These Terms And Conditions ("Terms") are between you ("You, "Your", "Merchant") and Anaxstar Corporation (based in Washington, United States), its service providers, partners, and affiliates (referred to collectively as "Anaxstar") and consists of the most recent version of the terms and conditions and Your use of Anaxstar’s products, software, services, solutions and web sites (referred to collectively as the “Services” in this document) is subject to the Terms of a legal agreement between You and Anaxstar.
The parties also acknowledge that all seperate written signed and executed Agreement(s), and any Exhibit(s) or Amendment(s) (collectively, the "Agreement") will be subject to all the Terms stated hereinwith and is made effective as dated (the "Effective Date") and signed.
Merchant desires to obtain and Anaxstar is willing to supply certain Internet based commercial services for Internet Web presence, electronic commerce, hosting, Web development, design services, software and database programming, e-business tools, marketing services, Web services, domain name services or payment processing services, or a combination of such services.
The following definitions shall apply to this Agreement.
1.1. "Anaxstar" is an electronic commerce services company that provides the "Services" outlined in the Terms described hereinwith and any written Agreement.
1.2. "Bank" or "Acquiring Bank", shall mean one or more of Anaxstar's merchant account providers or merchant services banks, or other financial institutions that has the authority of one or more Credit Card Associations that has agreed to evaluate and provide merchant accounts and payment authorization services to Merchant (as agreed upon in a separate Merchant Account Agreement).
1.3. "Merchant Account Agreement" shall mean an existing and current agreement between Merchant and Bank. The Merchant Account Agreement, also sometimes referred to as Merchant Agreement, is not part of this Agreement.
1.4. "Merchant" is a client of Anaxstar and has entered into Agreement with Anaxstar and is a party to this Agreement and has in existence one or more separate Merchant Account Agreement/s with an Acquiring Bank.
1.5. "Billing Month" shall mean each billing cycle, consisting of approximately 30 days and ending on the last Friday of each month, used by Anaxstar to bill its Merchants for Services.
1.6. "Advertising Services" shall mean advertising services provided through Anaxstar and its managed Websites on behalf of its clients.
1.7. "Intellectual Property". All patent rights, intangible legal rights of design, idea, concept, technique, invention, or discovery regardless of patentability, trade names, mask-work rights, trade secrets, moral rights, author's rights, privacy rights, publicity rights, algorithms, copyrights (including, but without limitation, the right to reproduce and/or distribute copies of, display and perform the copyrighted work to prepare derivative work), copyright applications and registrations, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether such rights arise from the laws of the United States or any other state, country, or jurisdiction.
2. Your Relationship With Anaxstar
2.1 Your Agreement with Anaxstar will also include the terms of any Legal Notices or Written Agreements applicable to the Services, in addition to the Terms. All of these are referred to below as the “Additional Agreements”. Where Additional Agreements apply to a Service, these will be either provided to you in writing, or accessible for you to read either within, or through your use of, that Service.
2.2 The Terms, together with the Additional Agreements, form a legally binding agreement between you and Anaxstar in relation to your use of the Services. It is important that you take the time to read them carefully. Collectively, this legal agreement is referred to below as the “Terms”.
2.3 If there is any contradiction between what the Additional Agreements say and what the Terms say, then the Additional Agreements shall take precedence in relation to that Service.
2.4 If You are registering a new domain name or using a previously registered domain name in conjunction with the Services, Your use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers (¨ICANN¨) and any other organizations, registrars, and others that may apply, and not with Anaxstar.
2.5 Services refer to Anaxstar services as well as software products that use object code version of Anaxstar’s software, HTML code, application programming interfaces (APIs), related documentation and other client software or code which Anaxstar provides to You, including updates, to enable Anaxstar to provide the Services to You. Unless otherwise specified, Software shall not include any source code. The source code is not licensed in this Agreement and a seperate licence agreement is required before use.
2.6 Advertising Services provided by Anaxstar is provided as click-throughs or impressions and without any obligation to provide Merchant with a minimum number of leads, sales, or any other performance measure. Anaxstar does not guarantee any sales as a result of providing such Advertising Services and Merchant's obligation to pay the Fees is unconditional and not dependent on any such sales. Merchant agrees not to resell or otherwise transfer Advertising Services delivered by Anaxstar.
2.7 Anaxstar reserves the right, in its sole discretion, to change, modify, add, or remove all or part of these Terms, including but not limited to any term, applicable fee, policy, or guideline, at any time without notice or acceptance by You. Regardless of whether Anaxstar has provided You individual notice, Your continued use of the Service following Anaxstar's notice or posting of changed Terms will constitute Your acceptance of such changes. It is Your responsibility to check regularly for changes to the Terms and ensure that any contact information You provide to Anaxstar is updated and correct.
