License Agreement and Terms

THIS AGREEMENT is made and entered between Merchant Commerce and Payment Services, Inc., located at 421 Maiden Ln, Fayetteville, North Carolina 28301, hereinafter referred to as MCPS and the Merchant, who wishes to use the services of MCPS in accordance with MCPS’s policies and standard application located on the World Wide Web at www.merchantcommerce.net. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. SERVICE DESCRIPTION: MCPS agrees to perform transaction gateway services for Merchant. This includes the acceptance and authorization of transactions forwarded from Merchant in a timely manner, the subsequent transmission of transactions to the processing network and the detailed reporting of those transactions via Merchant’s web-based Merchant Menu.
2. CONDITIONS: The application and this Agreement constitute a legal and binding contract between MCPS and the Merchant and does not extend to any other person or entity. Merchant may resell to third parties but is responsible for third party activities and content, and is bound by the terms under this Agreement. Cancellations after the application is received and account set-up will still hold the Merchant responsible for costs incurred by MCPS concerning the set-up of the account. All cancellations must be IAW MCPS’s policies located on-line. Cancellations shall be in writing and delivered via postal mail or facsimile to the accounts receivable department of MCPS with telephonic confirmation.
3. WARRANTIES: With respect to the services to be provided herein, the Merchant acknowledges that MCPS makes absolutely no warranties whatsoever, express or implied. As a result, the Merchant agrees that MCPS shall not be liable to the Merchant for any claims, damages or loss of profit which may be suffered by the Merchant or any other entity in any respect for direct, indirect, consequential, actual, or punitive damages arising out of or in relation to the services provided herein, including, but not limited to, losses or damages resulting from the loss of data as the result of delays, non-deliveries, or service interruptions. Merchant further warrants to MCPS all of the following:
a. That all representations and statements made by Merchant in this Agreement, 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 MCPS to investigate and confirm the information herein. For this purpose, MCPS may utilize credit bureau/ reporting agencies the results of such investigation. b. That Merchant is engaged in the lawful business shown on the Agreement which includes the sale of merchandise and/or services, and is duly licensed to conduct such business under the laws of the state, county and city in which Merchant is located.
4. INFORMATION: The utilization of any data or information received by the Merchant from the utilization of the service to be provided by MCPS is at the Merchant’s sole and absolute risk. MCPS specifically disclaims and denies any responsibility for the completeness, accuracy or quality of information obtained through the services to be provided hereby.
5. MERCHANT OBLIGATIONS: Merchant agrees to be bound by the following terms and conditions.
a. MCPS shall not be liable for the individual merit and legitimacy of orders forwarded from Merchant. This liability shall remain the Merchant’s.
b. MCPS shall in no event be liable to Merchant or Purchaser (Purchaser is any customer, client, member or entity who elects to buy goods or services from Merchant) for any indirect, special or consequential damages or lost profits arising out of or related to this Agreement, the performance or breach thereof, or the accuracy or correctness of the data being passed to and from Merchant, even if MCPS and/or Merchant has been advised of the possibility thereof.
c. MCPS shall retain full ownership of all data submitted by either Merchant or Purchaser through the MCPS Transaction Gateway (Transaction Gateway refers to the electronic systems through which a Merchant may pass payment information to MCPS) including, but not limited to name, mailing and shipping address, email address, phone number, dollar amount of purchase, type of purchase and description of purchase.
d. Merchant agrees that MCPS services shall only be performed for lawful purposes. Any transaction or transmission, which violates any Federal, State or local laws, is expressly prohibited.
e. Merchant understands that Merchant may not process orders on behalf of any other entity or individual and that the use of the Transaction Gateway Processing services provided herein for more than one Merchant account without additional service licenses may result in additional fees and charges and/or the revocation of the service license and termination of this Agreement. This service license in non-transferable and may no be sold, traded, assumed or otherwise transferred to any other individual or entity without the express written consent of MCPS.
f. Merchant agrees not to change its type of business, as indicated on the Agreement without the express written consent of MCPS. The Merchant will be considered in default when past due charges have not been paid for 30 days and will be subject to a reactivation fee if services have been disconnected.
g. Merchant may terminate monthly service with 30 days written notice and only a request in writing relieves Merchant from the obligation to pay charges at the conclusion of thirty (30) days from the date of receipt of notice. MCPS reserves the right to cancel Merchant’s Transaction Gateway account at any time for any reason.
