OF THESE SERVICE TERMS MAY RESULT IN THE SUSPENSION OR TERMINATION OF YOUR ACCOUNT AND/OR THE SERVICES.
As used throughout these Service Terms, the term “Merchant” shall mean the legal person for whom CenPOS shall provide payment processing gateway services, pursuant to these Service Terms and the term sheet accepted by the parties (the “Signed Term Sheet”).
The “Service Agreement” shall mean the agreement by and between CenPOS and Merchant as defined by the combination of the Signed Term Sheet and the following Service Terms:
- Term and Termination. The term of the Service Agreement shall begin on the date of the first transaction processed by CenPOS on behalf of Merchant and thereafter continue on a month-to-month basis. Unless one of the parties provides written notice of its intent to terminate to the other party, the Service Agreement shall automatically renew for successive one (1) month terms (each a “Renewal Term”). The Initial Term and all Renewal Terms, if any, shall be collectively referred to herein as the “Term.”
- CenPOS Services. The “Processing Gateway Services” provided by CenPOS pursuant to the Service Agreement shall include the payment processing gateway services referenced in the Signed Term Sheet. CenPOS shall, provided that Merchant is in compliance with its obligations under the Service Agreement, use its reasonable best efforts to maintain such Processing Gateway Services in operation at all times (24 hours per day, seven days per week and 365 days per year).
- Representations and Warranties of Merchant.Through its use of the Services and/or the Sites, Merchant thereby makes the following representations and warranties to CenPOS with the full understanding that CenPOS, in performing its obligations under the Service Agreement, is expressly and directly relying on such representations and warranties:
- All representations and statements made by Merchant herein, or in any other document relating hereto by Merchant or on Merchant’s behalf, are true, accurate and complete in all material respects. Merchant hereby authorizes CenPOS to investigate and confirm the information submitted by Merchant, whether directly or indirectly, through credit bureau reporting agencies and/or its own agents;
- Merchant is engaged in a lawful business that includes the sale of products and/or services, and is duly licensed to conduct such business under the laws of all jurisdictions in which Merchant conducts business;
- Merchant does and will at all times operate its business in strict and full compliance with all applicable country, federal, state and local laws, rules, policies, guidelines, regulations, or ordinances applicable to Merchant, the Service Agreement, Merchant’s business or the transactions/Authorizations contemplated herein, and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof, including, without limitation: (a) VISA, MasterCard, or any other credit card issuer rules and regulations, expressly including the Payment Card Industry (PCI) Data Security Standard; (b) the National Automated Clearing House Association; and (c) any regulatory body or agency wherever located that has jurisdiction over the subject matter hereof;
- Merchant acknowledges that CenPOS may not be authorized to transmit required payment information to all Merchant processors and/or Merchant banks. In the event that CenPOS cannot transmit such required information to the Merchant processor(s) and/or Merchant bank(s), then Merchant shall have the obligation to use Merchant’s best efforts to substitute such unauthorized Merchant processor(s) and/or Merchant bank(s) with an authorized Merchant processor(s) and/or Merchant bank(s);
- With respect to any information received by us from the Merchant via use of CenPOS services, we will keep such information confidential in accordance with applicable law provided that we may disclose such information (a) to third parties as we deem appropriate to provide the services, or reasonably necessary to support the providing of services, (b) our auditors and attorneys (international and external) and regulators, (c) as required or permitted by law, regulation or court order (d) to our respective affiliates as we deem appropriate. We may also use data collected as part of performing payment processing or other transaction related services for you for the purpose of providing additional products and services to you, other merchants, or third parties. As permitted by law this includes collecting, using, and anonymizing cardholder information, dates, amounts, and other data from your transactions to provide you with analytic products and services as well as collecting and using transaction data aggregated with other merchants’ transaction data to provide you, other merchants, and third parties with analytic products and services;
- Merchant acknowledges that the services to be provided to Merchant by CenPOS under the Service Agreement are designed for use with certain third-party programs, including, without limitation, certain Internet browser and software programs developed and owned by third parties. Merchant will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. CenPOS does not warrant and shall not be responsible for services or software provided by third-party vendors. Merchant authorizes CenPOS to disclose to the third-party vendor(s) information concerning Merchant to the limited extent required to deliver the requested service;
- Merchant acknowledges that CenPOS shall bear no responsibility for any matter between Merchant, Merchant’s customer(s) or Merchant’s bank, including, but not limited to, (a) any inaccurate, incomplete, fraudulent or duplicate information submitted, or transactions/Authorizations effectuated by Merchant or Merchant’s customer(s), (b) the use of stolen credit cards or payment information by Merchant or anyone else, or (c) any damages, including cardholder chargebacks resulting to Merchant from any of the foregoing; and
- Merchant acknowledges that it is and agrees to be fully and solely responsible for each of the matters set forth in this Section and furthermore agrees to indemnify, defend, and hold CenPOS harmless from any and all liability that may be incurred by CenPOS as a result of Merchant’s breach of any provision of the Service Agreement.