3. Accepting the Terms
3.1 In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
3.2 You can accept the Terms by:
(A) actually using the Services. In this case, you understand and agree that Anaxstar will treat your use of the Services as acceptance of the Terms from that point onwards; or
(B) by clicking to accept or agree to the Terms, where this option is made available to you by Anaxstar in the user interface for any Service.
3.3 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Anaxstar and/or are not representing yourself as a real person, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services, or (c) you intended to use the Services for unlawful purposes and illegal activities, or (d) you do not have the authority to enter into this agreement on behalf of another entity, person, corporation, etc.
3.4 If you are a third party accessing an account(s) on behalf of an account owner (e.g., as a technical administrator, Web developer, programmer, designer, analyst, etc.), You agree that these Terms apply, mutatis mutandis, to Your activities on behalf of such account owner. If these Terms or any future changes are unacceptable to You, Your sole remedy is not use the Services. IF YOU DO NOT ACCEPT AND AGREE TO THESE TERMS, DO NOT USE THE SERVICES.
3.5 Before you continue, you should print off or save a local copy of the Terms for your records and have it reviewed by your attorney for advice or clarification.
4. Language of the Terms
4.1 The English language versions of the Terms will govern your relationship with Anaxstar. The language of these Terms shall be deemed to be English language and mutually chosen by the parties and no rule of strict construction shall be applied against or in favor of either party hereto.
4.2 The section headings and other headings contained herein shall not affect the meaning or interpretation of these Terms.
5. The Parties Responsibilities
5.1 Anaxstar shall provide, and Merchant shall use, the Services of Anaxstar in this Agreement for the agreed upon fees. All fees shall be payable by You directly to Anaxstar. The Setup Fee shall be payable at the time of execution of the written Agreement. These fees are in addition to any Merchant Account Discount Fees or other charges applied under a separate agreement between Merchant and the bank or merchant account provider. The Merchant's business checking account will be debited for the Monthly Fee for the Billing Month in the beginning of each month as per agreement using automatic withdrawal as signed and executed by an "Authorization Agreement for Automatic Withdrawal of Payments", which shall be provide to Merchant upon signing of this Agreement. Should the Monthly Fee funds not be available, Merchant's account is delinquent if not paid within five (5) days thereof. A LATE FEE will be charged on accounts that are more than thirty (30) days delinquent. This LATE FEE shall accrue interest at the rate of 1.5% per month (18% per annum). The Late fee is in addition to the Monthly Fee described in the written Agreement.
5.2 Merchant agrees that it will not perform or fail to perform any act which would violate State or Federal law, where applicable, including but not limited to, the Federal Equal Credit Opportunity Act, implementation of Regulation B, the Federal Fair Credit Reporting Act, the Federal Truth-In-Lending Act, Merchant explicitly recognizes that the Federal Truth-In-Lending Act and its implementing Regulation Z require, and Merchant agrees to provide a brief description of the goods or services purchased with a Credit Card, together with other disclosures. Merchant further agrees to defend, save and hold harmless Anaxstar and indemnify Anaxstar for any Damages and all claims, actions, suits, losses and liabilities and costs including attorneys fees, relating to or resulting from any violation of, or failure to comply properly with, or claim or charge that there has been a violation of or failure to properly comply with Federal or State laws, rules or regulations arising out of any acts or omissions of Merchant.
5.3 Anaxstar has service providers, partners, and affiliated legal entities around the world (“Partners and Affiliates”). Sometimes, these companies will be providing the Services to you on behalf of Anaxstar itself. You acknowledge and agree that Partners and Affiliates will be entitled to provide the Services to you. Anaxstar may assign this Agreement in whole or part. Anaxstar also may delegate the performance of Services to third parties, including Partners and Affiliates. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
5.4 Anaxstar is constantly designing, creating, and innovating new products and services in order to provide the best possible experience for our customers. You acknowledge and agree that the form and nature of the Services which Anaxstar provides may change from time to time without prior notice to you.
5.5 As part of this continuing designing and re-engineering, you acknowledge and agree that Anaxstar may stop (permanently or temporarily) providing the Services (or any features within the Services) to you at Anaxstar’s sole discretion, without prior notice to you. You may stop using the Services at any time by providing a 30-day written notice to Anaxstar and cancel the Services.
5.6 You acknowledge and agree that if Anaxstar disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.
5.7 You acknowledge and agree that while Anaxstar may set a limitation and restrictions for access as a result of security requirements or modification of Services, or bandwidth or storage capacity used for the provision of any Service. Such limitation may be set by Anaxstar at any time, at Anaxstar’s discretion without notice or acceptance by You.
