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MERCHANT TERMS
These Merchant Terms (“Terms”) are an agreement between you (“you” “your” and “Merchant”) and Graham Allen Assoc. (“Graham Allen Assoc. ,” “we,” “us,” and “our”) that describes your rights to use the services that Graham Allen Assoc. makes available to you to facilitate Payment Transactions (“Merchant Services”). By registering for Merchant Services as set forth herein, and your continued use of Merchant Services, you represent and warrant to us that you have the authority to enter into the Agreement (as defined below), and you also agree to be bound by its terms.
IF YOU LIVE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE UNITED STATES, PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 9. IT AFFECTS HOW DISPUTES ARE RESOLVED.
Terms and Conditions
1. DEFINITIONS.
a) “Applicable Law” means any laws (including common law), codes,
statutes, ordinances, rules, regulations, regulatory bulletins or guidance,
regulatory examinations or orders, decrees and orders of any governmental authority,
as may be amended and in effect from time to time.
b) “Buyer(s)” means an end user who engages in a Payment
Transaction with a Merchant.
c) “Graham Allen Assoc. Service” means
an online platform or service owned or operated by Graham Allen Assoc. or a Graham Allen Assoc. affiliate.
d) “Network Rules” means the respective and collective by-laws,
rules, regulations, operating manuals, operating letters and policies, and
cardholder data security standards, as such may be amended from time to time,
and established and imposed by a Payment Network.
e) “Payment Network” means Visa, MasterCard, American Express,
Discover or other network with respect to payment cards, which Graham Allen
Assoc. indicates that Merchant Services
may accept and process from time to time.
f) “Payment Processor” means one or more payment processors that
have entered into a contractual relationship with Graham Allen Assoc. to offer Payment Processing Services in
connection with Merchant Services.
g) “Payment Processing Services” means services related to payment
processing, including, but not limited to, card processing and settlement,
currency exchange, identity verification, fraud analysis, funds distribution,
and regulatory compliance.
h) “Payment Transaction” means the Buyer’s purchase of Merchant’s
products or services or other payment to a Merchant via a Graham Allen Assoc. Service using Graham Allen Assoc. Pay.
i) “Personal Information”
i. If you live in (or your principal place of business is located) outside the European Union. Personal Information means all information or data that identifies or could (alone or with other information or data) be used to identify, contact, or locate a person to whom such information pertains, or that is associated with such information or data. Examples of personal information may include: name and address, phone number, biometric identifiers, location, contacts, photos, audio and video recordings, documents, SMS, email, or other text communication, screen shots, and in some cases, combined browsing history.
ii. If you live in (or your principal place of business is located) in the European Union. Personal Information means personal data (as such term is defined in the Data Protection Act 1998 (until 24 May 2018) and the General Data Protection Regulation ((EU) 2016/679)) (from 25 May 2018) and all information or data that identifies or could (alone or with other information or data) be used to identify, contact, or locate a person to whom such information pertains, or that is associated with such information or data. Examples of personal information may include: name and address, phone number, biometric identifiers, location, contacts, photos, audio and video recordings, documents, SMS, email, or other text communication, screen shots, and in some cases, combined browsing history.
2. SCOPE OF AGREEMENT; DESCRIPTION OF SERVICE
a) Scope of Agreement. These Terms govern your use of Merchant
Services. Merchant Services allow you to: (i) register for an account with a
Payment Processor; and (ii) use your account to receive funds in connection
with Payment Transactions. These Terms, along with any URLs referenced herein,
and any other applicable policies, procedures or agreements that Graham Allen
Assoc. may publish from time to time
relating to Merchant Services, and which are incorporated herein by reference
(collectively, the “Agreement”), sets forth the entire understanding between
you and Graham Allen Assoc. with respect
to your use of Merchant Services. You may also be required to agree to the
services agreement and privacy policy of your designated Payment Processor
governing your Payment Transactions, as further discussed in Section 4 of this
Agreement.
