Terms and conditions for merchant chimp

(Effective as of 20/12/2018)

Terms of Use

1) ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF USE

Merchant Chimp maintains this website as a service to its clients. By using this Site or any current or future services provided by Merchant Chimp in accordance with all applicable service agreements, you are agreeing to comply with and be bound by the terms and conditions of the Terms of Use as well as any operating rules, regulations, policies, and procedures that might be modified from time-to-time on the website. The Terms of Use govern your access to and use of the website, the services offered and any information, products, software, or features available to you on it. If you are using the website or the services on behalf of your employer, then you represent him and are authorized to accept these Terms of Use on your employer’s behalf. In case of any violation of the Terms of Use, Merchant Chimp reserves the right to seek all available remedies by law, contract and inequity in case of violations. The Terms of Use apply to all visits to the website and use of the services provided, both now and in future. ANY VIOLATION OF THESE TERMS MIGHT RESULT IN THE SUSPENSION OR TERMINATION OF YOUR ACCOUNT OR SUCH OTHER ACTION THAT IS PERMITTED IN ACCORDANCE WITH THE RELEVANT COMPANY SERVICE AGREEMENT.

2) INTERNET ABUSE

You are not allowed to engage in any form of Internet abuse, including but is not limited to distributing, publishing, or sending any type of unsolicited or unwelcome emails to any amount of network users, including, without limitation, mass promotions, unauthorized or unsolicited commercial advertising, and informational announcements, anywhere on the Internet. Posting a single article or substantially similar articles to an excessive number of newsgroups or mailing lists and repeated or deliberate posting of articles that are off-topic according to the charter of that newsgroup or mail list where such articles are being posted are also forbidden, as well as the posting of commercial advertising in a newsgroup or conference, unless it is permitted explicitly within that group or violating the CAN-SPAM Act.

3) ENFORCEMENT

Merchant Chimp reserves the right and has absolute discretion to enforce the Terms of Use. Merchant Chimp might, in its sole discretion, immediately terminate or suspend the services provided, the Service Agreement and/or access to the website, if it determines that your services, offerings or activities violate the Terms of Use. Without limitation, Merchant Chimp also reserves the right to report any activity, including the revealing of appropriate data or merchant information, that is suspected of violating any laws or regulations to proper law enforcement officials, regulators, or other third parties. Merchant Chimp also might cooperate with the appropriate law enforcement agencies to assist in the investigation and prosecution of any unlawful conduct.

4) MODIFICATIONS TO THE SITE

Merchant Chimp reserves the right to amend the Terms of Use and modify or discontinue all or part of the website, temporarily or permanently, with or without notice, and is not obligated to support or update the website. The amended Terms of Use shall automatically become effective immediately after they are initially posted on this website. Your continued use of the website after the posting of the modified Terms of Use on the website constitutes your affirmative acknowledgment of the Terms of Use and its modifications and agreement to abide and be bound by the Terms of Use, as amended. Should you object to any changes of the Terms of Use, your only recourse is to immediately terminate use of the website and notify Merchant Chimp of termination.

5) LINKS TO THIRD PARTY WEBSITES ARE NOT ENDORSEMENTS

The website contains links to third-party websites. The linked websites are not under the control of Merchant Chimp, and Merchant Chimp isn’t responsible for the contents or policies of any of the linked website. Merchant Chimp provides these links as a convenience only, and a link does not imply endorsement, sponsorship, or affiliation with the linked site by Merchant Chimp. Links to advertisers or merchants are owned and run by independent retailers or service providers, and, therefore, Merchant Chimp cannot ensure that you will be satisfied with their services, products or practices. You should make whatever investigation you feel is necessary or appropriate before proceeding with any transactions with any of the third parties.

6) INTELLECTUAL PROPERTY RIGHTS

The website is proprietary to Merchant Chimp. All the text, images, marks, logos, and other content of the website is exclusive to Merchant Chimp or to third parties from whom Merchant Chimp has obtained permission. Merchant Chimp authorizes you to view, download, and print the contents of the website provided that: (a) you might only do so for your own personal and non-commercial use; (b) you might not copy, publish or redistribute any website contents; (c) you might not modify any content on the site; (d) you might not remove any copyright, trademark, or other proprietary notices that have been placed on the site by Merchant Chimp. Except as expressly permitted above, reproduction or redistribution of the content on the site, or any portion of the site’s content, is strictly prohibited without the prior written permission of Merchant Chimp. You represent and warrant that your use of the content will be consistent with this license and won’t infringe or violate the rights of any other party or breach any contract or legal duty to any other parties.