5.8 In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to Anaxstar will always be accurate, correct and up to date.
5.9 You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries). You agree that your Web pages facilitating the ordering of goods or services by Purchaser(s) using credit cards or ACH or eChecks shall comply with an appropriate format established by Banks and must meet banking security requirments. It is understood, acknowledged and agreed that You shall not process any transaction through Anaxstar's Payment Transaction Processing services that is not in compliance with the terms of the Agreement between You and the Merchant Bank.
5.10 You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Anaxstar, unless you have been specifically allowed to do so in a separate agreement with Anaxstar. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Services.
5.11 You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
5.12 Unless you have been specifically permitted to do so in a separate agreement with Anaxstar, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
5.13 You agree that you are solely responsible for (and that Anaxstar has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Anaxstar may suffer) of any such breach.
5.14 You agree that any Confidential Information received from Anaxstar, shall not be used except as necessary to perform the obligations required under this Agreement, and shall be disclosed only to those of your employees as are necessary for the purposes hereunder, and shall not be disclosed to third parties without the written consent of the disclosing party during the term of this Agreement and four (4) years thereafter, and shall be kept in safe care as it would keep its own similar confidential information. After four (4) years the Confidential Information of Merchant will be destroyed, unless You request otherwise or government laws and regulations prohibit such action. Confidential Information includes Any data or information, oral or written, treated as confidential that relates to either Party's (or, if either Party is bound to protect the confidentiality of any third party's information, such third party's) past, present, or future research, development, or business activities, including any unannounced products, solutions and services, any information relating services, developments, inventions, processes, plans, financial information, forecasts, and projections and the financial terms of this Agreement. Notwithstanding the forgoing, Confidential Information shall not apply to information if it was already known to the receiving party prior to the date of this Agreement as established by documentary evidence or it has been rightfully received by the receiving party from a third party and without any obligation of confidentiality of such third party to the owner of the Confidential Information or it is in or has entered into the public domain through no breach of this Agreement or other wrongful act of the receiving Party or it has been previously been approved for release by written authorization of the Party that is the owner of the Confidential Information, or it is required to be disclosed subject to an order from a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information has been given reasonable notice of such an order and the opportunity to contest it.
5.15 You shall not discriminate against persons making purchases using a Credit Card, either with respect to the exchange of, return of, or adjustment on goods or services purchased unless Merchant conspicuously discloses its discriminatory refunds policy at the time of sale in accordance with the Federal Truth-In- Lending Act and Regulation Z. If You do not offer refunds or make such other restrictions, the words "no refund", or other appropriate terminology, shall be prominently and legibly displayed on the Merchant's Web order page used by Purchaser.
6. Your Administrative Username and Password Security
6.1 You agree that you will be solely responsible to Anaxstar for all activities that occur under your account and therefore you agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services. Additionally, if you become aware of any unauthorized use of your password or of your account, you agree to notify Anaxstar immediately by email or through Contact Us page on the Web site.
7. Hosting Services Provided by Anaxstar
7.1 Anaxstar owns and operates an Internet Web Server on the World Wide Web (the "Web") and provides Web hosting services to Merchant.
7.2 Anaxstar provides and maintains a network of dedicated server computers, routers, hubs, switches, or other equipment and Software (collectively, the "Network"), which is integrated with the Internet through an Internet Data Center. The Network sends and receives data and information in relationship to the Web. Merchant acknowledges and agrees that neither Anaxstar nor Anaxstar's third party provider of Internet services can guarantee the uninterrupted provision of said service. Anaxstar reserves the right to select any third party provider of Internet services, bandwidth provider, connectivity company, or any other organization, completely at its discretion and without any further notice to Merchant.
7.3 Anaxstar makes CGI processes available to Hosting Merchants and has established a separate environment for those Merchants utilizing Anaxstar electronic commerce server(s). On the Anaxstar electronic commerce server, Merchant will not be allowed to load and/or run its own CGI scripts. All CGI's running on the Anaxstar electronic commerce server(s) will be approved by Anaxstar. Anaxstar maintains the right to disable any CGI script and, if necessary, the Merchant's Services without prior notice if Anaxstar determines the script presents a security risk or a server upload. Any CGI scripts that are determined to be inherently malicious may result in termination of the Merchant's Services and the pursuit of any and all legal remedies available to Anaxstar.
7.4 Anaxstar reserves the right to send Merchant service e-mails notifying the Merchant of operational or other changes that may affect or significantly change the current Services offered. Please note that Merchants cannot opt out of such service e-mails because these service e-mails provide information critical for the operation of Merchant's Services.
7.5 Anaxstar also reserves the right to communicate with Merchant regarding existing service offering, future service offering, promotions, modification of account services, amendments to terms and conditions and Anaxstar web site tools and services, ("Service and Account Communication") in the form of e-mail, direct mail or telephone contact (the latter during normal business hours of 9:00 a.m. - 5:00 p.m. Pacific Time).