b) Roles and Responsibilities. Graham Allen Assoc. is not a party to any Payment Transaction
between you and a Buyer. Payment Transactions are solely between you and the
Buyer, and do not involve Graham Allen Assoc. or any of its affiliates, and neither we nor
our affiliates shall be deemed the Merchant or purchaser of Merchant products
or services. You are solely responsible for all aspects of your products or
services, including, but not limited to, any product or service descriptions
and/or terms and conditions, and for fulfillment of purchases according to your
terms and conditions (including, without limitation pricing and fees, shipping,
cancellation, return, refund and privacy policies). You acknowledge and agree
that your designated Payment Processor is responsible for processing all funds
relating to the Payment Transaction; and that Graham Allen Assoc. is not a bank or other depository institution,
payment institution, a money transmitter or a money services business and does
not offer any banking, money transmission or payment services.
c) Using Merchant Services. You may use Merchant Services to accept
payments from Buyers through your designated Payment Processor. Use of Merchant
Services does not represent an endorsement by Graham Allen Assoc. of any Payment Processor or its services, or
Merchant or Merchant products or services available via a Graham Allen Assoc. Service, and you agree that you will not state
or imply any such endorsement by Graham Allen Assoc. or its affiliates. You may not use Merchant
Services if your business in any way violates Applicable Law, the relevant
Network Rules, or falls within one of the business types prohibited by Graham
Allen Assoc. as determined by Graham
Allen Assoc. in its sole discretion,
including use of Merchant Services to deliver, provide or be a party to any of
the following activities:
i. Adult services or child
pornography;
ii. Credit or debt related services;
iii. Drugs, drug paraphernalia, alcohol, pseudo pharmaceuticals,
pharmaceuticals;
iv. Weapons or ammunition;
v. Financial services;
vi. Gambling, betting, contests, sweepstakes, raffles, games of chance;
vii. Goods or services we deem fraudulent, misleading, deceptive or offensive.
We may suspend, remove, or disable your ability to use the Merchant Services for violation of this section at any time without notice, and we will have no liability for such actions. Your Payment Processor may impose additional restrictions on the products or services you can offer and/or the payment methodologies (including the Payment Networks) you can accept using their Payment Processing Services.
d) Registration &
Eligibility. To use Merchant
Services, you must have, or obtain, an appropriate payment processing account
with a Payment Processor and connect your account with Merchant Services. By
accepting this Agreement, you represent that you are at least 18 years old or
have reached the age of majority where you live, if that is more than 18 years
of age. If you are under 18 or have not reached such age of majority, your
parent or legal guardian must register an account on your behalf and accept
this Agreement.
By using Merchant Services, you represent and warrant that all information you
submit to Graham Allen Assoc. is
current, complete and accurate, and you agree to maintain and update such
information promptly and that your use of Merchant Services is only for
business purposes. Use of Merchant Services for personal use is strictly
prohibited. Upon using a Graham Allen Assoc. Service or Merchant Services, you agree to
provide to Graham Allen Assoc. information
to verify your identify. During your use of Merchant Services, Graham Allen
Assoc. from time to time may request
updated or additional information to continue using Merchant Services. You
agree to cooperate and provide complete, accurate, and timely information as
requested by Graham Allen Assoc. in
connection with such verification process. You agree that Graham Allen Assoc. may utilize vendors for background inquiries
as we deem appropriate from time to time, during or after such verification
process. In addition, should your type of business change, you must notify Graham
Allen Assoc. promptly.
e) Data Use. Information you provide to us, or that we may collect
in connection with Merchant Services, including from a Buyer or in connection
with Payment Transactions, is subject to the Graham Allen Assoc. Privacy & Cookies statement (which is
available HERE).
f) Monitoring. Graham Allen Assoc. reserves the right to monitor and investigate
your use of Merchant Services, and to investigate any reported violations of
this Agreement or Applicable Law. Graham Allen Assoc. may take any action that it deems appropriate,
including issuing warnings, suspending or terminating your access to or use of Merchant
Services, as applicable.
g) Changes to Merchant Services. Graham Allen Assoc. reserves the right to modify, suspend or
discontinue your access to or use of Merchant Services at any time in its sole
discretion. Graham Allen Assoc. also
reserves the right to modify, update, suspend or discontinue any aspect of Merchant
Services at any time in its sole discretion.