7) WARRANTY

THIS WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MERCHANT CHIMP DOES NOT REPRESENT OR WARRANT THAT THE SITE WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ENTIRELY ERROR-FREE OR VIRUS FREE NOR DOES MERCHANT CHIMP MAKE ANY WARRANTY AS TO THE RESULTS THAT MIGHT BE OBTAINED FROM THE USE OF THE SITE OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT, INFORMATION OR PRODUCTS OBTAINED THROUGH THE SITE OR THAT DEFECTS IN THE WEBSITE WILL BE CORRECTED. YOU EXPRESSLY ACKNOWLEDGE THAT THIS WEBSITE AND THE SERVICES ARE COMPUTER NETWORK-BASED SERVICES, WHICH MIGHT BE SUBJECT TO OUTAGES, INTERRUPTIONS, ATTACKS MADE BY THIRD PARTIES AND DELAY OCCURRENCES. IN CASE OF SUCH AN EVENT AND SUBJECT TO THE TERMS OF USE HEREOF, MERCHANT CHIMP SHALL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY MATERIAL INTERRUPTIONS AND WILL OFFER ADJUSTMENTS, REPAIRS, AND REPLACEMENTS, WITHIN ITS CAPACITY, THAT IS REQUIRED TO ENABLE THE WEBSITE TO PERFORM ITS INTENDED FUNCTIONS IN A REASONABLE MANNER. YOU ACKNOWLEDGE THAT MERCHANT CHIMP DOES NOT WARRANT THAT SUCH EFFORT WILL BE SUCCESSFUL. IF MERCHANT CHIMP EFFORTS AREN’T SUCCESSFUL, YOU CAN TERMINATE THE APPLICABLE SERVICE AGREEMENT AND CEASE USING THE WEBSITE. THE FOREGOING SHALL CONSTITUTE YOUR ONLY REMEDY, AND MERCHANT CHIMP’S SOLE LIABILITY, IN THE EVENT OF INTERRUPTIONS, OUTAGES OR OTHER DELAY OCCURRENCES OF THE WEBSITE. YOU WAIVE AND COVENANT NOT TO ASSERT ANY CLAIMS OR ALLEGATIONS OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY AND ALL CLAIMS AND ALLEGATIONS RELATING TO THE ALLEGED INFRINGEMENT OF PROPRIETARY RIGHTS, THE ALLEGED INACCURACY OF CONTENT, OR ALLEGATIONS THAT MERCHANT CHIMP HAS OR SHOULD INDEMNIFY, DEFEND, OR HOLD YOU HARMLESS FROM ANY CLAIM OR ALLEGATION ARISING FROM YOUR USE, REPUBLICATION OR OTHER EXPLOITATION OF THE WEBSITE. YOU USE THE WEBSITE AT YOUR OWN RISK, AND NEITHER MERCHANT CHIMP NOR THE PARTIES WHO PROVIDE INFORMATION AND MATERIALS FOR PUBLICATION ON THE WEBSITE WILL BE LIABLE FOR ANY DAMAGES ARISING FROM YOUR USE OF THIS WEBSITE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE OR THE SERVICES PROVIDED IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT THE USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM, LOSS OF SERVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH DATA OR MATERIAL.

8) DISCLAIMER

EXCEPT AS EXPRESSLY PUT FORTH IN THIS SECTION, MERCHANT CHIMP SPECIFICALLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE WEBSITE OR SERVICES, OR OTHER SERVICES OR GOODS PROVIDED THROUGH THIS WEBSITE. FOR THE AVOIDANCE OF DOUBT, YOU AGREE THAT MERCHANT CHIMP DOES NOT REPRESENT OR WARRANT THAT THE SITE WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE.

9) IMITATION OF LIABILITY.

MERCHANT CHIMP EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY OR LOSS ARISING FROM OR RELATED TO THE WEBSITE, INCLUDING WITHOUT LIMITATION, LIABILITY OR LOSS ASSOCIATED WITH UNAUTHORIZED ACCESS TO ANY SERVER, WEBSITES, MERCHANT INTERFACES, FACILITIES, OR YOUR DATA OR YOUR CUSTOMER DATA, THIS INCLUDES CREDIT CARD NUMBERS AND OTHER PERSONAL AND IDENTIFIABLE INFORMATION, DUE TO ACCIDENT, FRAUDULENT OR ILLEGAL MEANS, INCLUDING HACKING, OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND MERCHANT CHIMP’S REASONABLE CONTROL. YOU EXPRESSLY AGREE THAT MERCHANT CHIMP WILL NOT BE LIABLE FOR ANY LOSS ARISING FROM INFILTRATION OF THE WEBSITE BY MEANS OF SOFTWARE VIRUSES, TROJANS, WORMS, OR ANY OTHER SOFTWARE PROGRAMS, MALWARE OR TECHNOLOGY DESIGNED OR INTENDED TO DAMAGE, DISRUPT, INTERCEPT OR EXPROPRIATE DATA FROM THE SITE.