7.6 Anaxstar is not responsible for the content of any Web page hosted by Anaxstar. The opinions and views expressed in the Anaxstar hosted Web pages do not necessarily reflect those of Anaxstar and are not reviewed in any way before they appear on our server(s). As the author of Web pages hosted by Anaxstar, Merchant takes full responsibility for their contents. Merchant agrees not to use the Web space to provide material that is grossly offensive to the Web community, including, but not limited to, blatant expressions of bigotry, racism, hatred, profanity or for promoting or providing instructional information about illegal activities or promoting physical harm or injury against any group or individual.
7.7 Anaxstar Hosting shall be used for lawful purposes only. Transmission or solicitation of any material that violates United States State, Federal, or other laws that may apply is prohibited. Anaxstar hosted pages cannot contain, or provide links to, materials that Anaxstar, in its sole discretion, may consider illegal or offensive, including, but not limited to: (i) copyrighted material not belonging to Merchant (such as music, images, software or video) unless Merchant has the prior consent of the copyright owner; (ii) trademarked material not belonging to Merchant (such as logos, slogans, trademarks, design marks or a combination thereof) without prior consent of the trademark owner; (iii) adult content (such as pornography, nudity, sex or any other material that would commonly be considered "indecent") (iv) mail or electronic mail fraud; (v) hate-group statements and propaganda; (vi) Ponzi or Pyramid schemes; (vii) online gambling; (viii) MP2 or MP3 files; (ix) obscene language; (x) any material that is obscene, threatening, harassing, libelous or in any way a violation of intellectual property laws.
7.8 Merchant shall not use their Anaxstar hosted Web pages to conduct any of the following activities: (i) Sell or promote the use of weapons; (ii) Send bulk (spam) e-mail from a Anaxstar mail server, or sending such e-mail with a hosted Web site listed as the contact address; (iii) Send spam news postings; (iv) advertise or distribute product or services that may contribute to news or e-mail spamming; (v) disclose the trade secrets of any other entity or individual; (vi) use trademarks or patented materials without the prior consent of the patent owner; (vii) rent, sell or otherwise distribute Hosting to third parties; (viii) Conduct any other activities, that Anaxstar determines, in its sole discretion, to be illegal or an unreasonable utilization on system resources.
7.9 It is impermissible to use Anaxstar Hosting servers for the following purposes: (i) to act as proxies to access other servers including, but not limited to: File Transfer Protocol (FTP) or Hypertext Transfer Protocol (HTTP); (ii) to run any type of server or daemon including, but not limited to, ICQ or FTP; (iii) to launch malicious attacks on other Internet servers including, but not limited to, denial of service attacks, mail bombs, hack attacks, spamming, port scanning or port probing; (iv) to connect directly to external servers using, for example, Internet Relay Chat (IRC), port scanning or any other unauthorized connection; (v) to open sockets of any kind including but not limited to, ICQ, IRC or FTP; (vi) to provide CGI for any third party; (vii) to act as a file repository or to serve files for other sites; or (viii) to conduct any other activity that Anaxstar determines, in its sole discretion, to be an improper use of the Anaxstar Hosting servers.
7.10 Anaxstar reserves the right to terminate Merchant's Hosting or remove any hosted page if it determines, in its sole judgment, is in violation of any provision of this Agreement.