h) Implementation. Graham Allen Assoc. will provide and maintain certain software,
application program interfaces (APIs), codes, and other tools to facilitate
your use of Merchant Services. All Graham Allen Assoc. software is subject to the licenses provided
to you by Graham Allen Assoc. . You must comply with all implementation and
presentation requirements set forth in this Agreement and other Graham Allen
Assoc. policies that we may provide to
you from time to time.
i) Reservation of Rights. Graham Allen Assoc. retains all rights, title, and interest in and
to Merchant Services. This includes all copyrights, patents, trade secrets,
trademarks, and other intellectual property rights. Graham Allen Assoc. reserves all rights not expressly
granted.
k) Support and Feedback. Graham Allen Assoc. is not obligated to provide any technical or
other support to you for the Merchant Services and any related services it
provides. If you provide Graham Allen Assoc. with feedback about its services, then you
grant to Graham Allen Assoc. , without charge, the right to use, share, and
commercialize your feedback in any way and for any purpose. You also grant to
third parties, without charge, any intellectual property rights necessary for
their products, technologies and services to use or interface with any specific
parts of a Graham Allen Assoc. software
or service that incorporates your feedback. You will not give feedback that is
subject to a license that requires Graham Allen Assoc. to license its software or documentation to
third parties because Graham Allen Assoc. includes your feedback in our software or
documentation. These rights that you grant to Graham Allen Assoc. and third parties in this Section will survive
any termination of the Agreement, or any termination of your rights to use Merchant
Services.
3. MERCHANT OBLIGATIONS
a) Buyer disputes. You are solely responsible for resolving
all disputes with Buyers regarding Buyers’ Payment Transactions with you,
including the quality, accuracy or delivery of your products or services.
b) Fraud prevention. To prevent fraud or illegal transactions, we
may limit the number and/or amount of Payment Transactions that: (i) a
particular Buyer may make; or, (ii) that you may accept using your merchant
account. We may further establish limits on your use of or access to all or any
aspect of Merchant Services for fraud prevention or to comply with Applicable
Law. You agree that neither Graham Allen Assoc. nor our affiliates will be liable to you if we
refuse to allow a Buyer to make, or you to accept, any Payment Transactions. We
may also suspend, remove, or disable a Buyer’s ability to make, or for you to
accept, a Payment Transaction within any product or service available via a Graham
Allen Assoc. Service at any time without
notice, and we will have no liability for such actions. Your Payment Processor
may impose its own limitations on the number and/or amount of Payment
Transactions that you may accept, and we have no responsibility or liability in
relation to your Payment Processor.
c) Taxes. You are responsible for determining whether taxes
(including any sales, products and services, excise, import, export, value
added, consumption or other taxes), fees and/or duties apply to Payment
Transactions associated with your use of Merchant Services and/or any sale of
products or services made available via a Graham Allen Assoc. Service and to collect, report, and remit the
correct taxes, fees and/or duties to the appropriate tax authorities. You agree
to indemnify and hold Graham Allen Assoc. and its affiliates harmless from and against
any claim arising out of or related to your failure to comply with this
requirement.
d) Merchant Terms and Privacy Policy. You are responsible for
displaying any sales, privacy or other terms applicable to Payment
Transactions. You must maintain a privacy policy if you: (1) access, collect or
transmit any Personal Information to a third party, or (2) are otherwise
required by Applicable Law. You are responsible for informing Buyers of your
privacy policy. Your privacy policy must (i) comply with all Applicable Laws,
(ii) inform users of the information accessed, collected or transmitted by you
and how that information is used, stored, secured and disclosed, and (iii)
describe the controls that users have over the use and sharing of their
information, and how they may access their information.
4. THIRD PARTY SERVICES.
a) Payment Processors. Graham Allen Assoc. has arranged for Payment Processors to provide
Merchants who wish to use Merchant Services with Payment Processing Services.
We reserve the right to add or remove support for these third-party Payment
Processors at any time in Graham Allen Assoc. ’s sole discretion.
