Tekmetric has the right to change any of its Third Party Providers at any time, in its sole discretion. You agree to cooperate with Tekmetric and the applicable Third Party Providers selected by Tekmetric as reasonably required for Tekmetric or such Third Party Providers to perform the Payment Services and/or Third Party Services and authorize Tekmetric to take the necessary action to effectuate the migration to the replacement Third Party Provider.
You understand that any Acceptance Transactions you submit to the Payment Processor through the Platform are between you and your customer, and any issues relating to the Acceptance Transaction shall be solely between you and your customer. Additionally, the processing services with respect to such Acceptance Transaction are performed by Payment Processor, not Tekmetric. Tekmetric is not responsible for tax receipts, lost payments, identity theft, chargebacks, fraud or refunds. Your submission of Acceptance Transactions for processing will be governed under the merchant agreement entered into between you and the Payment Processor (and/or its acquiring bank) (the “Merchant Agreement”). The funds processed in connection with your Acceptance Transactions will be settled to you by the Payment Processor (or Bank, as the case may be) in accordance with your Merchant Agreement. You understand and agree that your settlement funds may be held by the Payment Processor, Bank, or another financial institution in a pooled account. You authorize Tekmetric to instruct the Payment Processor or Bank to deposit the transaction funds to a pooled account held for the benefit of you and other customers of Tekmetric held at any financial institution so that such funds may be combined and aggregated with other funds that are ultimately settled to you by such financial institution. You understand and agree that Tekmetric does not process, receive or hold funds from your customers at any time in connection with Acceptance Transactions and that Tekmetric is not a bank, money transmitter, or other money services business (as such terms are defined by the Bank Secrecy Act or any state law). To the extent Tekmetric is deemed to hold or receive funds (constructively or otherwise) from your customer at any point in time, you hereby appoint Tekmetric as your non-fiduciary agent for the limited purpose of collecting, receiving, holding and settling funds from your customer on your behalf. In such event, such funds shall be deemed received by you upon receipt by Tekmetric and shall satisfy your customer’s obligation to you in connection with such Acceptance Transaction for the services provided by you. If Tekmetric fails to remit such funds to you, your sole recourse for such event is solely against Tekmetric and not against the customer or the customer’s financial source.
You authorize Tekmetric and its Third Party Providers (including Tekmetric’s Affiliates and successors or assigns) to debit your External Account for fees and other amounts due to Tekmetric (including Tekmetric’s Affiliates and successors or assigns) or any Third Party Provider in connection with the Payment Services or Third Party Services. Such authorization will remain in effect until you cancel it in writing, or until all amounts due from you to Tekmetric (including its Affiliates, successors and assigns) and all Third Party Providers have been paid in full; provided that cancellation will not affect any debit initiated before Tekmetric has had a reasonable opportunity to act on your cancellation notice. You represent and warrant that (a) you own or are an authorized signatory on the External Account; (b) you are authorized to make the Funds Transfer Transactions you request; (c) your External Account is issued or established by and held at a U.S. financial institution; and (d) your External Account is a commercial or business account (not a personal account). You acknowledge and agree that you will provide accurate information to us about your External Account, and that we have no responsibility to verify the information you provide to us about your External Account, or any liability for any loss resulting from a mistake, error or omission in the information you provide us.
During the signup process for the creation of a Tekmetric Account we will ask you to provide certain information about you (and if you are an entity, information regarding your beneficial owners, control persons, officers and directors, etc.) (the “Application”). You represent and warrant that all information you provide us in the Application or otherwise is truthful, accurate, complete and not misleading. To the extent that you provide us with information for the purpose of creating an account with a Third Party Provider, we may use such information in accordance with these Payment Terms, including for the purpose of assisting you in creating such account with the Third Party Provider. We will store and use such information for our own business purposes and in accordance with our privacy policy, as may be updated from time to time. You acknowledge and agree that we may, but are not obligated to, accept Third Party Terms on your behalf in connection with your receipt of the Payment Services. You authorize us to enter into such Third Party Terms on your behalf solely as necessary to establish or maintain the applicable Third Party Services and subject to the applicable Third Party Terms.
You agree to cooperate with all requests made by us or any other third parties in connection with your Tekmetric Account to identify you (and your authorized representatives, directors, officers, etc.), authenticate your identity, or validate your funding sources or Transactions. Tekmetric reserves the right to close, suspend or limit access to your Tekmetric Account and/or the Payment Services in the event we are unable to obtain or verify such information. You authorize Tekmetric, directly or through third parties, to make any inquiries we consider necessary to validate your identity. This may include asking you for further information, requiring you (and your authorized representatives, directors, officers, etc.) to provide date of birth, a taxpayer identification number and other information that will allow us to reasonably identify you, including requiring you to take steps to confirm ownership of your email address or Payment Instruments or verifying your information against third party databases or through other sources. We may also ask to see your (and your authorized representatives, directors, officers, etc.) driver’s license or other identifying documents at any time; however, we will not access your credit report without first obtaining your consent. You must notify us before any change of control or sale of all or substantially all of your assets or equity.