AS A CONDITION TO USE THE WEBSITE, YOU AGREE THAT NEITHER MERCHANT CHIMP, NOR ANY OFFICER, AFFILIATE, DIRECTOR, AGENT, CONTRACTOR, SHAREHOLDER OR EMPLOYEE OF MERCHANT CHIMP WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSS OF PROFITS, DAMAGES, EXPENSES, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, OR COSTS RESULTING DIRECTLY OR INDIRECTLY FROM, OR OTHERWISE ARISING IN CONNECTION WITH THE WEBSITE. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY TO THE ACTS, NEGLIGENCE, OMISSIONS, AND GROSS NEGLIGENCE OF MERCHANT CHIMP AND ITS AFFILIATES, PARENTS, SUBSIDIARIES, SHAREHOLDERS, MANAGERS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, OFFICERS, DIRECTORS, AND AGENTS, WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO A COURSE OF ACTION IN CONTRACT, OR ANY OTHER LEGAL DOCTRINE.

10) LIMITATION

EXCEPT AS OTHERWISE LIMITED, OUR LIABILITY AND THE LIABILITY OF OUR PARENT, SUBSIDIARIES, EMPLOYEES, OFFICERS, DIRECTORS, AND AGENTS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCES UNDER THE TERMS SHALL BE LIMITED TO THE LESSER OF THE AMOUNT YOU PAY US IN THE 30 DAYS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR $100.

11) INDEMNIFICATION

You agree to indemnify, defend, and hold harmless Merchant Chimp, its parents, subsidiaries, affiliates, directors, contractors, agents, officers, shareholders, and employees, from any claim or demand, including reasonable legal representatives’ fees and court costs, made by any third party due to, arising from or out of your use of the website, your breach or alleged breach of any representation, warranty or other obligation, your violation or alleged violation of any federal, state, international or local law and any and all regulations, rules or ordinances, the negligence or willful misconduct by you or your employees or agents, any violation of the Terms, your infringement of any intellectual property or other legal right of any person or entity or your marketing, promotion, advertising, sale, or distribution of any products or services. In the event you cause fines and penalties to be charged to Merchant Chimp by the Credit Card Associations or any other entity, you agree to reimburse Merchant Chimp immediately for said fines or/and penalties.

12) DISCLOSURE; FORWARD-LOOKING STATEMENTS

Certain statements that aren’t historical fact contained on the website might constitute forward-looking statements. Such statements include, without limitation, statements about operating and future financial performance of Merchant Chimp, as well as the Merchant Chimp’s plans, strategies, partnerships, products, service markets, successes, growth prospects, cost-effectiveness and security of new products, services, objectives, expectations, intentions or other statements that are not historical fact. Such statements are based on the then current beliefs and expectations of the management of the Merchant Chimp and are subject to significant risks and uncertainty. Actual results may vary materially from those contained in forward-looking statements based on a number of factors including, without limitation, dependence on a limited number of clients, the Merchant Chimp’s revenue concentration in the moving business and the declining subscriber growth rate in that business, the adverse impact that the financial and operating difficulties of the Merchant Chimp’s clients may have on the Merchant Chimp’s future revenues, and financial and operating results, continuing rapid change in the telecommunications industry and other markets in which the Merchant Chimp does business that may affect both the Merchant Chimp and its clients, potential state, federal, and international regulation of voice conferencing or other services and related compliance and operating costs, regulatory assessments, and potential suspensions of service pending compliance with such regulation, uncertainties associated with the Merchant Chimp’s ability to develop new products, services, and technologies, market acceptance of the Merchant Chimp’s new products, services, and technologies and continuing demand for the Merchant Chimp’s products, services, and technologies, the impact of competitive products, services, and pricing on both Merchant Chimp and its clients, future and current economic conditions, including, without limitation, decreases or delays in capital spending by carriers and in new subscriber growth, and global economic recession, integration, employee retention, recognition of cost and other benefits and revenue synergies, and other risks associated with acquisitions, the Merchant Chimp’s ability to execute on its objectives, plans, or strategies including, without limitation, product or services development plans, the mobile business strategy and the plans to develop alliances and grow its client base, economic and political instability in the domestic and international markets, including, without limitation, the impact of terrorist threats and hostilities and the declaration of war or similar actions, uncertainties associated with the Merchant Chimp’s ability to expand into new markets, including, without limitation, the mobile business market, the impact of restructuring charges and other charges on the Merchant Chimp’s business and operations, the industry risks associated with Merchant Chimp’s operations and business including, without limitation, improper or illegal uses of Merchant Chimp’s payment system, unauthorized intrusions or attacks on Merchant Chimp’s payment system that might impair the operations of its payment system, changes or failures to comply with credit card association rules, governmental regulation, as well as the application of existing laws to Merchant Chimp’s business and dependence on relationships with third party payment processors, and the factors disclosed in the Merchant Chimp’s filings with the U.S. Securities and Exchange Commission including, without limitation, its most recent Annual Report on Form 10-K. Merchant Chimp undertakes no obligation to update any forward-looking statements. Nothing contained in this website constitutes an offer to sell or solicitation of an offer to buy any of the Merchant Chimp’s securities.