You acknowledge and agree that Graham Allen Assoc. does not provide Payment Processing Services. Graham
Allen Assoc. merely communicates and
transmits information to you and/or to your Payment Processors regarding
Payment Transactions. Payment Processors are solely responsible for their
Payment Processing Services, including the receipt and settlement of Buyer
funds to you.
b) Data sharing. Graham Allen Assoc. may share information collected during your
use of Merchant Services and transactional information with Payment Processors
when it’s necessary to facilitate your use of such Payment Processors’ services
or Merchant Services.
c) Agreement with Payment Processors. By using the services
provided by a Payment Processor, you may also be subject to that Payment
Processor’s service agreement and privacy policy. You agree and acknowledge
that Graham Allen Assoc. shall have no
responsibility or liability for any losses or damages relating to or arising
out of a Payment Processor’s services, including but not limited to the receipt
or transmission of payments, losses or damages from misdirected or lost payments,
breaches of security, chargebacks, fraud, theft of funds, violations of
banking, money-laundering, privacy, or any other laws relating to or arising
out of the use of such Payment Processor. Nothing herein is intended to limit
any rights you may have against a Payment Processor.
d) Violation of Third-Party Agreement. If Graham Allen Assoc. receives notice that your content, services,
or activity violates your Payment Processor’s service agreement or policies, we
may at our sole discretion take action against your account to comply with our
obligations to such Payment Processor. Such actions may include canceling
transactions, disabling your Payment Processor connection, and/or suspending
access to or use of a Payment Processor or Merchant Services.
5. MERCHANT REPRESENTATIONS AND WARRANTIES. You represent, warrant and undertake to Graham Allen Assoc. that:
a) If a business or as
may be required, you are duly organized, validly existing and in good standing
under the laws of the country, state and/or city in which your business is
registered, and that you have the power and authority to enter into this
Agreement and to fully perform your obligations under this Agreement;
b) Your use of Merchant Services does not and will not violate any agreements
to which you are a party or of which you are otherwise aware, and that you have
obtained and maintain any and all consents, approvals or licenses (including
written consents of third parties where applicable) required for you to use Merchant
Services;
c) Your use of Merchant Services and your products and services will not
infringe any proprietary or personal right of a third party;
d) Graham Allen Assoc. or its
affiliates’ exercise of the rights you grant under this Agreement will not
obligate Graham Allen Assoc. or its
affiliates to pay any third party any amounts;
e) The information you provide to Graham Allen Assoc. or its affiliates under or in connection with
this Agreement or Merchant Services is true, accurate, current, and complete;
f) You are subject to and will comply with all Applicable Laws and Network
Rules in connection with your use of Merchant Services, as such laws and rules
may exist from time to time.
6. DISCLAIMER, LIMITATION OF LIABILITY, AND DEFENSE OF CLAIMS
a) DISCLAIMER OF
WARRANTY. WE PROVIDE MERCHANT
SERVICES “AS-IS,” “WITH ALL FAULTS,” AND “AS
AVAILABLE.” YOU BEAR THE RISK OF USING MERCHANT SERVICES. TO THE EXTENT PERMITTED
BY LOCAL LAW, GRAHAM ALLEN ASSOC. EXCLUDES ANY IMPLIED WARRANTIES, CONDITIONS,
OR TERMS, INCLUDING THOSE OF PRODUCT LIABILITY, SATISFACTORY QUALITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE OF REASONABLE SKILL AND
CARE, AND NON-INFRINGEMENT, RELATING TO MERCHANT SERVICES. WITHOUT LIMITING THE
FOREGOING, GRAHAM ALLEN ASSOC. EXPRESSLY
DISCLAIMS ANY WARRANTIES THAT ACCESS TO, OR USE OF, MERCHANT SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE.
b) LIMITATION OF LIABILITY. YOU CAN RECOVER FROM GRAHAM ALLEN
ASSOC. AND ITS AFFILIATES ONLY DIRECT
DAMAGES UP TO AN AMOUNT EQUAL TO YOUR ACCOUNT FEE (OR $1 IF THERE IS NO ACCOUNT
FEE). YOU AGREE NOT TO SEEK AND WAIVE ANY RIGHT TO RECOVER ANY OTHER LOSSES OR
DAMAGES, INCLUDING WITHOUT LIMITATION CONSEQUENTIAL, LOST PROFITS (WHETHER
DIRECT OR INDIRECT LOSSES), SPECIAL, INDIRECT, PUNITIVE OR INCIDENTAL DAMAGES
FROM GRAHAM ALLEN ASSOC. OR ITS
AFFILIATES. THESE LIMITS AND EXCLUSIONS APPLY EVEN IF GRAHAM ALLEN ASSOC. KNEW OR SHOULD HAVE KNOWN ABOUT THE
POSSIBILITY OF THE DAMAGES. NOTHING IN THIS SECTION IS INTENDED TO EXCLUDE OR
OTHERWISE LIMIT GRAHAM ALLEN ASSOC. OF
ITS AFFILIATES’ LIABILITY FOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.