7.11 WITH RESPECT TO THE HOSTING PROVIDED HEREUNDER, MERCHANT ACKNOWLDEGES THAT SUCH SERVICES ARE PROVIDED "AS IS" AND THAT ANAXSTAR MAKES ABSOLUTELY NO WARRANTY OF ANY KIND, IMPLIED OR STATUATORY, FOR SECURE WEB HOSTING SERVICES INCLUDING WITHOUT LIMITATION AND ANAXSTAR EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF NON-INFRINGEMENT AND MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.12 WITH RESPECT TO THE ADVERTISING SERVICES PROVIDED HEREUNDER, YOU AGREE THAT ANAXSTAR AND ITS AFFILIATES AND/OR THIRD PARTY CONTRACTORS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND LICENSES PROVIDED HEREUNDER AND ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED. IN NO EVENT SHALL ANAXSTAR OR ITS SUBCONTRACTORS, EMPLOYEES, REPRESENTATIVES OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (AND WHETHER OR NOT ANAXSTAR OR ANYONE ELSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED UPON LOST GOODWILL, LOST PROFITS, LOSS OF USE OF MONEY, LOSS OF DATA OR INTERRUPTION IN ITS USE OR AVAILABILITY, STOPPAGE OF WORK, IMPAIRMENT OF ASSETS OR OTHERWISE ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY IN TORT OR OTHERWISE, AND WHETHER BASED ON ANY PROVISION OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES RELATING TO THE SERVICES OR ANY TRANSACTION PERFORMED OR UNDERTAKEN UNDER OR IN CONNECTION WITH THIS AGREEMENT. ANAXSTARS' AND ITS SUPPLIERS' SUB-CONTRACTORS', EMPLOYEES', REPRESENTATIVES' AND AFFILIATES' AGGREGATE LIABILITY FOR ACTUAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY MERCHANT DURING THE MONTH (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. You agree to indemnify and hold harmless Anaxstar and its affiliates, officers, directors, shareholders, members, employees and agents (each of the foregoing, a â€œCovered Partyâ€) from and against any and all liabilities, losses, damages, claims, suits, judgments, costs and expenses (including reasonable attorney's fees and costs of any investigation or action related thereto) (collectively, â€œClaimsâ€) incurred by, or imposed or asserted against, a Covered Party by a third party arising out of or relating to (i) your performance under this Agreement, including your use of the Anaxstar Advertising service, (ii) your breach of this Agreement or any claim by anyone with regards to this service, (iii) any errors, omission, misconduct or negligence by you or your franchisees, or any of their officers, directors, members, shareholder, employees or agents, and (iv) your failure to comply with any law applicable to your business or your performance hereunder.
8. Use of Software
8.1 Anaxstar owns all rights to certain Software that enable Merchant to create an Internet storefront on the Web for the purposes of conducting electronic commerce or Internet presence. Merchant shall not use Software in any manner to provide computer services to third parties, nor sublicense, transfer or distribute Software, or any portion thereof, to any third parties. Merchant shall not reverse engineer, disassemble, de-compile, alter or modify Software in any way. Merchant shall not add unauthorized programs, whether developed by Merchant or others, to Software. Merchant is using the Software shall mean the object code version of Anaxstar's Software, CGI Scripts, HTML code, application programming interfaces (APIs), associated documentation and other client Software or code which Anaxstar provides to the Merchant, including updates, to enable the Merchant to use Anaxstar's Services. The Software is proprietary to Anaxstar and is not licensed to the Merchant under a separate license agreement.
9. Transaction Processing
9.1 Merchant can enter Transactions received by mail, by telephone, by fax, or in person from Purchaser using the manual online data entry screen ("Virtual Terminal") provided by Anaxstar, if such services are offered by Anaxstar.
9.2 If the Credit Card Transaction is approved by the Acquiring Bank or its agents, an on-screen notice of acceptance must be displayed.
9.3 Merchant will have access to Transaction reports, including Credit Card numbers and expiration dates from Anaxstar via a secure Web based interface. These reports may be reviewed by Merchant and printed. This will provide to Merchant daily a settlement statement regarding all transactions for each day so that funds can be transferred by the Acquiring Bank to Merchant's checking account within the time period provided for in Merchant Account Agreement between Merchant and Acquiring Bank.
9.4 If the Merchant's agreement with Bank so requires, Merchant agrees to request authorization from its Bank's authorization center on certain specified Transactions and provide that information to Anaxstar. Transactions where authorization may be required include, but are not limited to: (i) The Purchaser's signature is questionable; (ii) the transaction is of a type with a zero floor limit or where the total amount of the transaction (including any applicable taxes) exceeds the floor limit then applicable to the transaction; (iii) the account number is listed on the most current Warning Bulletin provided to the Merchant by the Bank.
9.5 If the Purchaser's Credit Card is denied during manual processing by Merchant, an on-screen notice of non-acceptance will be displayed and at that time Merchant can re-enter another card or correct the name and/or address of the Cardholder. If the Purchaser's Credit Card is denied during automated real-time processing, Merchant can re-process with modifications or corrections using the manual data entry screen. Each denial is documented on the daily transaction report obtainable from Anaxstar.
9.6 Merchant warrants that all Transactions tendered to Anaxstar will represent obligations of Cardholders to Merchant for bonefide Transactions in the amount set forth thereon for property sold and/or services rendered only, and shall not involve any element of credit for any other purpose and shall not involve Merchant receiving or accepting any payment from the Purchaser for any charge included in a transaction resulting from the use of Credit Card. Merchant agrees not to make any cash advance or withdrawals to any Cardholder.
9.7 Merchant will not require that information be provided for each transaction other than information provided for in Merchant's Web based order page.
9.8 Merchant shall not, without the Cardholder's written consent, sell, purchase, exchange, provide or otherwise disclose any Purchaser's Credit Card account information obtained by the Merchant as a result of a Transaction covered by the terms of this Agreement to any third party other than Merchant's agents and processing organizers, including the Acquiring Bank, for the purpose of assisting Merchant in its business or as required by law. All information regarding the Purchaser so obtained shall be maintained in a reasonably secured manner with limited access to selected personnel until discarding and must be destroyed in a manner that will render the data unreadable.