6. PAYMENT: Merchant hereby authorizes MCPS to either initiate transaction entries to Merchant’s depository account number or to charge Merchant’s credit card, both of which are listed as the schedule of fees and pricing. This billing will occur on the last day of each month regardless of the number of days in which services were actually performed for that month. Merchant agrees that in the event of non-payment Merchant’s processing services may be placed on hold and a non-payment fee of $25.00 will be incurred for each unsuccessful attempt to bill merchant by credit card charge. Service will be restored immediately upon payment in full of past due charges and fees. Merchant agrees to pay all costs and expenses of whatever nature, including attorneys’ fees and other legal expenses, incurred by or on behalf of MCPS in connection with the collection of all unpaid charges and fees.
7. UNILATERAL SERVICE REVOCATION: In the event that MCPS may at any time believe that the service is being utilized for unlawful purposes by the Merchant or in contravention with the terms and provisions herewith, MCPS may immediately discontinue such service to the Merchant without liability. This will include failure to pay and fraud.
8. INDEMNIFICATION: The Merchant shall indemnify and hold harmless MCPS from any and all loss, cost, expense, and damage on account of any and all manner of claims, demands, actions, suits, proceedings, judgements, costs and expenses that may be initiated against MCPS and MCPS’s officers, directors, and employees for any service provided to Merchant by MCPS. By clicking “Accept” below on this on-line order form, Merchant agrees to indemnify, protect, defend and hold MCPS, affiliates and/or subsidiaries and all of its or their officers, agents and/or employees, harmless from and against any and all claims, losses, demands, actions, expenses, damages, liability, and/or causes of action, including (without limitation) attorneys’ fees, other costs of defense and/or collection fees, which in any way result directly or indirectly from:
a. Merchant breach of the Agreement or any warranty or representation made to MCPS;
b. Any damage or loss caused by negligence, fraud, dishonesty or willful behavior by Merchant or any of Merchant employees or agents;
c. Any contention, whether well-founded, baseless or otherwise, the Merchant violated the law or any rule or regulation;
d. Any damages resulting from or related to any failure or delay of MCPS in providing Transaction Gateway Processing services under this Agreement; or
e. Any delays in the performance of services hereunder or for any failure to perform same hereunder if reasonable control. MCPS will not be liable for performance of services where delayed by reasonable control. MCPS will not be liable for performance of services where delayed by war, riots, embargoes, strikes, or acts of it’s vendors and suppliers, concealed acts of workmen (whether of MCPS or others), or accidents.
9. CHANGES IN TERMS OF AGREEMENT: MCPS reserves the right to make changes to the terms and conditions of this Agreement at any time, and to the on-line application to include service pricing, advising of the change and the effective date thereof, but with changes in service fees being effective only at the end of any period for which the Merchant has prepaid. Utilization of the service by the Merchant following the effective date of such change shall constitute acceptance by the Merchant of such change(s).
10. ENTIRE AGREEMENT AND UNDERSTANDING: This instrument constitutes the entire agreement between the parties, and represents the complete and entire understanding of the parties with respect to the subject matter of this Agreement.
11. RELATIONSHIP: The parties hereto are independent entities and nothing contained in this Agreement shall be construed to constitute Merchant an agent, employee, partner, independent contractor, joint venturer, or any other similar entity.
12. GOVERNING LAW: This Agreement shall be governed by the laws of the State of North Carolina in the United States of America. Each party agrees that jurisdiction and venue for any and all claims, disputes or other matters arising out of the services provided herein and under this Agreement will only lie in Cumberland or Wake Counties, North Carolina. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement and services provided herein, the prevailing party in such action shall be entitled to all reasonable costs to include attorney fees.
13. SEVERABILITY: In the event that any term or provision of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable or invalid in whole or in part for any reason, the remaining provisions of this Agreement shall remain in full force and effect. If any provision in the Agreement is invalid, Merchant and MCPS agree to substitute for the invalid provision a valid provision which most closely approximates the effect and intent of the invalid provision.
14. CONFIDENTIALITY: Merchant acknowledges that any information not generally known by or disclosed to the public to include but not limited to computer programs, source code, algorithms and inventions are the property of MCPS and may not be utilized or released without the express written permission of MCPS.
15. INTERPRETATION: The format, words and phrases used herein shall have the meaning generally understood in the electronic commerce, software, Internet Industries. This Agreement shall be construed in accordance with its fair meaning and not against the drafting party. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, and in consideration of the covenants and agreements contained herein, do hereby execute this instrument, with each party warranting their ability to enter into this Agreement for the person or entity herein named as a party hereto. By filling out the on-line application directly or by placing an order telephonically and clicking on “Accept” below, Merchant agrees to all the terms and conditions of this Agreement.