c) Duty to defend. You will defend, indemnify and hold harmless Graham
Allen Assoc. and its affiliates, subsidiaries,
officers, agents and/or employees from and against (including by paying
associated any costs, losses, damages or expenses and attorneys’ fees) any and
all third party claims: (1) relating to or arising from your breach of this
Agreement, Applicable Law or Network Rules (including fines and penalties), or
a Payment Processor’s agreements with you; (2) alleging that any products or
services you make available infringe on any proprietary or personal rights of a
third party; (3) alleging damage or loss caused by negligence, fraud,
dishonesty, or willful behavior by you or any of your employees, agents or
other representatives; (4) relating to the use of or inability to use any
products or services sold by you, including any product liability claims; or (5)
by any tax authority based on any nonpayment or underpayment of any sales, use,
products and services, value added or other similar tax, including any
associated penalties and interest, which you are obligated to pay. Graham Allen
Assoc. will: (i) notify you promptly in
writing of the claim; provided, however, Graham Allen Assoc. ’s failure to
notify you shall not relieve you of any liability that you may have, except to
the extent that such failure materially prejudices your legal rights; and, (ii)
at your reasonable request, provide you with reasonable assistance in defending
the claim. You will reimburse Graham Allen Assoc. or its affiliates for any reasonable
out-of-pocket expenses incurred in providing that assistance. You will not make
any settlement or compromise of a claim, or admit or stipulate any fault or
liability on Graham Allen Assoc. or its
affiliates with respect to any claim covered by this section without such
party’s express, prior written consent.
7. CONFIDENTIALITY. If you have an existing non-disclosure agreement with Graham Allen Assoc. , then that agreement applies to information exchanges between you and Graham Allen Assoc. in connection with this Agreement and your use of Merchant Services. If not, then during the term of this Agreement and for five (5) years thereafter, the recipient of Confidential Information under this Agreement will hold in confidence, and will not use or disclose any of the other party’s Confidential Information to a third party, except (i) to contractors who are performing on the receiving party’s behalf and only subject to confidentiality terms at least as protective as this section; (ii) as may be required by Applicable Law or any regulatory authority. “Confidential Information” means all information that a party designates as confidential, or a reasonable person knows or reasonably should understand to be confidential. If Graham Allen Assoc. exposes you to any Buyer personal information (“Personal Information”), then between you and Graham Allen Assoc. , that Personal Information is Graham Allen Assoc. Confidential Information, and you will return to Graham Allen Assoc. or destroy that information immediately upon Graham Allen Assoc. ‘s request. Confidential Information does not include information that is or becomes known to the receiving party without a breach of this agreement or any other confidentiality obligation owed to a disclosing party. If you have any questions as to what comprises Graham Allen Assoc. Confidential Information, you will consult with Graham Allen Assoc. . This section does not prohibit either party from responding to lawful requests from law enforcement authorities.
8. TERMINATION. You may terminate the Agreement at any time by
providing Graham Allen Assoc. thirty
(30) days’ advanced written notice to us. Graham Allen Assoc. reserves the right to terminate your access to
or use of Merchant Services at any time, without notice, for any reason
whatsoever. Termination of access to or use of Merchant Services or the
termination of this Agreement terminates your right to continue to access or
use Merchant Services. Graham Allen Assoc. may continue to use any data collected in
connection with your use of Merchant Services prior to termination. Your
Payment Processor may separately terminate your ability to use their Payment
Processing Services, which may affect your use of the Merchant Services.