The foregoing representations and warranties of Merchant shall survive the expiration, cancellation or termination of the Service Agreement.
- Additional Terms and Conditions.
- Additional Covenants of Merchant. Merchant shall not use CenPOS’s services in any manner or in furtherance of any activity that constitutes a violation of any country, federal, state or local law, rule or regulation.
- Intellectual Property. Merchant acknowledges and agrees that CenPOS owns and retains all right, title and interest in and to the CenPOS intellectual property, including, but not limiting to CenPOS trademarks, copyrights and any other intellectual property rights associated with the CenPOS products and/or services. Subject to the other terms and conditions of the Service Agreement, CenPOS grants to Merchant a non-exclusive, royalty-free, limited license for the duration of the Term to use, reproduce, publish and display the trademarks, service marks, and logos of CenPOS on Merchant’s website(s), stationary and marketing/advertising materials in connection with the development, use, adaption, publication, display and performance of the CenPOS services provided for under the Service Agreement and in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about and/or related to any of CenPOS’s services; provided however, that in use of such license, Merchant may not indicate or imply, directly or indirectly, that CenPOS endorses Merchant’s products or services in any way. Merchant acknowledges and agrees that nothing in the Service Agreement or any other document or agreement between the parties shall be deemed to transfer, assign, convey, grant or license any right, title or interest of any kind in, and that Merchant shall, at no time, have or acquire any right or claim to, any intellectual property generated, created, produced, purchased, owned by or licensed by CenPOS. Upon the expiration, cancellation, or termination of the Service Agreement for any reason, all rights, title and interest in and to CenPOS’s intellectual property shall remain exclusively with CenPOS, and Merchant shall immediately cease the use of all such intellectual property in any manner whatsoever and have no further right of any kind or nature to the use thereof.
- Confidentiality. Except as otherwise required by law, Merchant hereby agrees that any information disclosed to or obtained by Merchant regarding the design or operation of CenPOS’s systems, programs, software, policies, procedures, and pricing structures shall be treated as confidential and proprietary to CenPOS. Merchant shall not disclose or otherwise communicate such information to persons not party to the Service Agreement without the prior written consent of CenPOS.
- Limited Liability of CenPOS. In no event shall CenPOS be liable for any direct, indirect, punitive, incidental, special or consequential damages arising out of or in any way connected with the Service Agreement or the subject matters thereof (including, without limitation, damages for loss of business profits, business interruption or loss of business information) even if CenPOS has been advised of the possibility of such damages. Because of the extreme difficulty of fixing actual damages for any failure of CenPOS to perform its obligations under the Service Agreement or from any failure of CenPOS to perform any obligations imposed by law, Merchant agrees that CenPOS’s entire liability, and Merchant’s exclusive remedy, for any claim for damages against CenPOS, its representatives, and all persons or entities directly or indirectly affiliated with CenPOS arising out of the Service Agreement or the various subject matters hereof, whether grounded in contract, tort or otherwise, shall be limited to liquidated damages in the amount of the consideration paid to CenPOS by Merchant in connection with the affected transaction(s)/Authorization(s), and no more. The provisions of this Section shall apply even if the loss or damage, irrespective of cause or origin, results directly or indirectly either from performance or non-performance of obligations imposed by the Service Agreement.
- Liability of Merchant. Merchant shall be obligated to pay CenPOS the fees and charges set forth in the Signed Term Sheet during the Term.
- Disclaimer of Warranty. CENPOS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MERCHANT ACKNOWLEDGES THAT THE SERVICES PROVIDED BY CENPOS HEREUNDER MAY NOT BE UNINTERRUPTED OR ERROR FREE.
- Indemnification of CenPOS by Merchant. Merchant shall defend, indemnify, and hold harmless CenPOS and any CenPOS representatives 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 CenPOS, arising out of or relating to (a) any breach or alleged breach by Merchant of any representation, warranty, or obligation of Merchant set forth in the Service Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Merchant or any of Merchant’s employees, agents or customers; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by Merchant to CenPOS; (d) payment card transactions submitted by Merchant to CenPOS and rejected by CenPOS or an issuing bank; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from Merchant or Merchant’s customer(s) fault; (f) claims by Merchant’s customer(s), including, without limitation, claims relating to the disclosure of proprietary information and/or Merchant’s customer(s)’s data; (g) any alleged or actual violation by Merchant of any applicable country, federal, state and local laws, rules, policies, guidelines, regulations, or ordinances applicable to Merchant, the Service Agreement, Merchant’s business or the transactions contemplated herein, and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof. In the event Merchant causes fines and/or penalties to be charged to CenPOS by VISA, MasterCard, American Express, Discover, JCB or any other entity or organization, Merchant agrees to immediately fully reimburse CenPOS for said fines or penalties.