9.9 Anaxstar shall have the right to verify all transactions and to examine Merchant's books, records and other papers relating to Transactions covered by the terms of this Agreement. For this purpose, Merchant shall preserve all records pertaining to such Transactions for a period of at least one (1) year from the date thereof.
9.10 Merchant agrees to indemnify Anaxstar and hold Anaxstar harmless from Damages and against any and all claims, demands, liability and causes of action by any person imposed by way of claim without commencement of litigation or arbitration, defense, setoff or counterclaim arising from a transaction covered by the terms of this Agreement.
9.11 All right, title and interest in and to any original works of authorship, inventories, discoveries, patents, ideas, concepts or any improvements relating to Anaxstar's Services which are created by or conceived, first reduced to practice, made or developed by Anaxstar prior to the Effective Date or in anticipation of, in the course of or as a result of design and development work pursuant to this Agreement, including without limitations any source code (collectively, the "Intellectual Property"), shall be solely owned by Anaxstar. In any application in which Anaxstar develops the programming, unless otherwise agreed in writing, Anaxstar is the sole owner of the Source code. Neither party shall publish or use or change the other party's names, logos, trademarks or service marks (collectively, "Marks") in any manner inconsistent with the functional use of the Anaxstar application without mutual prior written consent. Merchant agrees to prominently display the Anaxstar "ICON" for all materials provided while this Agreement is in effect or until notified by Anaxstar it cease its display or use. All documentation regarding Intellectual Property, technical information, Software, confidential business information or other materials, in written or electronic form and clearly marked as "Proprietary" or "Confidential" ("Proprietary Information"), furnished by either party in connection with this Agreement and all copies of such Proprietary Information shall remain the property of the disclosing party and shall be held in confidence and safeguarded by the receiving party.
9.12 Merchant agrees not to create a transaction that Merchant knows or should have known to be fraudulent.
9.13 The access, merchandise or services described for sale by Merchant must actually be delivered or performed immediately or in fully disclosed time frame otherwise specified to Purchaser.
9.14 Merchant agrees not to engage in any Transactions involving cash advances or extensions of credit for any purpose, unless specifically authorized in writing by Anaxstar to do so.
9.15 Merchant agrees not to encourage a Transaction to replace uncollected funds from another payment method, such as to cover a returned check.
9.16 Merchant agrees not to require personal information about the Purchaser, such as the home or work address, telephone or driver's license number or Social Security number, as a condition of sale.
9.17 Merchant agrees that Anaxstar may contact or directly communicate with any Purchaser concerning any sale or transaction submitted to or through Anaxstar, mainly for purposes of credit card fraud protection and security procedures, excluding any communications for the sole purpose of solicitation for Anaxstar products and services.
9.18 Merchant shall fully disclose the following in a clear and understandable manner in the on-screen order acceptance Web page: (i) "Real-time Payment Processing is powered by Anaxstar", (with a hyperlink to www.paymentonline.com); (ii) the charges for the Merchant's product and/or services sold with regards to that Transaction, (iii) expected delivery lead time; (iv) that Merchant is solely responsible for the content of all messages, products or services delivered and all representations on its Web site; (v) any other information required by State or Federal law, Acquiring Bank, and/or Credit Card Association.
10. Returns and Exchanges
10.1 Merchant agrees to establish and maintain a fair and uniform policy for the exchange and return of products or services sold. Merchant also agrees to give only non-cash credit, upon caller request for return, and not to refund cash unless otherwise agreed to by the Acquiring Bank. All disputes involving the goods or services purchased via Anaxstar processing network will be settled between the Merchant, Bank, and the Purchaser. Merchant agrees to indemnify and hold Anaxstar harmless from any claim or liability relating to any such dispute. Merchant agrees to provide Anaxstar, upon demand, with any information, evidence, assignments or other assistance Anaxstar may need to help resolve any customer billing disputes regarding the nature, quality or performance of the goods or services, or in connection with any return or rejections of such goods and services offered, or supplied by the Merchant or on the Merchant's Web site.
11. Privacy and Your Personal Information
11.1 You agree to the use of your data in accordance with Anaxstar’s privacy policies.
11.2 In addition to the Terms regarding privacy above, Merchant acknowledges and agrees that in the course of providing the Services, Anaxstar will capture certain transaction and user information (collectively, the “Data’”). Merchant agrees to provide to Anaxstar, and Anaxstar shall capture, only the Data that is required by the Payment Software and is necessary for Anaxstar to provide the Payment Services. Anaxstar shall not disclose Data to third parties or use the Data, except that Anaxstar shall have the rights (i) to use the Data as necessary to perform the Services contemplated in this Agreement (including distributing the Data to third parties providing services requested by Merchant); (ii) to maintain the Data as long as necessary or as required by law and used internally for record keeping.