9. BINDING ARBITRATION AND CLASS ACTION WAIVER IF YOU LIVE IN THE UNITED
STATES. We hope we never have a dispute, but if we do, you and we
agree to try for 60 days to resolve it informally. If we can’t, you and we
agree to binding individual arbitration before the American Arbitration
Association (“AAA”) under the Federal Arbitration Act
(“FAA”), and not to sue in court in front of a judge or jury. Instead,
a neutral arbitrator will decide and the arbitrator’s decision will be final
except for a limited right of review under the FAA. Class action
lawsuits, class-wide arbitrations, private attorney-general actions, and any
other proceeding where someone acts in a representative capacity aren’t
allowed. Nor is combining individual proceedings without the consent of all
parties. “We,” “our,” and “us” includes Graham
Allen Assoc. and Graham Allen Assoc. ’s
affiliates.
a. Disputes Covered—Everything Except IP. The term “dispute”
is as broad as it can be. It includes any claim or controversy between you and
us related to or arising out of Merchant Services, the software related to Merchant
Services, the Merchant Services’ price, or this Agreement, under any legal
theory including contract, warranty, tort, statute, or regulation, except
disputes relating to the enforcement or validity of your, your licensors’, our,
or our licensors’ intellectual property rights.
b. Mail a Notice of Dispute First. If you have a dispute and our
customer service representatives can’t resolve it, send a Notice of Dispute by
U.S. Mail to Graham Allen Assoc. , ATTN: CELA Arbitration, 402 Glenwood
Ave, Raleigh, North Carolina 27603 U.S.A. Tell us your name, address,
how to contact you, what the problem is, and what you want.
We’ll do the same if we
have a dispute with you. After 45 days, you or we may start an arbitration if
the dispute is unresolved.
c. Small Claims Court Option. Instead of mailing a Notice of Dispute,
you may sue us in small claims court in your county of residence (or if a
business your principal place of business) or Wake County, North Carolina,
U.S.A. if you meet the court’s requirements.
d. Arbitration Procedure. The AAA will conduct any arbitration under its
Commercial Arbitration Rules (or if the value of the dispute is $75,000 or less
whether or not you are an individual or how you use Merchant Services, its
Consumer Arbitration Rules). For more information, see www.adr.org or
call 1-800-778-7879.
e. Arbitration Fees and Payments.
i. Disputes involving any amount. If you start an arbitration we won’t seek our AAA or arbitrator’s fees and expenses, or your filing fees we reimbursed, unless the arbitrator finds the arbitration frivolous or brought for an improper purpose. If we start an arbitration we will pay all filing, AAA, and arbitrator’s fees and expenses. We won’t seek our attorney’s fees or expenses from you in any arbitration. Fees and expenses are not counted in determining how much a dispute involves.
f. Conflict with AAA
Rules. This Agreement governs
to the extent it conflicts with the AAA’s Commercial Arbitration Rules or
Consumer Arbitration Rules.
g. Must File Within One Year. You and we must file in small claims court
or arbitration any claim or dispute (except intellectual property disputes—see
Section 9(a)) within one year from when it first could be filed. Otherwise,
it’s permanently barred.
h. Rejecting Future Arbitration Changes. You may reject any change
we make to Section 9 (except address changes) by sending us notice within 30
days of the change by U.S. Mail to the address in Section 9(b). If you do, the
most recent version of Section 9 before the change you rejected will apply.
i. Severability. If the class action waiver is found to be illegal
or unenforceable as to all or some parts of a dispute, then those parts won’t
be arbitrated but will proceed in court, with the rest proceeding in
arbitration. If any other provision of Section 9 is found to be illegal or
unenforceable, that provision will be severed but the rest of Section 9 still
applies.
10. MISCELLANEOUS
a) Prevention of fraud
or illegal activities. We
reserve the right to report to appropriate law enforcement officials or
regulators any of your activity that we suspect is in violation of any
Applicable Law. We may disclose any information that we consider necessary or
appropriate to respond to governmental or regulatory requests, to protect Graham
Allen Assoc. ’s systems, Buyers and other merchants, or to ensure the integrity
and operation of Merchant Services or Graham Allen Assoc. ’s systems. You agree
to cooperate with us to prevent fraudulent or illegal transactions.
b) Notices. All notices that you provide to Graham Allen Assoc. under this Agreement must be sent by
registered mail. You will identify an individual to serve as the primary contact
under this Agreement. This primary contact will be the default administrator
for this Agreement and will receive all notices.