- Force Majeure. If CenPOS cannot perform any of its obligations due to events beyond its control, such failure to perform shall not constitute a breach of the Service Agreement, and the time provided for performing such obligations shall be extended by a period of time equal to the duration of such delay or interruption. Events beyond CenPOS’s control (each an “Event of Force Majeure”) include, but are not limited to, acts of God or nature, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, equipment failures, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the 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 services, or other catastrophes or any other occurrences which are beyond CenPOS’s reasonable control.
- Assignment. Merchant may not transfer or assign, delegate, subcontract, franchise, or in any manner attempt to extend to any third party any right or obligation under the Service Agreement without the prior written consent of CenPOS, which consent CenPOS may withhold or condition at its sole and absolute discretion. CenPOS may transfer or assign, delegate, subcontract, license, franchise, or in any manner attempt to extend to any third party any right or obligation under the Service Agreement.
- Relationship Between Parties. The parties are independent contractors, and nothing in the Service Agreement shall be construed to constitute, create or imply them to be joint venturers, partners, employees, agents or other representatives of the other party. Neither party shall have authority to make any statements, representations or commitments of any kind, or to take any action which shall be binding on the other party, except as may be expressly provided for herein or authorized in writing.
- Notices. Except as otherwise set forth herein, any notice required or permitted by the Service Agreement to be given to either party by the other, shall be deemed served, given and received when personally delivered to such party, or in lieu of such personal service, when deposited in the US mail, registered or certified mail, postage prepaid, return receipt requested, and received, or upon expiration of three (3) days from the date of mailing, whichever is easier, address to:
If to CenPOS:CenPOS, Inc
7750 SW 117th Avenue, Ste. 306
Miami, FL 33183
Attn: Legal DepartmentIf to Merchant:
To the address provided by Merchant on the Term Sheet, or as modified by written notice to CenPOS
- Arbitration. In the event the parties are unable to resolve amicably any dispute or difference arising under or out of, in relation to or in any way connected with the Service Agreement, or the breach thereof, the parties shall submit to resolve any such dispute in Miami-Dade County, State of Florida, by binding arbitration by a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at the time such arbitration is initiated. In the event of any action by the other party that in the non-breaching party’s reasonable judgment will create an actual or threatened breach of the Service Agreement, the non-breaching party’s remedies shall include specific performance or injunctive relief or both, in addition to any and all remedies at law or in equity and all such rights shall be cumulative. The arbitrator shall have the authority to grant injunctive relief and specific performance to enforce the terms of the Service Agreement. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
- Jurisdiction; Venue; Governing Law; Attorneys’ Fees. Jurisdiction and venue for any claim or cause of action arising under the Service Agreement to require compliance with or enforcement of the arbitration provisions set forth in Subsection (l) hereof or any equitable and/or legal award rendered by such arbitration shall be exclusively by a court having jurisdiction over the matter located in Miami-Dade County, State of Florida, and the Service Agreement shall be governed and construed in accordance with the laws of the State of Florida. In the event that any of the parties to the Service Agreement must resort to legal action in order to enforce the provisions of the Service Agreement or to defend such suit, the prevailing party shall, in addition to any other relief authorized by applicable law, be entitled to receive reimbursement from the non-prevailing party for all reasonable attorneys’ fees and all other costs incurred in commencing or defending such suit, and in enforcing and collection of any judgment.
- Amendments. No provision of the Service Agreement may be amended, modified or waived except by a written agreement signed by both parties; provided, however, that CenPOS reserves the right to change/amend these Service Terms from time-to-time without further notice to Merchant. Merchant’s continued use of the Sites and/or Services after the posting of any amendment to these Service Terms constitutes its affirmative: (a) acknowledgment of the Service Terms and their modifications; and (b) agreement to abide and be bound by the Service Terms, as amended. Should Merchant object to any modifications of the Service Terms, its only recourse is to immediately: (a) terminate use of the Sites and Services; and (b) notify CenPOS of such termination in writing.
- Waiver. No waiver by either party of the breach of any covenant or condition of the Service Agreement shall be construed as a waiver of any preceding or succeeding breach nor shall the acceptance of any fee or other payment during any period in which either party is in default be deemed to be a waiver of such default. All waivers must be in writing and signed by the waiving party.
- Severability and Construction. If any provision of the Service Agreement is found to be unlawful, void or unenforceable, the remainder of the Service Agreement shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein. To the extent that the provisions of such applicable law may be waived, they are hereby waived to the extent that the Service Agreement is deemed to be a valid and binding agreement enforceable in accordance with its terms and conditions.
- Headings. The headings in these Service Terms are for convenience only and shall not be used to interpret, construe, perform or enforce the Service Agreement.
- Entire Agreement; Binding Effect. The Service Agreement including all schedules, associated term sheets, exhibits and attachments embodies the entire understanding and agreement of the parties with respect to the subject matter hereof. The Service Agreement shall be binding upon and shall inure only to the benefit to the parties thereto and their respective successors and assigns. Nothing in the Service Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to the Service Agreement, any rights or remedies under or by reason of the Service Agreement.