12. Content in the Services
12.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content”. You understand that by using the Services you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Services at your own risk.
12.2 You should be aware that Content presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to Anaxstar (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by Anaxstar or by the owners of that Content, in a separate agreement. You agree that you are solely responsible for (and that Anaxstar has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which Anaxstar may suffer) by doing so.
13. Copyrights and Proprietary Rights
13.1 You acknowledge and agree that Anaxstar (or Anaxstar’s licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Anaxstar and that you shall not disclose such information without Anaxstar’s prior written consent.
13.2 Unless you have agreed otherwise in writing with Anaxstar, nothing in the Terms gives you a right to use any of Anaxstar’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
13.3 You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.
13.4 Unless you have been expressly authorized to do so in writing by Anaxstar, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
13.4 You retain copyright and any other rights you already hold for your copyright material on display or that you send through, the Services. By submitting, posting or displaying the content on Anaxstar's Website or content area or member's area, you give Anaxstar a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Anaxstar to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Agreements of those Services.
14. Software updates
14.1 The Software which you use may automatically be updated from time to time by Anaxstar. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Anaxstar to deliver these to you) as part of your use of the Services.
15. Termination of Your Relationship with Anaxstar
15.1 The Terms will continue to apply until terminated by either you or Anaxstar as set out below.
This Agreement shall become effective when executed by You and accepted by Anaxstar and shall remain in effect until terminated by written notice. The term of this Agreement shall be for a period of 12 months (hereinafter the "Primary Term") from the Effective Date shown on the Order Form. Following the completion of the Primary Term, this Agreement will be extended automatically indefinitely until written notice of termination is received by either party at least thirty (30) days in advance of the original date of termination. At any time thirty (30) days after the Effective Date, Anaxstar reserves the right to increase or adjust the monthly fees and/or transaction fees set forth in this Agreement to the new Anaxstar rates, subject to a thirty (30) days advance notice electronically mailed to You. Upon receipt of the thirty (30) days advance notice of rates increase, You can continue the use of Anaxstar's Services at the increased rates or terminate the Agreement without any penalties.
15.2 If you want to terminate your legal agreement with Anaxstar, you may do so by (a) notifying Anaxstar at any time and (b) closing your accounts for all of the Services which you use, where Anaxstar has made this option available to you. Your notice should be sent, in writing, to Anaxstar’s office address which can be found on our Web site.
15.3 Anaxstar may at any time, terminate its legal agreement with you if:
(A) you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or
(B) Anaxstar is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
(C) the partner with whom Anaxstar offered the Services to you has terminated its relationship with Anaxstar or ceased to offer the Services to you; or
(D) Anaxstar is transitioning to no longer providing the Services; or
(E) the provision of the Services to you by Anaxstar is, in Anaxstar’s opinion, no longer commercially viable.
15.4 Nothing in this Section shall affect Anaxstar’s rights regarding provision of Services under other sections of the Terms.
16.1 NO WARRANTY: ANAXSTAR MAKES NO WARRANTY, EXPRESSED OR IMPLIED, WITH RESPECT TO ITS SERVICES OR TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR SUITABILITY OF SERVICES FOR MERCHANT'S APPLICATION, PRODUCTS OR SERVICES. NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT ANAXSTAR’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE.”
16.3 IN PARTICULAR, ANAXSTAR, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS AND THAT ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES IS YOUR OWN RESPONSIBILITY;
(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR AND YOU EXPRESSLY UNDERSTAND AND AGREE THAT ANAXSTAR, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES WHICH MAY BE INCURRED BY YOU WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
16.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
16.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Anaxstar OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
16.6 ANAXSTAR FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LIMITATION OF LIABILITY: ANAXSTAR'S ENTIRE LIABILITY RESULTING FROM ANAXSTAR'S FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT SHALL BE MERCHANT'S ACTUAL DIRECT DAMAGES, BUT NOT TO EXCEED THE AMOUNT ONE MONTHS SERVICE PAID TO ANAXSTAR BY MERCHANT FOR SERVICES PURSUANT TO THIS AGREEMENT. IN NO EVENT SHALL ANAXSTAR BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL, EXEMPLLARY OR PUNITIVE DAMAGES OR FOR LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, WHETHER OR NOT ANAXSTAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 16 SHALL APPLY (i) REGARDLESS OF THE FORM OF CLAIM OR ACTION, AND (ii) WHETHER OR NOT DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL Anaxstar BE LIABLE FOR: (i) ANY BILLING, COLLECTION, TECHNICAL, OR OTHER MISTAKES, ERRORS, OR OMISSIONS; OR (ii) CLAIMS, DEMANDS OR ACTIONS AGAINST MERCHANT BY ANY OTHER PARTY.