c) Disclosure of contact information. Graham Allen Assoc. may disclose your contact information as
necessary for Graham Allen Assoc. to
administer this Agreement through its affiliates and other parties that help Graham
Allen Assoc. or its affiliates
administer this Agreement.
d) Assignment. Graham Allen Assoc. may assign this Agreement (or any rights or
duties under it) at any time. You may not assign this Agreement or any rights
or duties under it without the express written consent of Graham Allen Assoc.
e) Subcontractors. Graham Allen Assoc. may sublicense its rights under this Agreement
to third parties or otherwise authorize third parties to assist Graham Allen
Assoc. in performing its obligations or
exercising its rights under this Agreement. Graham Allen Assoc. will, subject to the terms of this Agreement,
be responsible for the performance of such third parties.
f) No Agency or Third-Party Beneficiaries. Nothing in this
Agreement shall be deemed to create a partnership, joint venture or any agency
relationship between the parties. No person or entity may be deemed a
third-party beneficiary of this Agreement, except that Graham Allen Assoc. ’s
respective affiliates, subsidiaries, officers, agents and/or employees, shall
each be deemed a third-party beneficiary with respect to any Merchant indemnity
obligations provided herein.
g) Severability. If any provision of the Agreement shall be deemed
unlawful, void, or for any reason unenforceable, then that provision shall be
deemed severable from these terms and conditions and shall not affect the
validity and enforceability of any remaining provisions.
h) English Language. The parties intend for this Agreement to be
written and interpreted solely in English. Any notices required or provided
under this Agreement will be in English. In the event of any conflict between
the English version of this Agreement or any notices and a translation, the
English version will prevail.
i) Contracting Party; Choice of Law and Venue. This Agreement is
governed by the laws of the State of North Carolina, USA, which apply to the
interpretation of this Agreement and to any claims for breach of it, regardless
of conflict of laws principles except that the Federal Arbitration Act governs
all provisions relating to arbitration. You irrevocably consent to the
exclusive jurisdiction and venue of the courts in King County, North Carolina
for all disputes arising out of or relating to Merchant Services, the software
related to Merchant Services, the Merchant Services’ price, or this Agreement
that are heard in court (excluding arbitration and small claims court).
j) Limitation on Claims. To the maximum extent permitted by local
law, any claim related to this Agreement or to Merchant Services must be filed
within one (1) year of the claimant first becoming aware of the claim. If it is
not filed within that time, then the claim is permanently barred. This applies
to you and your successors and to Graham Allen Assoc. and our successors and assigns.
k) No Waiver. A party’s failure to enforce any rights under this
Agreement will not be deemed a waiver of the same right on another occasion, or
of the right to enforce any other right under this Agreement. Graham Allen
Assoc. ’s decision to make Merchant Services available to you will not be
deemed a waiver of any rights Graham Allen Assoc. may have under this Agreement.
l) Survival. Sections of this Agreement that, by their terms,
require performance after the termination or expiration of this Agreement will
survive.
m) Not Exclusive. This Agreement is nonexclusive, and nothing in
this Agreement restricts you or Graham Allen Assoc. from entering into other, similar agreements
with other Merchants, or from acquiring, licensing, developing, manufacturing,
or distributing similar or competing technologies.
n) Updates. Graham Allen Assoc. may update this Agreement at any time in its
sole discretion. Graham Allen Assoc. will indicate the last date on which the
Agreement was modified at the top of the Agreement.
o) Remedies. Except as expressly provided in this Agreement, the
rights and remedies provided under this Agreement are in addition to, and not
exclusive of, any rights or remedies provided by law.
p) Entire Agreement. This Agreement (and any document referred to
or incorporated into this Agreement) constitutes the entire agreement between
you and us relating to the subject matter hereof and supersede all prior
agreements, arrangements and understandings between you and us relating to that
subject matter. All parts of this Agreement apply to the maximum extent
permitted by relevant law. If a court holds that Graham Allen Assoc. can’t enforce a part of this Agreement as
written, Graham Allen Assoc. may replace
those terms with similar terms to the extent enforceable under the relevant
law, but the rest of this Agreement won’t change. This Agreement’s section
titles are for reference only and have no legal effect.