13) ACCESS TO PASSWORD PROTECTED AND OTHER SECURE AREAS

Access to and use of password protected and secure areas of the website is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the website may be subject to prosecution.

14) SERVICES OFFERED BY MERCHANT CHIMP

When you enroll to obtain services from the Merchant Chimp, you accept the specific terms and conditions applicable to those services in accordance with the applicable Service Agreement. Except as provided in the Service Agreement, Merchant Chimp does not warrant that any service description or content contained on the website is current, accurate, reliable, complete, or error-free.

15) TERMINATION & EFFECT

Merchant Chimp might terminate access to the website, with or without cause, at any time, and effective immediately. Termination shall be accompanied by written or electronic notice to you. Merchant Chimp shall not be liable to you or any third party for termination. Should you object to any provision of the Terms of Use or any subsequent modifications thereto, your only recourse is immediately to terminate use of the website and notify Merchant Chimp of termination. Upon termination of access to the website, your right to use the website shall immediately cease.

16) PRIVACY POLICY

Information collected by the website will be treated in accordance with Merchant Chimp’s Privacy Policy.

17) GOVERNING LAW & JURISDICTION

The website is accessible in all fifty states and other countries, and each of these places has laws that may differ from those of California and from each other. As you and Merchant Chimp both benefit from establishing a predictable legal environment in which to publish, access and use the website, by publishing, accessing, and/or using this website, you and Merchant Chimp agree that all matters arising from or relating to the use and operation of this website will be governed by the laws of the State of California, without regard to its conflicts of laws principles. You agree that all claims that it might have arising from or relating to the operation or use of this website will be heard and resolved in the courts of Los Angeles, CA. You consent to the personal jurisdiction of such courts over it, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any objections to proceeding in such courts.

18) TRADEMARKS

Merchant Chimp, the Merchant Chimp logo, are registered trademarks of the Merchant Chimp, and Merchant Chimp YOUR GATEWAY TO IP TRANSACTIONS, AUTOMATED RECURRING BILLING, ADVANCED FRAUD DETECTION SUITE, Merchant Chimp VERIFIED MERCHANT SEAL and CUSTOMER INFORMATION MANAGER are trademarks of Merchant Chimp. All other companies and product names referenced herein are the trademarks or registered trademarks of their respective holders. This list may be modified from time-to-time in Merchant Chimp’s discretion. You shall not register or attempt to register any of Merchant Chimp’s marks or trademarks that would reasonably be deemed to be confusingly similar to any of Merchant Chimp’s marks or trademarks. You shall comply with all standards with respect to the Company’s marks, and all uses of the marks shall be consistent with Merchant Chimp standards.

19) FORCE MAJEURE

Merchant Chimp shall not be liable for any losses arising out of the delay or interruption of its performance of obligations due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions by a third party, infiltration or disruption of services by a third party, or other catastrophes or occurrences that are beyond Merchant Chimp’s reasonable control.

20) GENERAL

In the event that any provision of the Terms of Use shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of the Terms of Use. Merchant Chimp’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar violations. In the event of a conflict between the Terms of Use and the applicable Service Agreement, the latter shall govern.

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Merchant Chimp Inc. is a registered ISO of Wells Fargo Bank, N.A., Concord, CA.
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