You are responsible for confirming the accuracy of the applicable payment information for each Transaction submitted. Any information or Content posted or transmitted through the Payment Services or Platform is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk.
It is your responsibility to determine what, if any, taxes apply to the goods and services you provide to your customers and the payments you make or receive, and it is your responsibility to collect, report and remit the correct tax to the appropriate taxing authority. Tekmetric is not responsible for determining whether taxes apply to your Transaction, or for collecting, reporting or remitting any taxes arising from any Transactions. You hereby agree to comply with any and all applicable tax laws in connection with your use of the Payment Services, including without limitation, the reporting and payment of any taxes arising in connection with Transactions made through the Payment Services, if any.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TEKMETRIC, ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TEKMETRIC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TEKMETRIC’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE PAYMENT TERMS EXCEED ONE HUNDRED DOLLARS ($100.00). THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.
We reserve the right to change, suspend or discontinue any aspect of the Payment Services at any time, including hours of operation or availability of the Payment Services or any Payment Services feature, without notice and without liability. We also reserve the right to impose limits on certain Payment Services features or restrict access to some or all of the Payment Services in our sole discretion, including where reasonably necessary to comply with applicable law, Third Party Terms, or to protect the security or integrity of the Payment Services, without notice and without liability. Without limiting the foregoing, you acknowledge that the operation of the Payment Services may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors, and Tekmetric shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Payment Services. Tekmetric has no obligation to maintain or update the Payment Services or to continue producing or releasing new versions of the Payment Services.
Tekmetric or you may terminate these Payment Terms at any time and without cause upon providing thirty (30) days written notice to the other party. The termination of these Payment Terms will not affect any of our rights or your obligations arising under these Payment Terms. The termination of these Payment Terms does not necessarily result in the termination of your Third Party Terms.
Additionally, Tekmetric may automatically terminate or suspend your Tekmetric Account and/or the Payment Services at any time with or without notice to you for any reason, which may include, but is not limited to (a) violation of these Payment Terms, Terms of Service, Privacy Policy, Third Party Terms, or any terms, conditions, policies, rules, or regulations applicable to the Payment Services or Platform (including but not limited to those rules of any Payment Processor); (b) you have abused Tekmetric resources or attempted to gain unauthorized entry to Tekmetric or its resources; (c) you have used the Payment Services in a manner inconsistent with their intended purpose; (d) termination is required by law, regulation, court, or governing agency order; (e) termination is required by a Third Party Provider; or (f) suspension or termination is reasonably necessary to prevent fraud, loss, or harm to Tekmetric, you, Third Party Providers, or other persons. The termination of your access to Payment Services will be effective immediately. Tekmetric will not be liable to you or other third party for termination of a Tekmetric Account. Termination of your Tekmetric Account and/or the Payment Services may require you to close certain Third Party Services accounts. You authorize us to notify any Third Party Provider of the termination of your Payment Services; however, you are solely responsible for terminating your Third Party Terms (if required) in accordance with the termination rights and procedures of such Third Party Terms. Tekmetric is not liable for any losses, damages or other amounts you suffer as a result of your failure to terminate any Third Party Terms and close associated accounts.
After termination of these Payment Terms, your Tekmetric Account or the Payment Services, you shall continue to be liable for chargebacks, refunds, fees, card network liabilities, credits and adjustments resulting from or relating to Transactions processed pursuant to these Payment Terms. Any Reserve Account imposed will remain in effect until the aforementioned liabilities are resolved, as reasonably determined by Tekmetric in accordance with applicable Third Party Terms. Any remaining stored funds will be refunded to your External Account or to you in a manner elected by Tekmetric within a commercially reasonable time after the applicable liabilities are resolved. Tekmetric may inform applicable Third Party Providers of the termination of these Payment Terms, your Tekmetric Account, and/or your Payment Services.
You agree to pay us the processing fees in connection with the Payment Services as set forth in your Tekmetric Account. These fees shall be subject to the same terms and conditions set forth in Section 3 of the Terms of Service (including as it pertains to changes of such fees) and may be deducted from funds that would otherwise be settled by Processor or Bank to your account, debited from your External Account, or added to your monthly invoices, at Tekmetric’s discretion. None of the fees charged by us in connection with the Payment Services excuse your payment of any other fees you have agreed to pay us. Tekmetric does not support surcharging that is not compliant with applicable law, Payment Processor requirements, or card network rules. You are solely responsible for all liabilities associated with your payment processing activity and use of the Payment Services (including, for example, chargebacks, refunds or any assessments or fees imposed by Processor, Bank, the card networks or any applicable third party), including any fees, assessments, fines, or other amounts imposed by Processor, Bank, or any card network as a result of any non-compliant surcharging by you. For the avoidance of doubt, if you are processing with Stripe, only the fees provided to you in your Tekmetric Account are applicable, and any fees that may be set forth on Stripe’s website are not applicable.