16.6 The liability of Anaxstar to Merchant with respect to any transaction shall be limited to the obligation of Anaxstar upon written notice from the Merchant or the Purchaser to re-process the transaction at no additional expense. Anaxstar shall in no event be liable for incidental or consequential damages whatsoever.
16.7 Indemnification/Hold Harmless: Merchant shall indemnify and hold harmless Anaxstar, its agents, employees, officers and directors from and against any and all fines, penalties, losses, damages, injuries, claims, (including attorney's fees) or other liabilities arising out of or in connection with or the performance of this Agreement and caused by the acts of omission, negligent or otherwise, of Merchant or a subcontractor employee or an agent of Merchant indicating but not limited to claims of third parties resulting from or in connection with the Merchant's products, services, Web site, electronic messages, offers, agreements with Purchaser, contracts, promotions and advertising disseminated, broadcast, furnished or supplied by Merchant or any employee or customer or any one of them or any claims for trademark or patent infringement or any claim for libel or slander or any failure of the Services to comply with applicable law.
16.8 Non-payment of remittance: Anaxstar will not be liable for payment of any remittance or portion thereof which result from: (i) transactions that are ineligible, fraudulent or illegal, or that violate the rules of the Credit Card Associations or the Merchant Account Agreement with the Bank, (ii) transactions the Purchaser claims to have been performed without their consent, (iii) transactions in which the Purchaser disputes any liability because the merchandise or services were not received or were returned, rejected, or defection, or because Merchant failed to perform any obligation in connection which such merchandise or services.
17.1 The Services may include hyperlinks to other web sites or content or resources or partner sites or information resource centers. Anaxstar may have no control over any web sites or resources which are provided by companies or persons other than Anaxstar.You acknowledge and agree that Anaxstar is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources. And You acknowledge and agree that Anaxstar is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources in any way, shape, or form.
18. Modifications to the Terms
18.1 Anaxstar may make changes to the Terms or Additional Agreements from time to time. When these changes are made, Anaxstar will make a new copy and display the new Terms on this same URL Web Address.
18.2 You understand and agree that if you use the Services after the date on which the Terms or Additional Agreements have changed, Anaxstar will treat your use as acceptance of the updated Terms or Additional Agreements.
19. General legal terms
19.1 Force Majeure: Neither party hereto nor their respective affiliates, subsidiaries, or subcontractors shall be responsible for nor have any liability for Damages or delays due to any failure to perform its obligation under this Agreement if such failure is caused by war, strikes or labor disputes, revolutions, lack or failure of transportation facilities, fire, explosion, lightning, pest damage, power surges or failures, water, acts of God, the elements, civil disturbances, acts of civil or military authorities or the public enemy, inability to obtain parts or supplies or network access, fuel or energy shortages, acts or omissions of any Internet bandwidth providers, local exchange companies, or other causes beyond a party's control whether or not similar to the foregoing. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cession of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than thirty (30) calendar days, the parties hereto shall consult with each other to determine whether this Agreement should be modified. The party facing an event of force majeure shall use reasonable commercial efforts to remedy that situation as well as to minimize its effects. A case of force majeure shall be notified to the other party within ten (10) days after its occurrence.
19.2 The Terms constitute the whole legal agreement between you and Anaxstar and govern your use of the Services (but excluding any services which Anaxstar may provide to you under a separate written agreement), and completely replace any prior agreements between you and Anaxstar in relation to the Services.
19.3 You agree that Anaxstar may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
19.4 You agree that if Anaxstar does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Anaxstar has the benefit of under any applicable law), this will not be taken to be a formal waiver of Anaxstar’s rights and that those rights or remedies will still be available to Anaxstar.
19.5 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
19.6 Notices: Any notice, approval, request, authorization, direction or other communication required by this Agreement will be effective and deemed delivered: (i) three (3) business days after posting with the United States Postal Service when mailed by certified mail, return receipt requested, properly addressed and with the correct postage, (ii) one (1) business day after pick-up by the courier service when sent by overnight courier, properly addressed and prepaid, (iii) one (1) business day after the date of the sender's electronic confirmation of electronic mail or receipt when sent by facsimile transmission. Notices will be sent to the address or FAX numbers set forth in this Agreement, unless either party notifies the other in writing of an address or FAX number change.
19.7 The Terms, and your relationship with Anaxstar under the Terms, shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions. You and Anaxstar agree to submit to the exclusive jurisdiction of the courts located within King County, Washington to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Anaxstar shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
June 1st, 2016