Tekmetric may instruct the applicable Third Party Providers to condition the offering of Payment Services to you upon the establishment, funding, and maintenance of a reserve account to be held by Bank in connection with the Payment Services provided to you or on your behalf (“Reserve Account”) where reasonably necessary to cover anticipated chargebacks, refunds, fees, fines, or other liabilities arising from your payment processing activity. To the extent not legally prohibited, Tekmetric or Third Party Providers, as applicable, may instruct such funds in the Reserve Account to be applied toward, and set off against, amounts due from you pursuant to these Payment Terms or the applicable Third Party Terms. Funds in the Reserve Account will not bear interest, and may be commingled with other funds, but will be accounted for separately. You shall have no interest in the Reserve Account other than a contingent right to receive funds, as set forth in your Merchant Agreement.
As between you and Tekmetric, Tekmetric owns all Transaction data and all data submitted into or generated from the Tekmetric Account, including your customer data. Tekmetric can use such data for any purpose including but not limited to marketing and advertising. You agree to comply with the Payment Card Industry Data Security Standards (“PCI-DSS”) to the extent applicable to your use of the Payment Services. You are solely responsible for any liability related to or arising out of your use of cardholder data.
Tekmetric and its Third Party Providers may monitor your Transactions for the purpose of determining fraudulent activity and whether you are in good standing with Tekmetric. Such monitoring if conducted, will be for the benefit of Tekmetric only. Tekmetric does not undertake any obligation to monitor Transactions on your behalf. Based on our methods, which are subject to change without notice, Tekmetric may decide to suspend your Tekmetric Account, or in other ways limit your privileges. Tekmetric will use all available information to help combat fraud on our system. Without limiting the foregoing, Tekmetric may delay, in its sole discretion, or at the direction of a Third Party Provider sending instructions on your behalf if we have reason to believe that your instructions may involve fraud or misconduct, or violate applicable law, these Payment Terms, or other applicable Tekmetric policies, as determined in Tekmetric’s sole and absolute discretion.
If you believe your Tekmetric Account has been opened or used in an unauthorized manner in connection with a Transaction or otherwise, you must notify us immediately.
If you become aware of any unauthorized charge occurring through your Tekmetric Account, contact Tekmetric customer support as soon as possible. To the extent that the charge relates to Third Party Services, you should contact the applicable Third Party Provider as identified in the applicable Third Party Terms. If Tekmetric suspects unauthorized Transactions, Tekmetric reserves the right to suspend your use of the Payment Services, except as prohibited by the applicable Third Party Terms.
The Choice of Law provision set forth in Section 15 of the Terms of Service shall be incorporated by reference herein and shall apply to the Payment Terms.
The Dispute Resolution and Arbitration provision set forth in Section 16 of the Terms of Service shall be incorporated by reference herein and shall apply to disputes arising out of or in connection with the Payment Terms.
The Payment Terms and any incorporated terms or agreements constitute the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersede all prior or contemporaneous agreements or understandings written or oral, relating to its subject matter.
You may not assign your rights and/or obligations under these Payment Terms to any other party without our prior written consent. We may assign our rights and/or obligations under these Payment Terms at any time and to any other party at our discretion. All portions of these Payment Terms that would reasonably be believed to survive termination shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Representations and Warranties, Licensing, Indemnification, and Dispute Resolution sections.
Tekmetric reserves the right, at any time and in its sole and absolute discretion, to change, modify, add to, supplement or delete any of these Payment Terms and all referenced exhibits or policies. Tekmetric will notify you of the updated terms by posting them to the Website or your Tekmetric Account. Tekmetric may elect to provide specific notice to you of any material changes, but will not be required to do so, provided that Tekmetric will provide 30 days’ prior notice of any changes of fees for these Payment Services. If any future changes to these Payment Terms are unacceptable to you or cause you to no longer be in compliance with these Payment Terms, you must immediately stop using the Payment Services. Your continued use of Payment Services following any revision to these Payment Terms (including amended or added fees) constitutes your acceptance of any and all such changes.
Tekmetric is not responsible for any delay or failure in performance of the Payment Services, in whole or in part, for any cause or circumstance outside Tekmetric’s reasonable control, including, without limitation: fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, pandemics, transportation, utilities, services or supplies, governmental action, computer viruses, corruption of data, failures of a Third Party Provider, DDoS or other computer attacks, incompatible or defective equipment, software, or services, or otherwise.
Sections 17 (Severability), 18 (Non-waiver), and 23 (Electronic Communication) of the Terms of Service shall be incorporated by reference herein and shall apply to these Payment Terms.
Unless otherwise indicated, all notices required to be made by you to us must be in writing and sent to us at the following address:
730 Town and Country Blvd Suite 300, Houston, TX 77024
Attn: Legal Department
Notices shall be deemed given: (a) upon personal delivery; or (b) when received by Tekmetric if sent by a nationally recognized overnight courier or certified mail via the United States Postal Service (in both instances, receipt requested).
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